Ross v. State

• Court: Supreme Court of Delaware
• Decided: February 20, 2025
• Docket: 242, 2024
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

LARRY ROSS, § § No. 242, 2024 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § Cr. ID Nos. 2304015612, STATE OF DELAWARE, § 2207016683 & 2203012499 (K) § Appellee. §

Submitted: December 30, 2024 Decided: February 20, 2025

Before SEITZ, Chief Justice; VALIHURA and GRIFFITHS, Justices.

ORDER

After consideration of the appellant’s Supreme Court Rule 26(c) brief, the

State’s response, and the record on appeal, it appears to the Court that:

(1) A Superior Court jury found the appellant, Larry Ross, guilty of

multiple crimes, including stalking, criminal contempt of a domestic violence

protective order, and harassment. The Superior Court sentenced Ross to a total of

ten years of Level V incarceration, suspended after one year and nine months for

decreasing levels of supervision. This is Ross’s direct appeal.

(2) The charges against Ross arose from his actions toward his ex-wife,

Kizzie Green. After an incident in March 2022, a grand jury charged Ross with

possession of a deadly weapon during the commission of a felony (“PDWDCF”), aggravated menacing, terroristic threatening, harassment, and second-degree

criminal trespass in Criminal ID No. 2203012499. Following Ross’s appearance at

Green’s residence in July 2022, a grand jury charged him with non-compliance with

bond conditions and criminal contempt of a domestic violence protective order in

Criminal ID No. 2207016683. And based upon text messages Ross sent to Green

between February and April 2023, a grand jury charged him with stalking, non-

compliance with bond conditions, and criminal contempt of a domestic violence

protective order in Criminal ID No. 2304015612. In September 2023, a grand jury

re-indicted Ross for the charges in all three cases. In January 2024, the Superior

Court granted the State’s motion to amend the harassment, second-degree criminal

trespassing, and stalking counts.

(3) The evidence presented at trial established that Ross and Green were

married for seven years and had two children together. After they separated in early

2021, Green moved with the children into her parents’ house. Ross and Green

divorced in March 2022.

(4) On January 10, 2022, Green obtained a default protection-from-abuse

(“PFA”) order against Ross from the Family Court. The PFA order prohibited Ross

from harassing Green or coming within 100 yards of her person, residence, or

workplace. The PFA order was served upon Ross on May 18, 2022, and was

effective until January 10, 2024.

2 (5) On the morning of March 23, 2022, Green left for work in her Chevrolet

Malibu. She had owned the car during her marriage to Ross, but it was registered to

her only. Based on Ross’s recent behavior, Green kept a kitchen knife in the center

console of her car for protection. As Green was driving in the neighborhood to go

to work, Ross stepped in front of the car, forcing her to stop. Green thought the car

doors were locked, but Ross somehow managed to get into the car, possibly with an

old key fob.

(6) Ross started talking, and Green told him that she did not have time to

talk because she was on her way to work and running late. Ross begged Green to

take him to his car, which he said was at a nearby gas station. Green agreed to do

so because Ross was already in the car.

(7) When Green arrived at the gas station, she repeatedly asked Ross to get

out of the car. Ross refused, insisting that they talk about their relationship. Green

told Ross she was going to call the police if he didn’t get out of her car. At that

point, Green testified that Ross picked up the knife from the middle console, held it

toward her in a threatening manner, and said “[s]omething like maybe I’ll kill us

both or I’ll kill you.”1 Green jumped out of the car and called 911. She saw Ross

flee on foot.

1 Op. Br. App. at A189.

3 (8) The police arrived shortly thereafter and collected the knife from the

passenger seat of Green’s car. No fingerprints were detected on the knife and no

DNA testing was performed. While Green was speaking to the police, Ross texted

her:

Why did you call the police. I told you to take your car. I was leaving. I just wanted answers. I love you. I would never hurt you.2

(9) Corporal Adam Smith of the Delaware State Police watched the video

surveillance footage from the gas station. He testified that the footage showed

Green’s car with two people in it, including a man in the passenger seat, parked near

a gas pump. He did not see a knife. After the car drove out of sight, a different

camera angle showed Green walking away from the car with a man following her.

Corporal Smith asked the gas station attendant to send the video footage to him, but

he never did.

(10) Based on the State’s failure to collect the surveillance video, Ross

requested a Lolly/Deberry3 jury instruction. The Superior Court denied the motion,

holding that Ross would not be substantially prejudiced by the missing surveillance

2 Id. at A202. 3 Lolly v. State, 611 A.2d 956, 962 (Del. 1992) (holding that failure to gather material evidence entitles defendant to favorable inference instruction based on the missing evidence); Deberry v. State, 457 A.2d 744, 750 (Del. 1983) (holding that if State fails to preserve important physical evidence the defendant may be entitled to a jury instruction that the missing evidence would have been exculpatory).

4 video because it did not capture the entire incident and the police officer who

watched the video could be cross-examined about any discrepancies between the

video and Green’s testimony. Corporal Smith was extensively cross-examined

about the video, including his testimony that the video showed Green walking away

from the car, not running away as she told him.

(11) Shortly after this incident, Green moved to a new home. She did not

share the address with Ross. On May 18, 2022, Ross was arrested for the March

incident and served with the PFA order. His bail conditions included having no

direct or indirect contact with Ross, her residence, or her workplace. He also had to

stay at least 100 yards away from Ross and her residence and was prohibited from

sending her text messages.

(12) On July 30, 2022, around 2:51 a.m., Green’s doorbell camera recorded

Ross looking into her car, which was parked directly in front of her house. The

recording also showed Ross approaching the house. Neither Green nor her children

had invited Ross to the house. Green was scared when she saw Ross on the camera

because she didn’t know how he had discovered where she lived.

(13) On April 30, 2023, Green went to the Smyrna police about texts Ross

was sending her. In the expletive-laden texts, Ross repeatedly accused Green of

having an affair, seeing other people, taking their children, and ruining his life. Ross

threatened to “expose” Green, guaranteeing she wouldn’t “find the results f***king

5 funny.”4 In a February 22, 2023 text message, Ross acknowledged the PFA order,

stating “[y]ou lied on my life to cover your f***king infidelity and dragging our

children in the middle of it by naming them in that protective order in which is still

active.”5 Green felt threatened by Ross’s text messages and was concerned that he

was becoming delusional because he was saying things that were untrue. Officer

Ian McCardle took screen shots of the text messages on Green’s phone, but did not

seek a subpoena to recover the texts.

(14) The jury found Ross not guilty of PDWDCF, aggravated menacing, and

terroristic threatening. The jury found Ross guilty of the remaining charges—

harassment, second-degree criminal trespass, two counts of non-compliance with

bond conditions, two counts of criminal contempt, and stalking. The Superior Court

sentenced Ross to a total of ten years of Level V incarceration, suspended after one

year and nine months for decreasing levels of supervision.

(15) On appeal, Ross’s appellate counsel (“Counsel”) filed a brief and a

motion to withdraw under Supreme Court Rule 26(c). Counsel asserts that, based

upon a complete and careful examination of the record, there are no arguably

appealable issues. Counsel informed Ross of the provisions of Rule 26(c) and

provided Ross with a copy of the motion to withdraw and the accompanying brief.

4 A258; A277-78. 5 A246-47.

6 (16) Counsel also informed Ross of his right to identify any points he wished

this Court to consider on appeal. Ross has raised points for this Court’s

consideration. The State has responded to the Rule 26(c) brief and has moved to

affirm the Superior Court’s judgment.

(17) When reviewing a motion to withdraw and an accompanying brief

under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a

conscientious examination of the record and the law for arguable claims; and (ii)

conduct its own review of the record and determine whether the appeal is so totally

devoid of at least arguably appealable issues that it can be decided without an

adversary presentation.6

(18) Ross’s arguments may be summarized as follows: (i) he could not have

violated the PFA order because it was entered by default and unserved; (ii) the

doorbell recording did not show him committing any criminal conduct; (iii) the

second-degree criminal trespassing conviction was too harsh for what the evidence

showed; (iv) the Superior Court should have instructed the jury that harassment and

aggravated harassment are lesser included offenses of stalking; (v) the not-guilty

verdicts for the PDWDCF, terroristic threatening, and aggravated menacing charges

meant that he could not have be found guilty of the other charges; (vi) Green made

false accusations, deleted text messages she sent him, and contacting him while he

6 Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).

7 was subject to the PFA order and bond conditions; and (viii) his sentence is too long.

After careful review, we find no merit to these arguments.

(19) Because the criminal contempt charges were based on Ross’s violation

of the PFA Order by going to Green’s house in July 2022 and sending her text

messages in 2023, we construe Ross’s first argument as a claim that there was

insufficient evidence to support the criminal contempt convictions. Generally, we

review an insufficiency of evidence claim to determine whether any rational trier of

fact, viewing the evidence in the light most favorable to the State, could have found

the defendant guilty beyond a reasonable doubt.7 Because Ross did not move for a

judgment of acquittal in the Superior Court, we review this claim for plain error.8

“[T]he doctrine of plain error is limited to material defects which are apparent on the

face of the record; which are basic, serious and fundamental in their character, and

which clearly deprive an accused of a substantial right, or which clearly show

manifest injustice.”9

(20) There is no plain error here. To establish that Ross was guilty of

criminal contempt of a domestic violence protective order, the State had to prove

that he knowingly violated or failed to obey any provision of a protective order

7 Farmer v. State, 844 A.2d 297, 300 (Del. 1990). 8 Supr. Ct. R. 8; Swan v. State, 820 A.2d 342, 358 (Del. 2003). 9 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).

8 issued by the Family Court.10 The issuance of the PFA order as a default judgment

based on Ross’s failure to appear for the hearing did not invalidate the PFA order,

which prohibited Ross from going to Green’s residence or contacting Green by text

message. The evidence that Ross committed criminal contempt included the

existence of the PFA Order, police officers’ testimony that the Criminal Justice

Information System showed that Ross was served with the PFA order on May 18,

2022, Ross’s acknowledgment of the PFA order in a February 2023 text message,

the doorbell video of Ross at Green’s house on July 31, 2022, and the text messages

Ross sent to Green in February 2023. Based on this evidence, a rational jury could

find that Ross was guilty of criminal contempt.

(21) We construe Ross’s second argument—that the doorbell video did not

show him committing any crimes—as challenging the sufficiency of the evidence

for the convictions arising from the July 31, 2022 incident. Those convictions

consisted of criminal contempt and non-compliance with bond conditions. As

previously discussed, Ross has not shown any plain error in the jury finding him

guilty of criminal contempt.11

(22) Ross also claims that he could not be convicted twice of criminal

contempt based on the same incident, but the convictions arose from different

10 11 Del. C. § 1271A. 11 See supra ¶ 20.

9 incidents and did not violate the multiplicity doctrine.12 To determine if there is a

violation of the multiplicity doctrine, the Court “generally weigh[s] whether the

defendant’s acts are sufficiently differentiated by time, location, or intended

purpose.”13 The criminal contempt conviction in Criminal ID No. 2207016683 arose

from Ross going to Green’s house in July 2022 while the criminal contempt

conviction in Criminal ID No. 2304015612 arose from Ross sending Green text

messages in February 2023. The July 2022 acts and February 2023 acts were

sufficiently separated by time, location, and purpose to justify separate charges.

(23) To establish that Ross was guilty of non-compliance with bond

conditions, the State had to prove that he knowingly violated conditions of bond

imposed in connection with felony charges.14 The evidence established that

Criminal ID No. 2203012499 included felony charges, the conditions of the bond in

Criminal ID No. 2203012499 included Ross staying at least 100 years away from

Green or her residence, Ross signed the conditions of bond, and the doorbell

recording showed Ross at Green’s house on July 31, 2022. Based on this evidence,

12 “The multiplicity doctrine, which is rooted in the prohibition against double jeopardy, prohibits the State from dividing one crime into multiple counts by splitting it ‘into a series of temporal or spatial units.’” Mills v. State, 201 A.3d 1163, 1668 (Del. 2019) (quoting Spencer v. State, 868 A.2d 821, 823 (Del. 2005)). 13 Id. 14 11 Del. C. § 2113.

10 a rational jury could find that Ross was guilty of non-compliance with bond

conditions in Criminal ID No. 2207016683.

(24) We also construe Ross’s argument that the second-degree criminal

trespassing conviction was too harsh for what the evidence showed as a claim that

the evidence was insufficient to support that conviction. To establish that Ross was

guilty of second-degree criminal trespass, the State had to prove that he knowingly

entered or remained unlawfully in a building.15 A “building…includes

any…vehicle.”16 The evidence that Ross committed second-degree criminal

trespassing included Green’s testimony that Ross entered her car without her

permission and refused to leave when she repeatedly told him to do so. Ross has not

shown any plain error in the jury finding him guilty of second-degree criminal

trespass.

(25) Ross next argues that the Superior Court should have instructed the jury

that harassment and aggravated harassment are lesser-included offenses of stalking.

Ross did not request a lesser-included instruction for the stalking charge so we

review for plain error.17 There is no plain error here because such an instruction

would have been inconsistent with Ross’s trial strategy. Ross’s defense at trial was

that the State did not prove that he sent the text messages underlying the stalking

15 11 Del. C. § 822. 16 11 Del. C. § 222(1). 17 Supr. Ct. R. 8; Keyser v. State, 893 A.2d 956, 960 (Del. 2006).

11 charge and that the messages were not harassing—not that the messages were

harassing, but did not the constitute the course of conduct necessary for stalking.

(26) Contrary to Ross’s belief, the jury’s acquittal of him on the charges of

PDWCF, aggravated menacing, and terroristic threatening did not require dismissal

of the other charges against him. The PDWCF, aggravated menacing, and terroristic

threatening charges arose from the March 2022 incident during which Green alleged

that Ross threatened her with a knife. Most of the remaining charges arose from

incidents that occurred months later and none of those incidents involved a weapon.

(27) Ross next accuses Green of making false accusations, deleting text

messages she sent him, and contacting him while he was subject to the PFA order

and bond conditions. Ross raised these claims at trial. Based on the verdict, the jury

did not find most of these claims credible. It is the sole province of the jury to

determine witness credibility, resolve any conflicts in the testimony, and draw any

inferences from the proven facts.18 The Court will not therefore substitute its

judgment for that of the jury.19

(28) Finally, Ross argues that his sentence is too long. Our review of

sentences is extremely limited.20 If a sentence falls win statutory limits, as Ross’s

does, we consider only whether the sentence is based on factual predicates that are

18 Morgan v. State, 922 A.2d 395, 400 (Del. 2007). 19 Poon v. State, 880 A.2d 236, 238 (Del. 2005). 20 Mayes v. State, 604 A.2d 839, 842 (Del. 1992).

12 false, impermissible, or lack minimal reliability, judicial vindictiveness or bias, or a

closed mind.21 Ross cannot show that his sentence is based on factual predicates

that are false, impermissible, or lack minimal reliability, judicial vindictiveness or

bias, or a closed mind.

(29) This Court has reviewed the record carefully and has concluded that

Ross’s appeal is wholly without merit and devoid of any arguably appealable issue.

We also are satisfied that Counsel has made a conscientious effort to examine the

record and the law and has properly determined that Ross could not raise a

meritorious claim in this appeal.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is affirmed. The motion to withdraw is moot.

BY THE COURT:

/s/ Collins J. Seitz, Jr. Chief Justice

21 Weston v. State, 832 A.2d 742, 746 (Del. 2003).