State v. Milner

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

v. ) Crim. ID No. 2010011141 )

THEODORE S. MILNER )

Submitted: October 13, 2022 Decided: January 3, 2023

ORDER

Upon Defendant Theodore S. Milner’s Motions for a New Trial and for Judgment of Acquittal, DENIED.

This 3rd day of January, 2023, having considered Defendant Theodore S.

Milner’s Motion for a New Trial (D.I. 41); Motion for Judgment of Acquittal (D.I.

42); the State’s Response thereto (D.I. 49; D.I. 50); and the record in this matter; it

appears to the Court that:

(1) Defendant Theodore S. Milner was arrested, charged with, and

eventually indicted for with two counts of Possession of a Firearm by a Person

Prohibited (“PFBPP”).1

(2) After a three-day jury trial, Mr. Milner was found guilty of one count

1 See Indictment, State v. Theodore S. Milner, ID No. 2010011141 (Del. Super. Ct. July 6, 2021)

(D.I. 13).

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of PFBPP and not guilty of the other.2 Before the matter was submitted to the jury,

Mr. Milner had moved unsuccessfully for judgment of acquittal. He argued then

that the State failed to establish he “had knowledge of the firearms being in the

vehicle.”3 Now before the Court is Mr. Milner’s renewed request seeking to have

the Court vacate the jury’s verdict and enter judgments of acquittal on both of his

charges.4 If not, he urges that the Court should at least grant him a new trial.5

(3) According to Mr. Milner, his motion for judgment of acquittal and

motion for a new trial should be granted because there was insufficient evidence to

find he had knowledge a firearm was in the glovebox of the SUV he was driving.6

Exclusive to his motion for a new trial, Mr. Milner asserts the jury verdict was

inconsistent and that inconsistency coupled with insufficient evidence requires a new

trial.7

(4) Mr. Milner has been consistent in challenging just one element essential

to his conviction: knowledge.8 Mr. Milner says, “even in the light most favorable to

2 Verdict Form, State v. Theodore S. Milner, ID No. 2010011141 (Del. Super. Ct. July 28, 2022)

(D.I. 37). 3 July 27, 2022 Trial Tr. at 73 (D.I. 47).

4 Mot. for Judgment of Acquittal at 1, Aug. 2, 2022 (D.I. 42).

5 Mot. to New Trial at 1, Aug. 2, 2022 (D.I. 41).

6 Id. ¶ 10; Mot. for Judgment of Acquittal ¶ 8.

7 See Mot. for New Trial ¶ 9.

8 July 27, 2022 Trial Tr. at 73; Mot. for New Trial ¶ 10; Mot. for Judgment of Acquittal ¶ 8.

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the State there is little to no evidence that was presented to establish that [he] knew

or was aware of that fact that . . . firearms were in the locked glove box of the Nissan

Armada he was driving . . . .”9

(5) The State, in response to both motions, argues “viewing the evidence

and all reasonable inferences therefrom in [the] light most favorable to the State . . .

there is clearly sufficient evidence to support that a reasonable jury could find the

Defendant guilty beyond a reasonable doubt.”10 And in response to the motion for

a new trial, the State argues Mr. Milner’s significant other’s testimony “that she kept

one gun in the vehicle and one in her home” explains any potential inconsistency in

the verdict.11

(6) The Court briefly recounts here just the most salient evidence

presented. On October 23, 2020, Officer Roberto Ieradi pulled over Mr. Milner’s

vehicle because of a traffic violation.12 During an initial search of that vehicle,

Officer Ieradi found a handgun holster in the vehicle’s unlocked center console.13

(7) During a subsequent search of the vehicle, police found a secured

lockbox in the rear of the vehicle.14 Officers had found the lockbox key on

9 Mot. for Judgment of Acquittal ¶ 8.

10 Response to Mot. for Judgment of Acquittal at 6, Oct. 14, 2022 (D.I. 49).

11 Response to Mot. for New Trial at 7, Oct. 20, 2022 (D.I. 50).

12 July 26, 2022 Trial Tr. at 22-25 (D.I. 46).

13 Id. at 31-32.

14 Id. at 39.

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Mr. Milner.15 That lockbox contained a loaded handgun magazine.16 And that

magazine fit one of the two firearms later discovered in the vehicle’s glovebox—

though not the specific model for which Mr. Milner was ultimately convicted.17

(8) Officers were able to open the SUV’s locked glovebox using another

key from Mr. Milner’s key ring; that key ring also held the vehicle’s ignition key.18

And Mr. Milner specifically referred to the vehicle as “my truck.”19

(9) In his truck’s glovebox, the police found two firearms—a Smith &

Wesson handgun and a SCCY handgun.20 The SCCY was in a holster; the Smith &

Wesson was not.21 Mr. Milner told the police that neither of the guns were his but,

instead, belonged to his significant other Amanda Grenardo.22

(10) Ms. Grenardo testified that she owned both firearms and “usually kept

one in the house and one in the car . . . ,”23 but that she had intended to go to the gun

range a few days before Mr. Milner’s arrest and had inadvertently left both firearms

15 Id.

16 Id. at 39-40.

17 Id. at 40.

18 July 27, 2022 Trial Tr. at 21, 36.

19 Id., State’s Ex. 15.

20 Id. at 21.

21 Id.

22 Id. at 27. According to Mr. Milner, Ms. Grenardo is the mother of most of his children and he often stays at her residence. Id., State’s Ex. 15. 23 Id. at 85.

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in the car.24

MOTION FOR JUDGMENT OF ACQUITTAL

(11) “A convicted criminal defendant must clear a high bar to prevail on a

motion for judgment of acquittal.”25 To do so, “[a] defendant may contest a verdict

by arguing that the State failed to introduce sufficient evidence at trial to sustain a

conviction.”26 “When evaluating the motion, the Court considers the evidence,

‘together with all legitimate inferences therefrom . . . from the point of view most

favorable to the State.’”27 “The Court must be mindful that the jury, not the judge,

is the factfinder, and . . . ‘[t]he jury’s function is to decide whether the evidence

presented at trial proves, beyond a reasonable doubt, that the defendant committed

the charged crimes.’”28 “[T]he relevant question is whether, after reviewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”29 “For

the purpose of reviewing a claim of insufficient evidence there is no distinction

24 Id. at 88-89.

25 State v. Thomas, 2019 WL 669934, at *3 (Del. Super. Ct. Feb. 8, 2019).

26 Parsons v. State, 2017 WL 5900954, at *2 (Del. Nov. 29, 2017) (citations omitted).

27 State v. Clark, 2018 WL 7197607, at *3 (Del. Super. Ct. Oct. 1, 2018) (quoting State v. Biter, 119 A.2d 894, 898 (Del. Super. Ct. 1955)). 28 Clark, 2018 WL 7197607, at *3 (second alteration in original) (quoting Washington v. State, 4 A.3d 375, 378 (Del. 2010)). 29 Parsons, 2017 WL 5900954, at *2 (emphasis and alteration in original) (quoting Skinner v.

State, 575 A.2d 1108, 1121 (Del. 1990)).

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between direct and circumstantial evidence.”30

(12) To prove constructive possession of a firearm for a PFBPP charge, the

State must establish that the defendant: “(1) knew the location of the gun,” and

“(2) had the ability to exercise dominion and control over the gun.”31

(13) “Constructive possession may be proven with circumstantial

evidence.”32

(14) When viewing the totality of the evidence and the reasonable inferences

drawn therefrom in the light most favorable to the State, a reasonable trier of fact

could find Mr. Milner knew there was at least one firearm in his truck’s glovebox.

The jury was presented with evidence that: (a) Mr. Milner was the owner of the

vehicle; (b) Mr. Milner was the only person in the vehicle when it was stopped;

(c) he was within arm’s reach distance of the firearm; and, (d) he possessed the key

to the glovebox where the firearm was stored. The jury heard this evidence firsthand

from the investigating officer and watched body-camera footage of the stop and

ensuing interaction.

(15) The jury also heard Mr. Milner’s words and saw his actions—both

30 Desmond v. State, 654 A.2d 821, 829 (Del. 1994) (citing Shipley v. State, 570 A.2d 1159, 1170 (Del. 1990)). 31 State v. Clayton, 988 A.2d 935, 936 (Del. 2010) (quoting Lecates v. State, 987 A.2d 413, 426 (Del. 2009)). Mr. Milner stipulated he was a person prohibited from possessing a firearm. D.I. 39. 32 Bessicks v. State, 2017 WL 1383760, at *2 (Del. Apr. 13, 2017) (citing Lecates, 987 A.2d at 426).

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when at the scene and when later interviewed. This latter evidence included

statements that he was the owner of the truck and that he had showed Ms. Grenardo

“how to break [the firearms found in the vehicle] down, showed her how to clean

[those firearms], and showed her how to load the clips.”33

(16) The jury derived these facts and circumstances from trial evidence,

drew reasonable inferences therefrom, and found Mr. Milner guilty beyond a

reasonable doubt of one of the two PFBPP charges.

(17) Recall that the only element for which Mr. Milner claims insufficiency

is his knowing possession or control of a firearm. As the Court instructed this jury

(as it does all criminal juries):

It is, of course, difficult to know what is going on in another person’s mind. Therefore, you are permitted to draw an inference, or in other words, to reach a conclusion about the Defendant’s state of mind from the facts and circumstances surrounding the act that the defendant is alleged to have done.34

(18) Put simply, it is well understood that proof of a knowing state of mind

is usually built from circumstantial evidence.35

33 July 27, 2022 Trial Tr., State’s Ex. 15.

34 Id. at 179-80.

35 Deputy v. State, 500 A.2d 581, 597 (Del. 1985) (noting “the problems involved in proving the existence of a person’s state of mind necessitate some reliance on circumstantial evidence”); see Smith v. State, 913 A.2d 1197, 1254 (Del. 2006) (“It is not unusual in a criminal case to rely upon circumstantial evidence.”); Forrest v. State, 721 A.2d 1271, 1279 (Del. 1999) (noting there is “no distinction between circumstantial and direct evidence when considering the quantum necessary to support a conviction” (citation omitted)).

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(19) The jury, having heard and seen all the evidence offered by the State,

reasonably concluded there was sufficient evidence to support Mr. Milner’s PFBPP

conviction, i.e., he was indeed knowingly in possession or control of at least one of

the two firearms when stopped by police.36 The Court cannot quarrel with the

rationality of the verdict.

MOTION FOR A NEW TRIAL

(20) Under Superior Court Criminal Rule 33, upon a defendant’s motion,

the Court may “grant a new trial to that defendant if required in the interest of

justice.”37 “A new trial is warranted ‘only if the error complained of resulted in

actual prejudice or so infringed upon defendant’s fundamental right to a fair trial as

to raise a presumption of prejudice.’”38

36 The Court instructed the jury there were two alternative theories on which it could determine possession:

A person who knowingly has direct control over a thing at a given time is regarded to be in actual possession of it. In other words, a person is generally regarded as being in actual possession of an item when it is under the person’s dominion and control and to the person’s knowledge, either is carried on his person or in his presence or custody, or, if not on his person or in his presence, the possession thereof is immediate, accessible, and exclusive to him. In addition to actual possession, possession includes location in or about the defendant’s person, premises, belongings, vehicle, or otherwise within his reasonable control. In other words, a person who, although not in actual possession, has both the power and intention at a given time to exercise control over an item, either directly or through another person or persons, is then in constructive possession of it.

July 27, 2022 Trial Tr. at 175. 37 Del. Super. Ct. Crim. R. 33.

38 State v. Ryle, 2015 WL 5004903, at *1 (Del. Super. Ct. Aug. 14, 2015) (quoting Hughes v.

State, 490 A.2d 1034, 1043 (Del. 1985)).

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(21) Mr. Milner asserts insufficiency of evidence and an inconsistent verdict

warrant the grant of a new trial here.39 But as just explained, any rational factfinder

could have found beyond a reasonable doubt that Mr. Milner knew there was at least

one firearm in his truck’s glovebox. It might seem inconsistent that Mr. Milner was

convicted for just one firearm when, in fact, there were two found when the glovebox

was opened. But that seeming inconsistency is easily understood considering

Ms. Grenardo’s testimony that she was the listed purchaser of the two firearms and

routinely kept one in the glovebox and the other in her home.40 According to

Ms. Grenardo, it was mere happenstance that both were there in the SUV at that

given time. So, the jury could have reasonably concluded that Mr. Milner knew

there to be at least one firearm in the SUV’s glovebox—as that was the norm—but

not both.

(22) Even assuming for a moment that such a result is inconsistent—which

it isn’t—the Delaware Supreme Court has instructed: “If the inconsistency can be

39 Mot. for New Trial ¶¶ 7-10.

40 July 27, 2022 Trial Tr. at 85. The fact that Ms. Grenardo identified herself as the “purchaser”

or “owner” of the firearms is of no moment here. The State needed only prove that at time alleged Mr. Milner “did knowingly purchase, own, possess, or control a firearm.” Indictment, at 1 (emphasis added). See Del. Super. Ct. Crim. R. 7(c)(1) (it may be alleged in a single count of an indictment that the accused committed the charged offense by one or more specified means); see also DEL. CODE ANN. tit. 11, § 1448 (2020) (providing that a person prohibited commits PFBPP when he “knowingly possesses, purchases, owns or controls” a firearm) (emphasis added).

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explained in terms of jury lenity, the convictions may stand.”41 And under that

rule,42 as long as the State presented sufficient evidence to “establish[] that a rational

fact finder could have found the defendant guilty beyond a reasonable doubt,” even

with an inconsistent verdict, the conviction will stand.43 The State did.

(23) Accordingly, the Court finds Mr. Milner has not demonstrated that it is

the interest of justice for him to receive a new trial.

IT IS HEREBY ORDERED, that both Theodore Milner’s Motion for

Judgment of Acquittal and Motion for a New Trial are DENIED. This matter will

now be scheduled for sentencing on the single PFBPP count of which Mr. Milner

was convicted.

__________________________

Paul R. Wallace, Judge

Original to Prothonotary cc: Jeffrey M. Rigby, Deputy Attorney General Brian J. Chapman, Esquire Investigative Services Office

41 Tilden v. State, 513 A.2d 1302, 1306 (Del. 1986) (citing United States v. Powell, 469 U.S. 57 (1984) and United States v. Uzzolino, 651 F.2d 207 (3d Cir. 1981), cert. denied, 454 U.S. 865 (1981)). 42 “Under the rule of jury lenity, [a court] may uphold a conviction that is inconsistent with another jury verdict if there is legally sufficient evidence to justify the conviction.” King. v. State, 2015 WL 5168249, at *2 (Del. Aug. 26, 2015) (citing Tilden, 513 A.2d at 1306-07). 43 Tilden, 513 A.2d at 1307 (citing Jackson v. Virginia, 443 U.S. 307 (1979)).