Kelsch v. State

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

EDWARD KELSCH, ) I.D. No. 1208003037
)
and )
)
SANDRA KELSCH ) I.D. No. 1208004171
)
Defendants-Appellants, )
)
v. )
)
STATE OF DELAWARE, )
)
Appellee )

CORRECTED OPINION1

Defendants Edward Kelsch and Sandra Kelsch were both convicted of

nineteen counts of Animal Cruelty or Neglect to Animals in the Court of

Common Pleas and now appeal to this court. The events giving rise to this

matter occurred at Defendants‘ residence which is situated along the Delaware

and Pennsylvania border. In their appeal, Defendants argue (1) the State of

Delaware failed to establish the State‘s territorial jurisdiction over the offenses,

(2) Kent County SPCA officers did not have the legal authority to apply for and

execute a search warrant in New Castle County, and (3) the information failed

to put Defendants on sufficient notice of the crimes charged and therefore

hindered their ability to prepare a proper defense.

After reviewing the briefs the court sua sponte questioned whether it had

jurisdiction to hear the appeal from some of the Defendants‘ multiple

1 This corrected opinion changes the criminal action numbers referred to in this opinion from
those of Court of Common Pleas to those of Superior Court. It also changes minor clerical
errors.

1
convictions because the sentences imposed for those convictions did not meet

the jurisdictional threshold for appeals to this court. At the court‘s request,

the parties made written submittals on the jurisdictional issue. In Part I of this

opinion the court holds that it lacks appellate jurisdiction to review some of the

convictions because the sentences imposed by the Court of Common Pleas do

not satisfy the threshold for this court‘s jurisdiction. In Part II it affirms the

convictions over which it does have appellate jurisdiction.2

Jurisdiction

On several occasions the Delaware Supreme Court has held that the

Superior Court‘s jurisdiction over appeals of criminal convictions in the Court

of Common Pleas is limited to those cases in which the trial court imposed a

sentence of imprisonment exceeding one month or a fine exceeding $100.3 An

appellant may not aggregate penalties of multiple offenses for the purpose of

meeting jurisdiction requirements.4

Before examining the specific sentences imposed, the court must address

a general issue raised by some of them. In several instances the trial court

imposed fines in excess of $100 but then suspended that fine. For example, in

15-07-21865 the court-below ordered defendant Edward Kelsch to ―Pay a fine of

2 The court notes that all of Defendants‘ appellate arguments applied to all of their
convictions. Therefore there are no arguments on the merits which the court was not able to
consider because of its partial dismissal of this appeal.
3 Kostyshyn v. State, 2010 WL 3398942 (Del.) (―like this Court, the Superior Court's appellate

jurisdiction in criminal matters is limited to cases in which the sentence shall be imprisonment
exceeding one (1) month, or a fine exceeding One Hundred Dollars ($100.00).‖); Vincent v.
State, 2006 WL 2787506 (Del.); Weaver v. State 779 A.2d 254 (Del. 2001).
4 Marker v. State, 450 A.2d 397, 399 (Del. 1982); Hurst, 2003 WL 1387136, at *1.
5 This number corresponds to CCP number 12-08-4028.

2
$1000, of which $1000 is suspended.‖ Defendant was not sentenced to any

period of incarceration or probation for that conviction, which means the

suspended fine cannot be re-imposed for a violation of probation. There is no

set of circumstances, therefore, under which Mr. Kelsch can be required to pay

any fine for his conviction in 15-07-2186. This court‘s appellate jurisdiction is

determined by the substance, not the language, of the sentence imposed by the

court-below, and consequently, the sentence for this conviction does not meet

the constitutional threshold. This court therefore lacks jurisdiction to hear the

appeal from 15-07-2186 and other convictions for which similar sentences

were imposed.

Applying the constitutional thresholds to the sentences imposed below,

this court holds it has jurisdiction over only the following:

Edward Kelsch

-2183 ($1000 fine, unsuspended)

-2184 ($1000 fine, unsuspended)

-2185 ($1000 fine, unsuspended)

Sandra Kelsch

-2203 ($1000 fine, unsuspended)

-2204 ($1000 fine unsuspended)

-2205 ($1000 fine unsuspended)6

None of the remaining sentences7 satisfy the threshold for this court‘s appellate

jurisdiction, and therefore the appeal of those convictions will be dismissed.

6 These numbers correspond to CCP numbers 12-08-4025, -4026, -4027, -4044, -4045, -4046
respectively.

3
 The Merits

The court will now turn to the merits of the portions of the appeal which

it has not dismissed.

Facts

Defendants‘ house and attached garage are located at 800 Chambers

Rock Road in New Castle County, Delaware. The border between Delaware and

Pennsylvania runs through that property. On August 3, 2012 officers of the

Kent County Society for the Prevention of Cruelty to Animals (―Kent County

SPCA‖), accompanied by a New Castle County police officer, a New Castle

county code enforcement officer and two Pennsylvania officials, executed a

search warrant on the property. Before doing so the SPCA officers went to the

trouble of satisfying themselves that the house and garage are on the Delaware

side of the property.8

7 The sentences imposed on Edward Kelsch were:
-2183 $1000 fine
-2184 $1000 fine; 6 months suspended for 1 year probation
-2185 $1000 fine; 6 months suspended for 1 year probation
-2186 $1000 fine suspended; 30 days suspended
-2187 $1000 fine suspended; 30 days suspended
-2188 $1000 fine suspended
-2189 through -2193, and -2250 community service
-2194 costs only
-2195 through -2199, and -2251 costs only

The sentences imposed on Sandra Kelsch were:
-2200 $1000 fine
-2201 $1000 fine
-2202 $1000 fine; 6 months suspended for 1 year probation
-2203 through -2205 30 days, suspended for 1 year probation
-2206 through -2210, and -2252 community service
-2211 costs only
-2212 through -2217 costs only
8 Officials from the State of Pennsylvania were also present. May 17, 2013 Tr. at 7.

4
 The officers first entered the garage, which they found was infested with

―thousands of flies‖ and smelled of urine and feces. Inside were thirteen dogs

confined in small wire cages. Their coats were stained yellow with urine and

the animals were living in their own feces. Following the search of the garage,

the officers entered the house. Much like the garage there was a strong stench

of urine and there were feces on the floors, walls, and kitchen counters. Five

dogs, fifteen cats and some ducks had free rein of the house; the cats were

using a bed as a litter box. Once the officers removed what they thought were

all the dogs in the home and garage, they asked defendant Edward Kelsch

whether there were any more dogs. He was untruthful, telling the officers there

were no more. Shortly thereafter the officers then found yet another dog, this

one was inside a closed, stench-filled room with piles of runny feces on the

floor. The dog could not stand and had maggots coming out of its rectum. It

was later euthanized by a veterinarian.

The defendants were arrested and charged with misdemeanor offenses

and violations concerning their care and treatment of the animals. Sandra

Kelsch was charged with: 19 counts of Animal Cruelty or Neglect to Animals;

19 counts of keeping unlicensed dogs; and 19 counts of keeping dogs which

had not been inoculated for rabies. Edward Kelsch was charged with 19 counts

of Animal Cruelty or Neglect. After a non-jury trial, the Court of Common Pleas

found the Defendants each guilty of 19 counts of Animal Cruelty or Neglect to

Animals, and acquitted Sandra Kelsch of the license and rabies inoculation

5
charges. There was another consequence of Defendants‘ conduct—New Castle

County declared their house unfit for human habitation.

Standard of Review

Appeals from the Court of Common Pleas ―are on the record and not tried

de novo.‖9 Where the Court of Common Pleas judge sits as the finder of fact,

an appeal from the decision is upon both the law and the facts.10 The scope of

this court‘s factual review, however, is narrowly circumscribed; it is limited to a

determination whether the trial judge‘s factual findings are ―clearly wrong‖ and

justice requires they be overturned.11 If the findings of fact ―are sufficiently

supported by the record and are the product of an orderly and logical deductive

process, the Superior Court must accept them, even though independently it

might have reached opposite conclusions.‖12 The evidence is sufficient if, when

viewed in the light most favorable to the State, ―any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.‖13

Analysis

Defendants make three arguments on appeal: (1) they argue that the

State failed to prove that the Court of Common Pleas had jurisdiction over

these crimes because it did not prove ―convincingly‖ that the crimes took place

in Delaware; (2) they contend that the evidence seized during a search of their

9 State v. Cagle, 332 A.2d 140, 142 (Del. 1974). This court applies the same standard of
review to an appeal from the Court of Common Pleas as the Supreme Court applies to appeals
from the Superior Court. Id.
10 Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972).
11 Cagle, 332 A.2d at 142; Levitt, 287 A.2d at 673.
12 Cagle, 332 A.2d at 142.
13 Kupchinski v. State, 2010 WL 1367753, at *2 (Del. Super.).

6
property was tainted because the SPCA officers conducting the search had not

taken an oath of office in New Castle County; and (3) they assert that the

Information did not provide them with enough information to prepare a defense

because it did not link a specific dog to each of the nearly identical allegations

in the Information. These arguments are without merit.

I. The Court of Common Pleas Had Territorial Jurisdiction Over the
Offenses

Defendants contend that the State failed to establish that the crimes

occurred in Delaware and thus the Court of Common Pleas lacked jurisdiction

to hear this case. For want of a better term, this court will refer to this as

―territorial jurisdiction.‖ In addition to the dispute over whether the evidence is

sufficient to support the trial court‘s find that the crimes occurred in Delaware,

there is a dispute over the evidentiary standard to apply to the facts

surrounding the jurisdictional issue. The State claims that the appropriate

standard is ―beyond a reasonable doubt‖; whereas, although their briefs waffle

a bit, the defendants seem to claim that the State was required to

―conclusively‖ prove that the crimes occurred in this state. This court finds

that: (1) ―beyond a reasonable doubt‖—not ―conclusively‖—is the standard of

proof to be applied here, and (2) there is sufficient evidence in the record to

support the Court of Common Pleas‘ finding that the State proved territorial

jurisdiction.

7
 A. The standard of proof for territorial jurisdiction issues is
“beyond a reasonable doubt.”

Defendants vacillate on the standard of proof for territorial jurisdiction

questions in criminal cases. At some points in their briefs they state that the

appropriate standard is ―beyond a reasonable doubt,‖14 at others they argue

the standard is ―conclusively;‖15 at still others they argue both;16 and finally

they seem to argue a hybrid standard applies.17 All of this means that the

court must reexamine the standard of proof applicable here.

The Delaware Code leaves no doubt that the standard to be applied here

is ―beyond a reasonable doubt.‖ The analysis is a simple one. First, Title 11

provides that territorial jurisdiction is an element of an offense: ―Facts

establishing jurisdiction and venue . . . must also be proved as elements of the

offense.‖18 Second, Title 11 also provides that the State must prove the

existence of the elements of an offense ―beyond a reasonable doubt.‖19 It

14 Op. Br. D.I. 12 at 8 (―the State bears the burden of establishing, beyond a reasonable
doubt, that the offense . . .occurred in the State of Delaware‖).
15 Id. at 12 (―the State failed to conclusively establish that the actions constituting the offense
. . . occurred in Delaware.‖); Id. 13 (―the State did not conclusively establish that the crimes . . .
occurred in Delaware.‖); Reply Br. D.I. 17 at 4 (―the conduct constituting the offense . . . must
be conclusively shown to have taken place in Delaware.‖[emphasis in original); (the evidence
―does not conclusively establish jurisdiction.‖)(―The State was required to conclusively show . .
.that the conduct occurred in Delaware.‖).
16 Op. Br. D.I. 12 at 13 (―the State failed to meet its burden of establishing jurisdiction either
conclusively or beyond a reasonable doubt.‖); Reply Br. D.I. 17 at 4 (―the evidence offered is
insufficient to establish jurisdiction conclusively and beyond a reasonable doubt.).
17 Reply Br. D.I. 17 at 4 (―Therefore, the evidence offered is insufficient to establish

jurisdiction conclusively and beyond a reasonable doubt.‖) With this in mind the court notes
the irony of Defendants‘ contention that the State‘s proof was ―confusing and conflicting.‖ E.g.,
Reply Br. at 4.
18 11 Del. C. § 232.
19 11 Del. C. § 301(b) (―No person may be convicted of an offense unless each element of the
offense is proved beyond a reasonable doubt.‖). Delaware law similarly provides that ―the
defendant is entitled to a jury instruction that the jury must acquit if they fail to find each
element of the offense proved beyond a reasonable doubt.‖ Id at § 302(a).

8
necessarily follows that the Code requires only that the State prove

jurisdiction—element of the crime--―beyond a reasonable doubt.‖

There has been relatively little case law discussing the standard of proof

for territorial jurisdiction, perhaps because there is so little question about

what that standard is. The case law which does exist, however, shows that the

beyond-a-reasonable-doubt standard applies here. In Sheeran v. State20 the

defendant challenged his conviction for criminal solicitation on the ground that

the State failed to prove the Delaware courts had territorial jurisdiction over his

case. It seems that Sheeran had retained the services of a hit man who,

unbeknownst to Sheeran, was an FBI informant. One of the assignments

Sheeran gave him was to beat up an individual in Maryland who was causing

problems for Sheeran‘s labor union. The FBI secretly recorded three

conversations between Sheeran and the informant; one took place in Delaware

and the other two took place in Pennsylvania. The Delaware Supreme Court

found the substance of the Delaware conversation was enough to prove an

element of the crime occurred in Delaware and therefore established that the

Delaware courts had territorial jurisdiction. What is important here is that the

Supreme Court applied the beyond-a-reasonable-doubt standard when it made

this determination. According to the Sheeran Court:

Sheeran's jurisdictional challenge, in essence, is an
assertion that there was insufficient evidence to
support the verdict as to that jurisdictional element of
each Count. When a defendant challenges his
conviction claiming that there was insufficient
evidence to support the verdict, this Court determines

20 526 A.2d 886 (Del. 1987).

9
 whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.21

Defendants cite only the Delaware Supreme Court‘s opinion in Bright v.

State22 in support of their contention that the State must prove the territorial

jurisdiction ―conclusively.‖ Bright does not stand for that proposition. The

defendant in Bright kidnapped a woman in Delaware and raped (or attempted

to rape) her several times as they traversed back and forth across the

Delaware-Maryland border. Bright argued that the State never proved

Delaware had jurisdiction over the rapes and attempted rapes because,

according to him, the State ―never conclusively established where the rapes

and attempted rapes occurred.‖23 The Supreme Court disagreed, and in doing

so simply mirrored the verbiage in Bright‘s argument:

Because a part of the crime of rape conclusively
occurred in Delaware, we are satisfied that Delaware
retains jurisdiction to prosecute that offense.
Furthermore, we note that this result comports with
the sound public policy of insuring that individuals are
held accountable for the crimes that they commit.
Were Delaware to decline jurisdiction over the rape
offenses on the ground that the situs of the sexual
intercourse could not be proven, there is no guarantee
that Maryland would be able to better prove that the
offenses occurred there. This hardly comports with the
legislative intent and mandate of 11 Del.C. §§ 204 and
2736.24

21 Id. at 889 (emphasis added).
22 490 A.2d 564 (Del. 1985).
23 Id. at 566.
24 Id. at 569–70.

10
For several reasons Bright cannot be fairly read as establishing a ―conclusively‖

standard here. First, there is no analysis (or even discussion) in Bright of the

standard of proof applicable to territorial jurisdictional questions. Given the

Bright Court‘s conclusion about the strength of the State‘s jurisdictional

evidence, it seems obvious that the Supreme Court felt it would satisfy any

standard. Hence, there was no need for it to examine whether the standard

was ―beyond a reasonable doubt‖ or ―conclusively.‖ Second, if, as Defendants

argue, the Supreme Court intended to adopt a ―conclusively‖ standard, one

would expect to see a discussion of aforementioned provisions of the Delaware

Code. No such discussion appears in Bright. Third, two years after Bright the

Supreme Court applied the beyond-a-reasonable-doubt standard in Sheeran,

making no mention of Bright in its opinion. Fourth, Defendants do not point to

any case in which a court has cited Bright for the proposition that a

conclusively standard applies, and, insofar as the court‘s own research

discloses, no Delaware court has ever done so. The court concludes, therefore

that the standard of proof to be applied is whether the State proved beyond a

reasonable doubt that the instant crimes occurred in Delaware.

B. There is sufficient evidence in the record to support the
trial court’s finding it had jurisdiction.

The Court of Common Pleas found that the State had proven beyond a

reasonable doubt that these crimes occurred in Delaware. It reasoned:

In this case, I must only determine whether the
State has provided sufficient evidence for a reasonable
fact-finder to enter a guilty verdict, not whether the

11
 State has in fact proven jurisdiction beyond a
reasonable doubt Here, there is more than
circumstantial evidence of jurisdiction that was upheld
in Naylor, there is direct testimonial evidence of proper
jurisdiction in the trial record.

First, Officer Shetzler of New Castle County Code
Enforcement testified that 800 Chambers Rock Road is
located in New Castle County. Shetzler made this
determination when he checked the parcel prior to
arriving at the investigation. Shetzler posted on the
door to the house located at 800 Chambers Rock Road
that the residence was declared unfit for human
habitation by New Castle County. This direct evidence
of Shetzler testifying in his official capacity concerning
his investigation of the jurisdiction and his official
action of declaring the home unfit in New Castle
County could lead a reasonable fact-finder to believe
that the home and the attached garage are located in
New Castle County, Delaware.

Second, Sgt. Barnes testified that 13 dogs were
found in the garage and 6 dogs were found in the
home. Barnes' testimony concerning the location of the
animals, coupled with Shetzler's testimony that the
home is located in New Castle County could lead a
reasonable fact-finder to believe that the alleged abuse
of these animals, failure to inoculate, and failure to
have dog licenses occurred in the home and garage,
located in New Castle County, Delaware. Lastly, the
State submitted a copy of the mortgage, which states
that 800 Chambers Rock Road is in Newark, Delaware.
This could also lead a reasonable fact-finder to
conclude that the home and garage are located in New
Castle County, Delaware.

The role of this court is not to make an independent judgment whether

the State proved beyond a reasonable doubt that the crime occurred in

Delaware. Rather this court is limited to determine whether there is sufficient

evidence to support the Court of Common Pleas‘ finding. The Supreme Court

12
described the standard of review in appeals from criminal convictions in the

Court of Common Pleas:

An appeal from a decision of the Court of Common
Pleas for New Castle County, sitting without a jury, is
upon both the law and the facts. In such appeal, the
Superior Court has the authority to review the entire
record and to make its own findings of fact in a proper
case. However, in exercising that power of review, the
Superior Court may not ignore the findings made by
the Trial Judge. The Superior Court has the duty to
review the sufficiency of the evidence and to test the
propriety of the findings below. If such findings are
sufficiently supported by the record and are the
product of an orderly and logical deductive process,
the Superior Court must accept them, even though
independently it might have reached opposite
conclusions. The Superior Court is only free to make
findings of fact that contradict those of the Trial Judge
when the record reveals that the findings below are
clearly wrong and the Appellate Judge is convinced that
a mistake has been made which, in justice, must be
corrected. Findings of fact will be approved upon
review when such findings are based on the exercise of
the Trial Judge's judicial discretion in accepting or
rejecting ‗live‘ testimony. If there is sufficient evidence
to support the findings of the Trial Judge, the Superior
Court sitting in its appellate capacity must affirm,
unless the findings are clearly wrong.25

Defendants‘ factual arguments on appeal are a rehash of those presented to,

and considered by, the Court of Common Pleas. The trial judge observed the

witnesses and chose which testimony to credit. He specifically found ―the

testimony of Officer Shetzler as credible and reliable.‖26 As the Supreme Court

has said, ―[w]hen the determination of facts turns on a question of credibility

and the acceptance or rejection of ‗live‘ testimony by the trial judge; his

25 State v. Cagle, 332 A.2d 140, 141 (Del. 1974)(emphasis added).
26 Aug. 14, 2014 Op. at 8.

13
findings will be approved upon review.‖27 This court therefore cannot say on

the basis of this record that the trial judge was ―clearly wrong‖ when he found

beyond a reasonable doubt that the instant crimes occurred in Delaware. As a

result, it upholds the Court of Common Pleas‘ determination it had territorial

jurisdiction.28

II. The Trial Court Properly Admitted the Seized Evidence.

Defendants argue the evidence against them was tainted because (a) the

Kent County SPCA officers, who had previously taken an oath of office29 in

Kent County, had not been administered an oath of office in New Castle

County; and (b) the SPCA officers lack authority to obtain and execute the

search warrant. The first argument is barred because it was never fairly

presented to the Court of Common Pleas; the second is without merit.

A. Defendants’ state constitutional argument was never fairly
presented below.

According to Defendants, the SPCA officers who obtained and executed

the search warrant did not take an oath of office in New Castle County until

after the search and seizure in this case. They theorize even though the

officers took an oath of office in Kent County, they were obligated by the

Delaware Constitution to take another oath of office in New Castle County. In

27 Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972) (citation omitted).
28 The court notes that the lower court relied on Officer Shetzler‘s official act of declaring the
home unfit for human habitation as evidence that the house was located in New Castle County.
An officer‘s action in a certain area is not, in and of itself, enough to prove the court‘s territorial
jurisdiction. See James v. State, 377 A.2d 15 (Del. 1977). However, the James case is not
implicated here because Officer Shetzler‘s act was predicated on his research on the location of
the house through the parcel deed.
29 The court has repeatedly used the phrase ―oath of office‖ to distinguish this from the oath

the officers took when obtaining the search warrant.

14
the absence of an oath of office in New Castle County, according to Defendants,

the seized evidence should have been excluded.

Defendants base their state constitutional argument upon section 1 of

article XIV, which provides in pertinent part:

Members of the General Assembly and all public
officers executive and judicial, except such inferior
officers as shall be by law exempted, shall, before they
enter upon the duties of their respective offices, take
and subscribe the following oath or affirmation . . . .

Their argument raises a host of questions. For example:

 Are the SPCA officers ―public officers‖ to whom this section

applies?

 Given that the officers took an oath in Kent County, does this

provision require they take another oath of office in New Castle

County?

 Violations of state law do not, by themselves, establish that a

search or seizure was unreasonable under the federal

constitution.30 Therefore, assuming the officers were required to

take an oath of office in New Castle County, does the absence of

30 In Virginia v. Moore, 553 U.S. 164 (2008) the Court wrote:

We are aware of no historical indication that those who ratified
the Fourth Amendment understood it as a redundant guarantee
of whatever limits on search and seizure legislatures might have
enacted. The immediate object of the Fourth Amendment was to
prohibit the general warrants and writs of assistance that English
judges had employed against the colonists. That suggests, if
anything, that founding-era citizens were skeptical of using the
rules for search and seizure set by government actors as the
index of reasonableness.

15
 such an oath translate to an unreasonable search and seizure in

violation of the constitution?

 The exclusionary rule does not, as a matter of course, apply to all

unreasonable searches and seizures.31 Therefore, assuming the

search and seizure here violated the Fourth Amendment because

the officers did not take an oath of office in New Castle County,

does the exclusionary rule apply to the evidence they seized? The

Court of Common Pleas never had the opportunity to consider

these critical questions. Indeed it did not even cite to Article XIV,

Section 1 in its opinion. All of this is because Defendants never

fairly presented their argument to that court.

Defendants‘ argument below—which was made for the first time two

years after the evidence was admitted32—made only a passing reference to

Article XIV, section 1. Their argument read in its entirety:

An employee of a non-governmental entity, in this case
the Kent County SPCA, has no automatic or general
authority to request a search warrant. If such an
employee is to be granted such power, it must be
authorized under the laws of the State of Delaware,
including the Delaware Constitution of 1897. As stated
in the New Castle County audit, Section 1.2, ―Animal
Control Officers and Their Legal Authority‖, the
Constitution applies. Under Article XIV, Section 1,

31 In Michigan v. Hudson, 547 U.S. 586, 591 (2006) the Court observed that ―[w]hether the
exclusionary sanction is appropriately imposed in a particular case is an issue separate from
the question whether the Fourth Amendment rights of the party seeking to invoke the rule were
violated by police conduct.‖
32 The evidence was admitted at trial in March and May 2013. Defendants first raised their

argument in April, 2015 when they filed a ―Motion to Vacate Judgment.‖ The delay in
presenting this argument to the trial court may be an independent reason for denying it. The
court does not reach that issue here.

16
 public officers must take the oath of office before
entering upon the duties of their respective offices.
Kent County SPCA employees must be formally sworn
in before exercising legal authority as animal control
officers.

Nowhere did Defendants analyze the language of the particular constitutional

provision; nowhere did they explain to the trial court why the provision

requires the result they seek, and nowhere did they cite any opinions

interpreting or applying the provision. In other words, the entirety of their

argument consists on a single mention of the Delaware constitution.

This brief argument below falls short of fairly presenting an argument to

the Court of Common Pleas. In Stafford v. State33 the Delaware Supreme Court

found that a similar perfunctory argument did not fairly present an issue to the

trial court:

Stafford claimed that his detention violated Article 1,
Section 6 of the Delaware Constitution. Although
Stafford correctly notes that the Delaware Constitution
provides protection from unreasonable searches and
seizures, he offers no further explanation or
elaboration of this argument. We do not recognize
Stafford's conclusory assertion that the Delaware
Constitution was violated as a reasoned argument.
Stafford therefore waived any claim under the
Delaware Constitution by failing to explain his
contentions.34

The Stafford Court also noted that ―[w]e have previously described criteria for

properly presenting a claim under the Delaware Constitution [in Jones v.

33 59 A.3d 1223 (Del. 2012).
34 Id. at 1231–32.

17
State].‖35 Defendants never addressed any of those criteria. Their failure to do

so is fatal:

Failure to do that operates as a waiver of the claim.
Accordingly, to raise a cognizable claim under the
Delaware Constitution . . . [Defendant] must include
an analysis of the Jones criteria in both the Summary
of Argument and the Argument portions of his opening
brief. Because he has not done that, [Defendant] has
not fully and fairly presented his Delaware
constitutional claim to this Court, and we decline to
address it.36

Accordingly, the court finds that Defendants failed to fairly present their state

constitutional argument to the Court of Common Pleas, and therefore this

court will not consider it.

B. The SPCA officers had statutory authority to obtain and
execute the search warrant.

Defendants also argue the Kent County SPCA Officers‘ authority was

limited to Kent County and they lacked authority to apply for and execute a

search warrant in New Castle County. In their Reply Brief before this court

they assert:

[A]lthough the State was correct in its assertion that
Kent County SPCA was granted statutory authority to
apply for, and execute a search warrant, its argument
fails because the State failed to recognize that the
relevant statutes distinguish between the Delaware
SPCA and the Kent County SPCA did not have
statutory authority to apply for, and execute, a search
warrant in New Castle County.37

35 Id. at 1232, n.50 citing Jones v. State, 745 A.2d 856 (Del. 1999).
36 Munroe v. State, 70 A.3d 154, 158 (Del. 2009).
37 Reply Br. 8.

18
Their argument is based on the erroneous assumption that at the time of these

events the Delaware Code geographically limited the authority of the Kent

County SPCA. In their brief they cite 3 Del. C. §7904 for the proposition that

―the authority to execute a warrant of arrest, or a search warrant, is again

conferred to the Delaware SPCA in Sussex and New Castle Counties; the Kent

County SPCA is granted this authority only in Kent County.‖38 It is true that,

at one time, section 7904 (then denominated section 7903),39 limited Kent

Count SPCA‘s jurisdiction to that county:

Any warrant of arrest, or other process, issued under
or by virtue of the several laws in relation to cruelty to
animals, may be directed to and executed by any agent
in Sussex and New Castle Counties of this State, so
appointed by The Delaware Society for the Prevention
of Cruelty to Animals or in Kent County of this State
so appointed by the Kent County Society for the
Prevention of Cruelty to Animals. No compensation
shall be paid to the agent except by the Society.40

But the General Assembly amended the statute in 201041 to give both the

Delaware SPCA and Kent County SPCA state-wide jurisdiction. In 2012, when

these events occurred, section 7904 provided:

Any warrant of arrest, or other process, issued under
or by virtue of the several laws in relation to cruelty to
animals may be directed to and executed by any agent
so appointed by either the Delaware or Kent County
Society for the Prevention of Cruelty to Animals of this
State. No compensation shall be paid to the agent
except by the societies.42

38 Reply Br. 8.
39 Section 7903 was re-designated § 7904 in 2005.
40 3 Del. C. §7903 (repealed).
41 77 Del. Laws ch. 393 (2010).
42 3 Del. C. §7904 (emphasis added).

19
The court therefore finds no merit to Defendant‘s contention that the Kent

County SPCA lacked statutory authority to act in New Castle County.

III. Defendants Had Adequate Notice of the Crimes Charged

Defendants argue that the Information failed to give them sufficient

notice of the crimes charged and therefore hindered their ability to prepare a

proper defense. They assert that it did not specify ―which of the 19 dogs

corresponded to which count in the indictment, nor [did the Information

describe] what specific acts constituted the alleged cruelty on the part of the

defendants.‖43 The court finds that the Information provided sufficient

information to apprise Defendants of the charges against them and that the

State was not required to match each paragraph of the complaint to a specific

dog. Further, Defendants were not prejudiced by the alleged deficiencies in the

Information.

A. The Information provided adequate notice to Defendants of the
conduct alleged to be unlawful.

The black letter law here is straightforward. An Information ―shall be a

plain, concise and definite written statement of the essential facts constituting

the offense charged.‖44 It is sufficient if it ―alleges facts concerning the

commission of a crime charged . . . to put the accused on full notice of what he

is charged with‖ and it enables the ―defendant to adequately prepare his

43 Appellants‘ Opening Brief at 20.
44 Ct. Com. P. Crim. R 7(c)(1).

20
defense and protect himself against double jeopardy.‖45 The Information in this

case satisfies those requirements. The pertinent portions allege each

Defendant committed 19 acts of animal cruelty. There is no material difference

in the allegations. The following is a representative sample:

Cruelty or Neglect to Animal in violation of Title 11,
Section 1325(b)(2) of the Delaware Code of 1974, as
amended.

EDWARD A. KELSCH, on or about the 6th day of July,
2012, in the County of New Castle, State of Delaware,
did intentionally subject a dog, within his custody to
cruel neglect, to wit: did allow a canine to live in
unsanitary condition which was injurious to animal‘s
health.

The Supreme Court has upheld an Information where it ―identifies the crime;

states where and when it allegedly occurred; and describes the elements of the

crime.”46 The elements of the crime are (1) the defendant intentionally or

recklessly (2) subjects an animal in the defendant‘s custody to (3) cruel

neglect.47 The Information filed in this case supplies all of that. Indeed, it (1)

identifies the crime both by statute and description, (2) identifies that it took

place in New Castle County on or about July 6, 2012 and (3) describes the

elements of the crime and put Defendant on notice he was charged with the

crime because he allowed a dog to live in unsanitary conditions which were

injurious to its health. The court has difficulty fathoming what information is

45 Holland v. State, 194 A.2d 698, 553 (Del. 1963).
46 Wright v. State, 2011 WL 51415 (Del.).
47 11 Del. C. § 1325(b)(2). The statute provides a ―person is guilty of cruelty to animals when
the person intentionally or recklessly . . . [s]ubjects any animal in the person's custody to cruel
neglect.‖

21
missing. Nowhere do Defendants identify what additional information about

their conduct they needed to prepare a defense.

An important consideration when evaluating the sufficiency of an

indictment or information is whether the defendant is prejudiced by its

ostensible shortcomings. For example, the Delaware Supreme Court has

written that ―[d]ue to our view of the indictment in the present case coupled

with the fact that defendant has not shown any prejudice going to the

preparation of his defense, we conclude that defendant was adequately

informed of the charges against him and hence, the indictment was

constitutionally sufficient.‖48 In the instant matter the trial court found that

Defendants ―suffered no prejudice in their ability to defend against those

charges, and can point to no specific instance of prejudice actually

occurring.‖49 Despite this Defendants say nothing about prejudice in their

briefs before this court.

The absence of any real prejudice is underscored by Defendants‘ failure

to raise this issue before trial. Despite the absence of ostensibly critical

information, Defendants never sought a bill of particulars. As the Delaware

Supreme Court wrote in Howard v. State,50 ―[i]f Howard was uncertain of what

specific conduct he was being prosecuted for, it was his burden to move for a

bill of particulars.‖51 Further, the instant defendants delayed bringing the

alleged defects in the information to the attention of the trial court until well

48 Ciccaglione v. State, 474 A.2d 126, 128 (Del. 1984).
49 Decision After Trial, at 7.
50 2009 WL 3019629 at 4.
51 Id. at *4.

22
after those purported defects could have been cured. Court of Common Pleas

Criminal Rule 12 requires that ―[d]efenses and objections based on defects in

the information must be raised by motion before trial.‖ Here the trial court

also set a deadline of April 12, 2013 for the filing of pre-trial motions, yet

Defendants filed nothing challenging the adequacy of the Information. It was

not until June, 2014—more than a year after the trial began—that Defendants

first challenged the sufficiency of the information. During the course of closing

argument counsel for one of the defendants told the court-below ―the State‘s

got a real problem in terms of the indictment.‖52 Consistent with their

approach in this court, Defendants did not tell the trial judge how they had

been prejudiced by the purportedly insufficient information.

In Malloy v. State53 the Delaware Supreme Court summarized the law in

a manner which reads as if the Supreme Court had this case in mind:

The courts of this State have consistently viewed an
indictment as performing two functions: to put the
accused on full notice of what he is called upon to
defend, and to effectively preclude subsequent
prosecution for the same offense. These purposes are
fulfilled if the indictment, as required by Rule 7(c),
contains a plain statement of the elements or essential
facts of the crime. Instead, his challenge arose by
motion for judgment of acquittal under Superior Court
Criminal Rule 29(a) at the end of the prosecution's
case-in-chief. Such a long delay in raising the issue
suggests a purely tactical motivation of incorporating a
convenient ground of appeal in the event the jury
verdict went against the defendant. Furthermore, the
fact of the delay tends to negate the possibility of

52 June 10, 2014 Tr. at 19.
53 462 A.2d 1088 (Del. 1983).

23
 prejudice in the preparation of the defense. Thus,
Malloy's claim that the indictment was defective will be
unavailing unless the indictment cannot, by the most
liberal construction, be said to have imparted notice to
him.54

Under this standard the Information filed here was more than sufficient.

For their part Defendants rely upon the Delaware Supreme Court‘s

opinion in Luttrell v. State.55 Defendants do not note in their briefs before this

court that the Court of Common Pleas held that their reliance on Luttrell was

procedurally barred because of their delay in bringing it to the trial court‘s

attention. The Court of Common Pleas rendered its written judgment on

August 15, 2014, but Defendants waited more than a month—until September

24—to file a motion for reargument based upon Luttrell. The Court of Common

Please held that their motion was barred because it was filed more than five

days after its ruling.56 Even so the Court of Common Pleas, perhaps out an

abundance of caution, briefly commented on the Luttrell-argument‘s lack of

merit. This court will follow suit.

The court-below correctly found that Luttrell is critically distinct from the

instant matter. The defendant in Luttrell was charged with a variety of differing

sex crimes. Before trial he sought a bill of particulars which the Superior

Court denied. On appeal the Supreme Court held that this court erred in

denying Luttrell‘s request for a bill of particulars because the allegations in the

54 Id. at 1092–93 (Quotation marks, editing marks and citations omitted).
55 97 A.3d 70 (Del. 2014).
56 Court of Common Pleas Criminal Rule 49(d) permits a judge to apply analogous civil rules

to procedural matters not covered by the court‘s criminal rules. Here the trial judge applied
the five day limitation for motions for reargument found in Court of Common Pleas Civil Rule
59(e).

24
indictment did not allow Luttrell to ascertain which of his acts was the subject

of which of the differing allegations in the indictment. One difference between

Luttrell and this case is immediately apparent. The Luttrell Court observed that

―[t]his Court has explained that, where the defendant is ―uncertain of what

specific conduct he was being prosecuted for, it is the defendant's burden to

move for a bill of particulars.‖57 Unlike Luttrell, the instant defendants never

sought a bill of particulars.

On a broader level Luttrell is materially distinct because the crimes with

which Luttrell was charged differed, thus making it necessary for him to learn

what part of his conduct corresponded to what allegation in the indictment.

Such is not the case here. There is no material difference between any of the

allegations of Animal Neglect and Abuse in the Information. Thus any of the

dogs fit any of the neglect and abuse allegations. Put another way, Defendants

have not shown how it made any difference whether Dog-1 was the subject of

Paragraph 1 or 2 or 3, etc. of the Information since all of those paragraphs are

the same. In State v. Burke Judge Rocanelli of this court also distinguished

Luttrell where the same conduct gave rise to similarly worded allegations in the

Indictment:

With respect to Defendants' motion for a bill of
particulars on the stalking charge, the Luttrell case is
distinguishable because the Luttrell indictment
charged the defendant with multiple counts of the
same type of conduct, to the point where the
defendant could not distinguish what conduct applied
to which charge. Here, however, there is no
confusion—and Defendants assert no confusion—in

57 Id. at 75.

25
 determining the difference in the underlying conduct
between the counts because there is only one charge
for each type of conduct.

In sum, the court holds that Defendants have failed to argue, much less

show, that any required information was omitted from the Information, and

they have failed to show they were prejudiced by any purported omission of

such information. Their delay in bringing argument to the attention of the

Court of Common Pleas satisfies this court that that Defendants did not believe

they were hindered in preparing a defense. In the words of the Malloy Court,

the ―long delay in raising the issue suggests a purely tactical motivation of

incorporating a convenient ground of appeal in the event the jury verdict went

against the defendant.‖

Conclusion

The appeal in this matter is DISMISSED IN PART because this court

lacks jurisdiction to hear the appeal from convictions -2186, -2187, -2188, -

2189, -2190, -2191, -2192, -2193, -2250, -2194, -2195, -2196, -2197, -2198, -

2199, -2251, -2203, -2204, -2205, -2206, -2207, -2208, -2209, -2210, -2252 ,

-2211, -2212, -2213, -2214, -2215, -2216, and -2217. The remaining

convictions, -2183, -2184, -2185, -2200, -2201, and -2202,58 are AFFIRMED.

___________________________________
July 28, 2016 John A. Parkins, Jr.
Superior Court Judge

58 These numbers correspond to CCP numbers 12-08-4028, -4029, -4030, -4031, -4032, -
4033, -4034, -4035, -4036, -4037, -4274, -4275, -4276, -4277, -4278, -4279, -4044, -4045, -
4046, -4047, -4048, -4049, -4050, -4051, -4052, -4053, -4280, -4281, -4282, -4283, -4284, -
4285, -4025, -4026, -4027, -4041, -4042, -4043 respectively.

26
oc: Prothonotary
cc: All counsel of record

27