State v. Thompson

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. ) I.D. NO. 2005007025
)
RYAN THOMPSON, )
)
Defendant. )

Submitted: October 14, 2021
Decided: December 20, 2021

Upon Consideration of Defendant’s Motion for Judgment of Acquittal,
DENIED.

Upon Consideration of Defendant’s Motion for a New Trial,
DENIED.

MEMORANDUM OPINION

Isaac Rank, Esquire, Deputy Attorney General, DEPARTMENT OF JUSTICE,
Wilmington, Delaware. Attorney for the State of Delaware.

Joseph A. Hurley, Esquire, JOSEPH A. HURLEY LAW OFFICE, Wilmington,
Delaware. Attorney for Defendant Ryan Thompson.

BUTLER, R.J.
 The Defendant was tried before a jury of his peers on two charges: driving

under the influence of alcohol (“DUI”) and driving without a valid license on a

public roadway (“NVL”). The jury convicted him of DUI but acquitted him of NVL.

He was sentenced immediately. Four days later, his attorney filed a “motion seeking

a judgment of acquittal and notwithstanding the verdict.” For good measure, he then

filed an “alternative motion seeking a new trial.” The State has responded and this

will be the ruling of the Court.

BACKGROUND

The evidence presented by the State had the Defendant behind the wheel of a

Jeep as it drove at a high rate of speed down a country road. A witness who lived at

a bend in the road saw the Jeep round the bend and then heard it crash shortly

thereafter. The witness, accompanied by his housemate, went to the field where the

vehicle had become disabled in some wire fencing and observed the Defendant

engaged in trying to untangle the Jeep from the fencing.

When a state trooper arrived, a police motor vehicle recorder captured a bit of

dialogue. The Defendant admitted he had been drinking, but denied driving the Jeep.

The officer was unpersuaded, so the Defendant was arrested. The State Chemist

testified that a subsequent blood draw performed on the Defendant at the hospital

yielded a BAC of 0.18.

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 There was much trial energy directed to the questions of whether the

Defendant was alone, the witnesses were able to see the driver, and the witnesses

saw any other people. The witnesses testified that they clearly saw the Defendant

driving alone. The Defendant, however, told a different story. He testified that,

although the Jeep was registered to him, another person drove it, wrecked it, disabled

it, and ran away before anyone saw him, leaving the Defendant to untangle the car

from the wire fence and to face his legal difficulty alone.

As noted above, the jury acquitted the Defendant of NVL but convicted him

of DUI. Because it will become important later, we will note here that liability for

NVL attaches to any driver on a “public roadway” without a valid license, but a DUI

charge may attach regardless of whether the operator is on a public roadway, so long

as he is in “actual physical control” of the vehicle.

The Defendant argues that the jury, having acquitted him of “driving a motor

vehicle on a public highway without a valid license,” must have believed he was not

driving the Jeep. Since jury “found” that he was not driving the Jeep, the argument

goes, he could only be found guilty of DUI if the jury found he was in “actual

physical control” of the Jeep and the instruction on “actual physical control” was

defective, thus mandating, at a minimum, to a new trial.

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 ANALYSIS

It is true that NVL requires that one drive on a public roadway1 and that DUI

requires only “actual physical control” of a vehicle, regardless of where it is.2 But

the question here is not whether inconsistent verdicts can be rendered by a jury.

They can.3 Instead, the question is what to do when that happens.

The Court answered this question just a few weeks ago, albeit on different

facts. In State v. Terreros,4 the defendant moved for acquittal after he was convicted

on a child sex abuse charge that was inconsistent with his acquittal of First-Degree

Rape. The Court held that, unless the charge of conviction statutorily depends for

its validity on the acquitted charge, the charge of conviction will stand despite any

logical inconsistency so long as the conviction is supported by sufficient evidence

and can be attributed to jury lenity.5 Applying lenity plus sufficiency-of-the-

evidence review, the Terreros decision upheld the verdict, finding that the

inconsistency could be rationalized in a variety of ways that included the jury’s

possible misapprehension of the penalties associated with the charge of conviction.

1
See 21 Del. C. § 2701 (2020).
2
See id. § 4177(c)(5).
3
E.g., Harris v. Rivera, 454 U.S. 339, 345–46 (1981) (“Inconsistency in a verdict is
not a sufficient reason for setting it aside.”); Dunn v. United States, 284 U.S. 390,
393 (1932) (“Consistency in a verdict is not necessary.”); Graham v. State, 2017 WL
4128495, at *2 (Del. Sept. 18, 2017) (“[I]nconsistency alone does not warrant a new
trial or reversal.”).
4
2021 WL 5577253 (Del. Super. Ct. Nov. 29, 2021).
5
Id. at *3–6.

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 The Terreros ruling did not reinvent the wheel. The U.S. and Delaware

Supreme Courts have long recognized that jury verdicts often are not logical.6 But

for several reasons, that does not mean those verdicts should be second guessed.

Sound prudential7 and practical8 considerations counsel against deputizing judges as

the thirteenth juror. Likewise, the law’s interest in conviction finality, together with

trial- and appellate-level safeguards,9 militates against tossing a valid conviction

simply because the jury, for one reason or another, did not follow directions.10

6
See, e.g., United States v. Powell, 469 U.S. 57, 65–67 (1984); Tilden v. State, 513
A.2d 1302, 1304–07 (Del. 1986).
7
See, e.g., Yaeger v. United States, 557 U.S. 110, 124 (2009) (Ascertaining why a
verdict is inconsistent “would require speculation into what transpired in the jury
room. Courts properly avoid such explorations into the jury's sovereign space, . . .
and for good reason. The jury's deliberations are secret and not subject to outside
examination.” (internal quotation marks and citations omitted)); Powell, 469 U.S. at
66 (“[A]n individualized assessment of the reason for the inconsistency would be
based either on pure speculation, or would require inquiries into the jury's
deliberations that courts generally will not undertake.”).
8
See, e.g., Grimes v. State, 188 A.3d 824, 829 (Del. 2018) (“Grimes would have us
credit the acquittal over the conviction—treating the acquittal as the jury's true
verdict and the conviction as just a windfall to the State at his expense—but as we
have recognized, it is equally possible in a scenario like this that the jury, convinced
of guilt, properly reached its conclusion on the [conviction], and then through
mistake, compromise, or lenity, arrived at an inconsistent conclusion on the
[acquittal]. When a jury produces an irreconcilable verdict, it is unclear whose ox
has been gored . . . .” (cleaned up)).
9
E.g., Dennison v. State, 2007 WL 1837004, at *3 (Del. June 25, 2007) (“A criminal
defendant is afforded protection against jury irrationality or error by the independent
review of the sufficiency of the evidence by the trial and appellate courts.” (alteration
and internal quotation marks omitted)).
10
See Powell, 469 U.S. at 65–66 (“[T]he possibility that the inconsistent verdicts
may favor the . . . defendant as well as the Government militates against review of
such convictions at the defendant's behest . . . . The fact that the inconsistency may

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 The Defendant’s arguments, like those made in Terreros, run contrary to these

principles. He first assumes the jury is a logical organism. Despite the Court’s many

instructions, however, only some juries follow logic and common sense to the letter

of the Court’s instructions. A jury may make findings that are based on sympathy,

bias, some of the evidence but not all the evidence, or any other reason upon which

they can all agree. The jury room is shuttered and inaccessible; neither the attorneys

nor the Court is privy to the jury’s deliberations. The Court cannot now invade the

jury’s province to search for the “true” verdict.11

Next, Defendant assumes his NVL acquittal involved a finding by the jury

that he was not driving the Jeep, even though he was found in it after it careened

around the curve in the road and drove through a wire fence. Thus, according to

Defendant’s logic, the jury must have believed his testimony that he was not the

driver, undermining his DUI conviction. But we might resolve the conundrum in

several other ways.

Perhaps the Court should overrule the jury’s vote and enter a conviction for

NVL. Or maybe the Court should overrule the jury and enter an acquittal for DUI.

Or we could engage with the Defendant in his merciless torture of the facts, which

be the result of lenity . . . suggests that inconsistent verdicts should not be
reviewable.”).
11
Cf. Terreros, 2021 WL 5577253, at *5 (“A court might assume, as the [d]efendant
does, that the acquittal is the jury's ‘true verdict.’ But another court might assume
the conviction is the jury's true verdict.”).

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with phantom drivers bolting from the wrecked car and hiding in the bushes until the

police went away. Or, less fantastic, we could conclude the jury did not buy the

Defendant’s story at all, knew he was the only one in the Jeep, and simply decided

to “throw him a bone” by acquitting him on what they correctly presumed was the

less serious charge.

In Terreros, the Court walked through the two analytical frameworks that may

apply to inconsistent verdicts: one for “predicate-compound” verdicts and another

for verdicts that are merely inconsistent with each other.12 Here, we are not

confronted with a predicate-compound riddle. Even if both charges share some

elements, a NVL conviction is not required as a predicate to a DUI conviction. Not

all DUI defendants drive without their license and not all unlicensed drivers drive

drunk.

Since the predicate-compound analysis is inapplicable, these verdicts are

subject to the lenity plus sufficiency-of-the-evidence standard.13 On that standard,

the Defendant’s DUI conviction easily passes muster.

12
Id. at *2. See also State v. Wilkerson, 2021 WL 4075018, at *2–4 (Del. Super. Ct.
Sept. 7, 2021).
13
King v. State, 2015 WL 5168249, at *2 (Del. Aug. 26, 2015) (“Under the rule of
jury lenity, [the] Court may uphold a conviction that is inconsistent with another jury
verdict if there is legally sufficient evidence to justify the conviction.”); see Powell,
469 U.S. at 67 (“Sufficiency-of-the evidence review involves assessment by the
courts of whether the evidence adduced at trial could support any rational
determination of guilty beyond a reasonable doubt. This review should be

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 A reasonable jury could easily conclude that the defendant was at the wheel

of the Jeep when he failed to negotiate a curve in the road, lost control of the vehicle

and drove it into a field where it became entangled in wire fencing. When the

witnesses arrived at the crash site, the Defendant was busy looking for a

“sledgehammer” to remove the wires with. Now, while some might find this

perfectly normal, a rational jury might consider it a rather unusual response when

the Defendant, thoroughly inebriated, allowed another person to wreck his Jeep,

abscond and left him, with his 0.18 BAC and a disabled vehicle. And the fact that

he had a BAC of 0.18 was not seriously contested. Indeed, defense counsel

repeatedly characterized the Defendant as “drunk as a skunk.” A jury could easily

have concluded the Defendant was the one and only drunk driver.

When faced with verdict inconsistency, as here, courts frequently attribute the

inconsistency to an exercise of “lenity” by the jury. While the only lenity exercised

here was relief from a minor traffic fine, an impaired driver wrecking a vehicle, in

this day and age, can hardly expect to face a jury of his peers and get sympathy.

Nevertheless, the jury’s verdicts can stand where they evince some form of

compromise. The Court need not pry any further.14 Assuming that the verdicts were

independent of the jury's determination that evidence on another count was
insufficient.” (citations omitted)).
14
Dunn, 284 U.S. at 394 (“That the verdict may have been the result of compromise,
or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by
speculation or inquiry into such matters.”).

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indeed inconsistent, the evidence was sufficient to sustain a conviction for DUI and

the jury’s view of the NVL charge does not make a difference.

Finally, as to the complaint of a defective “actual physical control”

instruction, the Court notes that defense counsel had the draft instruction for two

days before agreeing to it. That aside, the Defendant’s belated complaint, at this late

stage, is merely an attempt to reintroduce through the backdoor of his second motion

the same arguments he made in his first about why the jury’s logic must be based on

an impermissible mistake. Because the Court has found no merit in that theory, it is

rejected here for the same reasons.

CONCLUSION

For the foregoing reasons, the Defendant’s two motions are DENIED.

IT IS SO ORDERED.

Charles E. Butler, Resident Judge

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