The felony theft statute, 11 Del. C. § 841, provides, in relevant part:
§ 841 Theft; class B felony; class D felony; class F felony; class G felony; class A misdemeanor; restitution.
(a) A person is guilty of theft when the person takes, exercises control over or obtains property of another person intending to deprive that person of it or appropriate it. Theft includes the acts described in this section, as well as those described in §§ 841A-846 of this title.
[...]
(c)(1) Except [as provided under certain circumstances], theft is a class A misdemeanor unless the value of the property received, retained or disposed of is $1,500 or more, in which case it is a class G felony.
The General Assembly enacted the theft of a motor vehicle statute, 11 Del. C. § 841A, in 2006. It provides:
§ 841A Theft of a motor vehicle; class G felony.
(a) A person is guilty of theft of a motor vehicle when the person takes, exercises control over or obtains a motor vehicle of another person intending to deprive the other person of it or appropriate it.
(b) As used in this section motor vehicle means an automobile, motorcycle, van, truck, trailer, semitrailer, truck tractor and semitrailer combination, or any other vehicle which is self-propelled, which is designed to be operated primarily on a roadway as defined in § 101 of Title 21, and in, upon or by which any person or property is or may be transported. Motor vehicle as used in this section shall not include any device that is included within the definitions of moped, off-highway (OHV), triped, motorized scooter or skateboard, motorized wheelchair or electric personal assistive mobility device (EPAMD) as defined in § 101 of Title 21.
(c) Theft of a motor vehicle is a class G felony.
Also relevant is 11 Del. C. § 206, which provides, in relevant part, that the defendant may not ... be convicted of more than 1 offense if ... [o]ne offense is included in the other, as defined in subsection (b) of this section. Subsection (b) provides, in relevant part, that an offense is included when ... [i]t is established by the proof of the same or less than all the facts required to establish the commission of the offense charged. Section 206 is consistent with the U.S. Supreme Courts test in Blockburger v. United States , which provides that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Blockburger , however, is only an aid to statutory construction. It does not negate clearly expressed legislative intent and where ... a better indicator of legislative intent is available, it does not apply.
The State argues that Parkers claim fails under the Blockburger test because each theft provision contains an element that the other does not. Specifically, the motor vehicle provision requires proof that the item stolen is a motor vehicle, which is not an element of ordinary theft; and the felony theft provision requires proof that the items value is at least $1,500, which is not an element of the motor vehicle theft statute. In support of its argument, the State cites this Courts unpublished order in Proffitt v. State , which held that theft and theft of a firearm were different offenses for double jeopardy purposes. The Proffitt Court reasoned that each of the offenses requires an element of proof which is not present in the other because [t]he felony theft statute ... requires proof of value, which the theft of a firearm statute ... does not, and the theft of a firearm statute requires proof that the stolen property was, in fact, a firearm ... while the theft statute does not.
Parker distinguishes Proffitt on the grounds that the theft statute expressly states that [t]heft includes the acts described in this section, as well as those described in §§ 841A-846 of this title. Section 841A is the motor vehicle statute. That statement, Parker argues, shows that the General Assembly intended theft of a motor vehicle to be an included offense of the more general theft provision. In support of this argument, he cites the legislative history of the theft of a motor vehicle statute, which explains that this Act will classify all motor vehicle thefts as a felony due to the great inconvenience and economic hardship to the victim, regardless of the value of the stolen vehicle.
We agree with Parker that theft of a motor vehicle and theft are the same offense for double jeopardy purposes. Even if theft of a motor vehicle would not be an included offense of felony theft under the Blockburger test, Blockburger is only an aid to statutory construction, and where ... a better indicator of legislative intent is available, it does not apply. Here, there is a better indicator of legislative intent: the statement in the felony theft statute that [t]heft includes the acts described in this section, as well as those described in §§ 841A-846 of this title. Section 841A is the theft of a motor vehicle provision; thus, by the plain language of the theft statute, theft of a motor vehicle is an included offense of theft. The States preferred understanding, by contrast, would render the final sentence of § 841(a) superfluous, contrary to the canon that [a] statute will not be construed in such a way that part of it becomes surplusage. If includes means something other than includes for double jeopardy purposes, the State has not explained what that alternative meaning might be.
This understanding of motor vehicle theft as an included offense of theft makes sense in context. When the General Assembly enacted the theft of a motor vehicle statute, it placed the provision immediately after the general theft provision in the Delaware Code. Judging by its legislative history, the General Assembly enacted the new statute to make a sort of automatic felony out of stealing a car-without regard to the cars value-because [t]he theft of a motor vehicle often causes great inconvenience and economic hardship to the victim, regardless of the value of the stolen vehicle. That does not mean that theft of a motor vehicle is a separate offense, such that a thief could be sentenced twice for stealing the same car-once under the motor vehicle statute and once under the general theft statute-thereby doubling the punishment. Instead, the legislative history suggests that the General Assembly simply meant to make the punishment for stealing a car the same as the punishment for stealing any other item worth $1,500 or more, regardless of whether the car is actually worth that much in dollar resale value. Indeed, the legislative history explicitly states that value rationale for making theft of a motor vehicle a felony.
Construing theft of a motor vehicle as an included offense also makes sense in light of the other provisions included from §§ 841A to 846, each of which is a different species of theft. The official Commentary to the Delaware Criminal Code issued in 1973, which this Court has previously cited as authoritative, reinforces this understanding by referring to the subsequent specialized theft offenses as all constitut[ing] theft, being different types of the same criminal activity, and being include[d] in the general theft provision. The Commentarys introduction to the theft subpart of the Code bolsters this view even further, explaining that [t]he ensuing sections, in their original form, were drafted with the concept of a unified theft offense in mind. Under the new statutory framework, all takings of property, whatever they might have been called at common law, are to be treated as part of a single offense, called theft.
Proffitt is distinguishable based on the differences between the motor vehicle and firearm theft statutes. Unlike the motor vehicle theft statute, the firearm theft statute at issue in Proffitt is not mentioned as included by the general theft statute. Indeed, the theft of a firearm provision is located in an entirely different subchapter in the Delaware Criminal Code, titled Offenses Against Public Health, Order and Decency. That title hints toward why the General Assembly may have decided to make theft of a firearm, but not theft of a motor vehicle, a separate offense from theft: stealing a gun creates a risk of public harm separate from the harm to the owner of the gun, whereas stealing a car mainly just hurts the person whose car was stolen. Thus, two potential punishments for theft of a firearm: one under the general theft statute for the harm to the gun owner, and one under the specialized firearm statute for the risk to the public that arises from the possibility that the gun will be used to shoot someone. But only one for theft of a motor vehicle.
In light of the relevant statutory text and legislative history, we hold that theft of a motor vehicle is the same offense as theft for double jeopardy purposes.
B.
The State also argues that even if theft of a motor vehicle is an included offense of theft, there is no double jeopardy violation because the two charges were for separate items: a Kawasaki motorcycle for the motor vehicle theft charge and three ATVs and a dirt bike for the general theft charge. This argument implicates the multiplicity doctrine, which involves the charging of a single offense in more than one count of an indictment. The multiplicity doctrine, which is rooted in the Double Jeopardy Clause, prohibits the State from dividing one crime into multiple counts by splitting it into a series of temporal or spatial units. Here, the indictment contained separate counts for the different items stolen-one count for the Kawasaki motorcycle and a second count for a Suzuki ATV, a Honda ATV and/or a Honda dirt bike, or other miscellaneous property valued at $1,500 or more. These distinctions between the two counts were then reflected in the courts jury instructions. Parker is therefore guilty of multiple thefts only if the theft of the Kawasaki motorcycle is separate from the thefts of the other items under the multiplicity doctrine.
This Court has previously employed a three-factor balancing test to determine whether multiple violations of the same offense have occurred, weighing whether the acts are sufficiently differentiated by (1) time, (2) location, or (3) intended purpose. At bottom, [t]he critical inquiry is whether the temporal and spatial separation between the acts supports a factual finding that the defendant formed a separate intent to commit each criminal act. In the theft context, we held in Reader v. State that where property belonging to different owners is taken at the same time and place as a single or continuous act or transaction, that taking constitutes a single criminal offense, characterizing that rule as espoused by the overwhelming majority of jurisdictions. We described this as the single theft rule, which the leading treatise on criminal law has stated as follows:
When several articles of property are stolen by the defendant ... at the same time and at the same place, only one larceny is committed.
When several articles are stolen by the defendant ... on different occasions over a period of time, each taking constitutes a separate larceny if each is the result of a separate and independent impulse of intent. On the other hand, if the successive takings are actuated by a single and continuing impulse or intent, or are carried out pursuant to a larcenous scheme or plan and constitute a continuous transaction, only a single larceny is committed.
If several articles are stolen from the same place as the result of a single and continuing impulse or intent, the mere fact that the thief finds it convenient or necessary to make several trips to carry the articles away does not transform the offense from a single larceny into multiple ones.
In emphasizing the time, location, and intent factors, that description is consistent with Delawares general approach to the multiplicity doctrine. Although Reader adopted the single theft rule in the multiple-owner context, the rule applies with equal force when the items are stolen from the same owner.
The facts of Reader are instructive for this case. In Reader , the defendant broke into a combination warehouse, garage, and office that housed various equipment. After entering the garage, the defendant went to the adjoining office and brought back several items and placed them in a pickup truck found in the garage. The defendant then backed the truck out of the garage and instructed an undercover police officer he thought was his accomplice to drive out a van located in an adjoining garage bay. At this point, about five to ten minutes after the defendant had originally entered the building, the police arrived and arrested him. We held that these acts constituted but one theft offense and struck the defendants convictions and sentences for two out of the three felony theft charges.
Like Reader , the facts here indicate that Parkers theft of the Kawasaki motorcycle on the one hand and ATVs and dirt bike on the other constituted but one theft offense. The evidence presented at trial suggests that these thefts occurred within the span of an hour and a half at most, all from the same lot operated by Port-to-Port, and were part of a single criminal scheme to steal various vehicles from the lot. Indeed, the security guards testimony suggests that Parker stole the Kawasaki motorcycle around the same time as the other items and from the same place in the lot-from the portable toilet, the guard saw the two men put the ATVs and motorcycles (by which he presumably meant both the Kawasaki motorcycle and the dirt bike) into the same shipping container, all within the span of thirty minutes to an hour -and the police ultimately found the items in the same U-Haul truck. Further, the Port-to-Port general manager testified that the items had been taken mainly from a single spot near the guard; and asked whether all the motorcycles and ATVs that were taken were located behind the guard shack, the manager responded that to the best of his recollection, they were. There is no evidence to suggest that Parkers theft of the motorcycle was part of a different criminal plan from his theft of the other items or that the thefts occurred at different times or locations. In short, it was all one heist.
This result is consistent with other Delaware cases on multiplicity. In Williams v. State , for example, we held that it was multiplicitous to charge the defendant, a drug dealer, on multiple counts of possession with the intent to distribute where the police found part of the defendants stash of cocaine in his apartment and part of it in his car. There, we noted that the drugs were found at the same time and were in the same general location because the car was in close proximity to the apartment, and the defendants possession of cocaine shows that he displayed a single intent and goal-distribution. In this case, Parker similarly stole the items at the same time from the same location, and the evidence indicates that the thefts were part of a singular criminal scheme. In cases where we have found no multiplicity violation, by contrast, the facts have indicated either that there was a meaningful temporal or spatial separation between each act; that a separate intent was behind each act; or, in sexual assault and other violent crime cases, that each act reflected a distinct harm or a risk of harm to the victim.
The States logic, by contrast, would nullify the multiplicity doctrine as applied to theft. In effect, the States approach would allow Parker to be charged with a separate count for each item he stole: one count for the Kawasaki motorcycle, a second count for the first ATV, a third count for the second ATV, a fourth count for the dirt bike, and so on for any other stolen items.
Instead, the General Assembly rejected that item-by-item approach to theft in favor of an aggregation approach. With limited exceptions, when the theft is minor, it is classified as a misdemeanor, no matter how many items the defendant steals, so long as their aggregate value is less than $1,500. If the value of the stolen items reaches $1,500, however, the theft becomes a Class G felony. Meanwhile, $50,000 in value makes the theft a Class D felony, and $100,000 makes it a Class B felony. Under this approach, the punishment is determined not by the number of items stolen, but by the total value of those items.
In conceding below that Parkers theft and attempted theft charges should merge for sentencing, the State appears to recognize the inequity that would result from sentencing Parker separately for each stolen item. Explaining its position that those two charges should merge, the State admitted that Parkers actions associated with the Attempted Theft and Theft charges constituted one course of conduct planned to culminate in the theft of multiple pieces of property from Port to Port. Thus, the State conceded, finding Parker more criminally culpable for leaving property behind rather than stealing the entirety of the property is inequitable. Because the State does not contend that stealing the Kawasaki motorcycle was part of a different course of conduct from the other thefts, the States stance on appeal is not reconcilable with its prior willingness to merge the attempted theft charge with the felony theft charge.
Also notable is the States admission during oral arguments that if the value of the vehicle that Parker stole was substantially more than the Kawasaki motorcycle (e.g. , a Ferrari), the States theory would allow it to aggregate all the items to charge Parker for a higher grade of felony with a single count of theft. According to the States theory, if Parker stole a vehicle worth $40,000 and the rest of the property he stole was worth $12,000 (adding up to a total of $52,000), the State could charge Parker with either two Class G felonies (up to four years in prison) or one Class D felony (up to eight years in prison). In other words, the State believes it has the option to subject a defendant to whichever punishment it chooses, proceeding with a single count of felony theft that includes the value of the vehicle when that would be more punitive, or with a felony charge for theft and a felony charge for theft of a motor vehicle when that would be more punitive. Yet the State also candidly conceded that it would be impermissible to charge a defendant for both felony theft of a motor vehicle and felony theft of the same stolen car because then its a multiplicity issue. But if charging a defendant twice for theft under those circumstances is a multiplicity violation, then so is charging Parker twice under the circumstances of this case. The fact that, in Parkers case, the vehicles stolen were different as to each charge, makes no difference because Delaware follows the single theft rule.
In sum, because the evidence indicates that Parker committed the thefts at the same time, at the same location, and with the same criminal intent, we hold that sentencing Parker twice for those thefts was multiplicitous.
III.
Because theft of a motor vehicle and felony theft are the same offense for double jeopardy purposes and Parker committed the two thefts for which he was charged at the same time, at the same location, and with the same criminal intent, the Double Jeopardy Clause prohibits imposing separate punishments for each charge under the circumstances of this case. As a result, the Superior Court erred in sentencing Parker for both thefts and both associated firearm-related charges. We therefore vacate his sentence and remand for resentencing.
75 Del. Laws ch. 290, § 1.
11 Del. C. § 206(a)(1).
Id. § 206(b)(1).
284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; see also Stigars v. State , 674 A.2d 477, 482 (Del. 1996) (noting that this Court has generally employed the Blockburger test, which is consistent with 11 Del. C. § 206).
Stigars , 674 A.2d at 482.
Id.
Proffitt v. State , 568 A.2d 1072, 1989 WL 154707, at * 1 (Del. Dec. 1, 1989) (TABLE).
Id.
11 Del. C. § 841(a).
Del. H.B. 374 syn., 143d Gen. Assem., 75 Del. Laws ch. 290, § 1 (2006).
Stigars , 674 A.2d at 482.
Arbern-Wilmington, Inc. v. Director of Revenue , 596 A.2d 1385, 1390 (Del. 1991).
Del. H.B. 374 syn., 143d Gen. Assem., 75 Del. Laws ch. 290, § 1 (2006). The full synopsis to H.B. 374, which created the motor vehicle theft offense, states:
At present the Delaware statute that criminalizes theft requires, in most circumstances, that the property be valued at greater than $1,000.00 for the crime to be considered a felony. The theft of a motor vehicle often causes great inconvenience and economic hardship to the victim, regardless of the value of the stolen vehicle. In recognition of that fact, this Act will classify all motor vehicle thefts as a felony.
Id.
See id.
See 11 Del. C. § 841B (organized retail crime); id. § 841C (theft of a prescription form or pad); id. § 842 (theft of lost or mislaid property); id. § 843 (theft by false pretenses); id. § 844 (theft by false promises); id. § 845 (theft of services); id. § 846 (extortion). Originally, § 841 had provided that [t]heft includes the acts described in sections 842 through 846. Id. § 841 (1972). The General Assembly amended that sentence to read as it currently does in 2007 through a bill that also created a new offense for organized retail crime, codified at § 841B. 76 Del. Laws ch. 98, § 3 (2007).
See Poteat v. State , 840 A.2d 599, 605 (Del. 2003) (relying on the Commentary to hold that menacing is an included offense of robbery); Stigars , 674 A.2d at 482-83 (relying on the Commentary to hold that theft is an included offense of robbery).
Delaware Criminal Code with Commentary 270 (1973) (Section 841 covers the crimes formerly known as larceny, larceny by bailee, larceny by trick, and embezzlement. It also covers any other activity that may appropriately be described in the terms there used. The ensuing sections cover other more specialized common-law crimes. But all constitute theft.).
Id. at 271 (All of these crimes are equally serious, and are closely related enough to be treated as different types of the same criminal activity. Accordingly, theft is defined to include all acts described in §§ 842-46, and it is appropriate to indict the defendant under § 841.).
Id. at 261.
Id.
Compare 11 Del. C. § 841(a) (Theft includes the acts described in this section, as well as those described in §§ 841A-846 of this title.), with id. § 1451 (codifying theft of a firearm).
11 Del. C. §§ 1301 et seq.
Williams v. State , 796 A.2d 1281, 1285 (Del. 2002) (quoting Feddiman v. State , 558 A.2d 278, 288 (Del. 1989) ) (internal quotation marks omitted).
Spencer v. State , 868 A.2d 821, 823-24 (Del. 2005) ; accord Williams , 796 A.2d at 1285 (Dividing one offense into multiple counts of an indictment violates the double jeopardy provisions of the constitutions of the State of Delaware and of the United States. (quoting Feddiman , 558 A.2d at 288 ) ).
App. to Opening Br. at A10-11 (Indictment).
See Williams , 796 A.2d at 1286-87 (adopting a test for possession with intent to deliver cocaine based on whether the possessions are sufficiently differentiated by time, location or intended purpose and stating that [t]his test consists of factors a court may use in determining, under the circumstances, whether two violations of same statute have occurred (quoting Rashad v. Burt , 108 F.3d 677, 681 (6th Cir. 1997) ); Feddiman , 558 A.2d at 288-89 (weighing the timing and location of separate acts of sexual assault to determine whether multiple counts of sexual assault were permissible under the multiplicity doctrine); Spencer , 868 A.2d at 824 (weighing the temporal and spatial separation between two gun shots, as well as whether the defendant had formed a separate intent to harm the victim between the two gun shots, to determine whether the State could charge the defendant for two counts of assault).
Spencer , 868 A.2d at 823.
349 A.2d 745, 747 (Del. 1975).
Id. ; see also Guyer v. State , 453 A.2d 462, 463 n.3 (Del. 1982) (describing the single theft rule adopted by this Court in Reader as when property belonging to different owners is taken at the same time and place, only one theft count, not multiple counts, will lay for the taking).
3 Charles E. Torcia, Whartons Criminal Law § 346, Westlaw (last updated Aug. 2018); see also id. § 347 (stating the multiple-owner version of this rule).
Compare id. § 346 (stating the same-owner version of this rule), with id. § 347 (stating the multiple-owner version of this rule and noting that some courts do not follow the multiple-owner version).
Reader , 349 A.2d at 746.
Id.
Id.
Id.
Id. at 748.
Id.
App. to Answering Br. at B75 (Trial Testimony, Javier Conaway) (Q. You say you saw these two guys, these two people loading up ATVs and motorcycles into the container? A. Yes. Q. How long did you stay in the Port-A-Potty? A. Id say 30 minutes, 40, even an hour.). It is unclear how the items made their way from the shipping container to the U-Haul truck.
App. to Answering Br. at B70-71 (Trial Testimony, Jimmy Avendano).
See 796 A.2d 1281, 1283-84, 1286-88 (Del. 2002).
Id. at 1286-87 (quoting Rashad v. Burt , 108 F.3d 677, 682 (6th Cir. 1997) ).
See Feddiman v. State , 558 A.2d 278, 287-89 & n.28 (Del. 1989) (The States allegations in the record of the variations in the sexual acts, the physical movement of the victim between the acts, and the timing between the sexual acts, was sufficient to support Feddimans prosecution for eight separate offenses of Unlawful Sexual Intercourse in the First Degree.); Cintron v. State , 757 A.2d 1277, 2000 WL 201203, at *1-2 (Del. Feb. 4, 2000) (TABLE) (holding it was not plain error to conclude that separate charges related to the sexual assault of a minor were not multiplicitous where they occurred at different locations over the course of a year).
See Feddiman , 558 A.2d at 287-89 & n.28 (concluding that the defendant had formed a separate intent to rape the victim based on variations in the sexual acts, [a]dditional orders being given to the victim, and each act being a further denigration of the victims integrity and a further danger to the victim (internal quotation marks omitted) ); Spencer v. State , 868 A.2d 821, 824 (Del. 2005) (Scott turned his back to Spencer after the first shot.... The evidence of record is sufficient for a rational trier of fact to conclude that the intent Spencer had formed to shoot Scott in the leg was distinct from the intent he formed thereafter to shoot Scott in the buttocks after Scott turned his back to run away from his assailant.); Washington v. State , 836 A.2d 485, 488-91 (Del. 2003) (finding separate intents where the defendant had robbed the victim, told the victim to leave the premises, and then, after the victim had started to run to his car, said: No. F* * * that. Give me your keys.).
See Feddiman , 558 A.2d at 289 (One is not allowed to take advantage of the fact that he has already committed one sexual assault on the victim and thereby be permitted to commit further assaults on the same person with no risk of further punishment for each assault committed. Each act is a further denigration of the victims integrity and a further danger to the victim. (internal quotation marks omitted) ); Morrisey v. State , 620 A.2d 207, 212-13 (Del. 1993) (finding no multiplicity violation for separate acts of sexual intercourse that the defendant forced his victims to perform); Whitfield v. State , 867 A.2d 168, 171-72 (Del. 2004) (finding separate offenses where the defendant had fired a shot during an attempted robbery and then, after the attempt was over, fired another shot); Washington , 836 A.2d at 488-91 (noting the differences between violent crimes against the person of the victim and property-oriented crimes and noting that the robbery statute seeks to address the personal well-being of the victim, rather than simply the protection of property).
See 11 Del. C. § 841(c)(1) (Except where a victim is 62 years of age or older, or an adult who is impaired as defined in § 3902(2) of Title 31, or a person with a disability as defined in § 3901(a)(2) of Title 12, theft is a class A misdemeanor unless the value of the property received, retained or disposed of is $1,500 or more, in which case it is a class G felony.).
Id.
Id. § 841(c)(3).
App. to Opening Br. at A037 (States Response to Defendants Renewed Motion for Judgment of Acquittal).
Id.
See Answering Br. at 7 ([I]n Parkers case, the vehicles stolen were different as to each charge.); id. at 10 ([T]he two offenses in this case were not based on theft of the same property. Parker was charged with Theft of a Motor Vehicle based on the factual allegation that he stole a Kawasaki motorcycle.... He was also charged with Felony Theft, based on the factual allegation that he stole three OHVs ....).
Oral Argument at 32:50-33:30.
Answering Br. at 7.