University of Vermont AAHS

State of Delaware v. McCrea

Delaware Superior Court
1999 WL 1427772
October 29, 1999

Summary of Opinion

Defendant McCrea was charged with criminal offenses of obtaining property by false pretenses (lying) in that horses he owned won races that were reserved for Delaware-owned horses, while McCrea was at the time a resident of New Jersey. McCrea acquired many of the elements of Delaware residence, but actually spent most of his time at a residence in New Jersey.

In this opinion, the trial court refuses to set aside the jury verdicts on six counts of obtaining property (Delaware only purses) by false pretenses.

Text of Opinion

Upon consideration of the defendant's motion for a new trial and supplemental motion for judgment of acquittal and/or new trial, and the record in this case, it appears that:

1. On June 10, 1999, a jury found the defendant guilty of six counts of Theft by False Pretense and not guilty of six counts of Fraudulent Certificate of Registration or Eligibility Document These charges arose out of the defendant's horse racing activities in Delaware. Specifically, the state's allegations were that Mr. McCrea, while a resident of New Jersey, intentionally created a false impression that he was a resident of Delaware in order to obtain purses from horse races reserved for Delaware owned or bred horses. With regard to the fraudulent certificate charges, the allegation was that Mr. McCrea had knowingly made a false statement in the registration certificates for six different horses by listing a Delaware address. The defendant has moved for a new trial on the six theft counts. He has also filed a supplemental motion for judgment of acquittal and/or new trial on three of the six theft counts. Because I believe that there was sufficient evidence to support the convictions on the six theft counts, the motions for new trial and judgment of acquittal and/or new trial are denied.

2. During the 1990's the state has adopted certain measures designed to revitalize Delaware's struggling harness racing industry. Among them is the Horse Racing Redevelopment Act which brought slot machines to Delaware race tracks and the offering of certain races which are limited to horses owned by Delaware residents or horses sired by Delaware resident horses. These Delaware owned or Delaware bred races, as they are called, offer purses which are twenty percent higher than other races. Therefore, they provide a significant financial benefit to those qualified to participate.

In the fall of 1997, McCrea, a New Jersey native, approached Salvatore DiMario, executive director of the Delaware Harness Racing Commission ("Commission"), to discuss his interest in qualifying to race in the Delaware owned races. During the course of their conversation or conversations, the defendant informed Mr. DiMario that he would be living in Dagsboro, Delaware, but training his horses in New Jersey. In his effort to qualify as a Delaware resident, McCrea did, in fact, buy a house in Dagsboro [FN3]. In addition, he obtained a Delaware driver's license, registered his vehicles in Delaware, registered to vote and did in fact vote in the election district in which his Dagsboro house was located, and filed a Delaware income tax return. In addition, the certificates of registration for his horses all reflected his Dagsboro address. He was eventually approved by the Harness Racing Commission to race in Delaware owned races as a Delaware resident.

FN3. State Police officer Michael Eller testified that the house was located in what appeared to be a resort or beach community located on a golf course.

Over time suspicions arose that McCrea actually resided in New Jersey, not Dagsboro. These suspicions were fueled, at least in part, by a perception that after each race, as the defendant left the track, he drove north, toward New Jersey, rather than south, toward Dagsboro. An investigation was conducted by Robert Collison, an investigator employed by the racing commission, which ultimately led to the charges in this case.

In his motion for a new trial, the defendant asserts that a new trial should be granted because there was a lack of evidence to support the guilty verdicts on the six theft-false pretense counts. Specifically, he contends that there was no evidence from which the jury could conclude that the defendant's claim of Delaware residency was false because the jury was never provided with a definition of "Delaware resident" or "Delaware residency" and the state failed to present evidence of any commonly accepted meaning for those terms. In other words, he asserts that there was no residency standard available to the jury against which the jury could assess whether the defendant's claim was true or false. He further asserts, as a second ground, that the guilty verdicts on the false pretense counts and the not guilty verdicts on the false certificate counts are inconsistent, and that the jury's verdict represented a fatal verdict by compromise.

3. A motion for a new trial may be granted when required in the interest of justice. Where a new trial is sought on the basis that the verdict was against the weight of the evidence, the motion is addressed to the sound discretion of the trial court. In this regard, the court must determine whether, when viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

4. Over the course of the trial, the concept of residency received considerable attention. In fact, it would be fair to say that the evidence presented, both by the state and the defense, focused on the issue of residency. At the time of the events in question, there was no relevant statutory definition of resident or residency. [FN7] As witnesses testified, their answers sometimes reflected to some extent their personal impressions of residency. In the redirect of Officer Eller, for example, he referred, in at least one answer, to the concept of "where one lays one's head at night." However, the difficulty presented by the absence of any controlling statutory definition of residency came to a head during the testimony of Robert Collison. During the course of his testimony, while dealing with an objection, the court was advised by both the state and the defense that neither would be submitting a proposed jury instruction on the definition of residency, and that, in fact, neither wished to have any instruction given concerning a definition of residency. The Court then instructed the jury, without objection from either the state or the defense, and, as the Court recalls it, with the consent of both, that there was no statutory definition of resident or residency pertinent to the case, and that the meaning of residency would be left to the jury to decide based upon its commonly accepted meaning as determined by the jury. No exception was taken by either side to the Court's final instructions. In other words, counsel for both the State and the defense were content to argue the concept of residency to the jury as a question of fact.

FN7. Statutory criteria have since been adopted. 3 Del. C. 10032.

Given the record of this case, these complaints now asserted by defendant must fail. The complaint that a new trial should be granted because the jury was not provided with any definition of resident or residency is inconsistent with the position which the defendant took at trial. In situations where a jury is instructed to give words their commonly accepted meanings, the state is not required to present independent proof of such commonly accepted meaning. To the extent that the defendant is now asserting that there was insufficient evidence from which the jury could infer that the defendant possessed the required state of mind for the offense charged, such assertion is rejected. These complaints were not presented to the court at trial. In order to preserve an issue for a motion for new trial, that issue must be raised by some objection or request made during trial.


5. Although the defendant obviously took many of the steps that one would take in establishing residency, there was also substantial evidence from which the jury could infer that he was actually living in the apartment which he rented in New Jersey. Mr. DiMario testified that the defendant told him that he would be living in Dagsboro and training his horses in New Jersey. The defendant made no mention to Mr. DiMario of his New Jersey apartment. Generally, the determination of a person's residence is a question of fact and is dependent upon the individual facts of each case. The offense with which McCrea was charged required the jury only to determine whether the defendant intentionally misled the Commission by creating the false impression that he was a full-time Delaware resident living primarily in Dagsboro and not disclosing that he was actually living in New Jersey, for the purpose of obtaining purses from Delaware only races. An extensive evaluation of the concept of residency was not required. I am satisfied that there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that McCrea intentionally created a false impression to Mr. DiMario and the Harness Racing Commission that he would be living as a full-time resident at Dagsboro and merely training his horse's in New Jersey, when in fact he was actually living in his apartment in New Jersey. I also find that the jury could likewise conclude that this false impression led directly to the defendant's being able to obtain the purses from Delaware owned races to which he would not otherwise be entitled. I therefore conclude that there was sufficient evidence from which the jury could conclude that the defendant was guilty of theft by false pretense.

6. The defendant also contends that the jury rendered a compromise verdict by finding him guilty of the six theft counts and not guilty of the six fraudulent certificate counts. He argues that the presence or absence of Delaware residency is a common thread of both sets of charges. However, the theft-false pretense charges and the fraudulent certificate charges involve two different statutes with different elements and different circumstances. In order to find McCrea guilty of theft by false pretense, the jury was required to find that the defendant intentionally misled the Commission into believing that he was a Delaware resident, not a New Jersey resident, so that he could race in the Delaware only races and receive larger purses. As I have stated, there is sufficient evidence in the record to support a verdict of guilty for theft-false pretense. This includes the evidence of the interaction between Mr. and Salvatore DiMario. In order to find guilty of filing a fraudulent certificate of registration, the jury was required to find that he knowingly made a false written statement in the certificates of registration. This places the focus on the contents of those documents. Those documents show only "Current Owner(s) McCrea, Patrick S., Dagsboro, DE." The certificates separately show a mailing address. On some, the mailing address is shown as West Deptford, NJ. On others it is shown as Dagsboro, or in some cases the track. A review of the attached eligibility documents shows little relevant information. The documents do not contain any relevant, affirmative representation beyond what I have just indicated. I can understand how a jury might find that the contents of the certificates fell short of a knowing, false written statement. It is possible for a person to have more than one address. I think a jury could reasonably have given Mr. the benefit of the doubt on the fraudulent certificate charges while finding him guilty of the theft-false pretense charges. I see no contradiction or compromise in the jury's verdict.

7. The final issue to be considered arises from the defendant's supplemental motion for judgment of acquittal and/or new trial. In that motion Mr. contends that there was a complete failure of proof as to three of the theft charges (counts four through six) because there was undisputed evidence that the defendant did not own the horses at the time of the alleged activities relating to those horses. He suggests that a motion to dismiss those three counts was made during trial, but deferred by the Court.

8. I have carefully reviewed the Prothonotary's record of the trial proceedings and searched my recollection and I find no record that a motion to dismiss three of the theft counts was made during trial. The supplemental motion was filed more than 10 days after trial. It raises a matter unrelated to the matters raised in the motion for a new trial. Therefore, the supplemental motion is barred by time. The Court does note, in addition, that the Court's recollection is that there was evidence introduced that the defendant raced in each of the three races mentioned in counts four through six, and this would be sufficient evidence, together with all of the other evidence in the case, for the jury to convict on those three counts, even if he did not own the horses at that time.

THEREFORE, the defendant's motion for a new trial and supplemental motion for judgment of acquittal are denied.

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