In criminal cases, after the close of the State’s case or the close of all evidence, a defendant may move, or the court may act on its own motion, for a judgment of acquittal.1 Such a motion denies the sufficiency of the evidence and challenges the State’s right to go to the jury.2 Sufficiency of the evidence is the sole ground upon which a motion for judgment of acquittal may be granted.2.1 The motion must be granted if the evidence is insufficient to sustain a conviction of the charged offense.3
A court should not take the case from the jury where there is any evidence upon which a verdict of guilty could reasonably be based.4 In deciding a motion for a judgment of acquittal, the trial judge must view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the State.5 The court may not weigh the evidence or determine where the preponderance lies.6
Where a judgment of acquittal turns on the issue of criminal intent, if there is sufficient evidence from which a jury could conclude that the defendant had the requisite intent, the motion should be denied and the matter left to the jury. However, where there is insufficient evidence of intent, the jury should not be left to speculate about intent, and the motion should be granted.6.1
A motion for acquittal must be based, and decided, solely on the evidence presented by the State. The trial judge may not consider the testimony of the defendant.6.2
A trial judge has the power and, in certain (but not all) circumstances, the duty to enter a judgment of acquittal where there is an irreconcilable conflict in the State’s evidence concerning the defendant’s guilt, such as would preclude a conviction beyond a reasonable doubt.7 Where the claim is asserted based on inconsistencies in the testimony of accomplices, the conflict must be in the State’s evidence. The fact that defense witnesses present evidence inconsistent with the State’s witnesses is irrelevant. Further, the only evidence of the defendant’s guilt must be the uncorroborated testimony of one or more accomplices. Finally, the inconsistencies must be material to a finding of guilt.7.1
Upon a motion for judgment of acquittal at the close of the State’s evidence, the court has the discretionary authority to permit the State to reopen its case to introduce further evidence to meet the motion.8 If the motion is made after the close of all evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict.9 The court may also permit the State to offer additional evidence after both sides have rested.10
If a motion for judgment of acquittal at the close of the State’s case is denied, the defendant may offer evidence in defense without having specifically reserved the right.11 A defendant is not obligated to do so and may rest without offering evidence. If the defendant presents evidence, however, the defendant may be deemed to have waived the right to challenge on later motion or on appeal the sufficiency of the evidence presented by the prosecution on its direct case, and, even if the motion for judgment of acquittal is renewed at the close of all evidence, any review will be based on all the evidence presented. The defendant thus takes the risk that the evidence presented in his or her case in defense will defeat a right of review with respect to an erroneous or questionable denial of a motion for acquittal made at the close of the prosecution’s case.12
1. Super. Ct. Cr. R. 29(a); Comm. Pls. Ct. Cr. R. 29(a); Fam. Ct. Cr. R. 29; Ald. & M. Ct. R. 18.
2. State v. Biter, 119 A.2d 894, 898 (Del. Super. 1955).
2.1. State v. Massey, I.D. No. 0605019268, slip op. at 3, Young, J. (Del. Super. May 8, 2007), aff’d, 953 A.2d 210, 215-16 (Del. 2008).
3. Super. Ct. Cr. R. 29(a); Comm. Pls. Ct. Cr. R. 29(a); Fam. Ct. Cr. R. 29; Ald. & M. Ct. R. 18; Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982); Conyers v. State, 396 A.2d 157, 160 (Del. 1978); State v. Knight, Cr. A. No. IN-92-12-0179, slip op. at 2, Carpenter, J. (Del. Super. Jan. 19, 1994).
4. D’Amico v. State, 102 A. 78, 79 (Del. 1917).
5. Ciccaglione v. State, 474 A.2d 126, 131 (Del. 1984); Vouras v. State, 452 A.2d 1165, 1169 (Del. 1982); Tice v. State, 382 A.2d 231, 234 (Del. 1977);Edwards v. State, 285 A.2d 805, 806 (Del. 1971).
6. Edwards v. State, 285 A.2d 805, 806 (Del. 1971); State v. Biter, 119 A.2d 894, 898 (Del. Super. 1955).
6.1. Monroe v. State, 652 A.2d 560, 563 (Del. 1995); State v. Williamson, I.D. #9601015299, slip op. at 6-7, Silverman, J. (Del. Super. May 30, 1997), aff’d, 707 A.2d 350 (Del. 1998).
6.2. Cline v. State, 720 A.2d 891, 892 n.6 (Del. 1998).
7. Washington v. State, ___ A.2d ___, ___ (Del. 2010); Brokenbrough v. State, 522 A.2d 851, 854 (Del. 1987); Wintjen v. State, 398 A.2d 780, 781 & n. 1 (Del. 1979).
7.1. Washington v. State, ___ A.2d ___, ___ (Del. 2010).
8. Pepe v. State, 53 Del. 417, 171 A.2d 216, 219 (Del. 1961), cert. denied and appeal dismissed, 368 U.S. 31 (1961); State v. Woods, Cr. A. No. N85-l0-0719, slip op. at 3, Stiftel, J. (Del. Super. Sept. 4, 1986).
9. Super. Ct. Cr. R. 29(c); Comm. Pls. Ct. Cr. R. 29(c).
10. State v. Patnovic, 129 A.2d 780, 782 (Del. Super. 1957).
11. Super. Ct. Cr. R. 29(a); Comm. Pls. Ct. Cr. R. 29(a); Fam. Ct. Cr. R. 29.
12. See 2 Charles Allen Wright, Federal Practice and Procedure § 463 (2nd ed. 1982).
© 2010 David L. Finger