IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE
CRIMINAL ID NUMBER
Submitted: October 2, 2009
Decided: January 15, 2010
Appeal from a Decision of
the Court of Common Pleas - AFFIRMED
Gerard M. Spadaccini, Esquire, Wilmington, Delaware, attorney for appellant
Kate S. Keller, Esquire, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, attorney for appellee
Elizabeth Kupchinski appeals her harassment conviction in the Court of Common
Pleas. She claims that the State did not produce enough evidence for a rational trier of fact
to conclude that Elizabeth Kupchinski knew that her actions would cause the victim, Ann
Flowers, to respond violently or disorderly, or that her actions would cause Flowers
substantial emotional distress. This Court finds there was sufficient evidence viewed in
a light most favorable to the State for a rationale trier of fact to have found Kupchinski
guilty beyond a reasonable doubt.
On June 24, 2008, Ann Flowers 1 was standing in her driveway in Bear when a car
stopped at her driveway and someone shouted “Bitch. I’m going to get you.” Ann
identified the person yelling at her as the appellant, Elizabeth Kupchinski. Elizabeth was
then arrested and charged by information with harassment. 2 She waived her right to a jury
and a bench trial in the Court of Common Pleas was commenced on April 13, 2009.
The State first called Ann. She stated that she was in her driveway retrieving the
mail when she observed a car stop out front of her house and Elizabeth yelled at her. The
mailbox is located at the end of the driveway by the street. Ann thought Elizabeth’s sister
was driving the car with her as a passenger. When Ann was asked how the statements
Due to two witnesses each sharing the last names “Kupchinski” and “Flowers” the
Court will refer to the witnesses by their first names.
13 Del. C. § 1311(a)(1).
made her feel she responded, “She stopped the car and I literally thought that they were
going to get out and get me until they both noticed that my husband was at the end of the
driveway behind a pole, before they took off.” 3 Ann testified that she knew Elizabeth
because her mother lives on her block and she immediately recognized her when she
approached and that she had problems with her and her family in the past. 4
The State then called Ann’s husband, Garry Flowers. On the date in question he
was out tending to his lawn when he saw an Oldsmobile with Maryland tags pull up and
he heard someone shout, “I’m going to get you bitch.” Although he was not able to
identify who made the statement, he knew that it came from one of the two occupants in
the Oldsmobile. Once Garry heard the shout he came out into the open from behind the
truck. He believes that the Oldsmobile drove away when they saw him. After Garry
testified, the State rested.
Elizabeth then called her daughter, Nichole Kupchinski. Nichole testified that she
was driving with her mother on June 24, 2008, and that she slowed down after she heard
Ann shout “Bitch” toward the car. Nichole testified that she shouted, “Bitch” in response.
After she shouted, her mother stated, “Nichole, that’s Miss Flowers, that’s the one that
got me in trouble before. Keep driving.” 5 That prompted Nichole to drive away. On
Record at 5.
Record at 4.
Record at 23.
cross-examination, she testified that Elizabeth and Ann have had problems in the past when
Flowers threatened Nichole’s grandmother (Elizabeth’s mother). Nichole testified that the
1980 Oldsm obile she was driving was always registered Delaware with D elaware tags.
Appellant, Elizabeth Kupchinski, then testified in her own defense. She testified
that she and her daughter were driving her daughter’s 1988 Delta Oldsmobile when they
stopped in front of Ann’s home. Elizabeth testified to the same exchange of words that
Nichole detailed. She stated that Ann initiated the exchange. Elizabeth described her
criminal history as “extensive,” she was convicted of twelve crimes of dishonesty in the
ten years prior to the trial.6
The court convicted Elizabeth of harassment. It sentenced her to three months of
Level V suspended for eighteen months at Level II followed by six months at Level I.
Elizabeth filed a motion for judgment of acquittal, which was withdrawn when she filed
Elizabeth argues that the State did not produce evidence that the spoken words were
likely to produce a violent or disorderly response. Further, Appellant argues that there
was insufficient evidence to prove that her actions were likely to cause substantial
emotional distress. She argues that substantial emotional distress is some level of stress
Record at 35.
greater than what is expected in every day life and no rationale trier of fact could conclude
that her words were likely to cause that level of stress.
The State responds by arguing it met its burden. It highlights trial testimony that
it purports to show Elizabeth’s intent to harass, annoy or alarm Ann. It argues that there
was evidence established that the Kupchinksi family and Ann have had problems in the past
and the evidence is sufficient to show she acted in a matter likely to provoke a violent or
disorderly response or substantial emotional distress.
Standard of Review
The Superior Court sits as an appellate court for criminal trials in the Court of
Common Pleas. 7 The role of the Court mimics that of the Supreme Court’s appellate
review.8 It is to correct errors of law and to review the factual finding of the court below
to determine if they are sufficiently supported by the records and are the product of an
order and logical deductive process. 9 “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.” 10
To determine sufficient evidence the Court must
determine whether, after viewing the evidence in the light most favorable to the State, any
11 Del. C. § 5301; D EL. C ONST. Art. IV, § 28.
Shipkowski v. State, 1989 WL 89667, at *1 (Del. Super. Jul. 28, 1989).
Guest v. State, 2009 WL 2854670, at *1 (Del. Super. Sept. 4, 2009).
Ochoa v. State, 2009 WL 2365651, at *2 (Del. Super. Jul. 31, 2009).
rationale trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. 11 The Court does not make its own factual conclusions, weigh evidence
or make credibility determinations.12
Elizabeth was convicted of harassment in violation of 11 Del. C. § 1311(a)(1).
Section 1311 was amended effective October 14, 2008.13 The crime occurred on June 24,
2008; therefore, the State properly charged Elizabeth under the prior version of the statute.
(a) A person is guilty of harassment when, with intent to harass, annoy or
alarm another person:
(1) That person insults, taunts or challenges another person
or engages in any other course of alarming or distressing
conduct which serves no legitimate purpose and is in a
manner which the person knows is likely to provoke a
violent or disorderly response or cause a reasonable
person to suffer substantial emotional distress.
It can be inferred from the court’s conviction that it credited Ann’s testimony and
not give weight to Nichole and Elizabeth’s description of the event. Also, it must have
found that Elizabeth was the one who yelled at Ann. Mindful of this Court’s limited
McKinney v. State, 2008 WL 282285, at *2 (Del. Super. Jan. 31, 2008).
State v. Goodwin, 2007 WL 2122142 (Del. Super. Jul. 24, 2007).
See 76 Del. Laws c. 34 § 6.
function when it sits as an appellate court, those factual findings and credibility
determinations will not be disrupted as they are based in the evidence presented.
Elizabeth is disputing that the State’ did not establish Elizabeth’s required
knowledge. The court could legally convict Elizabeth if it found her conduct was 1) likely
to provoke a violent or disorderly response, or 2) likely to cause a reasonable person to
suffer substantial emotional distress. Elizabeth argues, in summary fashion, that this Court
should not consider the likelihood of a violent or disorderly response because the words
spoken “did not even elicit a verbal response from her.” 14 Her argument is misguided.
The court does not consider the victim’s response when determining whether it will cause
a violent or disorderly response. The court should determine the likely effect of the
defendant’s words or conduct.
The court in State v. Russel15 acquitted a defendant of harassment, finding that the
State failed to prove the knowledge element. It held, “A reasonable person would not have
the direct tendency to react to this conduct by an act of violence or a breach of the
peace.” 16 Therefore, this Court will affirm the conviction if it finds, when considering the
evidence in the light most favorable to the State, that a rationale trier of fact could find that
Appellant’s Br. at 5.
2007 WL 5006533 (Del. Com m. Pl. Dec. 3, 2007).
Id. at *2.
Elizabeth’s conduct would likely provoke Ann to react to it by an act of violence or a
breach of the peace beyond a reasonable doubt.
The issue raised in this case is analogous to that considered in Weber v. State.17 The
statute at issue there was offensive touching which has similar elements to harassment.
The Court’s discussion, nevertheless, is helpful to the disposition of this case, especially
the focus on the defendant’s intent:
We conclude, however, that a conviction for Offensive Touching does not
require proof that the victim actually felt offended or alarmed. In relevant
part, 11 Del. C. § 601 defines Offensive Touching as a person intentionally
“touch[ing] another person either with a member of his or her body or w ith
any instrument . . . knowing that the person is thereby likely to cause
offense or alarm to such other person.” This definition focuses on the
actor’s intent and knowledge before touching another person, not on that
other person’s resultant mental state.18
Evidence was presented at trial that Elizabeth and Ann knew each other and have
had problems in the past. Nichole testified that Ann threatened to assault her grandmother
(Elizbeth’s mother). Ann testified that she immediately recognized Elizabeth because of
their prior contacts. When considering the evidence in the light most favorable to the
State, a rationale finder of fact can conclude that, given their confrontational past, when
Elizabeth stated, “I’m going to get you bitch” that Ann would have the natural tendency
971 A.2d 135 (Del. 2009).
Id. at 142.
to react with violence or a breach of the peace. The fact that she did not react in such a
fashion is not dispositive.
Section 1311(a)(1) uses the disjunctive “or.” The State needed only to prove that
Appellant’s conduct was likely to cause a violent or disorderly response or substantial
emotional distress. Given the findings above, the argument that the State did not prove
substantial emotional distress is moot. The lower court’s verdict was the product of an
orderly and logical deductive process and is AFFIRMED.
IT IS SO ORDERED.