Mills v. State, 201 A.3d 1163

On Aug. 17, 2017, two Wilmington officers found Rydell Mills in a dark alley holding a digital scale; he fled and physically resisted, injuring one officer. Police later recovered ~41g cocaine, ~0.5g heroin (in ~55 bags), multiple scales, phones, and texts suggesting sales.
Mills was indicted on multiple counts including cocaine and heroin dealing, two counts of resisting arrest with force or violence (each tied to a different officer), and related offenses; jury convicted on most counts; State later nolle prossed some charges.
Superior Court declared Mills a habitual offender based on two resisting-arrest felonies and imposed an aggregate lengthy sentence; Mills appealed.
On appeal Mills raised three issues (reviewed for plain error): (1) multiplicity/double jeopardy as to the two resisting-arrest convictions based on the same arrest; (2) whether resisting-arrest can be punished separately when it serves as an aggravating element elevating drug-dealing grade; and (3) whether the jury instruction omitted the element of intent to deliver heroin.
The Court reversed one resisting-arrest conviction (holding unit of prosecution is the arrest, not each officer), held separate convictions for resisting arrest and aggravated drug dealing are permissible (legislative intent), and reversed the heroin-dealing conviction due to plain error in omitting intent-to-deliver from jury instructions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether two counts of resisting arrest (force/violence) based on two officers violate multiplicity/double jeopardy	Mills: single arrest = single unit of prosecution; charging per officer is multiplicitous	State: statute references “a peace officer,” so separate counts per officer are permissible	Reversed one conviction; unit of prosecution is the arrest (one count per arrest), charging per officer violates multiplicity
Whether resisting arrest (used as aggravating factor) is a lesser-included offense of aggravated drug dealing under §206/Blockburger	Mills: resisting arrest is an element/aggravator of Class C drug dealing, so convictions for both violate §206	State: legislative history and bill synopsis show intent to allow convictions for both the drug offense and the aggravating offense	Held that legislative intent allows separate convictions/sentences for both aggravated drug dealing and resisting arrest (analogy to felony murder)
Whether omission of intent-to-deliver from jury instruction for heroin dealing was plain error	Mills: failure to instruct on intent-to-deliver omitted an essential element and prejudiced him given circumstantial evidence	State: parties argued intent at closing and court defined “deliver”; omission immaterial	Reversed heroin conviction; omission was plain and prejudicial; remand for retrial or lesser-included conviction option

Blockburger v. United States, 284 U.S. 299 (establishes test for whether two offenses require proof of different elements)
Brown v. Ohio, 432 U.S. 161 (prohibits dividing a single crime into temporal/spatial units for multiple punishments)
Lardner v. United States, 358 U.S. 169 (addresses unit of prosecution for resisting arrest when multiple officers injured)
Whalen v. State, 434 A.2d 1346 (Del. 1981) (Delaware precedents on felony murder and underlying felony convictions)
Flamer v. State, 490 A.2d 104 (Del. 1983) (permitting separate punishments for related offenses when legislative intent supports it)
Wallace v. State, 724 So.2d 1176 (Fla. 1998) (unit of prosecution for resisting arrest is the arrest, not number of officers)
Parsons v. State, 636 A.2d 1077 (N.J. Super. Ct. App. Div. 1994) (same: resisting arrest is against the justice system; one offense per occasion)
Purnell v. State, 827 A.2d 68 (Md. 2003) (rejecting officer-count unit of prosecution for resisting arrest)
Stigars v. State, 674 A.2d 477 (Del. 1996) (Blockburger/§206 as aid to statutory construction; legislative intent can control)