THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
) I.D. Nos. 1502014659 and
) 1502014656
v. )
) Cr. A. Nos. IN15-03-1828, etc.
)
DARIUS BARRETT, )
AKEEM COSTON, )
Defendants. )
Submitted: July 14, 2016
Decided: July 25, 2016
_()RDER ON DEFENDANTS’ MOTIONS FOR
_JUDGMENT OF AC UITTAL
This 25th day of July, 2015, having considered Defendant Darius
Barrett’s Motion for Judgment of Acquittal (D.I. 30); Defendant Al.§oie rmi Tr. iii 132-35. see also DEL. cone ANN. iii 21, § 4108 (3),.
‘° Feb_ 2, 2016 Triai Tr. ar 135-36§_..
" Id. ar i39i
'2 Id. ar 157§:
13 1a ar 140,
"‘ ld€_._
"5 ld. ar 140-4_1.
marijuana of varying weights that totaled approximately 38 grams.l§ At this
point, Barrett and Coston were arrested.m
(7) Incident to arrest, Detective Tiberi searched the minivan.w The
passenger compartment was pristine with only one foreign object within it: 18
a lone closed backpack, located in the middle of the floor just behind the
driver and passenger seat.w The backpack was well within arm’s length of
both Coston and Barrett.zo And it contained a .22 caliber Mossberg firearm
with thirteen rounds of ammunition in a magazine, 46 rounds of loose
_ammunition, and two boxes of .22 caliber ammunition.zl The van was
otherwise ernpty, save for a stroller behind the third row in the luggage
area.zz At this point, Officer Sweeney drove the minivan with the backpack
16 1a ar 1421
" ida
18 See Feb. 3, 2016 at 160; see also State’s Trial Ex. 3 (picture of van’s passenger
compartment).
19 Feb. 2, 2016 Trial Tr. ar 142, 169-a
20 1a ar 145-_,-_..
21 Id. at 142. Detective Tiberi misspoke at one point when he said the firearm was a
"rifle." See z`a’. In fact, it was a ".22-caliber semiautomatic pistol." See Feb. 3, 2016
Trial. Tr. at IOO-Ol; see also State’s Trial Ex. 9 (the flrearm).
22 Feb. 2, 2016 Trial rr. ar 161-62.
and gun to the Evidence Detection Unit.23 The van was not registered to
either Defendant.m
(8) At the wilmington Police Station, Detective Matthew Rosario
searched Coston and discovered eighteen bags of heroin, one Endocet pill
(an opioid), and one bag of marijuana on his person.25
(9) The State presented witnesses and experts who testified
regarding the (lack of) physical evidence as to the Defendants’ ownership or
possession of the firearm. Detective Tiberi testified that the gun was not
reported as stolen on either state or federal databases.% Corporal Richard
Evans testified that no fingerprint evidence was recovered from the gun,27
but that this was expected given the difficulty in obtaining prints off of the
firearm’s particular material.zg DNA analyst Paul Gilbert of the Delaware
Division of Forensic Sciences testified that none of the DNA samples
523 1a ar 145&
24 Id. at 180 (Detective Tiberi testified that the minivan was registered to a Shakira
Romeo. That person never contacted the police regarding her vehicle).
25 1a ar 164-67,,_
26 1a ar 182-83.;.;,
27 1a ar 201-02.
28 Id. at 195 ("This gun is like a plasticky material that’s a bit rough, and is not a
very good surface, I would say, to actually acquire any latent lifts. The best things are,
like a gloss, metal, like really smooth plastics. Stunff like this, like parkerization or
plasticky, it is very hard to actually obtain a latent lift off that.").
_6_
recovered from the firearm matched the Defendants’ DNA.ZQ But he also
testified that a negative result in this type of case was very common and was
not dispositive as to whether Defendants actually handled the gun.30
(l0) Defendants face a high bar on a motion for judgment of
acquittal under Superior Court Criminal Procedural Rule 29.31 The Court
may only order entry of judgment of acquittal if "the evidence is insufficient
29 Feb. 3, 2016-natl Tr._at 100_07._.-..
30 Ia'. at 96-97 ("With swabs taken from firearms, they can be difficult, in a sense, to
work with. Often you get very little DNA to work with, which leads to poor DNA
profiles, or you get the other end, the other extreme, where you have DNA from multiple
individuals, which gives mixed DNA profiles, which are very difficult to compare with
reference DNA samples.").
31 See generally Jacks0n v. Virginia, 443 U.S. 307, 318-19 (1979) (explaining that
the inquiry on review of a motion for sufficiency of the evidence
does not require a court to ‘ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.’ lnstead,
the relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. This
familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Once a
defendant has been found guilty of the crime charged, the factf`inder’s role
as weigher of the evidence is preserved through a legal conclusion that
upon judicial review all of the evidence is to be considered in the light
most favorable to the prosecution. The criterion thus impinges upon
"jury" discretion only to the extent necessary to guarantee the fundamental
protection of due process of law.") (citations omitted) (emphasis in
original).
See also Yoang v. State, 407 A.Zd 5l7, 524 (Del. 1979) (adopting Jackson standard).
_7_
to sustain a conviction of such offense or offenses."” When evaluating the
motion, the Court considers the evidence, "together with all legitimate
inferences therefrom from the point of view most favorable to the State."”
"[T]he standard of review is ‘whether any rational trier of fact, viewing the
evidence in the light most favorable to the State, could find the defendant
guilty beyond a reasonable doubt of all the elements of the crime."’34 "For
purposes of reviewing a claim of insufficient evidence there is no distinction
between direct and circumstantial evidence."35
(l l) As to all charges, the issue in contention is knowing possession.
(12) To prove Barrett’s charge of Possession of a Firearm During
the Commission of Felony, the State was required to demonstrate that
Barrett "(l) committed an underlying felony (2) while possessing a firearm,
1036
and (3) acted knowingly. As correctly stated to the jury, the relevant
33 superior Cr. crim. R. 29(3); V@ums v. s¢a¢e, 452 A.zd 1165, 1169 (1)@1. 1982).
33 sane v. Bner, 119 A_zd 894, 898 (1)@1. sup@r. cr. 1955);8¢¢11@ v_ C@unczz, 2016
WL 3880781,@1*1 (Del. super. cr. Ju1y 12, 2016)_
34 Brown v. State, 967 A.2d 125(), 1252 (Del. 2009) (emphasis in original) (quoting
Priest v. Sfate, 879 A.2d 575, 577 (Del. 20()5)). See also Wz'llz`amson v. Srate, ll3 A.3d
155, 158 (Del. 2015).
33 D@sm@nd, 654 A.zd ar 829 wang shipley v. Sm¢e, 570 A.zd 1159, 1170 (Del.
1990)). See also Council, 2016 WL 3880781, at *l ("It is irrelevant if most of the State’s
evidence is circumstantial since the Court does not distinguish between direct and
circumstantial evidence.").
36 Peterson v. State, 81 A.3d 1244, 1248 (Del. 2013).
_g_
question was whether the Defendants knowingly possessed the firearm under
certain circumstances.w The weapon was not required to be physically on
Barrett’s person at the time of his arrest; rather "possession" occurs when
the weapon "is physically available or accessible to him during the
commission of the crime."38 Accordingly, a jury may infer from a weapon’s
proximity to a quantity of drugs sufficient to constitute a felony "that the gun
was accessible to the defendant at some point during the transaction for
purposes of [section] l447A."39 And too, a "defendant’s intention . . .
knowledge or belief at the time of the offense for which the defendant is
charged may be inferred by the jury from the circumstances surrounding the
37 See Feb. 3, 2016 Trial Tr. at 235-37 (jury instruction on charge for Possession of a
Firearm During Commission of a Felony), z`a'. at 237-38 (jury instruction on charge for'
Carrying a Concealed Weapon); id at 240-43 (jury instruction on charge for Possession of
a Firearm While in Possession of a Controlled Substance). See also ll Del. C. § 231(0)
("A person acts knowingly with respect to an element of an offense when: (l) If the
element involves the nature of the person’s conduct or the attendant circumstances, the
person is aware that the conduct is of that nature or that such circumstances exist . . . ").
38 Maddrey v. State, 975 A.Zd 772, 776 (Del. 2009). See also Lecates v. State, 987
A.2d 413, 419 (Del. 2009) (agreeing that this is the test for possession of a deadly
weapon while committing a felony).
39 Maddrey, 975 A.Zd at 776 (alteration in original) (quoting Childress v. Srate, 721
A.2d 929, 931 (Del. l998).
_9_
act the defendant is alleged to have done."40 Barrett and Coston’s jury knew
rhis_”"
(13) As to Coston’s charge for Carrying a Concealed Deadly
Weapon,@ the State was required to prove that Coston carried the firearm
"about the person" which is "determined by considering whether the weapon
was immediately available and accessible to the person."“
(14) His conviction for Possession of a Firearm by a Person
Prohibited required proof that the he was a prohibited person and that he
knowingly possessed or controlled a deadly weapon.M There is no dispute
that the heroin, pills, and marijuana tucked in his pocket and rectum45
qualifies Coston as a "person prohibited." As to the firearm, Coston’s
possession could be "actual or constructive: actual possession requires
‘direct physical control’ that "amounts to a conscious dominion, control and
authority.’ Constructive possession requires the State to show that the
defendant ‘knew the location’ of the objects, ‘had the ability to exercise
‘*° DEL. coma ANN. m. 16, § 307 (2015).
41 Feb. 3, 2016 Trial Tr. at 244-45 (jury instruction on state-of-mind).
42 11 Del. C. § 1442.
43 Smith v. State, 2015 WL 1422427, at *2 (Del. Mar. 26, 2015).
44 11 Dei_ c. § 1448(1>).
45 see Feb. 3, 2016 Trial Tr. ar 29-30.
_10_