IN THE SUPREME COURT OF THE STATE OF DELAWARE

RUSSELL SMITH, §
§ No. 420, 2014
Defendant Below- §
Appellant, § Court Below: Family Court
§ of the State of Delaware in and
v. § for New Castle County
§
STATE OF DELAWARE, § No. 1405026663
§
Plaintiff Below» §
Appellee. §

Submitted: March 4, 2015
Decided: March 26, 2015

Before HOLLAND, VALII-IURA, and VAUGHN, Justices.

0 R D E R
On this 26lh day of March 2015, it appears to the Court that:

(1) Defendant-Below/Appellant Russell Smith appeals from a F amin Court
order adjudicating him delinquent for committing the offenses of Possession of a
Deadly Weapon by a Person Prohibited (“PDWPP”) and Carrying a Concealed
Deadly Weapon (“CCDW”). He also appeals ﬁ'om the trial court’s sentence order,
which imposed a six-month minimum mandatory commitment to a treatment facility.1

Smith raises two claims on appeal. First, he contends that the State failed to establish

' Speciﬁcally, Smith was sentenced to six months at Ferris School for Boys in accordance with 10
Del. C. § 1009(e)(1).

beyond a reasonable doubt that he knowingly possessed, either actually or
constructively, a deadly weapon. Second, he contends that the Family Court
committed plain error by failing to infer that the State’s failure to collect a duffel bag
and a long~sleeved t-shirt for DNA testing deprived him of exculpatory evidence.2
We ﬁnd no merit to Smith’s appeal. Accordingly, we afﬁrm.

(2) Smith’s charges arose out of a May 31, 2014 trafﬁc step on Wilton
Boulevard in New Castle, Delaware. Ofﬁcers Daniel Elwood and Matthew Arnold
of the New Castle County Police Department noticed that Smith was driving his
vehicle while not wearing a seatbelt. When Ofﬁcer Elwood activated the police car’s
emergency lights, Smith sped up slightly and appeared to be leaning toward the right,
in the direction of the center console, causing the car to move in and out of the traffic
lane. Smith eventually pulled off to the side of the road.

(3) When Ofﬁcer Arnold approached the car, he immediately smelled the odor
of burnt marijuana. The vehicle contained ﬁve occupants including Smith. Officer
Arnold asked Smith and his four passengers about the odor, but received no response.
Ofﬁcer Elwood then began removing the occupants from the vehicle one at a time,
patting them down, and asking them to go to the curb at the rear of the vehicle so that

the ofﬁcers could search the vehicle for marijuana.

31 Lolly v. State, 61 l A.2d 956 (Del. 1990).

Ix.)

(4) The ofﬁcers found “crumbs of a green, leafy plant-like substance, consistent
with marijuana” on one of the rear seat passengers, but did not otherwise ﬁnd any
evidence of drugs or drug paraphernalia.3 Ofﬁcer Elwood did, however, ﬁnd a black
duffel bag on the center console in the vehicle. On top of the bag was a 12-inch knife
with a 7-inch blade wrapped inside a long-sleeved t-shirt. The knife was in a sheathe,
but the snap on the sheathe used to hold the knife in place was unsnapped. Ofﬁcer
Elwood asked to whom the knife belonged, but none of the ﬁve occupants responded.

(5) The knife was located less than one foot away from the driver’s seat. The
front seat passenger was not leaning in the direction of the knife when the ofﬁcers
observed the vehicle prior to the stop. The front seat of the car was a bench seat,
which prevented the rear seat passengers from reaching the knife. Due to the knife’s
location, and Smith’s proximity to the knife, Smith would have been able to reach the
knife within seconds while he was driving. Based on the ofﬁcers’ observations of
Smith leaning toward the right—the direction where the knife was located—the
ofﬁcers believed that Smith was the one who possessed the knife.

(6) Smith had a prior delinquency adjudication for Conspiracy Second Degree

and was, therefore, a person prohibited from possessing a deadly weapon. He was

arrested and charged with CCDW and PDWPP. The Family Court held a bench trial

3 Appellant’s Op. Br. App. at A35.

on July 21, 2014. At the close of the State’s case, Smith moved forjudgment of
acquittal. The court denied the motion and found Smith delinquent on both charges.
Smith was sentenced to a six-month minimum mandatory commitment to a treatment
facility. This appeal followed.

(7) We review a Family Court judge’s denial of a motion forjudgment of
acquittal “to determine whether a rational trier of fact could have found that the
evidence, viewed in the light most favorable to the State, supported each element of
the offense beyond a reasonable doubt.”" For the purposes of this inquiry, “[w]e do

not distinguish between direct and circumstantial evidence” of a defendant’s guilt?

(8) Under 1 1 Del. C. § 1442, a person is guilty of CCDW “when the person
carries concealed a deadly weapon upon or about the person without a license . . . 3’“
Whether a weapon is “about the person” is determined by considering whether the
weapon was immediately available and accessible to the person.7 “We also have
explained that the following factors—known as the Dubin factorsa—should be

considered in evaluating the question of accessibility of the deadly weapon: (1)

whether the defendant had to change [his] position appreciably to reach the weapon,

 

4 Vincent v. State, 996 A.2d 777, 778-79 (Del. 2010) (citing Davis v. State, 453 A.2d 802, 803 (Del.
1932)).

5 Id.

6 ll Del. C. § 1442.

7 Gallnmn v. State, 14 A.3d 502, 504 (Del. 20! l).

8 See Dubin v. State, 397 A.2d I32, 134 (Del. 1979).

4

(2) whether the defendant could reach the weapon while driving, and (3) the amount
of time it would take for the defendant to reach the weapon, if the defendant were
provoked.”

(9) In this case, Smith does not challenge the fact that the knife was
immediately available and accessible to him, and he concedes that the knife in
question meets the definition of a “deadly weapon.” In addition, the Dubin factors
each strongly support a ﬁnding of actual possession under 1 1 Del. C. § 1442 as the
knife was less than a foot away from Smith in the vehicle and nothing obstructed his
immediate possession of it. Smith contends, however, that the State failed to prove
that he had actual knowledge of the knife’s presence in the car, and thus failed to
prove that he knowingly possessed the weapon.

(10) Knowledge of a weapon may be proved by circumstantial evidence. '0 For
example, in Ross 12. State, the defendant was charged with CCDW following a trafﬁc
stop during which police discovered a .38 caliber revolver under the defendant’s seat
along with two .38 caliber rounds on the ground near where the defendant had been
searched.“ The defendant was convicted of CCDW.12 On appeal, we affirmed the

trial court’s denial of the defendant’s motion forjudgment of acquittal, finding that

9 Gallman, l4 A.3d at 504-505 (internal citations omitted).
'0 Ross v. State, 232 A.2d 97, 98 (Del. 1967).

” Id. at 98.

13 Id. at 97.

the circumstantial evidence was “sufﬁcient tojustify the belief that [the defendant]
knew of the weapon and had some control over it.”'3

(1 1) Here, the weapon was immediately accessible to Smith. After the ofﬁcers
initiated their lights, they observed him leaning down toward the center of the
vehicle—where the knife was located— before he pulled over. The ofﬁcers observed
no movement on the part of the front seat passenger. Nor did they observe any
movement on the part of the backseat passengers. After the stop, it was determined
that the passengers riding in the back seat of the vehicle could not have accessed the
knife because of the large bench seat. These facts, viewed in the light most favorable
to the State, are sufﬁcient for a rational fact finder to conclude that Smith had
knowledge of the knife, and therefore knowingly carried it about his person for the
purposes of a CCDW conviction.

(12) We also ﬁnd that Smith had possession of the knife for the purposes of
PDWPP. Under 1 1 Del. C. § 1448, a person is guilty of PDWPP if he falls into one
of the restricted categories enumerated in the statute and is found to be in possession
of a deadly weapon. PDWPP does not require proof of actual possession of the

4

deadly weapon.l Constructive possession is sufﬁcient. We have held that to

establish constructive possession for the purposes of PDWPP, the State must show

'3 1d. at 98.
'4 See Let-ales v. State, 987 A.2d 413, 420-42] (Del. 2009).

6

that the defendant:
(I) knew the location of the [weapon]; (2) had the ability to
exercise dominion and control over the [weapon]; and (3)
intended to guide the destiny of the [weapon]. Although “mere
proximity to, or awareness of [contraband] is not sufﬁcient to

establish constructive possession,” it is well established that
circumstantial evidence may prove constructive possession."

(13) Smith argues that the range of innocent explanations for his leaning
toward the right side of the vehicle is too large for any rational trier of fact to ﬁnd the
essential elements of knowing possession beyond a reasonable doubt. We disagree.
The facts of this case, viewed in the light most favorable to the State, support ﬁndings
that Smith had knowledge of the knife, had the ability to exercise dominion and
control over the knife, and intended to guide the destiny of the knife by manipulating
it before pulling his vehicle to the side of the road. The fact that there are other
plausible reasons for Smith’s action of leaning to the right does not render the trial
court’s conclusion unreasonable. Accordingly, the Family Court did not err in
denying Smith’s motion forjudgment of acquittal.

(14) In his ﬁnal claim, Smith contends that the Family Court erred by failing
to infer that items the police failed to seize or test would have produced exculpatory

I6

evidence. Speciﬁcally, Smith contends that the Family Court should have drawn an

'5 1d. at 426 (quoting White v. Slam, 906 A.2d 82, 86 (Del. 2006)).
‘6 Lolly, 6] l A.2d at 959.

exculpatory inference on his behalf because the ofﬁcers failed to gather and preserve
the longusleeved t-shirt and the duffel bag that were located in Smith’s car so that
they could be tested for DNA and ﬁngerprints. He also contends that the State failed
to test the knife for DNA or ﬁngerprints. Smith failed to raise this claim in the court
below. Accordingly, it will be reviewed for plain error. Under the plain error
standard of review, “the error complained of must be so clearly prejudicial to
substantial rights so as tojeopardize the fairness and integrity of the trial. The burden
of persuasion is on the defendant to demonstrate that a forfeited error is prejudicial.””

(1 5) As a matter of federal and state due process, “the State, including its police
agencies, is obligated to gather and preserve evidence which is material to a
defendant’s guilt or innocence.”l8 If the State fails to gather or preserve such material
evidence, the ﬁnder of fact is to infer that the missing evidence would have been

exculpatory to the defendant. ‘9 Here, Smith has failed to show that any of the alleged

'7 Swan v. State, 820 A.2d 342, 355 (Del. 2003) (internal citations omitted).

'3 Lolly, 61 l A.2d at 959. In Deberry v. State, we recognized that claims of missing evidence must
be analyzed according to the following paradigm: (1) would the requested material, if extant in the
possession of the State at the time of the defense request, have been subject to disclosure under
Criminal Rule 16 or Brady [in Mmylcmd]?; (2) If so, did the government have a duty to preserve the
material?; and (3) If there was a duty to preserve, was the duty breached, and what consequences
should ﬂow from a breach? 457 A.2d 744, 750 (Del. 1983). The same analysis applies equally to
claims involving the alleged failure to gather evidence ab initio. Lolly, 611 A.2d at 960.

'9 meon v. State, 710 A.2d 197, 199 (Del. 1998) (“The remedy for failure to preserve potentially
exculpatory evidence is a missing evidence instruction commonly referred to as a Lolly or Deben-y
instruction. This instruction requires that the jury infer that had the evidence been preserved, it
would have been exculpatory to the defendant”).

8

missing evidence is material to his defense. The fact that police failed to seize some
evidence, by itself, is not enough to require the ﬁnder of fact to infer that the evidence
is exculpatory. The State’s theory of actual and constructive possession in this case
was premised on Smith’s close proximity and immediate access to the knife, as well
as his conduct of leaning toward the knife prior to pulling his vehicle over. Smith has
put forth no meritorious argument that the State’s failure to submit the alleged
evidence for fingerprint and DNA testing jeopardized the fairness of the trial, or that
it would have affected the trial judge’s ultimate decision. As such, we ﬁnd the claim
to be without merit.

NOW, THEREFORE, IT IS ORDERED that thejudgment of the Family Court

is AFFIRMED.

BY THE COURT:

“7%

Justice

