           IN THE SUPREME COURT OF THE STATE OF DELAWARE

KESLER STEVENS,                       §
                                      §     No. 41, 2015
      Defendant-Below,                §
      Appellant,                      §     Court Below: Superior Court
                                      §     of the State of Delaware in and
      v.                              §     for New Castle County
                                      §
STATE OF DELAWARE                     §
                                      §     C.A. No. N13A-09-008
      Plaintiff-Below,                §
      Appellee.                       §

                         Submitted: September 24, 2015
                          Decided: November 12, 2015


Before STRINE, Chief Justice, HOLLAND, and VAUGHN, Justices.

Upon appeal from the Superior Court. AFFIRMED.



James O. Turner, Jr., Esquire, Office of the Public Defender, Wilmington, Delaware,
for Appellant.

Karen V. Sullivan, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, for Appellee.
VAUGHN, Justice:

       Defendant-below/Appellant Kesler Stevens (“Stevens”) appeals from a

Superior Court Opinion affirming a Court of Common Pleas bench trial verdict which

found him guilty of Driving Under the Influence (“DUI”).1 He raises two claims on

appeal. First, Stevens contends that the trial court erred in denying his motion for

judgment of acquittal because there was insufficient evidence to convict him of DUI.

Second, he contends that Delaware’s DUI law violates the Equal Protection Clause

of the United States Constitution because it provides for a harsher punishment than

Delaware’s Reckless Driving–Alcohol Related2 law even though both laws punish

identical conduct. We find no merit to Stevens’ appeal and affirm.

                   I. FACTS AND PROCEDURAL HISTORY3

       On the night of March 17, 2013, Stevens was driving on Pulaski Highway near

Scotland Drive in New Castle County. At the same time, Alfred Melchiore was

traveling on Scotland Drive with his daughter. As Melchiore approached Pulaski

Highway, Stevens’ vehicle collided, head-on, with Melchiore’s vehicle.4 After the



1
  21 Del. C. § 4177(a).
2
  21 Del. C. § 4175(b).
3
  Unless otherwise noted, the facts and procedural history are taken from the Superior Court’s
Opinion affirming the judgment of the Court of Common Pleas. Stevens v. State, 110 A.3d 1264,
1265 (Del. 2015).
4
  Both vehicles sustained heavy front-end damage and were ultimately totaled.

                                              2
collision, Stevens approached Melchiore and stated: “Your daughter’s crying . . .

she’s really upset, try to calm [her] down.”5 Melchiore smelled alcohol on his breath.

         When Delaware State Trooper Gregory Gaffney arrived at the scene of the

accident, Stevens handed Trooper Gaffney his car keys despite not being asked to do

so. Trooper Gaffney handed Stevens his keys back and asked for his driver’s license,

registration, and proof of insurance. Stevens returned with just his driver’s license

and handed his car keys to Trooper Gaffney for a second time. Trooper Gaffney

observed that Stevens had: (1) stumbled a few times and seemed unbalanced; (2) the

smell of alcohol on his breath; (3) glassy eyes; and (4) slurred and mumbled speech.

Trooper Gaffney also “asked him numerous times where he was coming from and all

he could do was point to [the highway] and say, ‘There, Pulaski Highway.’”6

         During his investigation, Trooper Gaffney observed tire marks crossing Pulaski

Highway’s grass median as well as a knocked down tree. Pieces of the downed tree

were found in Stevens’ bumper and the tire tracks pointed towards the collision.

Based on these observations, Trooper Gaffney determined that Stevens had swerved

into the median and hit the tree before crashing into Melchiore’s vehicle.

         Not sure whether the Delaware State Police or the New Castle County Police

would be handling the investigation, Trooper Gaffney did not request that Stevens
5
    Appellant’s Op. Br. App. at A16.
6
    Appellant’s Op. Br. App. at A34-35.

                                            3
perform any field sobriety tests before Stevens, Melchiore, and Melchiore’s daughter

were transported to the hospital.7 Shortly after the ambulance left, Stevens’ mother

arrived at the accident scene. Trooper Gaffney told her that her son was at the

hospital and may have been intoxicated. Stevens’ mother then left for the hospital.

       Once the New Castle County Police arrived, it was determined that the State

Police should continue the investigation. Trooper Gaffney headed to the hospital

where he learned that Stevens had left after refusing any treatment for a shoulder

injury. Trooper Gaffney then called Stevens and asked him to return to the hospital.

During the call, Stevens told Trooper Gaffney that he was walking on a road but was

unable to provide its name. After being asked to return, Stevens told Trooper

Gaffney that his mother was driving him home. Stevens never returned to the

hospital and stopped answering Trooper Gaffney’s phone calls. Unable to establish

contact with Stevens, Trooper Gaffney traveled to Stevens’ house. He knocked on

the door and rang the doorbell repeatedly, but there was no answer. Ultimately,

Stevens was charged with DUI as well as several other offenses.8

       On February 25, 2014, a bench trial was held in the Court of Common Pleas.

Melchiore and Trooper Gaffney testified for the State. At the conclusion of the


7
  At the hospital, Melchiore observed Stevens doing “wheelie[s]” in a wheelchair before Stevens left
without being treated.
8
  The other offenses are not at issue on appeal.

                                                 4
State’s case, Stevens moved for judgment of acquittal as to the DUI charge. The trial

court reserved judgment on the motion. Stevens then testified. At the conclusion of

Stevens’ case, the trial court denied Stevens’ motion and found him guilty of DUI.

In its ruling, the court stated that the “totality of the circumstances” and all reasonable

inferences showed that the State proved, beyond a reasonable doubt, that Stevens was

driving under the influence of alcohol. Stevens renewed his motion for judgment of

acquittal, which the trial court denied on March 17, 2014.

       On April 14, 2014, Stevens appealed the trial court’s decision to the Superior

Court. He raised two claims on appeal: (1) the evidence was insufficient to support

a conviction for DUI and (2) an error in the Information regarding the date of the

offense exposed him to double jeopardy. The Superior Court dismissed the double

jeopardy claim because Stevens failed to preserve it during trial.             As to the

insufficient evidence claim, the Superior Court found no error in the trial court’s

factual findings and the judgment was affirmed. This appeal followed.

                                    II. ANALYSIS

   A. Based on the Evidence Presented at Trial, a Rational Trier of Fact Could
      Find, Beyond a Reasonable Doubt, that Stevens was Guilty of DUI.

       “When a defendant argues that the evidence is insufficient to support the

verdict, the relevant inquiry is whether, considering the evidence in the light most



                                            5
favorable to the State, including all reasonable inferences to be drawn therefrom, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.”9 We do not distinguish between direct and circumstantial

evidence.10 Factual findings will not be overturned unless they are “clearly wrong.”11

Our review of the fact finder’s factual conclusions is deferential because the fact

finder is “responsible for determining witness credibility, resolving conflicts in

testimony and for drawing any inferences from the proven facts.”12 Any claim that

the trial court erred in formulating or applying the law is reviewed de novo.13

       In order for a defendant to be found guilty of DUI, the State must prove,

beyond a reasonable doubt, that the defendant was (1) driving a vehicle (2) while

impaired by alcohol.14 It is not necessary to prove that the defendant was “drunk.”15

The State is only required to produce enough evidence to allow a reasonable trier of

fact to conclude that the defendant’s “ability to drive safely was impaired by

alcohol.”16 Investigative tests, such as a chemical or sobriety test, are “not necessary


9
  Church v. State, 2010 WL 5342963, at *1 (Del. Dec. 22, 2010) (citing Dixon v. State, 567 A.2d
854, 857 (Del. 1989)).
10
   Id. (citing Skinner v. State, 575 A.2d 1108, 1121 (Del. 1990)).
11
   Anderson v. State, 21 A.3d 52, 57 (Del. 2011) (quotation omitted).
12
   Church, 2010 WL 5342963, at *1 (quoting Chao v. State, 604 A.2d 1351, 1363 (Del. 1992)).
13
   Anderson, 21 A.3d at 57.
14
   See 21 Del. C. § 4177(a); Lewis v. State, 626 A.2d 1350, 1355 (Del. 1993).
15
   Lewis, 626 A.2d at 1355.
16
   Id.

                                              6
to prove the impairment required by the statute.”17 The requisite level of impairment

may be established through circumstantial evidence.18 Determining whether a person

is intoxicated “is within the realm of common knowledge.”19

       Stevens’ first claim is unavailing. There was sufficient evidence from which

a rational trier of fact could find Stevens guilty of DUI beyond a reasonable doubt.

Stevens abruptly turned on Pulaski Highway, drove through a median, hit a tree, and

then collided, head-on, with another motor vehicle, which resulted in extensive

damage to both vehicles. He could not explain where he was coming from when

asked by Trooper Gaffney. Both Trooper Gaffney and Melchiore noticed the odor of

alcohol on Stevens’ breath. Further, Trooper Gaffney noticed that Stevens was (1)

stumbling, (2) slurring his words, and (3) had glassy eyes. Stevens also handed his

car keys to Trooper Gaffney twice, despite never being asked to do so. These actions

and characteristics have long been associated with someone who is under the

influence.20 The totality of these circumstances allowed the trial court, acting as the

fact finder, to reasonably infer that Stevens was under the influence. Thus, Stevens’

first claim has no merit.

17
   Church v. State, 2010 WL 5342963, at *2 (Del. Dec. 22, 2010).
18
   Id.
19
   Id.
20
   See id. at *1-2; Lefebvre v. State, 19 A.3d 287, 290-95 (Del. 2011) (discussing indicia in the
context of probable cause); Bease v. State, 884 A.2d 495, 499-500 (Del. 2005) (discussing indicia
in the context of probable cause).

                                               7
     B. The DUI statute does not violate the equal protection clause.

        “Claims of error implicating basic constitutional rights of a defendant have

been accorded review by this Court notwithstanding their nonassertion at trial.”21

“[W]here substantial rights are jeopardized and the fairness of the trial imperiled, this

court will apply a plain error standard of review.”22 “The doctrine of plain error is

limited to material defects which are apparent on the face of the record; which are

basic, serious and fundamental in their character, and which clearly deprive an

accused of a substantial right, or which clearly show manifest injustice.”23

        Despite Stevens’ failure to preserve this issue below, we will address it in the

interest of justice. It is axiomatic that a law that results in a harsher punishment than

another for an identical act “violates the right of equal protection.”24 But DUI and

Reckless Driving–Alcohol Related (“RDAR”) do not punish the same conduct. Each

of the two statutes requires an element that the other does not. An element of RDAR

is driving a vehicle in wilful or wanton disregard for the safety of persons or property,

an element not required for DUI. DUI requires proof that the defendant was under




21
   Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
22
   Stansbury v. State, 591 A.2d 188, 191 (Del. 1991).
23
   Wainwright, 504 A.2d at 1100.
24
   Hughes v. State, 653 A.2d 241, 251 (Del. 1994).

                                               8
the influence of alcohol or drugs as described in 21 Del. C. § 4177(a)(1-6), an

element not required for RDAR.25 Accordingly, Stevens’ second claim lacks merit.

       Moreover, because each statute contains an element that the other does not, one

cannot be a lesser included offense of the other.26 A lesser included offense is one

which is established by proof of the same or less than all the facts of a charged

offense.27 We are aware that a number of trial court opinions have referred to RDAR

as a lesser included offense of DUI.28 We also realize that our own decision in

Michael v. State may have contributed to the confusion by referring to RDAR as a

lesser included offense of DUI.29 But we emphasize here that for the reasons just

stated, RDAR is not a lesser included offense of DUI. The provisions of 21 Del. C.

§ 4175(b) which give rise to the concept of RDAR are penalty provisions which apply

when a person who is charged with DUI is permitted to plead guilty to Reckless

Driving.30 There is no offense of RDAR separate from Reckless Driving.

25
   Lewis v. State, 626 A.2d 1350, 1355 (Del. 1993); see also 21 Del. C. §§ 4177(a)91), (c)(11).
26
   Johnson v. State, 5 A.3d 617, 620 (Del. 2010) (quoting Blockburger v. United States, 284 U.S.
299, 304 (1932)) (“The Blockburger rule states that two distinct statutory provisions that condemn
the same conduct constitute separate offenses when ‘each provision requires proof of an additional
fact, which the other does not.”); see also 11 Del C. § 206 (codifying the Blockburger rule).
27
   11 Del. C. § 206(b).
28
   See Wilkerson v. State, 1998 WL 472755, at *1 (Del. Super. Ct. June 17, 1998); State v.
Smallwood, 2012 WL 5869624, at *8 (Del. Com. Pl. Nov. 9, 2012); State v. Early, 2011 WL
6946970, at *5 (Del. Com. Pl. Dec. 22, 2011); State v. Stonesfier, 2000 WL 33662346, at *3 n.5
(Del. Com. Pl. June 8, 2000).
29
   Michael v. State, 529 A.2d 752, 756 (Del. 1987).
30
   The pertinent language of 21 Del. C. § 4175(b) was introduced in House Bill Number 526, which
was titled “An Act to Amend Chapters 3, 7, 21, 23, 27, 31, 41, 42 and 43, Title 21 of the Delaware

                                                9
                                   III. CONCLUSION

       For all of the preceding reasons, the judgment of the Superior Court is

AFFIRMED.




Code Relating to the Penalty Provisions of the Motor Vehicle Code.” See Del. H.B. 526, 133d Gen.
Assem., 65 Del. Laws ch. 503 (1986).

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