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 l4, 2016
Decided: July 25, 2016

_ORDER ON DEFENDANTS’ MOTIONS FOR
JUDGMENT OF ACQUITTAL

This 25th day of July, 2015, having considered Defendant Darius
Barrett’s Motion for Judgment of Acquittal (D.I. 30); Defendant Akeem
Coston’s Motion for judgment of Acquittal (D.I. 22); the State’s response
thereto (D.I. 24 and 32); Defendant Coston’s Reply (D.I. 26); Defendant
Barrett’s Reply (D.I. 33); and the record in this matter, it appears to the
Court that;_

(l) On February 24, 2015, Wilmington police arrested Defendants
Akeem Coston ("Coston") and Darius Barrett ("Barrett") (collectively

"Defendants") for multiple charges stemming from a traffic stop_..

(2) After a two-day trial, on February 4, 2016, the jury found
Coston guilty of Possession of Heroin, Carrying a Concealed Deadly
Weapon, and Possession of a Firearm While in Possessi0n of a Controlled
Substance;l and, Barrett guilty of Drug Dealing, Possession of a Firearm
During the Commission of a Felony, and Carrying a Concealed Deadly
Weapon.z Defendants each filed a timely Motion for Judgment of Acquittal
under Superi0r Court Criminal Rule 29 and each generally alleging
insufficiency of the evidence.3

(3) Specifically, Coston moves for acquittal as to the charges

related to gun possession. For the_ charge of Carrying a Concealed Deadly

il See DEL. CODE ANN.  l6, § 4763 (2015) (possession of a controlled substance);

ia'. at tit. ll, § 1442 (carrying a concealed deadly weapon); id. at § l448(a)(9) (illegal
possession of a firearm includes "[a]ny person, if the deadly weapon is a semi-automatic
or automatic firearm, or a handgun, who, at the same time, possesses a controlled
substance" as defined by statute).

2 See id. at tit. 16, § 4753(2) (drug dealing); z`a’. at tit. ll, § l447A (possession of a
firearm during the commission of a felony).

3 See Def. Akeem Coston’s Opening Mem. Of Law in Support of Mot. for J. of
Acquittal ("Coston l\/Iot."); Def. Darius Barrett’s Mot. for J. of Acquittal ("Barrett Mot.").

At the close of the State’s case on February 3, 2016, Barrett made an oral motion
for judgment of acquittal on the gun charges. The Court denied his motion. See Feb. 3,
2016 Trial Tr. at l6l.

Coston argued for acquittal as to charges made against him related to drug
dealing. The State entered a nolle prosequi on these charges. But Coston did not make
any arguments for judgment of acquittal for the carrying a concealed deadly weapon or
the possession of a firearm while in possession of a controlled substance charges, stating
that "l understand what the standard is and l think that there is, arguably - the State could
make the argument and l think that would be denied." Feb. 3, 2016 Trial Tr. at l50.

_2_

dominion and control,’ and ‘intended to exercise dominion and control’ over
them."% To prove constructive possession of a firearm, the State must show
that the defendant "(l) knew the location of the gun; (2) had the ability to
exercise dominion and control over the gun; and (3) intended to exercise
dominion and control over the gun."47 "It is well-settled that circumstantial
evidence may prove constructive possession."‘lg And again, it is common for
a jury to infer one’s knowledge or intention from all the circumstances
surrounding a charged act/19

(15) When viewing all of the evidence and all reasonable inferences
drawn thereon, in the light most favorable to the State, it is clear that a
reasonable jury could find Barrett and Coston knowingly possessed the
firearm for purposes of their respective charges. That evidence includes:
Coston’s status as keyholder and driver, as well as his and Barrett’s joint

exclusive control over the van at the time; the otherwise inexplicable delay

1-  _

46 Lum v. State, l0l A.3d 970, 97l (Del. 2014) (quoting Lecates v. State, 987 A.2d
413, 425 (Del. 2009) and State v. Clayton, 988 A.2d 935, 936 (Del. 20l0)).

47 Elmore v. State, 2015 WL 3613557, *2 (Del. June 9, 20l5) (quoting Triplett va
State, 2014 WL l8884l4, at *2 (Del. May 9,2014).

Triplett, 2014 WL 1888414 at *2; Lecates v. State, 987 A.2d 413, 425-26 (Del.
2009).

49 See Plass v. State, 457 A.2d 363, 365 (Del. 1983) ("As a matter of common sense,
in judging the sufficiency of the evidence as to state of mind, the jury must be able to
weigh the conduct of the defendant. Otherwise, in most situations, the only evidence
would be the defendant’s own self-interested testimony.").

_11_

in the minivan’s pullover after officers activated their emergency lights; that
the backpack was located almost between Barrett and Coston and within
easy reach of either; that no other items were present in the van’s passenger
area - it was immaculate; that there was no indication that the car was
stolen; and that Defendants were then actively engaged in drug crimes for
which the jury also found evidence sufficient for conviction.

(16) The fact that these Defendants were engaged in other criminal
conduct with the firearm available at arrn’s length differentiates this case
from the many others they cite. Here they were not merely present in a
home or vehicle where a firearm happened to be deeply stashed. Instead,
they had a firearm and its ammunition within ready grasp while engaged in
illegal drug possession and dealing - crimes the firearm could facilitate. A
rational jury certainly could infer both Barrett’s and Coston’s knowledge of
and intent relating to this handgun from all of the circumstances present
here.

(l7) In short, a reasonable jury could infer that the Defendants
knowingly had the firearm easily accessible to forward their then-ongoing
criminal conduct. lt could reasonably infer that the delay in stopping their
vehicle allowed the Defendants a chance to conceal the gun from the

officers’ immediate sight. And, the firearm’s close proximity to the

_12_

Defendants and lack of any other items within that part of their vehicle could
lead a reasonable jury to find that the Defendants brought the weapon into
the car or, at a minimum, knew of its existence While the State’s witnesses
could not present physical evidence - z'.e., fingerprints or DNA - tying the
Defendants to the firearm, the jury reasonably could have found that this was
not dispositive of the Defendants’ guilt, especially given the experts’
testimony that this lack of evidence was a common occurrence with firearm
identification The jury was free to believe or disbelieve that testimony.$o
(18) ln this case, the jury, having heard and seen all of the evidence
offered by the State and the defense, could reasonably conclude that Barrett
and Coston were in fact guilty of the possessory crimes of which they were

convicted.

lT IS HEREBY ORDERED, that each Defendant’s Motion for

judgment of Acquittal is DENIED,

 

Original to Criminal Prothonotary

cc: Daniel B. McBride, Esquire, Deputy Attorney General
J ames O. Turner, Esquire
John S. Malik, Esquire

~‘° Maaarey v. s/a¢e, 975 A.zd 772, 775 (1)@1. 2009)(“1hejury is the sole judge of

thc credibility of witnesses and is responsible for resolving any conflicts in the
testimony") (quoting Chao v. Srate, 604 A.Zd 1351, l363 (Del. 1992)).

_13_

Weapon, Coston argues that the State failed to introduce sufficient evidence
to prove that he "carried" the firearm "about his person."4 As to the charge
for Possession of a Firearm While in Possession of a Controlled Substance,
he argues that the State failed to prove that Coston "knowingly exercised
dominion or control over a firearm" to establish possession.5 Essentially, he
argues that the State failed to present sufficient evidence that Coston knew
of the gun’s presence.

(4) Barrett also moves for a judgment of acquittal on the charges
related to firearm possession.é Similar to Coston, he asserts that "there
simply was no evidence tying Mr. Barrett to the gun or establishing an intent
to exercise dominion or control . . . for constructive possession."7

(5) The State argues that the evidence, both direct and
circumstantial, when viewed in the light most favorable to its case, was

sufficient to allow a reasonable jury to convict the defendants.g

(6) A brief recounting of the evidence relevant to these motions

follows. On February 24, 2015, Detective Antonio Tiberi and his partner

Coston Mot. at 7-8 (labeled [4]-[5])_.
Id. at 4-7 (labeled [l]-[4]).

Barrett Mot. at 21.

7 Id. at 5.

 State’s Resp. to Defs.’ Mot. for J. of Acquittal ("State’s Resp.").

_3_

Officer Kate Sweeney, while driving an unmarked police car, observed a
black Hyundai Entourage (a minivan) fail to completely stop at a traffic
signal.g The officers activated their emergency lights, but the minivan
continued to drive - though there was ample opportunity to pullover - for
two city blocks before stopping.m Detective Tiberi approached the vehicle
and requested identification from both the minivan’s driver, Coston, and
passenger, Barrett.“ He learned that Coston’s license was suspended
because of a missed traffic court hearing.lz He also smelled marijuana
coming from inside the van.B At this point, Detective Tiberi removed both
occupants, placing Coston in handcuffs and frisking Barrett for weapons.M

Barrett’s frisk revealed $180 cash, a cell phone, and fourteen bags of

9 Feb. 2, 2016 Trial Tr. at 132-35. See also DEL. CODE ANN. tit. 21, § 4108 (3)._~:

1° Feb. 2, 2016 Trial Tr. ar 135-36.

“ Iaz. ar 139.
12 1¢1. ar 157.
13 1a ar 140;
14 Id..;

marijuana of varying weights that totaled approximately 38 grams.w 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.l9 The bacl<pack 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 empty, save for a stroller behind the third row in the luggage

area.zz At this point, Officer Sweeney drove the minivan with the backpack

 

35 1a ar 140-41.

"" 1a ar 142;.-.

18 See Feb. 3, 2016 at 160; see also State’s Trial Ex. 3 (picture of van’s passenger
compartment).

19 Feb. 2, 2016 Triai Tr. ar 142, 169___»$

2° 1a ar 145§,_.

21 Ia'. at l42. Detective Tiberi misspoke at one point when he said the firearm was a
"rifle." See ia'. In fact, it was a ".22-caliber semiautomatic pistol." See Feb. 3, 2016

Trial. Tr. at 100-01; see also State’s Trial Ex. 9 (the firearm).

22 F@b. 2, 2016 rrial 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.z§

(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.zé 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

23 1a ar 145-,_

24 Ia'. at 180 (Detective Tiberi testified that the minivan was registered to a Shakira
Romeo. That person never contacted the police regarding her vehicle).

25 Iar. ar 164-67_.>_,;
26 1a ar 182-83_¢,,-
27 Iar_ 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, l would say, to actually acquire any latent lifts. The best things are,

like a gloss, metal, like really smooth plastics. Stuff like this, like parkerization or
plasticky, it is very hard to actually obtain a latent lift off that.").



recovered from the firearm matched the Defendants’ DNA.29 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.w

(10) 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 F@b. 3, 2016 rriai Tr. ar 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 prof`iles, which are very difficult to compare with

reference DNA samples.").

31 See generally jackson v. Virginia, 443 U.S. 307, 318-19 (l979) (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.’ Instead,
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 factfinder’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 517, 524 (Del. 1979) (adopting Jackson standard).

_7_

to sustain a conviction of such offense or offenses."32 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."33
"[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."”

(11) 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 "(1) committed an underlying felony (2) while possessing a firearm,

and (3) acted l<nowingly."% As correctly stated to the jury, the relevant

15

33 superior ci. crim. 1;29(3); mims v. smie, 452 A_zd 1165, 1169(1)@1. 1982).

33 s¢aie v. Bizer, 119 A.zd 894, 898 (Del. sup@r. ci. 1955); stare v. c@iinciz, 2016
WL 3880781,31*1 (Del. super. ci. Juiy 12, 2016).

34 Brown v. State, 967 A.2d 1250, 1252 (Del. 2009) (emphasis in original) (quoting
Priest v. State, 879 A.2d 575, 577 (Del. 2005)). See also Williamson v. State, 113 A.3d
155, 158 (Del. 2015).

33 Desm@nd, 654 A.zd ar 829 (¢iiiiig shipley v. s¢a¢e, 570 A_zd 1159, 1170 (Del.
199())). See also Councz`l, 2016 WL 388()781, at *1 ("It is irrelevant if most of the State’s
evidence is circumstantial since the Court does not distinguish between direct and
circumstantial evidence.").

36 Peiers@n v. siaze, 81 A.zd 1244, 1248 (Dei. 2013>.\.

_3_

question was whether the Defendants knowingly possessed the firearm under
certain circumstances.37 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

1 1

37 See Feb. 3, 2016 Trial Tr. at 235-37 (jury instruction on charge for Possession of a
Firearm During Commission of a Felony), id. 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: (1) 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 Mada'rey 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 Maa'drey, 975 A.2d at 776 (alteration in original) (quoting Chila'ress v. State, 721
A.Zd 929, 931 (Del. 1998)).

_9_

act the defendant is alleged to have done."40 Barrett and Coston’s jury knew
rhis_4‘

(13) As to Coston’s charge for Carrying a Concealed Deadly
Weapon,‘u 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."43

(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/14 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

40 Den cone ANN. m. 16, § 307 (2015).

41 Feb. 3, 2016 Trial Tr. at 244-45 (jury instruction on state-of-mind)§.
42 Den cone ANN. et 11, § 1442_

43 Smith v. State, 2015 WL 1422427, at *2 (Del. Mar. 26, 2015);,.,;

44 Den cone ANN_ m. 11, § 1443(1»)_

45 See Feb. 3, 2016 Trial Tr. at 29-30.

_10_

