            IN THE SUPREME COURT OF THE STATE OF DELAWARE

ERIK GRANDELLI,                              §
                                             §       No. 506, 2013
       Defendant-Below,                      §
       Appellant,                            §       Court Below: Superior Court of
                                             §       the State of Delaware in and for
       v.                                    §       Sussex County
                                             §
STATE OF DELAWARE,                           §
                                             §
       Plaintiff-Below,                      §       Cr. ID No. 1206017104
       Appellee.                             §

                              Submitted: June 27, 20141
                              Decided:   September 19, 2014

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

                                          ORDER

       This 19th day of September 2014, upon consideration of the parties’ briefs

and the Superior Court record, it appears to the Court that:

       (1)     The appellant, Erik Grandelli (“Grandelli”), filed this appeal from his

conviction and sentencing in the Superior Court on his second violation of

probation (“VOP”). The background of this matter is as follows.

       (2)     On September 12, 2012, Grandelli pled guilty to Driving under the

Influence (Fourth Offense). The Superior Court sentenced Grandelli to five years



1
 On September 17, 2014, at the Clerk’s request, the Prothonotary submitted several Superior
Court filings relevant to this appeal but inadvertently not included in the record filed on January
24, 2014.
at Level V suspended after six months for eighteen months at Level III probation

with “zero tolerance for alcohol” use.

      (3)    On April 18, 2013, Grandelli was charged with his first VOP. The

violation report alleged that, during a home visit on April 11, 2013, Grandelli took

a breathalyzer test that registered a blood alcohol content of .202% in violation of

the “zero tolerance for alcohol” condition of his sentence.

      (4)    On April 25, 2013, the Superior Court found Grandelli guilty of VOP

and resentenced him to four years and four months at Level V suspended for

eighteen months at Level III probation. The court reimposed the “zero tolerance

for alcohol” condition and added a new condition that Grandelli be monitored with

a transdermal alcohol device (“TAD”) to detect any alcohol consumption.

      (5)    On June 20, 2013, Grandelli was charged with his second VOP. The

violation report alleged that, on June 17, 2013, Grandelli’s TAD detected a

“drinking event” that was confirmed on June 18, 2013. On September 5, 2013, the

Superior Court found Grandelli guilty of VOP and resentenced him to four years at

Level V suspended after successful completion of the Reflections Program for one

year at Level III probation. The court also reimposed the “zero tolerance” and

TAD monitoring conditions. This appeal followed.

      (6)    On appeal, Grandelli claims that his second VOP conviction should be

overturned because one of the State’s witnesses “withheld key evidence” and “was

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biased [and] clearly presented a conflict of interest.” Also, Grandelli claims that

the Superior Court abused its discretion “by not considering the ‘preponderance of

evidence’ [and by] passing judgment with a closed mind.”

         (7)     At the VOP hearing, David Smith, Grandelli’s probation officer,

testified that he and another officer, in conjunction with BI Incorporated

(hereinafter “BI”), are responsible for installing and overseeing TAD monitoring in

Sussex County.2 Smith explained that a TAD consists of a transmitter that the

probationer wears around his ankle, and a receiver that attaches to the

probationer’s home telephone.              According to Smith, information from the

transmitter is downloaded into the receiver at regular intervals and sent over the

telephone network to a computer at Smith’s office. Smith explained that when he

receives an email alert of an event indicating that a probationer has consumed

alcohol, he does a preliminary review of the scope and duration of the event and

then asks BI to analyze the data and confirm whether the event was a drinking

event or a false positive.

         (8)     Smith testified that he received alerts from Grandelli’s TAD on June

12 and June 17, 2013. According to Smith, BI concluded that the June 12 event

was a false positive, but that the June 17 event was a drinking event. Smith

testified that when Grandelli reported to the office on June 19, 2013 for his regular

2
    BI Incorporated provides offender monitoring equipment and services.

                                                3
visit, Smith arrested him and charged him with VOP for having consumed alcohol

in violation of the “zero tolerance” condition of his sentence.

      (9)    Todd Bloemendaal, a BI engineer involved in the development and

programming of TADs, testified that a TAD is designed to be calibrated every six

months, and that Grandelli’s TAD was last calibrated on May 20, 2013, less than a

month before the June 17, 2013 alert. Bloemendaal further testified that, in his

opinion, Grandelli’s TAD was functioning properly on June 17, 2013. Finally,

using BI-prepared graphs that depicted the data logged from Grandelli’s TAD on

June 17, 2013, Bloemendaal testified that the data was consistent with a drinking

event that started at 4:06 p.m., peaked at 8:01 p.m., and ended at 12:30 a.m. the

following morning.

      (10) On cross-examination, Bloemendaal testified about the June 12, 2013

events that were determined to be false positives (hereinafter the “June 12 events”).

When asked if he had graphs depicting the data logged from the June 12 events,

Bloemendaal stated that he had them on his computer.

      (11) When questioned about his financial interest in BI, Bloemendaal

stated that he had applied for a patent for a TAD sensor that could prove profitable

for BI if the patent is approved, but he denied that he would make more money

from the patent. Bloemendaal also agreed that if BI’s TADs were “somehow

declared to be not valid or not reliable” there would be negative financial

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ramifications for the company, but he denied that he would have a financial

setback.3

          (12) For the defense, Grandelli’s mother, Mary Baker, testified that, as of

June 17, 2013, Grandelli had been living with her for eight or nine months and was

working full-time in construction. According to Baker, on June 17, 2013, after

Grandelli’s employer drove him home from work around 5:00 p.m., she and her

husband ate dinner and watched television with Grandelli until he went to bed

around 10:30 p.m. Baker testified that she did not observe Grandelli drinking any

alcohol or appearing intoxicated that evening. Grandelli also took the stand and

denied drinking alcohol at any time that day and night.

          (13) On appeal, Grandelli claims that his VOP conviction should be

overturned because Bloemendaal “withheld evidence” when he failed to use graphs

when testifying about the June 12 events. It is unclear how Bloemendaal’s failure

to use graphs constituted a withholding of evidence, and Grandelli does not explain

how Bloemendaal’s use of graphs when testifying about the June 12 events would

have tilted the balance of evidence in his favor. In any event, Bloemendaal’s

failure to use graphs when testifying about the June 12 events went to the weight of

his testimony, not its admissibility, and did not invalidate Grandelli’s conviction.4


3
    Hr’g Tr. at 100 (Sept. 5, 2013).
4
    Hickman v. Paraq, 167 A.2d 225, 231 (Del. 1961).

                                               5
       (14) Next, Grandelli claims that his VOP conviction should be overturned

because Bloemendaal was biased because he had a financial interest in BI and,

therefore, in the success of the State’s case. Grandelli’s claim is without merit.

Rather than invalidating Grandelli’s conviction, Bloemendaal’s financial interest in

BI went to the weight of his testimony, not its admissibility, and was explored

thoroughly as a potential source of bias on cross-examination.5

       (15) Next, Grandelli challenges the admission of the TAD evidence,

claiming that the State did not lay a proper foundation for its admission.

According to Grandelli, the State was required to demonstrate that the TAD was

calibrated both before and after the June 17, 2013 drinking event. His claim is

without merit. Bloemendaal testified, generally, that a TAD should be calibrated

every six months and did not need to be calibrated after a drinking event.

Specifically, Bloemendaal testified that Grandelli’s TAD was properly calibrated

on May 20, 2013, less than a month before the June 17, 2013 alert. Based on

Bloemendaal’s expert testimony, there was an adequate evidentiary foundation to

admit the TAD evidence.6




5
 Harris v. State, 2009 WL 189162, at *2 (Del. Jan. 20, 2009) (citing Weber v. State, 457 A.2d
674, 680 (Del. 1983)).
6
  Clawson v. State, 867 A.2d 187, 191 (Del. 2005); Harris v. State, 2014 WL 3888254, at *3
(Del. Aug. 7, 2014) (citing Sturgis v. Bayside Health Ass’n Charter, 942 A.2d 579, 584 (Del.
2007)).

                                             6
         (16) Next, Grandelli challenges the sufficiency of the State’s evidence.

According to Grandelli, Baker’s testimony, and a letter from his employer detailing

a “minute by minute operation” of the work day on June 17, 2013, proved his

innocence by a preponderance of the evidence. His claim is without merit. In

Delaware, a VOP need only be proven by “some competent evidence” to

reasonably satisfy the judge that the conduct of the probationer has not been as

good as required by the conditions of probation.”7 In this case, the Superior Court

concluded, and we agree, that the State presented sufficient competent evidence to

revoke Grandelli’s probation.

         (17) Finally, Grandelli claims that the Superior Court judge abused his

discretion by “passing judgment with a closed mind” when he did not consider

Grandelli’s many accomplishments when imposing sentence.8 Grandelli’s claim is

without merit. “A judge sentences with a closed mind when the sentence is based

on a preconceived bias without consideration of the nature of the offense or the

character of the defendant.”9 In this case, contrary to Grandelli’s claim, the record

reflects that the judge listened to Grandelli’s version of the events on June 17,

7
 Rivera v. State, 2014 WL 2093709, at *3 (Del. May 15, 2014) (citing Brown v. State, 249 A.2d
269, 272 (Del. 1968)).
8
  Grandelli submits that he successfully completed a DUI program during his incarceration, and
that, on probation, he enrolled in an outpatient drug and alcohol counseling program with
mandatory AA meetings, obtained full-time employment, completed all of the hours of
community service, paid nearly half of the $5,700 fine imposed on his original conviction, made
all of his weekly visits to his probation officer, and always had clean urine screens.
9
    Weston v. State, 832 A.2d 742, 746 (Del. 2003).

                                                 7
2013, and permitted Grandelli to testify about his accomplishments. Indeed, the

record reflects that the Superior Court has been tremendously patient with

Grandelli, in the face of his long-standing performance of extremely dangerous

conduct toward his fellow citizens and his continuing failure to refrain from

alcohol use. The Superior Court would have been well within its discretion to

sanction Grandelli far more harshly than it did, given the record.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                BY THE COURT:
                                /s/ Leo E. Strine, Jr.
                                Chief Justice




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