IN THE SUPREME COURT OF THE STATE OF DELAWARE

EDUARDO CRUZ-URVINA, §
§ No. 667, 2014
Defendant Below— §
Appellant, § Court Below: Superior Court
§ of the State of Delaware in and
v. § for New Castle County
§
STATE OF DELAWARE, § No. 1306009173
§
Plaintiff Below- §
Appellee. §

Submitted: September 16, 2015
Decided: October 2, 2015

Before STRINE, Chief Justice, HOLLAND and VAUGHN, Justices.
0 R D E R

On this 2"" day of October 2015, it appears to the Court that:

(1 ) Defendant-Below/Appellant Eduardo Cruz-Urvina (“Cruz-Urvina”) appeals
from a Superior Court jury verdict ﬁnding him guilty of one count of Aggravated
MenacingI and one count of Possession of a Firearm During the Commission of a
Felony (“PFDCF”).2 Cruz-Urvina raises two claims on appeal. First, he claims that
the trial court erred when it denied his motion for judgment of acquittal as to the
charge of PFDCF, because the State failed to present sufﬁcient evidence to show that

Cruz-Urvina possessed a gun on the night in question. Second, Cruz-Urvina claims

' 11 Del. c. § 602(b).
21113.91. C. § 1447A.

that the State’s repeated reference to the victims’ eleven-month-old daughter, who
was present at the time of the alleged crime, amounted to prosecutorial misconduct.
We ﬁnd no merit to Cruz-Urvina’s claims and afﬁrm.

(2) On the night of June 9, 2013, David Munoz (“Munoz”), Esli Resendiz
(“Resendiz”), and their daughter returned home from a barbecue. Resendiz went
inside their apartment while Munoz removed their eleven-month-old daughter from
the car. After taking his daughter out of the car, Munoz saw a man walking towards
him. Munoz recognized him as Cruz-Urvina. As he approached Munoz, who was
still holding his daughter, Cruz-Urvina pulled a handgun from his blue duffle bag.
Cruz-Urvina then began waving the handgun at Munoz and his daughter. At the same
time, he shouted: “I ﬁnally got you. I’m going to kill you. I’m going to shoot you

’93

right here. Cruz-Urvina also made reference to the use of “hollow tips.”"

(3) Unaware of the altercation, Resendiz went outside to check on Munoz and
their daughter. Despite his instruction to go back inside, Resendiz continued towards
Munoz, who then told her that there was a man with a gun. Resendiz asked

Cruz-Urvina why he was pointing a gun at her daughter. She then warned him “not

315

to do something he [would] regret. Munoz informed Resendiz that Cruz-Urvina had

3 Appellant’s Op. Br. App. at 41.

4 At trial, Ofﬁcer Mitchell testiﬁed that while searching Cruz-Urvina’s residence, several hollow-
point bullets were found under his bed.

5 Appellant’s Op. Br. App. at 95.

been drinking, which caused Resendiz to stop talking. After ﬁve to ten minutes,
Munoz convinced Cruz-Urvina to leave.

(4) Worried about their safety, Munoz went into his apartment, packed some
items for his daughter, and drove his family to his sister’s home in Wilmington,
Delaware. From his sister’s house, Munoz reported Cruz-Urvina’s behavior to the
police. Munoz provided the police with Cruz-Urvina’s name and a link to his
Facebook proﬁle. Munoz also informed the police that Cruz-Urvina was in
possession of a black handgun.

(5) After Munoz and Resendiz identiﬁed Cruz-Urvina in a photo lineup, the
police obtained a search warrant for Cruz-Urvina’s residence. Upon their arrival at
the residence, Cruz-Urvina’s mother directed the police to his room, where they found
hollow-point bullets, spent bullet casings, a revolver holster, a revolver speed loader,
and a letter addressed to Cruz-Urvina. The police also noted that the room looked
similar to the one pictured on Cruz-Urvina’s Facebook proﬁle. Cruz-Urvina was
subsequently arrested and indicted on three counts of Reckless Endangering First
Degree,6 ﬁve counts of PFDCF,7 and two counts of Aggravated Menacing.E

(6) At trial, the State pursued only two counts of PFDCF and two counts of
6 11 Del. C. §604.

7 11 Del. C. § 1447A.
3 ll Del. C. § 602(b).

Aggravated Menacing, one alleging Munoz as the victim, and one alleging Resendiz
as the victim. As part of its case-in-chief, the State presented evidence of the items
found in Cruz-Urvina’s room. Through their testimony, Munoz and Resendiz
identiﬁed Cruz-Urvina as the perpetrator.° Further, Munoz testified that Cruz-Urvina
had a black revolver. Resendiz testiﬁed that she clearly saw that it was a large black
gun, about eight or nine inches in length.

(7) During its opening statement, the State, without objection, described the
incident, including the fact that the daughter was present at the scene with Munoz.
After both Munoz and Resendiz testiﬁed that their daughter was present during the
altercation, Cruz-Urvina objected. Speciﬁcally, he objected to Munoz’s testimony,
arguing that the State was attempting to make thejury “feel really, really bad because
there was a one-year-old daughter involved in this.” '0 The prosecutor replied that she
was setting the scene of the incident, but was having difﬁculty developing factual
testimony from Munoz. The trial court permitted the State to continue with the line
of questioning.

(8) At the close of the State’s case, Cruz-Urvina moved for judgment of
acquittal as to the two charges of PFDCF. He argued that since no gun was
9 The State also elicited testimony that confinned Cruz-Urvina was the same person that Munoz and

Resendiz identiﬁed during the police investigation.
'“ Appellant’s Op. Br. App. at 38.

recovered, there was no proof that the object in his hand was, in fact, a ﬁrearm, and
the State did not sufﬁciently prove that there was any connection between the items
found in Cruz-Urvina’s room and the night in question. The trial court denied the

motion.

(9) During closing arguments, the State again mentioned that Munoz’s
daughter was “just shy of her ﬁrst birthday” during the altercation. '1 Defense counsel
objected to this on grounds that it was intended to elicit an emotional response from
thejury. The State argued the fact was relevant to why Munoz and Resendiz acted
the way that they did when threatened by Cruz-Urvina. The trial court cautioned the
State, but allowed further reference to the daughter as long as it pertained to why

Munoz called the police. While charging the jury, the trial court gave a standard

sympathy instruction.

(10) Cruz-Urvina ﬁrst argues that his motion for judgment of acquittal was
improperly denied because the State did not present enough evidence to prove that
he possessed a gun on the night in question.

(1 l) The denial of a motion for judgment of acquittal is reviewed de novo.'2
This Court must “determine whether any rational trier of fact, viewing the evidence
in the light most favorable to the State, could have found the essential elements of the

” Appellant’s 0p. Br. App. at 223.
'3 White v. State, 906 A.2d 82, 85 (Del. 2006).

crimes charged beyond a reasonable doubt.”'3 In reviewing the evidence, “we do not

distinguish between direct and circumstantial evidence.”"'

(12) A person is guilty of PFDCF when he or she possesses a ﬁrearm while
committing a felony.15 A ﬁrearm is deﬁned as “any weapon from which a shot . . .
may be discharged . . . whether operable or inoperable, loaded or unloaded.”I6 A

ﬁrearm need not be recovered to support a jury ﬁnding that a defendant possessed a

17

ﬁrearm during the commission of a felony. Mere testimony, even when it is

conﬂicting, has been sufﬁcient to allow a jury to ﬁnd that a defendant possessed a
ﬁrearm while committing a felony.'8

(13) In P0011 v. State, the defendant claimed that there was insufﬁcient
evidence to establish that he possessed a ﬁrearm during the commission of a
robbery.19 No ﬁrearm was recovered.20 At trial, the only evidence presented was the
testimony of two witnesses.“ Although the witnesses’ testimony conﬂicted on the

details of the weapon, this Court held that “it was thejury’s prerogative to resolve

13 

'4 Poon v. State, 880 A.2d 236, 238 (Del. 2005).

‘5 11 Del. C. § 1447A(a).

‘5 11 Del. C. §222(l2).

‘7 See Poon, 880 A.2d at 239 (ﬁnding conflicting testimony of two eyewitnesses sufﬁcient); see also
Fort! v. State, 767 A.2d 799, 803 (Del. 2001) (afﬁrming ajury verdict ﬁnding the defendant guilty
of PFDCF where the only evidence that the defendant had a weapon was eyewitness testimony).
1“ Form, 880 A.2d at 239.

'9 1d. at 237-39.

2" Id. at 239.

2' Id. at 238-39.

these conﬂicts.”22 We held that a rational trier of fact could ﬁnd beyond a reasonable
doubt that a defendant possessed a ﬁrearm during the commission of a felony based
only on the testimony of two witnesses.23

(14) In the case at bar, there was sufﬁcient evidence to permit a rational trier
of fact to determine that Cruz-Urvina possessed a gun during the commission of a
felony. Similar to the evidence presented in Poon, two eyewitnesses testiﬁed that
Cruz-Urvina possessed a gun during the altercation. Munoz testiﬁed that Cruz-
Urvina threatened him with a black revolver, and Resendiz testiﬁed that Cruz-Urvina
wielded a large black gun. The speed loader, revolver holster, and hollow-point
bullets found under Cruz-Urvina’s bed were also presented as circumstantial
evidence. As in Poon, the jury could have found that Cruz-Urvina possessed a gun
on the night in question based solely on the testimony of Munoz and Resendiz. It was
for thejury to determine whether to credit the testimony and conclude that all of the
evidence established that Cruz-Urvina was guilty of PFDCF. Accordingly, we ﬁnd
no merit to the Appellant’s ﬁrst claim.

(15) Next, Cruz-Urvina contends that the State committed prosecutorial
misconduct when it referenced the victims’ daughter during trial.

(1 6) “If defense counsel raised a timely and pertinent objection to prosecutorial

21 Poon, 880 A.2d at 239.
23 

misconduct at trial, . . . we [] review for harmless error.” “The ﬁrst step in the
harmless error analysis involves a de novo review of the record to determine whether
misconduct actually occurred. If we determine that no misconduct occurred, our
analysis ends there?” “If . . . the prosecutor did engage in misconduct, we then
examine whether the improper comments or conduct prejudicially affected the
defendant’s substantial rights necessitating a reversal of his conviction.”26

(1 7) When a prosecutor unfairly appeals to the emotions of aj ury, he prejudices
the defendant’s right to a fair trial.27 “A guilty verdict must be based upon the
evidence and the reasonable inferences therefrom, not on an irrational response which
may be triggered if the prosecution unfairly strikes an emotion in the jury.”28
“Appeals to sympathy andjurors’ emotions are impermissible because they go beyond
the facts of the case and the reasonable inferences from the facts.n29

(18) In Hooks v. State,30 this Court held that the prosecutor’s comments
regarding hypothetical future victims constituted misconduct, as they strayed too far
3“ Wynn v. State, 93 A.3d 638, 640 (Del. 2014) (quoting Baker v. State, 906 A.2d 139,148 (Del.
2006)).
35 1d. (internal quotations omitted).
3" Id. In order to determine the prejudicial effect of any prosecutorial misconduct, this Court must
evaluate “[1] the closeness of the case, [2] the centrality of the issue affected by the (alleged) error,
and [3] the steps taken to mitigate the effects of the error.” Id.
27 Hooks v. State, 416 A.2d 189, 205 (Del. 1980).
28 DeShields v. State, 534 A.2d 630, 642 (Del. 1987).

29 
3° Hooks, 416 A.2d at 205-06.

away ﬁom the facts of the record in an attempt to appeal to the emotions of the

jurorsf"l

Conversely, in DeShields v. State, this Court held that no misconduct
occurred when a prosecutor asked the jury to deliver justice to the victim.32 This
Court held that, since the comment focused on the evidence in the case, it did not
“impermissiny draw the jury’s attention away from the evidence in [the] case.”33

(19) Cruz-Urvina’s prosecutorial misconduct claim is unavailing. Unlike in
Hooks, the State’s comments were factual in nature. As in DeShieIds, the comments
did not draw the jury’s attention away from the evidence in the case and were based
entirely on the evidence presented. References to the daughter were appropriate to
give the jury a complete account of what occurred. We believe that the defendant
underestimates the ability of the jury to careﬁJlly and conscientiously consider the

evidence without being inﬂuenced by sympathy. We conclude that no prosecutorial

misconduct occurred.

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

Court is AFFIRMED.

 

3' Id. at 205-06. However, this court held that the prosecutor’s misconduct did not prejudice the
defendant’s right to a fair trial. Id. at 206-08.

32 DeShieIds, 534 A.2d at 642.
33 1d. (internal quotations omitted).

