           IN THE SUPREME COURT OF THE STATE OF DELAWARE

CHRISTOPHER BROWN,                      §
                                        §
      Defendant Below,                  §   No. 131, 2014
      Appellant,                        §
                                        §
      v.                                §   Court Below—Superior Court
                                        §   of the State of Delaware,
STATE OF DELAWARE,                      §   in and for New Castle County
                                        §   Cr. ID No. 1212017553
      Plaintiff Below,                  §
      Appellee.                         §

                             Submitted: October 28, 2014
                             Decided:   December 1, 2014

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

                                   ORDER

      This 1st day of December 2014, upon consideration of the appellant's

Supreme Court Rule 26(c) brief, the State's response, and the record below, it

appears to the Court that:

      (1)    On October 3, 2013, after a three day trial, a Superior Court jury

found the appellant, Christopher Brown, guilty of Burglary in the Second Degree,

Criminal Trespass in the First Degree as a lesser included offense of Burglary in

the Second Degree, Criminal Impersonation, two counts of Criminal Mischief,

Theft, and Resisting Arrest. On February 27, 2014, the Superior Court found that

Brown was a habitual offender and sentenced Brown as follows: (i) for Burglary in

the Second Degree, ten years of Level V incarceration; (ii) for Criminal Trespass
in the First Degree, one year of Level V incarceration; (iii) for Criminal

Impersonation, one year of Level V incarceration suspended for one year of Level

III probation; (iv) for one count of Criminal Mischief, thirty days of Level V

incarceration; (v) for the other count of Criminal Mischief, thirty days of

incarceration suspended for one year of Level III probation; (vi) for Theft, one year

of Level V incarceration suspended for one year of Level III probation; and (vii)

for Resisting Arrest, one year of Level V incarceration suspended for one year of

Level III probation. This is Brown’s direct appeal.

         (2)     On appeal, Brown’s appellate counsel (“Counsel”) filed a brief and a

motion to withdraw pursuant to Supreme Court Rule 26(c) (“Rule 26(c)”).1

Counsel asserts that, based upon a complete and careful examination of the record,

there are no arguably appealable issues. By letter, Counsel informed Brown of the

provisions of Rule 26(c) and provided Brown with a copy of the motion to

withdraw and the accompanying brief. Counsel also informed Brown of his right

to identify any points he wished this Court to consider on appeal.

         (3)     Brown has raised two issues for this Court's consideration. First, he

contends that the State failed to establish that he had the necessary intent to

commit Burglary in the Second Degree. Second, he contends that the jury verdict

sheet he received did not include an instruction for Criminal Trespass in the First

1
    Brown was represented by different counsel at trial.



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Degree as a lesser included offense of the second count of Burglary in the Second

Degree. The State has responded to the issues raised by Brown and moved to

affirm the Superior Court's judgment.

         (4)     When reviewing a motion to withdraw and an accompanying brief,

this Court must: (i) be satisfied that defense counsel has made a conscientious

examination of the record and the law for arguable claims; and (ii) conduct its own

review of the record and determine whether the appeal is so totally devoid of at

least arguably appealable issues that it can be decided without an adversary

presentation. 2

         (5)     At trial, the State offered evidence relating to two break-ins.3 Shortly

before 1 p.m. on December 28, 2012, Mary Campese was alone in her home in the

800 block of Woodlawn Avenue when she heard someone repeatedly ring the

doorbell. Campese looked outside a window and did not recognize the man at the

door. Campese was not expecting anyone and did not answer the door. She did set

her alarm system.

         (6)     After setting the alarm, Campese looked outside again and did not see

the man at the door. She looked outside other windows and saw the man in the



2
    Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
3
    The charges arising from each break-in were consolidated.



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backyard looking at the door to the basement. She then called 911 and described

the man to the 911 operator.

      (7)    While Campese was on the phone with the 911 operator, she heard a

banging and crash from the basement. The security alarm went off. Campese left

the house when the police arrived. The police discovered that the basement door to

the house had been kicked off its hinges. The basement door entry was checked

for fingerprints, but no usable fingerprints were found.

      (8)    One of the police officers responding to Campese’s 911 call observed

a man fitting the description Campese gave to the 911 operator approximately a

block away from Campese’s house. The officer detained the man, who identified

himself as David Daniels, but turned out to be Brown. Brown was disheveled and

sweating profusely. The officer took Brown to Campese’s house and Campese

identified Brown as the man she saw at her door and in her backyard, but stated

that his clothes had changed.

      (9)    The police found clothing in a trash can around the corner from

Campese’s house. The clothing consisted of a cabbie hat, tan pants, a black

sweater, and black socks.       A DNA analysis was performed on the clothes.

Although the black socks had no DNA profile and testing on the pants was

inconclusive, the DNA on the sweater was consistent with Brown’s DNA profile




                                          4
and the DNA profile of at least three other individuals and the DNA on the hat was

consistent with Brown’s DNA profile and at least two other individuals.

      (10) The second break-in occurred on Broom Street on February 5, 2013.

Aaron Poole returned to his residence around 1:15 p.m. and saw that the back door

was kicked in. Poole called 911.

      (11) While on the phone with a 911 operator, Poole observed a man leave

the house with a green bag. At trial, Poole identified Brown as the man he saw

leaving his house. Poole followed Brown down Broom Street and pointed him out

to the police when they arrived on Broom Street.

      (12) When the police cruiser pulled next to Brown, he dropped the green

bag and began to run away. The police stopped Brown and then tried to handcuff

him. After a struggle, Brown was handcuffed. The green bag contained toiletries

and jewelry belonging to Poole’s mother.

      (13) Brown testified on his own behalf at trial. According to Brown, he

went to the Woodlawn Avenue house with a woman named Patty who wanted to

confront someone living in the house. Patty rang the doorbell and banged on the

basement door. Brown kicked the basement door open, which set off the alarm.

Brown was arrested, but Patty escaped. Brown testified that the clothes found in

the trash can belonged to him. He also testified that he did not give his real name




                                        5
to the police because he did not have identification, he thought the police might let

him go, and he did not want the police to know his real name.

      (14)   As far as the Broom Street house, Brown claimed that he was high on

heroin and needed to clean up after soiling himself. Brown kicked open the door

and used a bathroom to clean up. Before leaving the house, Brown took some

toiletries from the bathroom as well as several small boxes in an adjoining

bedroom and put them in a bag. Brown then left the house with the bag of items he

had taken and was arrested.

      (15) The jury found Brown guilty of Criminal Trespass in the First Degree

as a lesser included offense of Burglary in the Second Degree, Criminal Mischief,

and Criminal Impersonation in connection with the Woodlawn Avenue house and

Burglary in the Second Degree, Criminal Mischief, Misdemeanor Theft, and

Resisting Arrest in connection with the Broom Street house. On appeal, Brown

contends that the State failed to establish that he had the necessary intent to

commit Burglary in the Second Degree and that the jury verdict sheet he received

did not include an instruction for Criminal Trespass in the First Degree as a lesser

included offense of the second count of Burglary in the Second Degree (the Broom

Street house).

      (16) In reviewing whether there was sufficient evidence supporting

Brown’s conviction for Burglary in the Second Degree, this Court must “determine



                                         6
whether, viewing the evidence in the light most favorable to the State, a rational

trier of fact could have found the defendant guilty beyond a reasonable doubt of all

the elements of the charged crime.” 4 A conviction for Burglary in the Second

Degree requires proof beyond a reasonable doubt that a person knowingly entered

or remained unlawfully in a dwelling “with intent to commit a crime therein.” 5

“The ‘intent to commit a crime therein’ may be formed prior to the unlawful entry,

be concurrent with the unlawful entry or such intent may be formed after the entry

while the person remains unlawfully.” 6 A person is guilty of theft when they take,

exercise control over, or obtain property from another person with the intent to

deprive that person of that property or to appropriate the property. 7

         (17) Viewing the evidence in the light most favorable to the State, a

reasonable jury could find Brown guilty of Burglary in the Second Degree beyond

a reasonable doubt with respect to the Broom Street house. The record reflects that

Brown kicked open the back door of the house on Broom Street, entered the house,

and took toiletries and jewelry from the house. Brown’s testimony that he entered

the Broom Street house with the intent to clean up and without the intent to commit

4
    Lecates v. State, 987 A.2d 413, 418 (Del. 2009).
5
    11 Del. C. § 825(a)(1).
6
    11 Del. C. § 829(e).
7
    11 Del. C. § 841(a).



                                                  7
theft does not mean the State failed to establish Brown had the necessary intent for

Burglary in the Second Degree.

       (18) First, Brown’s denial of any intent to commit theft in the Broom

Street house presented a credibility issue for the jury to resolve and the jury could

reject Brown’s statement that he did not enter the Broom Street house with the

intent to commit theft. 8 Second, even if Brown did not intend to commit theft

when he entered the house, he could have formed the necessary intent after

entering the house. 9 Brown admitted that he deliberately took property from the

house. Based upon the trial record, a reasonable jury could conclude that Brown

was guilty of Burglary in the Second Degree beyond a reasonable doubt with

respect to the Broom Street house.

       (19)    The jury verdict form that Brown relies upon to support his claim that

the form did not include Criminal Trespass in the First Degree as a lesser included

offense of Burglary in the Second Degree with respect to the Broom Street house is

not the jury verdict form that was given to the jury. The record reflects that the

jury verdict form filled out by the jury and signed by the foreperson includes

8
  Cubbage v. State, 2003 WL 21488129, at *2 (Del. June 25, 2003) (recognizing that jury as
determiner of witness credibility could reject defendant’s assertions and accept contrary
testimony of other witnesses); Tyre v. State, 412 A.2d 326, 330 (Del. 1980) (“It has long been
our law that the jury is the sole judge of the credibility of the witnesses and responsible for
resolving conflicts in the testimony.”).
9
 11 Del. C. § 829(e) (providing that “intent to commit a crime therein…may be formed after the
entry while the person remains unlawfully.”).



                                              8
Criminal Trespass in the First Degree as a lesser included offense for both counts

of Burglary in the Second Degree (the Woodlawn Avenue house and the Broom

Street house). 10 Accordingly, this claim is without merit.

         (20) This Court has reviewed the record carefully and has concluded that

Brown’s appeal is wholly without merit and devoid of any arguably appealable

issue. We also are satisfied that Brown’s counsel has made a conscientious effort

to examine the record and the law and has properly determined that Brown could

not raise a meritorious claim in this appeal.

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

Court is AFFIRMED. The motion to withdraw is moot.

                                              BY THE COURT:


                                              /s/ Karen L. Valihura
                                                     Justice




10
     Appendix to the State’s Response to Rule 26(c) Brief, B3-B4.



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