           IN THE SUPREME COURT OF THE STATE OF DELAWARE

KEVIN BRITT,                               §
                                           §      No. 435, 2014
      Defendant Below-                     §
      Appellant,                           §      Court Below: Superior Court
                                           §      of the State of Delaware in and
      v.                                   §      for New Castle County
                                           §
STATE OF DELAWARE,                         §      No. 1306000818
                                           §
      Plaintiff Below-                     §
      Appellee.                            §

                             Submitted: April 22, 2015
                              Decided: April 28, 2015

      Before HOLLAND, VALIHURA, and VAUGHN, Justices.

                                     ORDER
      On this 28th day of April 2015, it appears to the Court that:

      (1) Defendant-below/Appellant Kevin Britt appeals from a Superior Court

conviction of three counts of First Degree Reckless Endangering, three counts of

Possession of a Firearm During the Commission of a Felony (“PFDCF”), and

Carrying a Concealed Deadly Weapon (“CCDW”). Britt raises one claim on appeal.

Britt argues that the State failed to present sufficient evidence to establish beyond a

reasonable doubt that he was guilty of one of the three counts of Reckless

Endangering of which he was convicted. We find no merit to this claim and affirm.



                                          1
       (2) On June 1, 2013, Rene Jamison was living in a residence on Concord

Avenue in New Castle County with her father, Joseph Custis, and her eight children:

Jhireique Sutherland (“Sutherland”) - age 20; Jhaquez Toston (“Toston”) - age 18;

Andre - age 15; Abu - age 13; Angelo, Jr. - age 6; Angelina Warner - age 5; Angelow

- age 5; and Angelino - age 3. That day, Britt knocked on the front door of the home

and asked five-year-old Angelina, “Where’s your brother?”.1 When Angelina asked

Britt which of her brothers he was looking for, he replied, “Any of them.”2 Angelina

told Britt that her brother Toston was in the shower. Britt replied, “[T]ell him to

come here; I’m not playing,” and said that he “got a strap,” meaning that he had a

gun.3 Angelina closed the door and Britt left.

       (3) Sutherland was in his bedroom to the side of the front door and could see

and hear the exchange between Angelina and Britt through a window. Sutherland

testified that he saw what he believed to be a gun in Britt’s pocket, and that Britt was

wearing a blue or grey t-shirt over a long-sleeved thermal shirt. Approximately

twenty minutes later, Britt returned and knocked loudly on the door. When Jamison

opened the door slightly, Britt covered his face, pulled a gun out of his pants, and

reached the gun into the house. Jamison slammed the door shut, but caught Britt’s


1
  Appellant’s Op. Br. App. at A27.
2
  Appellant’s Op. Br. App. at A40.
3
  Appellant’s Op. Br. App. at A28.

                                           2
wrist between the door and the doorframe.

         (4) As Jamison struggled to keep the door closed she yelled, “My babies are in

here,” but Britt continued pointing his gun at Jamison and yelled at her to get off the

door.4 During the struggle, a single shot was discharged from the gun. The bullet

struck and damaged some molding near the front door. At the time of the gunshot,

Angelino was asleep on Jamison’s bed, Custis was in the basement, Toston and

Angelo, Jr. were upstairs in Toston’s room, Angelow and Sutherland were either

inside or in front of Sutherland’s room on the ground floor, and Angelina was crying

at the top of the stairway leading from the front doorway to the second floor.

         (5) After several minutes of trying to keep the door closed, Jamison finally let

go and ran out the back door with Angelow and Angelina. Britt then fled the scene.

Jamison called 9-1-1 and Wilmington police responded. Detective Malcolm Stoddard

took Sutherland in the back of his unmarked police car to look for a possible suspect

in the area of 23rd and West Street, where Sutherland said he had seen the shooter in

the past. Sutherland spotted Britt among a group of people in the area and identified

him as the shooter. Britt was then taken into custody.

         (6) At the time of his arrest, Britt was wearing a grey t-shirt over a white,

long-sleeve thermal shirt, and police found a blue t-shirt on the ground nearby. Police


4
    Appellant’s Op. Br. App. at A41.

                                             3
also recovered a revolver from the backyard of a nearby home. The revolver

contained six live rounds and one spent casing. DNA swabs from the revolver

matched Britt’s DNA profile and one other unknown contributor. Forensic testing

also showed the presence of gunshot residue on both of Britt’s hands.

         (7) At the conclusion of a two-day bench trial, the Superior Court found Britt

guilty of three counts of Reckless Endangering, three counts of PFDCF, and CCDW.

The trial court acquitted Britt of the following charges: Home Invasion, three counts

of Reckless Endangering, and four counts of PFDCF. On August 1, 2014, the

Superior Court sentenced Britt to a total of thirty-two years incarceration at Level V,

followed by various levels of concurrent probation. This appeal followed.

         (8) “[I]t is well-settled that in a jury trial, if a defendant fails to make a motion

for acquittal to the trial court, the defendant has failed to preserve the right to appeal

the issue of the sufficiency of the evidence to convict, and we would apply the plain

error standard of review.”5 Although Britt failed to make a motion for acquittal in the

proceedings below, we have recently held that “where the defendant has entered a

plea of ‘not guilty’ but fails to formally move for a judgment of acquittal in a bench

trial, the issue of the sufficiency of the evidence will be reviewed the same as if there




5
    Williamson v. State, 2015 WL 1324351, at *2 (Del. Mar. 23, 2015).

                                                 4
had been a formal motion for a judgment of acquittal.”6 Thus, we will review Britt’s

claim to determine “‘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.’”7

       (9) “A person is guilty of reckless endangering in the first degree when the

person recklessly engages in conduct which creates a substantial risk of death to

another person.”8 A person acts recklessly for the purposes of First Degree Reckless

Endangering “when the person is aware of and consciously disregards a substantial

and unjustifiable risk that [death] . . . will result from the conduct.”9 “The risk must

be of such a nature and degree that disregard therof constitutes a gross deviation from

the standard of conduct that a reasonable person would observe in the situation.”10

       (10) Britt argues that there was insufficient evidence to justify his conviction

of Reckless Endangering as to Toston.11 Specifically, he argues that the trial court’s

acquittal as to the Custis Reckless Endangering charge was “factually, logically and




6
  Id.
7
  Monroe v. State, 652 A.2d 560, 563 (Del.1995) (quoting Robertson v. State, 596 A.2d 1345,
1355 (Del.1991)).
8
  11 Del. C. § 604.
9
  11 Del. C. § 231(e).
10
   Id.
11
   Britt does not contest his Reckless Endangering convictions with respect to Jamison or
Angelina.

                                              5
legally inconsistent” with its conviction as to Toston.12 In essence, Britt argues that

because the State did not establish the penetrating power of the bullet he fired, it also

failed to establish that he engaged in conduct that created a substantial risk of death

to Toston.

       (11) Britt’s argument is without merit. “‘Substantial risk of death’ is not

defined in the Delaware Criminal Code, but is accorded ‘its commonly accepted

meaning.’”13 Our precedent provides ample support for Britt’s conviction of Reckless

Endangering as to Toston. For example, we have found sufficient evidence of a

substantial risk of death where the defendant merely pointed, but did not fire, a loaded

weapon at another person.14 We have also held that firing a gun on the streets of a

residential area is sufficient evidence of a substantial risk of death notwithstanding

the defendant’s argument that “the only potential victims were inside their homes.”15

Additionally, we have found that possible bullet fragmentation or ricochet is

sufficient evidence to warrant a finding of a substantial risk of death as to an

unintended victim located in the close vicinity of a shooting.16 Lastly, we have found


12
   Appellant’s Op. Br. at 6.
13
   Eaton v. State, 2000 WL 628330, at *2 (Del. Apr. 28, 2000) (quoting11 Del. C. § 221(c)).
14
   Thornton v. State, 1994 WL 267300, at *2 (Del. June 9, 1994).
15
   White v. State, 2014 WL 637050, at *1 (Del. Feb. 6, 2014); see also Hassan-El v. State, 2004
WL 220322, at *2 (Del. Jan. 23, 2004) (finding that a defendant’s firing of a gun in a residential
neighborhood was sufficient evidence to prove First Degree Reckless Endangering).
16
   Tice v. State, 624 A.2d 399, 404 (Del. 1993).

                                                 6
sufficient evidence of a substantial risk of death where the defendant fired his gun

through the door of an apartment in which he knew two individuals were located.17

          (12) The State’s evidence in this case showed that Britt knew that Toston was

somewhere inside the house when he fired the gun through the front doorway. When

Britt fired the gun, he created a situation in which the bullet could directly, or by

fragmentation or ricochet, seriously injure or kill Toston, regardless of Toston’s exact

location within the house. Britt consciously disregarded that risk, and a rational trier

of fact, viewing the evidence in the light most favorable to the State, could have so

concluded.

          (13) Moreover, Britt’s claim that the trial court’s acquittal on the Custis charge

of Reckless Endangering was inconsistent with its conviction as to the Toston charge

of Reckless Endangering is unpersuasive. Here, Britt was unaware of Custis’

presence within the house when he fired the gun. Thus, the trial court found that Britt

did not have the necessary mens rea for a conviction of First Degree Reckless

Endangering as to Custis. Conversely, the State’s evidence in this case showed that

Britt knew Toston was somewhere inside the house when he fired the gun through the

front doorway. Thus, Britt had the requisite mens rea as to Toston. Accordingly,

the trial court did not err by failing to sua sponte acquit Britt of the Toston Reckless


17
     Bryant v. State, 2004 WL 2830900, at *1 (Del. Nov. 30, 2004).

                                                 7
Endangering charge.

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

Court is AFFIRMED.

                                               BY THE COURT:

                                               /s/ James T. Vaughn Jr.
                                               Justice




                                 8
