           IN THE SUPREME COURT OF THE STATE OF DELAWARE

KARL C. MANUEL,                         §
                                        §      No. 280, 2017
      Defendant Below,                  §
      Appellant,                        §      Court Below—Superior Court of the
                                        §      State of Delaware
      v.                                §
                                        §      Cr. ID No. 1605013801 (N)
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                           Submitted: February 12, 2018
                           Decided:   May 8, 2018

Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

                                     ORDER

      This is the appellant’s direct appeal from his conviction and sentencing in the

Superior Court. Having considered the no-merit brief and motion to withdraw

submitted by the appellant’s counsel under Supreme Court Rule 26(c), the State’s

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

      (1)    Wilmington Police Detective Matthew Rosaio conducted a pat-down

search of the appellant, Karl C. Manuel, on May 19, 2016. Detective Rosaio seized

a handgun from Manuel’s pants pocket. Manuel did not have a license to carry a

concealed deadly weapon.

      (2)    Detective Rosaio placed Manuel under arrest. In the affidavit incident

to the arrest warrant, Detective Rosaio stated, in part:
        During the patdown, this officer immediately felt a hard object in what
        I know through training and experience to be consistent with a handgun
        in [Manuel’s] left pant cargo pocket. This officer asked MANUEL
        what the object was, to which MANUEL dropped his head and stated,
        “…a gun.” MANUEL was taken into custody without incident and this
        officer removed the following from his left cargo pocket: A black and
        purple in color LC9, .380 cal semi-automatic handgun (Serial: 329-
        10965). This officer immediately made the weapon safe and found that
        it was loaded with 6 live rounds of hornaday .380 cal ammunition
        (Chamber was empty).

        (3)     Following his arrest, Manuel was indicted in September 2016 for drug,

traffic, and three weapon offenses: Possession of a Firearm by a Person Prohibited

(“PFBPP”), Possession of Ammunition by a Person Prohibited (“PABPP”), and

Carrying a Concealed Deadly Weapon (“CCDW”). Manuel waived his right to a

jury trial and was tried before a Superior Court judge on January 18, 2017.

        (4)     The parties stipulated at trial that Manuel was a person prohibited from

possessing a firearm.1 During the State’s case-in-chief, Detective Rosaio testified

that the firearm seized from Manuel was a “Ruger LC9 semiautomatic handgun.”2

On cross-examination, Manuel’s counsel asked the Detective, “[T]urning to your

affidavit, is it fair to describe the handgun in this case as an LC .380

semiautomatic?”3 Detective Rosaio answered, “Ruger LC9, 380-caliber, yes.”4




1
  Trial Tr. at 6, 17 (Jan. 18, 2017).
2
  Id. at 13.
3
  Id. at 17.
4
  Id.
                                            2
          (5)    At the close of the State’s evidence, Manuel’s counsel moved for a

judgment of acquittal, arguing that the evidence adduced at trial—namely, Detective

Rosaio’s testimony that Manuel was found in possession of a loaded and concealed

Ruger LC9 semiautomatic 380-caliber handgun—did not prove the allegations in the

indictment that Manuel was found in possession of a loaded and concealed “Ruger

.9mm” firearm. The trial judge denied the motion for judgment of acquittal and

ultimately found Manuel guilty of the weapon offenses and a traffic offense.

          (6)    On appeal, Manuel’s trial counsel has filed a no-merit brief under Rule

26(c) and a corresponding motion to withdraw. Manuel has supplemented the brief

with a written submission, challenging the denial of the motion for judgment of

acquittal and alleging reversible error in the “fatal variance” between the indictment

and the evidence adduced at trial. The State has responded to Manuel’s submission

and the position taken by his trial counsel and has moved to affirm the Superior

Court’s judgment.

          (7)    In an appeal from the denial of a motion for judgment of acquittal, we

decide de novo “whether any rational trier of fact, viewing the evidence in the light

most favorable to the State, could find a defendant guilty beyond a reasonable doubt

of all the elements of the crime.5




5
    Cline v. State, 720 A.2d 891, 892 (Del. 1998).
                                                     3
       (8)     The elements of a crime are defined by statute as “those physical acts,

attendant circumstances, results and states of mind which are specifically included

within the definition of the offense[.]”6 The statutory elements of PFBPP and

PABPP are the knowing “purchasing, owning, possessing or controlling [of] a

deadly weapon or ammunition for a firearm” by a person prohibited.7 The elements

of CCDW are carrying a concealed deadly weapon without a license.8

       (9)     Manuel stipulated that he was a person prohibited from possessing a

firearm. Therefore, the outcome of the PFBPP and PABPP charges turned on

whether the State could prove beyond a reasonable doubt that he knowingly

possessed a firearm and ammunition on May 19, 2016.9 The outcome of the CCDW

charge turned on whether the State could prove beyond a reasonable doubt that

Manuel concealed a firearm “upon or about [his] person without a license to do so.”10

This was not a close case. There is ample evidence in the record supporting

Manuel’s convictions for the charged weapon offenses. Manuel’s claim to the

contrary is without merit.




6
  11 Del. C. § 232.
7
  Id. § 1448 (a), (b).
8
  Id. § 1442.
9
  Under 11 Del. C. § 231(c), if an element of an offense involves the nature of a person’s conduct
or the attendant circumstances, a person acts knowingly with respect to that element if the person
is aware that the conduct is of that nature or that such circumstances exist.
10
   Id. § 1442.
                                                4
       (10) Manuel alleges error in a so-called “fatal variance” between the

indictment’s allegations that the firearm was a Ruger .9mm and Detective Rosaio’s

trial testimony that the firearm was a Ruger LC9 semiautomatic handgun 380-

caliber. The claim of error is also without merit.

       (11) A variance between the crime charged in an indictment and the

evidence adduced at trial is fatal only if it is prejudicial.11 A prejudicial variance is

one that undermines the defendant’s right to be informed of the charges against him

“so that he may be enabled to present his defense and not be taken by surprise by the

evidence offered at the trial; and [] that he may be protected against another

prosecution for the same offense.”12

       (12) Manuel has not demonstrated any prejudicial effect from the variance

between the indictment and the evidence adduced at trial. The firearm’s caliber was

not an element of any of the offenses charged in the indictment. 13 Moreover, the

indictment gave Manuel sufficient notice of the charges against him, allowed him to




11
   Berger v. United States, 295 U.S. 78, 81–4 (1935).
12
   Id. at 82; Dean v. State, 125 A. 478, 481 (Del. 1924); Guinn v. State, 1987 WL 36125 (Del. June
2, 1987).
13
   O’Neil v. State, 691 A.2d 50, 55 (Del. 1997) (holding that amendment of indictment changing
weapon’s caliber was not prejudicial because the caliber of the weapon was not an essential
element of the offenses charged and the change did not preclude defendant from pursuing his
defense strategy).
                                                5
adequately prepare his defense, and sufficiently protected him from a second

prosecution for the same offenses.14

       (13) When considering a Rule 26(c) brief and an accompanying motion to

withdraw, we must be satisfied that the appellant’s counsel has made a conscientious

examination of the record and the law for claims that could arguably support the

appeal.15 Also, we must conduct our own review of the record to determine whether

the appeal is so totally devoid of at least arguably appealable issues that it can be

decided without an adversary presentation.16

       (14) In this case, we have reviewed the record and concluded that Manuel’s

appeal is “wholly without merit.”17 We are satisfied that Manuel’s trial counsel

made a conscientious effort to examine the record and the law and properly

determined that Manuel could not raise a meritorious claim on appeal.

       NOW, THEREFORE, IT IS ORDERED that the State’s motion to affirm is

GRANTED. The judgment of convictions is AFFIRMED. The motion to withdraw

is moot.

                                            BY THE COURT:

                                            /s/ Gary F. Traynor
                                            Justice

14
   Id.
15
   Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429,
442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
16
   Penson v. Ohio, 488 U.S. at 82.
17
   Del. Supr. Ct. R. 26(c).
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