          IN THE SUPREME COURT OF THE STATE OF DELAWARE


JOSIAH WOODY,                        §
                                     §     No. 543, 2018
     Defendant Below,                §
     Appellant,                      §
                                     §     Court Below: Superior Court
     v.                              §     of the State of Delaware
                                     §
STATE OF DELAWARE,                   §
                                     §     Cr. ID No. 1705021877(N)
     Plaintiff Below,                §
     Appellee.                       §


SHANTELL NEWMAN,                     §
                                     §     No. 586, 2018
     Defendant Below,                §
     Appellant,                      §
                                     §     Court Below: Superior Court
     v.                              §     of the State of Delaware
                                     §
STATE OF DELAWARE,                   §
                                     §     Cr. ID No. 1705021865(N)
     Plaintiff Below,                §
     Appellee.                       §

                        Submitted: September 11, 2019
                        Decided:   September 23, 2019

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                 ORDER

     This 23rd day of September, 2019, having considered the briefs and the record
below,1 it appears to the Court that:

       (1)    In 2014, police investigated Shantell Newman for stalking her landlord,

Thomas Howard, and the landlord’s property manager, Phyllis Brown.                          The

investigation continued through February 2017. On February 7, 2017, Detective

Jennifer Escheman of the New Castle County Police Department applied for a

warrant to search 430 West 29th Street and listed Josiah Woody and Newman as

occupants. In the affidavit of probable cause supporting the warrant, Escheman

stated the following:

             On August 22, 2014, Brown, the property manager of 205 Channing
              Drive in Bear, DE, reported to NCCPD that she had received a call from
              the property’s tenant, Newman. A male on the phone threatened to “kill
              her,” and Newman followed with her own profanity-laced rant. Police
              confirmed that the number used to call Brown belonged to Newman.
             On September 7, 2014, Brown went to Delaware State Police Troop 2
              after she received about fifty phone calls on her cell phone from a
              blocked number. At the police station, Brown answered a call from the
              blocked number and recognized Newman’s voice, who said “How does
              it feel to know you and your kids will be dead by the close of business
              tomorrow.”
             On September 7, 2014, while at Troop 2, Brown received phone calls
              from unknown men soliciting sex. Brown informed police that she
              suspected Newman. She also viewed Newman’s Facebook page and
              saw a picture of herself (Brown) on the profile page. The photo
              provided a message that was sexually explicit, solicited sex acts, and
              advised interested persons to contact Brown by her phone number listed
              on the page.
             On September 28, 2014, Wilmington Police responded to 408 South
              Franklin Street for a terroristic threatening complaint made by Howard.
              Howard told police that Newman posted several messages on Facebook

1
  Because both appeals arise from the same trial and share questions of law, we have consolidated
them sua sponte for decision.

                                               2
    about taking Howard’s life. Howard printed these posts from
    September 28, 2014, which include more profanity.
   On October 5, 2014, NCCPD officers responded to 205 Channing Drive
    for a complaint by Newman against Howard and Brown, who she said
    had come to her door to ask for rent money which turned into a
    profanity-laced exchange and inappropriate touching.
   On October 6, 2014, police interviewed Howard and Brown who said
    they were not at Newman’s residence on October 5, 2014. Police then
    questioned Newman who said that neither Howard nor Brown were at
    her residence on October 5, 2014.
   On November 6, 2014, Brown reported to police that Newman knocked
    at her door and, when Brown opened it, began swinging a blade at
    Brown striking her. Brown reported that Newman also took Brown’s
    purse.
   Newman was incarcerated in Maryland from November 2014 until
    April 11, 2016.
   On October 9, 2016, Brown and Howard reported to Wilmington Police
    a burglary that occurred that day at 408 South Franklin Street, a
    property owned by Howard and managed by Brown. Brown told police
    that when she unlocked the front door she heard what sounded like
    people talking inside and saw the living room furniture had been tossed
    around.
   On October 10, 2016, Brown reported to Wilmington Police a trespass
    complaint at 408 South Franklin Street. Brown reported that as she
    entered the property, three unknown suspects fled out of the rear
    kitchen door.
   On October 17, 2016, Brown reported to police that she was sexually
    assaulted by three masked individuals while she was checking on the
    property at 408 South Franklin Street. Brown told officers that the men
    told her that Newman sent them to kill her and Newman said that “you
    didn’t get it the first time to keep your mouth shut.” Brown told officers
    that one of the men put a handgun to her head and pulled the trigger,
    but the weapon malfunctioned to the suspect’s surprise.
   On January 9, 2017, Escheman learned that Newman was pregnant and
    provided the Division of Family Services with an address of 430 West
    29th Street.




                                 3
               On February 7, 2017, Escheman learned that Newman had been
                transported by ambulance to St. Francis Hospital for labor and delivery
                and that she provided 430 West 29th Street as her home address.2

         (2)    On February 7, 2017, a magistrate authorized the search of 430 West

29th Street. The search warrant sought any documentation and electronic devices,

particularly those that can connect to WiFi or access Facebook, used or intended to

be used for stalking. Escheman searched the residence on February 8, 2017. During

the search, they found recent mail addressed to both Woody and Newman. In the

basement of the residence, police found a loaded handgun on top of an air duct that

had a filed-off serial number, six rounds of ammunition, and one spent casing. While

the serial number was later recovered, due to the age of the gun, database searches

did not yield any information about the firearm. Woody’s and Newman’s DNA

matched DNA found on the handgun. Police then arrested Woody and Newman for

weapons charges.

         (3)    On January 10, 2018, Woody filed a motion to suppress the gun and

ammunition for lack of probable cause. The Superior Court denied the motion. At

trial during Newman’s cross-examination of the State’s forensics expert, the expert

testified that she could not say how the DNA got on the firearm, whether by direct




2
    App. to Opening Br. at A115-18.



                                            4
touching or secondary transfer. 3          On redirect, the Superior Court overruled

Newman’s objection and allowed testimony from the expert that the DNA on the

firearm was unlikely the result of secondary transfer.

       (4)    At the close of trial, Woody and Newman requested a jury instruction

to treat a statutory exemption from prohibiting possession of weapons with

obliterated serial numbers as an essential element of the crime rather than an

affirmative defense. The Superior Court declined and instructed the jury that the

exemption was an affirmative defense. The jury convicted Woody and Newman of

all charges. Newman then filed a motion for judgment of acquittal based on several

arguments, all of which the Superior Court denied.

       (5)    On appeal, Woody argues the Superior Court erred in denying the

motion to suppress, both Woody and Newman argue the Superior Court erred when

it decided that the manufacturing date exemption was an affirmative defense and not

an element of the crime, and Newman argues the Superior Court erred in allowing

certain expert testimony and denying the motion for judgment of acquittal.

       (6)    Woody first argues that the Superior Court erred in denying his motion

to suppress because the search warrant lacked probable cause. He argues that the

police obtained the search warrant too long after the 2014 incidents to rely on them


3
 Secondary transfer occurs when a person touches an intermediary surface, then the intermediary
surface touches the tested surface, leaving the person’s transferred DNA despite the person never
directly touching the tested surface.

                                               5
to support probable cause, and there was no probable cause to believe that a crime

was committed based solely on the 2016 incidents.

       (7)    This Court reviews the denial of a motion to suppress for an abuse of

discretion.4 To the extent we examine the trial judge’s formulation and application

of law, we review de novo.5 To the extent the judge’s decision is based on factual

findings, we review for whether the trial judge abused their discretion in determining

whether there was sufficient evidence to support the findings.6 “Where the facts are

not disputed and only a constitutional claim of probable cause is at issue, we will

review the Superior Court’s application of the law of probable cause de novo.”7

       (8)    “Under the United States and Delaware Constitutions, ‘a search warrant

may be issued only upon a showing of probable cause.’”8 Under the state statutes

dictating warrant requirements—11 Del. C. §§ 2306-07—we have “consistently held

that Sections 2306 and 2307 contemplate a ‘four-corners’ test for probable cause.”9

The four-corners’ test requires that the affidavit supporting a search warrant contain

facts adequate for a neutral judicial officer to form a reasonable belief that an offense

has been committed and that seizable property would be found in a particular place



4
  Lopez-Vazquez v. State, 956 A.2d 1280, 1284-85 (Del. 2008).
5
  Id.
6
  Id.; Downs v. State, 570 A.2d 1142, 1144 (Del. 1990).
7
  Sisson v. State, 903 A.2d 288, 296 (Del. 2006).
8
  Sisson, 903 A.2d at 296 (quoting Fink v. State, 817 A.2d 781, 786 (Del. 2003)); U.S. Const.
Amend. IV; Del. Const. art. 1, § 6.
9
  Dorsey v. State, 761 A.2d 807, 811 (Del. 2000).

                                             6
or on a particular person. 10 Whether there are adequate facts in the warrant

application requires a logical nexus between the items being sought and the location

to be searched.11

        (9)     To decide whether probable cause exists, the court applies a totality of

the circumstances test, favoring a commonsense interpretation over a hyper technical

one.12 “Thus, a magistrate may find probable cause when, considering the totality

of the circumstances, ‘there is a fair probability that contraband or evidence of a

crime will be found in a particular place.’”13 Additionally, a magistrate may draw

“reasonable inferences from the factual allegations in the affidavit.”14

        (10) Here, the crime contemplated by the search warrant is stalking. Under

11 Del. C. § 1312, “[a] person is guilty of stalking when the person knowingly

engages in a course of conduct directed at a specific person.” The statute defines

“course of conduct” to mean “3 or more separate incidents . . . in which the person

directly, indirectly, or through third parties . . . follows, monitors, observes, surveys,




10
    Id.
11
    Jones v. State, 28 A.3d 1046, 1057 (Del. 2011). The State argues that any appeal under the
logical nexus requirement was waived, while Woody argues that the right was preserved by
“couch[ing] [the argument] as a staleness concern.” Answering Br. to Woody at 22-23; Woody’s
Reply Br. at 3. Because probable cause requires a logical nexus, we will not apply plain error
review.
12
    Sisson, 903 A.2d at 296; Jones, 28 A.3d at 1057.
13
    Sisson, 903 A.2d at 296 (citations omitted); see also Dorsey, 761 A.2d at 811 (“Probable cause
. . . exists if the affidavit sets forth facts that would permit an impartial judicial officer to reasonably
conclude that the items sought would be found in those locations.”).
14
    Sisson, 903 A.2d at 296.

                                                     7
threatens, or communicates to or about another.”15 Stalking is a felony of either class

G, F, or C dependent on the particular facts.16 The applicable statute of limitations

requires the prosecution to commence within 5 years after it is committed.17

      (11) Woody argues that the 2014 incidents are too remote to qualify as an

incident under the definition of “course of conduct.” But, the Superior Court

concluded correctly that there is no law besides the statute of limitations that limits

the timeframe on the course of conduct within which stalking can be committed.

Thus, because five years had not passed since the 2014 incidents, the 2014 incidents

were properly included in the course of conduct necessary for a stalking offense.

      (12) Woody does not dispute Newman’s involvement in the 2014 incidents,

and they alone are likely to give rise to a stalking allegation. Also, at least one of

the 2016 incidents may be reasonably inferred to be attributed to Newman because

of the masked man’s reference to her. The delay between events can be reasonably

attributed to Newman’s incarceration. 18 Such factual allegations in the affidavit

support a reasonable belief that a stalking offense had been committed.

      (13) The search warrant sought electronic items related to the 2014 incidents

conducted by phone calls and social network postings and other incriminating



15
   11 Del. C. § 1312(e)(1).
16
   11 Del. C. § 1312(b)-(d).
17
   11 Del. C. § 205.
18
   As noted earlier, Newman was incarcerated in Maryland from November 2014 until April 11,
2016.

                                            8
evidence related to the stalking offense which could be available on such devices.

The search warrant identified Newman’s current home based on her informing the

Division of Family Services and the hospital of her address.

          (14) Woody argues that it is unreasonable to expect such devices to be in the

searched residence because Newman had moved since the 2014 incidents. This is

not, however, determinative of whether the items sought, like the electronics here,

are fairly probable to be found at the property to be searched. There is a fair

probability of discovery if there is a logical nexus between the items sought and

place to be searched. Personal electronics are generally valuable and held closely,

making it fairly probable, even if not certain, that they are kept in a personal and safe

location like one’s home. Thus, because there is a reasonable belief that an offense

has been committed and that seizable property would be found in the property to be

searched, the affidavit contains probable cause within its four corners.

          (15) Woody argues next that the four-month delay between the events in

October 2016 and the search warrant application in February 2017 makes the

information too stale to support probable cause at the time the search warrant was

issued. “Probable cause must be based on current information, not conjecture, for

stale information will not support a finding of probable cause.”19 There must be




19
     Sisson, 903 A.2d at 297 (quoting Pierson v. State, 338 A.2d 571, 573 (Del. 1975)).

                                                  9
probable cause that the specified items “are presently on the premises.” 20

Magistrates and courts must consider factors like the “kind of property for which

authority to search is sought,” “whether the evidence sought is highly incriminating

or consumable and thus less or more likely to remain in one location,” and the

“statements of dates and times.”21

       (16) The Superior Court considered whether the nature of the objects made

it reasonable to think that Newman would still be in possession of them. The devices

in question—electronic devices such as cellphones and computers—are the type of

things that someone would likely continue to maintain.22 This evidence is not easily

consumable, as deleted data can often be recovered by forensics and may be stored

by a third-party. Considering the nature of the evidence sought, the four-month

delay in obtaining the warrant is not sufficient to show a lack of probable cause.

       (17) Woody and Newman both argue that the Superior Court erred when it

decided that 11 Del. C. § 1459(b) was an affirmative defense to be proved by the

defendant by a preponderance of the evidence rather than an essential element to be




20
   Id. (emphasis in original).
21
   Id.; see State v. Pulgini, 374 A.2d 822, 823 (Del. 1977) (finding that when the affidavit’s facts
indicate a course of conduct, rather than an isolated incident, the passage of time becomes less
significant).
22
   Additionally, the devices may not need to be the same unique devices that originally created the
evidence sought. Such evidence may be stored on third-party sources, like Facebook or a cloud
storage service, and be present on a subsequent device owned by the same user.

                                                10
proved by the prosecution beyond a reasonable doubt. We review questions of

statutory interpretation de novo.23

          (18) 11 Del. C. § 1459 provides, in pertinent part, that:

                 (a)    No person shall knowingly transport, ship, possess or
                        receive any firearm with the knowledge that the importer’s
                        or manufacturer’s serial number has been removed,
                        obliterated or altered in a manner that has disguised or
                        concealed the identity or origin of the firearm.
                 (b)    This section shall not apply to a firearm manufactured
                        prior to 1973.

          (19) 11 Del. C. § 305 is also relevant:

                 [w]hen this Criminal Code or another statute specifically
                 exempts a person or activity from the scope of its application and
                 the defendant contends that the defendant is legally entitled to be
                 exempted thereby, the burden is on the defendant to prove, as an
                 affirmative defense, facts necessary to bring the defendant within
                 the exemption.

          (20) Section 305 applies here. The plain meaning of § 305 requires that if

the Criminal Code “specifically exempts a person or activity from the scope of its

application,” it is an affirmative defense. In this instance, § 1459(b) is a section of

the Criminal Code that specifically exempts an activity from the scope of § 1159(a).

The activity exempted is the possession of a firearm with the knowledge that the

serial number has been removed, obliterated, or altered and the firearm is

manufactured prior to 1973. Without the exemption, the activity would be criminal




23
     Freeman v. X-Ray Associates, P.A., 3 A.3d 224, 227 (Del. 2010).

                                                11
under the statute. Thus, § 305 requires the defendant to prove, as an affirmative

defense, the facts necessary to bring the defendant within the exemption—here, that

the firearm was manufactured before 1973.

       (21) Woody and the State look to Lively v. State to support their respective

arguments.24 In Lively, this Court placed the burden on the defendant to establish

that he had a license to carry a concealed deadly weapon.25 This Court found that

the rule was based on the practical consideration that possession of a license was

best viewed as an affirmative defense because the existence of a license to carry was

a matter more immediately within the knowledge of the defendant and more readily

proven by him.26 Absent contrary legislative intent, the court construed the statute

consistently with the “time-honored rule.”27

       (22) Here, there is no applicable time-honored rule regarding possession of

a firearm without its serial number. Additionally, the practical considerations are

different because another element of the crime—the serial number having been

removed, obliterated, or altered—often makes determination of the manufacture date

more difficult or impossible. Thus, Lively does not control—section 305 does. The

legislature contemplated the manufacture date when considering the application of




24
   427 A.2d 882 (Del. 1981).
25
   Id. at 884.
26
   Id.
27
   Id.

                                         12
the crime. Instead of including it as an element in § 1459(a), it was separated into

an exemption clause. Section 305 controls such an exemption clause.

       (23) Newman argues that under 11 Del. C. § 304, a statute must declare an

affirmative defense for one to arise, and § 1459(b) does not expressly declare itself

as one. But, this Court has held that § 304 “does not provide that it is exhaustive of

all affirmative defenses.” Rather, it merely states the burden of proof when there is

an affirmative defense.28

       (24) In the alternative, Woody argues that the defense should be considered

a simple defense rather than an affirmative defense. Woody joined in Newman’s

original argument that the exemption be an element rather than a defense. Woody

did not, however, join in Newman’s alternative argument that it should be a simple

defense.29 Because Woody did not raise the issue below and Newman does not raise

it on appeal, we review for plain error.30

       (25) Plain error review requires the error complained of be “so clearly

prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial

process,” and the error must be “basic, serious and fundamental . . . and clearly



28
   Bryson v. State, 840 A.2d 631, 636 (Del. 2003).
29
   App. to Woody’s Opening Br. at A328 (Woody joins in Newman’s position on the “additional
elements as far as the 1973.” But, at that time, no argument regarding a simple defense had been
raised.); id. at A396-402 (Newman raises the simple defense as a new argument for the first time.
After argument, the court asks Woody’s attorney for any comment, to which he responds “No,
Your Honor.”).
30
   Sup. Ct. R. 8.

                                               13
deprive an accused of a substantial right, or which clearly show manifest injustice.”31

Because § 305 controls and § 1459(b) is an affirmative defense, the Superior Court

did not plainly err.

       (26) Next, Newman argues that the Superior Court abused its discretion in

allowing an expert to testify that the test results were unlikely the result of secondary

transfer. Newman claims that such testimony was not disclosed before trial and was

conjecture not based on any scientifically acceptable and reliable basis.

       (27) “We review a Superior Court’s decision adjudicating discovery

violations for abuse of discretion.” 32 We review an evidentiary ruling allowing

expert testimony for abuse of discretion. 33 If the Superior Court abused its

discretion, then we must determine “whether the mistake constituted significant

prejudice so as to have denied the appellant a fair trial.”34

       (28) Upon request, the State must disclose the identity of any expert witness

and the substance of the opinions to be expressed. Here, the State disclosed that it

intended to call a forensic DNA analyst, Bethany Kleiser, as an expert witness to

testify “consistent with the reports, opinions, and conclusions” of her analysis.35




31
   Small v. State, 51 A.3d 452, 456 (Del. 2012) (quoting Wainwright v. State, 504 A.2d 1096, 1100
(Del. 1986)).
32
   Taylor v. State, 982 A.2d 279, 280 (Del. 2008).
33
   Hamilton v. State, 82 A.3d, 723 (Del. 2013).
34
   Barrow v. Abamowicz, 931 A.2d 424, 429 (Del. 2007) (quotations omitted) (citations omitted).
35
   App. to Answering Br. to Newman at B-5.

                                               14
Without objection on direct examination, Kleiser testified that she “would expect to

see a probably very low-level sample” resulting from secondary transfer, but she

“did not have low-level mixtures” in this case.36 On cross-examination, Newman

solicited testimony that Kleiser could not definitively conclude whether direct or

secondary transfer caused the DNA to be on the firearm. On redirect, Newman

objected to Kleiser’s statement that she thought secondary transfer was “unlikely”

because of the “great result.”37

         (29) The Superior Court determined that Kleiser had already testified in

general terms on direct and that neither direct nor redirect testimony were outside

the scope of disclosure because Kleiser’s opinion testimony included the results, and

the results included the likelihood of secondary transfer. On cross-examination,

Newman solicited testimony about Kleiser’s opinion whether the DNA results were

from direct or secondary transfer. The redirect addressed the same issue: the

likelihood of the DNA results being from secondary transfer. The Superior Court

did not abuse its discretion in allowing the redirect testimony on the issue raised

during cross-examination.

         (30) Newman’s argument that the opinion was not based on scientific

analysis or principles lacks support in the brief and the facts. Newman did not object



36
     App. to Newman’s Opening Br. at A061.
37
     Id. at A069.

                                             15
to Kleiser’s testimony about studies on secondary transfer38 or introduce alternative

evidence. The Superior Court did not abuse its discretion in concluding it was based

on scientific principles.

       (31) Newman also argues that the Superior Court erred in denying her

motion for judgment of acquittal. “We review ‘de novo a trial judge’s denial of a

criminal defendant’s Motion for Judgment of Acquittal to 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 crimes charged beyond a reasonable

doubt.’”39

       (32) First, Newman argues that the State failed to prove beyond a reasonable

doubt that the firearm was manufactured during or after 1973. But, as discussed

above, the State did not have to prove the manufacturing date because 11 Del. C.

§ 305 makes the manufacturing date exemption an affirmative defense.

       (33) Second, Newman argues that the record evidence satisfies her burden

to prove an affirmative defense. Newman did not make this argument in the original

motion, 40 thus we apply plain error review. 41 The parties agree that the precise

manufacturing date remains unknown. While there is some evidence in Newman’s



38
   See App. to Newman’s Opening Br. at A061.
39
   Elmore v. State, 115 A.3d 1214, 2015 WL 3613557, at *2 (Del. June 9, 2015) (quoting White v.
State, 906 A.2d 82, 85 (Del. 2011) (emphasis removed)) (TABLE).
40
   App. to Newman’s Opening Br. at A108-14.
41
   Sup. Ct. R. 8.

                                              16
favor, the Court must view the evidence in light most favorable to the State when

considering a motion for judgment of acquittal. Thus, a rational jury could have

found that the evidence, or lack thereof, did not support the affirmative defense that

the firearm was manufactured prior to 1973.

         (34) Finally, Newman argues that the State failed to prove beyond a

reasonable doubt that the weapon had been defaced at the time Newman touched or

handled the gun and that Newman was aware of the filed-off serial number.

Newman did not address the substance of this argument in the briefing.42 Without

briefing on the merits, the arguments are waived.43

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

Court is AFFIRMED.

                                                   BY THE COURT:

                                                   /s/ Collins J. Seitz, Jr.
                                                          Justice




42
     Newman’s Opening Br. at 14-15; see Newman’s Reply Br. (argument omitted).
43
     Sup. Ct. R. 14(b)(vi)(A)(3).

                                              17
