           IN THE SUPREME COURT OF THE STATE OF DELAWARE


PATRICIA KOSTYSHYN,                     §
                                        §      No. 135, 2019
      Defendant Below,                  §
      Appellant,                        §
                                        §      Court Below – Superior Court
      v.                                §      of the State of Delaware
                                        §
STATE OF DELAWARE,                      §
                                        §      Cr. ID No. 1805013096 (N)
      Plaintiff Below,                  §
      Appellee.                         §

                           Submitted: October 30, 2019
                           Decided:   November 13, 2019

Before SEITZ, Chief Justice; VALIHURA, and VAUGHN, Justices.

                                       ORDER

      On this 13th day of November, 2019, the Court having considered the briefs

and the record below, it appears to the Court that:

      (1)    A Superior Court jury convicted Patricia Kostyshyn of criminal

mischief for intentionally stuffing a rag into a bathtub causing it to overflow into the

two units below her unit. On appeal, Kostyshyn argues for the first time on appeal

that the Superior Court erred by allowing the investigating officer to testify that

Kostyshyn intentionally caused the damage. According to Kostyshyn, the testimony

invaded the province of the jury to determine intent from the same evidence. We

find, however, that any error in admitting the Officer’s lay opinion was at most

harmless error. Thus, we affirm.
      (2)    In 2003, Patricia Kostyshyn and her two brothers purchased a third

floor unit in the Governor House Condominium, where Kostyshyn resided.

Kostyshyn’s unit was directly above two other units. In 2015, the Condominium

Association filed suit against the Kostyshyns because they failed to record the deed

to their unit and had not paid association dues for over ten years. The judgment

eventually entered against the Kostyshyns exceeded $100,000 in unpaid dues,

attorney’s fees, costs, and prejudgment interest.

      (3)    On April 17, 2018, a resident in the lower unit called the property

manager, Andy Lorah, to report water running into her unit from above. Lorah

investigated and discovered that the source of the water was Kostyshyn’s bathtub,

where a rag was stuck in its drain. Lorah took photos of the tub and the rag, removed

the rag, and shut off the water. He filed a criminal complaint with the police. The

next day, New Castle County Police Officer Matthew Hamory responded to

investigate. He reviewed the security surveillance videos and Lorah’s photos of

Kostyshyn’s bathtub. He also interviewed other building residents. After his

investigation, he arrested Kostyshyn for criminal mischief.

      (4)    At trial, Officer Hamory testified that he “concluded that Patricia

Kostyshyn, the defendant, responded to the apartment on that day and put the –

intentionally put that rag in the drain, turning the water on and leaving a short while




                                          2
later, resulting in flooding to her unit and the two units below her.” 1 A jury

convicted Kostyshyn of felony criminal mischief. The Superior Court sentenced

Kostyshyn to two years in prison, suspended for probation. The court also ordered

her to pay over $11,000 in restitution. Kostyshyn filed this timely appeal.

       (5)    Kostyshyn argues that the Superior Court erred because it allowed the

responding officer to offer his opinion that Kostyshyn intentionally caused the water

damage to the condominium. According to Kostyshyn, the intent issue was critical

to the case, the jury heard the same evidence relied on by the Officer, and the jury

could draw its own conclusion on intent without the Officer’s testimony. Because

Kostyshyn did not raise this issue at trial, this Court reviews for plain error.2 A plain

error is “limited to material defects which are apparent on the face of the record;

which are basic, serious and fundamental in their character, and which clearly

deprive an accused of a substantial right, or which clearly show manifest injustice.”3

The error “must be so clearly prejudicial to substantial rights as to jeopardize the

fairness and integrity of the trial process.”4

       (6)    We find no plain error in his appeal. Although admission of the

Officer’s lay opinion was debatable under D.R.E. 701, any error was harmless. An

error is harmless when, “the evidence exclusive of the improperly admitted evidence


1
  App. To Opening Br. at A063.
2
  Sup. Ct. R. 8.
3
  Cassidy v. Cassidy, 689 A.2d 1182, 1184 (Del. 1997) (quoting Wainwright v. State, 504 A.2d
1096, 1100 (Del. 1986)).
4
  Id.
                                             3
is sufficient to sustain a conviction.”5 The jury heard testimony from the residents

who suffered water damage to their units;6 the property manager who testified about

the rag stuffed in the bathtub drain and the damage caused by bathtub overflowing,

photographs he video took of the scene, and surveillance video which showed

Kostyshyn coming and going from the complex at the time;7 and the Association’s

attorney who testified about the lawsuit against the Kostyshyns’ and the judgment

entered by the court awarding $100,000 to the Condominium Association.8 The

court also instructed the jury that they had to make their own determination of

Kostyshyn’s state of mind.9 The trial evidence was more than sufficient to find

Kostyshyn acted intentionally and was guilty beyond a reasonable doubt of criminal

mischief.

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

Court is AFFIRMED.

                                                    BY THE COURT:

                                                    /s/ Collins J. Seitz, Jr.
                                                         Chief Justice




5
  Answering Br. at 12; Cooke v. State, 97 A.3d 513, 547 (Del. 2014) (quoting Nelson v. State, 628
A.2d 69, 77 (Del. 1993)) (citations omitted).
6
  App. to Opening Br. at A037-40, A040-43.
7
  Id. at A048-58.
8
  Id. at A030-36.
9
  Id. at A083.
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