           IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAYVON STEVENSON,                       §
                                        §    No. 514, 2016
      Defendant Below,                  §
      Appellant,                        §    Court Below—Superior Court
                                        §    of the State of Delaware
      v.                                §
                                        §
STATE OF DELAWARE,                      §    Cr. ID No. 1603010349A
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                           Submitted: December 6, 2017
                             Decided: March 1, 2018

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

                                       ORDER

      This 1st day of March 2018, having considered the parties briefs and the record

below, it appears to the Court that:

             After the police seized two loaded firearms from a car in which Jayvon

Stevenson was a passenger, Stevenson was charged with an eventually indicted on

two counts of Possession of a Firearm by a Person Prohibited and two counts of

Possession of Ammunition by a Person Prohibited. A Superior Court jury found

Stevenson guilty of all counts, and he was sentenced to thirty-one years

imprisonment at Level V, suspended after ten years, followed by decreasing levels

of supervision.
              After Stevenson filed a timely notice of appeal, his counsel filed a non-

merit brief and a motion to withdraw under Supreme Court Rule 26(c). Although

we granted that motion, we concluded that Stevenson’s appeal was not wholly

without merit and appointed appellate counsel.

              The events leading to the seizure of the firearms and Stevenson’s arrest

began during the early-evening hours of March 12, 2016 when La’Shonda Brown

entrusted her automobile to Anthony Wilson. Hours later, Brown received a phone

call notifying her that “two guys” were driving her vehicle and “doing some crazy

stuff.”1 Concerned, Brown sent her brother, Roland Comer, to retrieve the vehicle.

Comer eventually found both the vehicle—parked on 3rd Street in the City of

Wilmington—and Wilson, who was standing nearby with Stevenson. After Comer

agreed to drop Wilson and Stevenson off at another location, all three got in the

vehicle. Comer drove, Wilson sat in the front-passenger seat, and Stevenson sat in

the rear, behind the driver.

              Minutes later, Wilmington police observed Comer veer on to the side

of the road and stop without utilizing a turn signal and that Wilson was not wearing

a seat belt. The police therefore stopped the car and arrested Wilson and Stevenson,

both probationers, for violating curfew. Upon shining a flashlight into the area



1
 App. to Appellant’s Non-Merit Br. under Supr. Ct. R. 26(c) at A15 [hereinafter “App. to Non-
Merit Br.”].
                                             2
where Stevenson sat, an officer glimpsed the “silver slide of a handgun” situated

beneath the driver’s seat, where Stevenson’s “toes would probably be tucked.”2 A

semi-automatic handgun loaded with six rounds and bearing an obliterated serial

number was subsequently recovered from that location. A search of the vehicle

ensued, yielding the recovery of another firearm—a loaded Smith & Wesson

revolver—from the vehicle’s center console. The police took Comer, Wilson, and

Stevenson into custody. Later that evening, the police collected DNA samples from

the three individuals, and the firearms were swabbed for DNA.

              Both Brown and Comer testified at trial. Each denied having prior

knowledge of the firearms. Numerous officers testified, including the arresting

officer, who stated that Stevenson could have reached the loaded revolver found in

the console from where he was sitting in the vehicle.

              The prosecution presented DNA evidence without objection by

Stevenson. There was no DNA evidence linking Stevenson to the gun that was found

at his feet under the driver’s seat, but he was identified as a “potential DNA

contributor”3 to a DNA sample found on the Smith & Wesson revolver’s hammer.

That sample was “consistent with being a mixture of at least two individuals.”4

Wilson was also identified as a potential contributor to the hammer sample. Notably,


2
  App. to Non-Merit Br. at A26.
3
  App. to Appellant’s Opening Br. A16 [hereinafter “App. to Opening Br.”]. See id. at A43.
4
  Id.
                                              3
a DNA single-source profile found on the Smith & Wesson cylinder release was

“consistent with [Wilson’s] known DNA profile,”5 and, prior to Stevenson’s trial,

Wilson pleaded guilty to possessing the Smith & Wesson revolver.

               Stevenson raises two claims on appeal. First, he asserts that his trial

counsel provided ineffective assistance by failing to move for a judgment of

acquittal.    Ineffective-assistance-of-counsel claims receive de novo review.6

Second, Stevenson argues that the Superior Court committed plain error by not

entering a judgment of acquittal notwithstanding the absence of a motion seeking

that relief. This claim requires us to, among other things, assess the sufficiency of

the evidence at trial. We generally review sufficiency-of-the-evidence claims de

novo in order to determine whether, after viewing the evidence in the light most

favorable to the prosecution, “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.”7 Where a defendant fails to move

for a judgment of acquittal, however, we review sufficiency-of-the-evidence claims

for plain error.8 “Under the plain-error standard of review, the error complained of

must clearly prejudice substantial rights to such a degree as to jeopardize the fairness




5
  Id.; State’s Ex. 26.
6
  See Zebroski v. State, 12 A.3d 1115, 1119 (Del. 2010).
7
  Williams v. State, 539 A.2d 164, 168 (Del. 1988) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
8
  Swan v. State, 820 A.2d 342, 358 (Del. 2003) (citing Monroe v. State, 652 A.2d 560, 563 (Del.
1995)).
                                                4
and integrity of the trial process.”9 We limit plain-error review to material defects

apparent on the face of the record, defects “basic, serious and fundamental in their

character, and which clearly deprive an accused of a substantial right, or which

clearly show manifest injustice.”10

               Although Stevenson acknowledges that this Court generally does not

entertain ineffective-assistance-of-counsel claims on direct appeal, he points to the

exception to this rule articulated in Dobson v. State.11 In Dobson, the performance

of counsel was so “plainly insufficient”12 and caused such obvious prejudice that the

Court considered the claims of ineffective assistance sua sponte. Such is not the

case here.

               Claims of ineffectiveness are best pursued through a motion for post-

conviction relief under Superior Court Criminal Rule 61. In proceedings under Rule

61, the Superior Court has an opportunity to develop a factual record, typically

through the submission of affidavits. In this appeal, such a record is lacking, and

because Stevenson did not raise his ineffective–assistance-of-counsel claim in the

Superior Court, we will not consider the claim on direct appeal. This holding,



9
  Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
10
   Id.
11
   80 A.3d 959, 2013 WL 5918409 (Del. 2013) (unpublished table decision).
12
   Id. at *2. Dobson’s counsel’s pretrial preparation was so lacking that he “proceeded to trial with
inadequate knowledge of the case to be tried,” and, at trial, failed to object to testimony about
uncharged crimes and did not seek a limiting instruction which would explain the purpose of doing
so. Id. at *2-3.
                                                 5
however, is without prejudice to a timely filed Rule 61 motion for postconviction

relief, in which this claim may be raised.

               Stevenson also contends that the evidence presented to the jury “does

not amount to sufficient evidence of Mr. Stevenson’s guilt and the [Superior Court],

therefore, committed plain error by not sua sponte entering a judgment of

acquittal.”13 Stevenson does not dispute that he qualifies as a person prohibited

under 11 Del. C. § 1448(a).14 Rather, Stevenson claims that the State did not

introduce sufficient evidence that he possessed either of the firearms found in the

vehicle.

               In the context of a person-prohibited charge, possession may be actual

or constructive.15 In order to prove constructive possession, the State must show

that, as to each item, the defendant: knew of the location of the item, had the ability

to exercise dominion and control over it, and intended to exercise dominion and

control over it.16 Possession of an object “may be the joint possession of two or

more [persons] acting in concert.”17

               La’Shonda Brown testified that she did not own or leave guns in her car

when she loaned it to Wilson. When Comer was sent to retrieve the car on Brown’s



13
   Appellant’s Opening Br. at 28.
14
   Id. at 6.
15
   Lecates v. State, 987 A.2d 413, 426 (Del. 2009).
16
   Id.
17
   Id. at 423 (quoting Flamer v. State, 227 A.2d 123, 127 (Del. 1967)).
                                                6
behalf, he found only Brown and Stevenson near the car. Two firearms and the

ammunition were found in close proximity to Stevenson within the car when the car

was pulled over. One of the firearms was discovered at Stevenson’s feet—visible

from where he sat—and the other was easily within his reach. And although Comer

was also in the car, he testified that the weapons did not belong to him, that he did

not put them in the car, and, in fact, had not seen them before they were seized. And

expert forensic testimony established Stevenson as a potential contributor to the

DNA that was found on the revolver that was seized from the console.

             Against this evidentiary backdrop, Stevenson chose not to move for

judgment of acquittal in the Superior Court, but claims that the Superior Court

should have entered judgment in his favor on its own initiative. Our review of the

evidence admitted at trial in the light most favorable to the prosecution leads us to

conclude that a rational jury could find the essential elements of each of the crimes

charged beyond a reasonable doubt. Therefore, we cannot fault the Superior Court

for failing to take this case from the jury much less find plain error.

      NOW, THEREFORE, IT IS ORDERED that the Superior Court’s judgment

is AFFIRMED.

                                        BY THE COURT:



                                        /s/ Gary F. Traynor
                                        Justice
                                           7
