      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY


DIANE ZIEJEWSKI,                       )
                                       )
      Appellant/Defendant-Below,       )
                                       )
      v.                               )         I.D. No. 1403003939
                                       )
STATE OF DELAWARE,                     )
                                       )
      Appellee/Plaintiff-Below .       )


                           Submitted: June 23, 2015
                            Decided: July 22, 2015


                         MEMORANDUM OPINION

 On Appeal from the Decision of the Court of Common Pleas — AFFIRMED




Benjamin S. Gifford IV, Esq., Woloshin, Lynch & Natalie, P.A., Wilmington,
Delaware, Attorney for Appellant/Defendant-Below.

Regina S. Schoenberg, Esq., Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for Appellee/Plaintiff-Below.


ROCANELLI, J.
         This is an appeal from a decision after trial of the Court of Common Pleas

(“Trial Court”). On July 31, 2014, Defendant Diane Ziejewski was charged with

one count of Menacing and one count of Assault in the Third Degree. After a

bench trial on March 26, 2015, the Trial Court found Defendant not guilty of

Menacing and guilty of Assault in the Third Degree. The Trial Court considered

and rejected Defendant’s self-defense claim. In so ruling, the Trial Court accepted

the testimony of the victim as credible and rejected Defendant’s self-defense

testimony.

         Thereafter, on March 30, 2015, Defendant filed a Motion to Vacate

Judgment or, in the alternative, a Motion for Reargument. At oral argument on

April 10, 2015, Defendant withdrew the Motion to Vacate Judgment. Defendant

pursued the Motion for Reargument on the basis that defense counsel had cited the

incorrect standard for the self-defense claim. The State opposed the Motion. The

Trial Court denied the Motion for Reargument.

         Defendant filed the pending appeal. Defendant argues that the Trial Court

imposed an improper burden on Defendant with respect to her self-defense claim.

                             STANDARD OF REVIEW

         Statutory authority provides that the Superior Court may consider an appeal

from the judgment of the Court of Common Pleas in a criminal action.1 The


1
    11 Del. C. § 5301(c).
                                          1
appellate role of this Court is to determine “whether there is legal error and

whether the factual findings made by the trial judge are sufficiently supported by

the record and are the product of an orderly and logical deductive process.” 2 This

Court must accept findings of the Trial Court that are supported by the record, even

if this Court would have made contrary findings. 3 Moreover, this Court will accept

the Trial Court’s findings regarding credibility unless the findings are clearly

erroneous.4 Questions of law are reviewed de novo. 5

                                       ANALYSIS

       This Court finds that the record is free from legal error and supports the

Trial Court’s decision after trial, which included characteristics of a logical

deductive process. The Trial Court’s decision explicitly and correctly stated that

the State bore the burden of proving every element of the offenses charged beyond

a reasonable doubt. The Trial Court found the State did not meet its burden of

proving guilt beyond a reasonable doubt with respect to menacing, but did meet its

burden with respect to Assault in the Third Degree, notwithstanding Defendant’s

self-defense claim.




2
  Onkeo v. State, 182, 2008 WL 3906076, at *1 (Del. July 1, 2008); Wheeler v. Clerkin, 2005
WL 873341, at *2 (Del. Super. Apr. 13, 2005).
3
  Onkeo, 2008 WL 3906076, at *1.
4
  Id.
5
  11 Del. C. § 5301(c); DiSabatino v. State, 808 A.2d 1216, 1220 (Del. Super. 2002) aff'd, 810
A.2d 349 (Del. 2002).
                                              2
       In support of its decision, the Trial Court found that Defendant admitted she

punched the victim. The record reflects that upon consideration of the testimony

of all of the witnesses, the Trial Court found the cohesive testimony of the police

officer, the victim, and Defendant’s mother supported its finding that Defendant

did indeed approach and punch the victim. The record reflects that the Trial Court

specifically considered and accepted the credibility of the victim’s testimony when

the victim stated she was not the aggressor, and did not initiate, instigate, or

physically provoke Defendant. The Trial Court also considered and rejected the

credibility of Defendant’s testimony, finding her claims of self-defense

inconsistent with prior statements to police and with her actions at the time of the

incident.

       Self-defense is a defense of justification. 6 To establish a claim of self-

defense, a defendant must offer “‘some credible evidence’ sufficient to create

reasonable doubt as to the defendant’s guilt.” 7 The Trial Court found that based on

the facts presented and the incredible nature of Defendant’s self-defense testimony,

Defendant was not justified in punching the victim. Although the Trial Court did

not explicitly state the standard required to establish a self-defense claim, the Trial

Court’s analysis on the record considered the evidence presented and determined

6
 11 Del. C. § 464(a).
7
 Hamilton v. State, 343 A.2d 594, 595–96 (Del. 1975) (recognizing that the 1973 revisions to 11
Del. C. § 303 converted self-defense into a “simple defense”); 11 Del. C. § 303 (providing
“credible evidence” as the standard of proof for a “simple defense”).
                                              3
that Defendant had not presented credible evidence in support of the claim of self-

defense. Indeed, the Trial Court explained that it found Defendant incredible, the

victim credible, and that the record lacked evidence to justify Defendant’s actions.

For example, the Trial Court explained that Defendant testified that she sustained

injuries but, unlike the victim, Defendant did not take any photographs of the

alleged injuries and never sought medical treatment. Also, the Trial Court noted

that, although Defendant testified that she told the police officer she sustained

injuries, the police officer testified that Defendant did not inform him of any

injuries and the police officer also testified that he did not observe any injuries on

Defendant.

      On appeal, Defendant points to a stray comment by the Trial Court that

Defendant had not satisfied the standard for reargument to demonstrate that the

Trial Court committed legal error by improperly imposing a burden of proof on

Defendant. Although the Trial Court made a passing reference that “Defendant did

not establish its burden of self-defense,” 8 it is clear from the record that this

comment is merely dicta and is not the basis for the Trial Court’s findings that

Defendant’s actions were not justified as self-defense.

      The Trial Court applied the appropriate legal standards in its decision after

trial, including careful consideration and rejection of Defendant’s self-defense

8
  State v. Ziejewski, C.A. No. 1403003939, at 9:1–2 (Del. Com. Pl. Apr. 10, 2015)
(TRANSCRIPT).
                                          4
claim for lack of credible evidence. The Trial Court’s decision did not impose any

burden of proof on Defendant.

                                CONCLUSION

      The Trial Court’s decision after trial and denial of the Motion for

Reargument is free from legal error. The Trial Court did not abuse its discretion.

Moreover, the Trial Court’s factual findings are supported by the record and are

the product of an orderly and logical deductive process.       The Trial Court’s

judgments of credibility are not clearly erroneous. Therefore, the decision of the

Court of Common Pleas is AFFIRMED.

      IT IS SO ORDERED this 22nd day of July, 2015.


                                     Andrea L. Rocanelli
                                     ____________________________________
                                     The Honorable Andrea L. Rocanelli




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