             IN THE SUPREME COURT OF THE STATE OF DELAWARE

IGNACIO REYES-HERNANDEZ,                  §
                                          §      No. 329, 2018
       Defendant Below,                   §
       Appellant,                         §      Court Below: Superior Court of the
                                          §      State of Delaware
       v.                                 §
                                          §      Cr. ID No. 1801012486 (N)
STATE OF DELAWARE,                        §
                                          §
       Plaintiff Below,                   §
       Appellee.                          §

                             Submitted: October 9, 2018
                             Decided: January 3, 2019

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                        ORDER

       This 3rd day of January 2019, upon consideration of the brief under Supreme

Court Rule 26(c), appellate counsel’s motion to withdraw, and the State’s response, it

appears to the Court that:

       (1)    The appellant, Ignacio Reyes-Hernandez, was tried and convicted in June

2018 on charges of Possession of a Firearm by a Person Prohibited (“PFBPP”) and

Possession of Ammunition by a Person Prohibited (“PABPP”).1 At the start of trial,

the parties stipulated that Reyes-Hernandez was a person prohibited from possessing a

firearm or ammunition. At the end of trial, Reyes-Hernandez’ counsel moved for a


1
 See 11 Del. C. § 1448 (Supp. 2018) (codifying possession of a deadly weapon and possession of
ammunition by a person prohibited).
judgment of acquittal notwithstanding the verdict. The Superior Court denied the

motion and sentenced Reyes-Hernandez to five years of Level V imprisonment for

PFBPP and to one day of Level V imprisonment for PABPP. This is Reyes-Hernandez’

direct appeal.

       (2)    Reyes-Hernandez’ appellate counsel has filed a brief and motion to

withdraw under Rule 26(c). Appellate counsel asserts that, based upon a complete and

careful examination of the record, there are no arguably appealable issues. Reyes-

Hernandez has supplemented the Rule 26(c) brief with claims he would like us to

consider on appeal. The State has responded to the position taken by appellate counsel,

the claims raised by Reyes-Hernandez, and has moved to affirm the Superior Court’s

judgment.

       (3)    When considering a Rule 26(c) brief and motion to withdraw, our standard

and scope of review is twofold.2 First, 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.3 Second, 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.4 In this case, having



2
  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).
3
  Penson v. Ohio, 488 U.S. at 83.
4
  Id.
                                              2
reviewed the record, we are satisfied that appellate counsel made a conscientious effort

to examine the record and the law and properly determined that Reyes-Hernandez

could not raise a meritorious claim on direct appeal.

      (4)    The record reflects that on June 1, 2017, Wilmington Police Detective

Matthew Rosaio and Officer Joseph Scioli went to a residence in Wilmington to

investigate a firearm complaint concerning Reyes-Hernandez. Reyes-Hernandez lived

at the residence with his parents and other family members but was not at home when

Detective Rosaio and Officer Scioli arrived and conducted a search of the house and

detached garage.

      (5)    Detective Rosaio testified that, in a basement bedroom, he and Officer

Scioli found U.S. mail addressed to Reyes-Hernandez and an identification card with

Reyes-Hernandez’ name and photograph. They also noted a black Calvin Klein

suitcase in the bedroom and a blue and white bandana on the floor. Officer Scioli

testified that when searching the garage, he and Detective Rosaio found a black Calvin

Klein suitcase with a blue and white bandana tied around the handle. Officer Scioli

testified that he seized a Taurus .357 Magnum revolver loaded with five rounds of

ammunition from the front pocket of the suitcase in the garage. According to Detective

Rosaio, when Reyes-Hernandez was arrested the following day, “he had a blue-and-




                                           3
white bandana hanging out from his back pocket, very similar to the one that was found

on the luggage that contained the firearm.”5

          (6)     The gun and ammunition were submitted for DNA testing. Forensic DNA

Analyst Lauren Rothwell testified that she examined swab samples taken from the gun

and a buccal swab taken from Reyes-Hernandez. Ms. Rothwell testified that swabs

taken from the gun’s grip contained a single source DNA profile that was consistent

with the DNA profile derived from Reyes-Hernandez’ buccal swab. She also testified

that the probability that the DNA taken from the gun originated from any other source

than Reyes-Hernandez was one in seven trillion.

          (7)     Reyes-Hernandez has raised two claims on appeal. First, he claims that

the evidence should have been suppressed because Detective Rosaio and Officer Scioli

were without reasonable suspicion to search his residence. Second, he claims that the

State did not prove beyond a reasonable doubt that he was in possession of the gun and

the ammunition.

          (8)     We decline to consider Reyes-Hernandez’ suppression claim in this

appeal.         Because the claim was not raised at trial—in a motion to suppress or

otherwise—the claim was not considered by the Superior Court in the first instance. In




5
    Trial Tr. at 53 (June 7, 2018).
                                              4
the absence of a Superior Court ruling on the suppression claim, there is not an adequate

record upon which to review the claim on appeal. 6

       (9)     We have reviewed Reyes-Hernandez’ insufficient evidence claim and

determined it is without merit. When reviewing a claim of insufficient evidence, we

consider “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.”7 In this case, the direct and circumstantial evidence, viewed

in the light most favorable to the State, supported the jury’s findings that there was

proof beyond a reasonable doubt that Reyes-Hernandez, a person prohibited from

possessing a firearm and ammunition, knowingly was in actual or constructive

possession of the gun and ammunition seized on June 1, 2017.8

       NOW, THEREFORE, IT IS ORDERED that the motion to affirm is GRANTED.

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

                                              BY THE COURT:

                                              /s/ James T. Vaughn, Jr.
                                              Justice


6
  Del. Sup. Ct. R. 8; Rollins v. State, 2008 WL 637782, at *1 (Del. Mar. 10, 2018) (“In this case, in
the absence of a defense motion to suppress and a pretrial suppression hearing, there is not an adequate
record upon which to conduct appellate review of Rollins’ claim that the search warrant contained
‘knowingly false’ information.”); Keichline v. State, 1991 WL 181508, at *6 (Del. Aug. 22, 1991)
(declining to review a claim on appeal “in the absence of an appropriate record”).
7
  Carroll v. State, 2017 WL 1223564, at *2 (Del. Mar. 27, 2017) (citing Cline v. State, 720 A.2d 891,
892 (Del. 1998)).
8
  Triplett v. State, 2014 WL 1888414 (Del. May 9, 2014) (citing Lecates v. State, 987 A.2d 413, 418
(Del. 2009)).
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