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


KESLER STEVENS,                     )
                                    )
            Defendant-Below,        )
            Appellant               )
                                    )
      v.                            )         ID. No. 1303014577
                                    )
                                    )
STATE OF DELAWARE,                  )
                                    )
            Plaintiff-Below,        )
            Appellee.               )


                          Submitted: October 31, 2014
                           Decided: January 20, 2015


                                  OPINION

     Upon Appeal from the Court of Common Pleas of the State of Delaware
                        in and for New Castle County,
             AFFIRMED, IN PART; DISMISSED, IN PART.




James O. Turner, Esquire, Assistant Public Defender, Wilmington, Delaware, for
Appellant, Kesler Stevens.

Christopher S. Marques, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, for Appellee, the State of Delaware.

WALLACE, J.

                                        -1-
   I.      INTRODUCTION

        Appellant, Kesler Stevens, appeals a final judgment of conviction of Driving

a Vehicle Under the Influence of Alcohol (“DUI”) entered by the Court of

Common Pleas.        He argues there is insufficient evidence supporting this

conviction. He had argued also that there is a flaw in the offense date in the

criminal Information. That flaw, he claimed, exposed him to a future potential

double jeopardy violation. He now seeks reversal of the trial judge’s denial of his

motion for judgment of acquittal on the first ground; he has abandoned the second

on appeal.

        Stevens was charged with DUI and other motor vehicle offenses following a

late-night March 17, 2013 traffic collision. Stevens first struck a tree, then another

vehicle head-on, causing severe damage to both vehicles. Testimony at his trial

established that after the accident Stevens was walking unsteadily and stumbling,

was slurring his speech, had glassy eyes, and had the odor of alcohol on his breath.

The evidence further showed that Stevens – without prior request – twice handed

the responding police officer his car keys. And when police asked where he was

coming from, Stevens could only respond by pointing to a street and stating its

name. Stevens and the other vehicle’s occupants were ambulanced to the hospital.

There the other driver saw Stevens doing wheelchair stunts in the facility’s

hallway.

                                         -2-
          The Information charging Stevens with DUI states the offense occurred “on

or about March 18, 2013.” Stevens argued that the events actually took place

shortly before midnight on March 17, 2013, and that the Information is therefore

flawed. This, he says, exposes him to the risk of double jeopardy.

          For the reasons set forth below, the judgment of the Court of Common Pleas

is AFFIRMED, in part, and the appeal is DISMISSED, in part.

    II.      FACTUAL AND PROCEDURAL BACKGROUND

          In May 2013, the State filed an Information 1 charging Kesler Stevens with

DUI, Failure to Have a Registration Card in Possession, and Failure to Remain

Within a Single Lane. 2 According to the Information, the events giving rise to

these charges occurred “on or about March 18, 2013” on Pulaski Highway in New

Castle County, Delaware.

          The record reflects that in the late evening hours of March 17, 2013, Stevens

crashed into the car driven by Alfred Melchiore. Mr. Melchiore had just left his

home and was driving with his daughter as a passenger. As they approached the

intersection of Route 40 (Pulaski Highway) and Scotland Drive, Mr. Melchiore


1
        See Ct. Com. Pl. Crim. R. 7(a) (providing that usually an offense within the jurisdiction
of the Court of Common Pleas shall be prosecuted by information).
2
       Ex. B to Appellant’s Op. Br. See DEL. CODE ANN. tit. 21, § 4177(a)(1) (2013); § 2108;
§ 4122(1). Stevens was also charged with Failure to Have Insurance Identification in Possession
(§ 2118(p)(1)), and Driving Vehicle at Unreasonable or Imprudent Speed (§ 4168(a)). The State
entered a pre-trial nolle prosequi on each of these last two charges.

                                              -3-
slowed his vehicle to approximately 5 to 10 miles per hour. Suddenly, another

motorist hit the Melchiores head-on with tremendous force.

      Mr. Melchiore put his vehicle in park and exited. A bystander allowed him

to use her phone to call his wife. At this point, Stevens approached Mr. Melchiore,

who was understandably upset and angry. Stevens told Mr. Melchiore that his

(Mr. Melchiore’s) daughter was crying and he (Mr. Melchiore) needed to calm her

down. As Stevens stood 1 to 2 feet away from him, Mr. Melchiore could smell

liquor on Stevens’ breath. Mr. Melchiore described Stevens’ demeanor at the

accident site as “happy . . . a little flippy,” and that he “just seemed like he wasn’t

sober.”3

      Delaware State Trooper Gregory Gaffney soon arrived at the scene. When

he first got there, Stevens was sitting on the curb near his vehicle. Stevens

approached Tpr. Gaffney and, without prompting, handed the trooper his car keys.

Tpr. Gaffney observed that Stevens’ walk seemed “unbalanced” and that Stevens

“stumbled a few times.”4 Tpr. Gaffney handed the keys back to Stevens, telling

Stevens that he did not need them. The trooper did ask that Stevens obtain his

license and the registration and insurance information for his vehicle. Stevens

returned with just his license and, once again, handed over his car keys to the

3
      Ex. A to Appellant’s Op. Br. at 8 (Court of Common Pleas trial transcript).
4
      Id. at 24.

                                             -4-
trooper. When Tpr. Gaffney asked Stevens where he was coming from, Stevens

could only point to Pulaski Highway and reply “[t]here, Pulaski Highway.” 5 Tpr.

Gaffney too could smell alcohol on Stevens’ breath. Stevens’ speech was “slurred

and mumbled” and his eyes were glassy. 6

       Stevens told Tpr. Gaffney that he thought his shoulder was starting to hurt

and that he needed an ambulance to go to the hospital. Stevens, Mr. Melchiore,

and Mr. Melchiore’s daughter were all transported by separate ambulances to

Christiana Hospital.         At the hospital, Mr. Melchiore observed Stevens in a

wheelchair leaning back, swerving, and doing “a wheelie type thing.” 7

       During his time with the state police, Tpr. Gaffney had investigated about

one DUI per month.             He testified that other than asking where Stevens was

traveling from, he did not, at the roadside, further investigate whether Stevens had

been drinking that night.              He neither asked Stevens about his drinking, nor

administered any field sobriety tests. No chemical tests were conducted.




5
       Id. at 26.
6
        Id. at 25 (testifying as to odor of alcohol coming from Stevens’ breath and his glassy
eyes); id. at 31 (testifying as to Stevens’ slurred speech at accident site and during a later phone
conversation).
7
       Id. at 18; see also id. at 9.

                                                -5-
      Stevens’ mother arrived at the accident site and spoke with Tpr. Gaffney.

He told her that Stevens was being transported to the hospital, and that Stevens

may have been driving under the influence. 8

      At the accident site, Tpr. Gaffney observed tire marks crossing the grass

median on Pulaski Highway. These marks continued onto the other side of the

road, and pieces of a tree that had been hit were found on Stevens’ vehicle’s front

bumper. From these observations, he concluded Stevens first hit the tree, then

struck the Melchiores. The trooper also noted both vehicles’ “extreme” 9 front-end

damage from the head-on collision.

      After his roadside investigation, Tpr. Gaffney went to Christiana Hospital to

speak with the parties there. By the time he arrived at the hospital, Stevens had

already left. Tpr. Gaffney called Stevens’ cell phone. Stevens answered and at

first told him that he was walking on an unidentified road. Later in the same

conversation, Stevens said he was in a car with his mother. Tpr. Gaffney told

Stevens to return to the hospital so that he could speak with him. Stevens agreed to

do so, but never did. Stevens’ speech was still “slurred and mumbled” during this

phone conversation. 10


8
      Id. at 26, 39.
9
      Id. at 22.
10
      Id. at 31.

                                        -6-
       After waiting for Stevens at the hospital, Tpr. Gaffney drove to the address

listed on Stevens’ vehicle’s registration and license. He tried knocking and ringing

the door bell, but after 30 minutes with no response, he left. He also tried calling

Stevens several more times. Stevens wouldn’t answer.

       At his February 2014 trial, the Court of Common Pleas found Stevens guilty

of driving under the influence, failure to remain within a single lane, and failure to

have registration card. Upon the close of the State’s case, Stevens moved for

judgment of acquittal alleging insufficient evidence on the DUI count. After the

court denied the mid-trial motion for judgment of acquittal and entered its guilty

verdict, Stevens renewed his motion and alternatively moved for a new trial. In

this later motion, Stevens raised for the first time a claim that the Information listed

“an incorrect” offense date, which, he argued, exposed him to the risk of double

jeopardy. The Court of Common Pleas denied the renewed motion. 11

       Stevens was sentenced and timely appealed his conviction on the Driving

Under the Influence charge.12 He specifically appeals from the Court of Common

Pleas’ denial of his motion for judgment of acquittal.13


11
      See State v. Stevens, 2014 WL 957548 (Del. Com. Pl. Mar. 12, 2014) (denying motion for
judgment of acquittal, or alternatively, a motion for a new trial).
12
        Notice of Appeal, Kesler Stevens v. State of Delaware, I.D. # 1303014577 (Del. Super.
Ct. filed Apr. 14, 2014). Stevens also appealed the registration card and improper lane change
charges. He now concedes, however, that this Court lacks jurisdiction to consider his appeal
from these charges. See Appellant’s Reply Br. at 7; see also DEL. CODE. ANN. tit 11, § 5301(c)
(granting right of appeal to Superior Court from “any order, rule, decision, judgment or sentence
                                              -7-
     III.     STANDARD OF REVIEW

        This Court takes criminal appeals from the Court of Common Pleas.14 And

such appeals are “reviewed on the record,” not “tried de novo.”15 In fact, this

Court “functions in the same manner as the Supreme Court, in its position as an

intermediate appellate court, when considering an appeal from the Court of

Common Pleas.” 16         An appeal from a verdict of the Court of Common Pleas,

sitting without a jury, “is upon both the law and the facts.” 17 The Court reviews

errors of law de novo; 18 it reviews the trial court’s factual findings to determine if




of the Court [of Common Pleas] in a criminal action . . . as provided in § 28, article IV of the
Constitution of the State”); Del. Const. art. IV, § 28 (appeals to Superior Court available where
the sentence includes imprisonment exceeding a month or a fine exceeding $100); See also Reese
v. State, 2014 WL 4059213, at *1 (Del. Aug. 15, 2014) (“In cases of multiple convictions, each
sentence must be evaluated individually in order to determine whether it meets the constitutional
threshold.”).
13
        Appellant’s Opening Br. 1.
14
        DEL. CODE. ANN. tit 11, § 5301(c) (2013).
15
        Id.
16
        Layne v. State, 2006 WL 3026236, at *1 (Del. Super. Ct. Sept. 26, 2006) (citing Dickens
v. State, 2003 WL 22172737, at *3 (Del. Super. Ct. July 11, 2003)); see also Baker v. Connell,
488 A.2d 1303, 1309 (Del. 1985) (Superior Court’s function as intermediate appellate court is
basically the same as the Supreme Court’s).
17
        State v. Cagle, 332 A.2d 140, 142 (Del. 1974).
18
       State v. Godwin, 2007 WL 2122142, at *2 (Del. Super. Ct. July 24, 2007) (citing Downs,
570 A.2d at 1144).

                                               -8-
they are “sufficiently supported by the record” and “the product of an orderly and

logical deductive process.” 19

       When considering on appeal the sufficiency of evidence to convict, the

Court must discern “whether, after viewing the evidence in the light most favorable

to the State, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” 20 The Court considers all probative evidence,

whether direct or circumstantial.21 If the trial court’s findings are sufficiently

supported by the record, this Court must accept them. 22 It does not “make its own



19
        Bennefield v. State, 2006 WL 258306, at *2 (Del. Super. Ct. Jan. 4, 2006); Cagle, 332
A.2d at 142 (“The Superior Court has the duty to review the sufficiency of the evidence and to
test the propriety of the findings below. If such findings are sufficiently supported by the record
and are the product of an orderly and logical deductive process, the Superior Court must accept
them.”); see also Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972) (Supreme Court reviews
appeals from Superior Court trials to determine factual findings sufficiently supported by the
record and the product of an orderly and logical deductive process).
20
       Godwin, 2007 WL 2122142, at *2. The Supreme Court reviews appeals from denials of
motions for judgment of acquittal de novo for sufficiency of the evidence. See Church v. State,
2010 WL 5342963, at *1 (Del. Dec. 22, 2010) (applying sufficiency of the evidence test in
reviewing appeal from Superior Court’s denial of defendant’s motion for judgment of acquittal);
Mercer v. State, 2009 WL 4164765, at *2-3 (Del. Nov. 25, 2009) (defendant must move for
judgment of acquittal to challenge sufficiency of the evidence, and that review is de novo);
Brown v. State, 967 A.2d 1250 (Del. 2009) (“[w]hether any rational trier of fact, viewing the
evidence in the light most favorable to the State, could find [the defendant] guilty beyond a
reasonable doubt of all the elements of the crime”).
21
      McKinney v. State, 2008 WL 282285, at *3 (Del. Super. Ct. Jan. 31, 2008) (citing
Anderson v. State, 930 A.2d 898, 901 (Del. 2007)).
22
       State v. Cagle, 332 A.2d 140, 142 (Del. 1974); Tolson v. Court of Common Pleas, 2004
WL 2419154, at *2 (Del. Super. Ct. Oct. 13, 2004) (“This Court will not disturb factual findings
by the court below if they were derived logically and substantial evidence exists in the record to
support such findings.”) (citing Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972)).

                                               -9-
factual conclusions, weigh evidence, or make credibility determinations.” 23 Only

where the record below indicates the trial court’s findings are “clearly wrong” may

the Court, “in justice,” correct them. 24

     IV.     THE PARTIES’ CONTENTIONS

       There are two issues before the Court on Stevens’ appeal from the Court of

Common Pleas’ denial of his motion for judgment of acquittal. First, he contends

there is insufficient evidence to support his DUI conviction – given that he never

told anyone he was drinking that night, and that the police never administered field

sobriety or chemical tests. Second, Stevens argues the Information is critically

flawed: it states the offenses occurred “on or about March 18, 2013” while the

events at issue actually took place during the late-night hours of March 17, 2013.

This flaw, Stevens claims, is of constitutional dimension because, in his view, the

Information does not protect him from double jeopardy.

       The State responds that there is sufficient evidence to support the DUI

conviction. It points to evidence that Stevens inexplicably crashed head-on into

another vehicle, was stumbling and unsteady, was unable to follow the officer’s

instructions, and had glassy eyes, slurred speech, and an odor of alcohol emanating

from his breath. This, the State argues is sufficient to support a finding that

23
       Cagle, 332 A.2d at 142.
24
       Id.

                                            -10-
Stevens was driving while under the influence of alcohol. As to the Information,

the State contends the language “on or about March 18, 2013” provided notice

sufficient for Stevens to prepare his defense and sufficient to protect him from any

new charging based on the same conduct.

     V.        DISCUSSION

          A.      Appellant’s Challenge to the Information Is Waived.

          It was not until after the Court of Common Pleas rendered its guilty verdict

that Stevens challenged the Information in his renewed motion for judgment of

acquittal. The trial court rejected this challenge in its letter opinion, 25 finding that

the Information’s phrase “on or about March 18, 2013” sufficiently encompasses

the date the offense took place – close to midnight on March 17, 2013. 26 It further

found this to be a mere clerical error causing Stevens no harm, i.e., the date stated

in the Information did not prejudice Stevens in preparing his defense and did not

expose him to the risk of double jeopardy. 27          In turn, the trial court denied

Stevens’ motion for judgment of acquittal.

          The Court of Common Pleas need not have reached the merits of Stevens’

double jeopardy argument because it was not timely raised. Stevens concedes this

25
       See State v. Stevens, 2014 WL 957548, at *1-2 (Del. Com. Pl. Mar. 12, 2014) (denying
motion for judgment of acquittal, or alternatively, a motion for a new trial).
26
          Id. at *1.
27
          Id. at *1-2.

                                           -11-
in his supplemental appellate filing.28 He acknowledges the defensive claim based

on the alleged “flaw” in the Information could have been identified prior to trial.29

Because he did not raise this in a pre-trial motion, Stevens acknowledges that this

claim was not properly preserved for appeal and is therefore waived. 30

       Consequently, the Information flaw issue was not properly preserved for

appeal, and this Court considers it waived. 31 Although this was not the basis on

which the Court of Common Pleas decided the Information issue, this Court may

and does nonetheless AFFIRM thereon.32

       B.      There Was Sufficient Evidence for the Court of Common Pleas to
               Find Stevens Guilty Beyond a Reasonable Doubt.

       Stevens was charged with and convicted of Driving a Vehicle Under the

Influence of Alcohol in violation of title 21, Section 4177(a)(1) of the Delaware

Code. Under § 4177(a)(1), “[n]o person shall drive a vehicle . . . when the person

28
      See Appellant’s Supp. Mem. of Law, at 8 (acknowledging issue of flaw in Information is
now waived).
29
       Id.
30
        Id. (citing Ct. Com. Pl. Crim. R. 12(b)(2) (providing defenses based on Information
defects must be raised prior to trial by motion); Brown v. State, 729 A.2d 259, 263 (Del. 1999)
(holding motion based on defect in indictment must be raised prior to trial; failure to do so does
not preserve issue for appeal and results in waiver), overruled on other grounds by Priest v.
State, 879 A.2d 575 (Del. 2005).
31
      See Ct. Com. Pl. Crim. R. 12(b)(2); 12(f) (providing failure to raise defenses that must be
made prior to trial constitutes waiver).
32
        Shaw v. State, 2008 WL 1952089, at *1 n.9 (Del. May 6, 2008) (citing Unitrin, Inc. v.
Am. Gen. Corp., 651 A.2d 1361, 1390 (Del. 1995) (Court may affirm for reasons different than
those articulated by the trial court).

                                              -12-
is under the influence of alcohol.” 33 The statute further defines “while under the

influence” as when “the person is, because of alcohol . . . less able than the person

would ordinarily have been, either mentally or physically, to exercise clear

judgment, sufficient physical control, or due care in the driving of a vehicle.”34

The State has the burden to prove two elements: 1) that the defendant was driving;

and 2) that the defendant was under the influence of alcohol while driving.35

Stevens contests only the second element.

       For a driving under the influence conviction under § 4177(a)(1), the State

need not establish that the defendant was “drunk” or “intoxicated.” 36 Nor must it

demonstrate the defendant’s impairment by specific acts of unsafe driving.37

Under Delaware law, “[a] chemical test is not necessary to prove the impairment

required by the statute.” 38 What is required is evidence that the defendant was less

33
       Del. Code Ann. tit 21, § 4177(a)(1) (2013).
34
       Del. Code Ann. tit 21, § 4177(c)(10) (2013).
35
       Church v. State, 2010 WL 5342963, at *2 (Del. Dec. 22, 2010).
36
        See Lewis v. State, 626 A.2d 1350, 1355 (Del. 1993) (describing same “under the
influence” element pre-codification); State v. Baker, 720 A.2d 1139, 1142 (Del. 1998)
(describing element under the DUI statute); Bennefield v. State, 2006 WL 258306, at *3 (Del.
Super. Ct. Jan. 4, 2006).
37
       Lewis, 626 A.2d at 1355.
38
        DEL. CODE ANN. tit. 21, §4177(g)(2) (2013) (“Nothing in this section shall preclude
conviction of an offense defined in this Code based solely on admissible evidence other than the
results of a chemical test of a person’s blood, breath or urine . . .”); Church, 2010 WL 5342963,
at *2; Shaw v. State, 2007 WL 866196 (Del. Jan. 25, 2007) (“Chemical testing is not required to
prove impairment.”).

                                              -13-
able to properly operate a vehicle because of alcohol intake.39 The State may meet

its burden by producing circumstantial evidence of alcohol’s influence through the

defendant’s conduct, demeanor, and statements.40 And the State may present lay

or other probative testimony to establish the defendant was under the influence of

alcohol 41 as defined by Delaware’s statute.

       The trial court, on the record, made the following factual findings informing

its verdict: on or about March 17, 2013, Stevens inexplicably caused a head-on

collision with another vehicle; the other driver, Mr. Melchiore, testified that he

smelled alcohol on Stevens’ breath (as opposed to his clothing); Tpr. Gaffney was

a certified and experienced DUI investigator; Tpr. Gaffney responded to the

collision and observed tire marks in the grass leading to Stevens’ vehicle; Stevens

approached the trooper and, unsolicited, handed over his car keys – twice; Stevens

seemed unsteady on his feet at the accident site; Stevens could not answer the

trooper’s question as to where he was coming from but, instead, simply pointed in

the direction of Pulaski Highway; Stevens’ breath smelled of alcohol, his eyes

seemed glassy, and his speech was slurred; and Stevens complained of a shoulder

39
       Lewis, 626 A.2d at 1355; see also § 4177(c)(10).
40
       Church, 2010 WL 5342963, at *2.
41
       See State v. Durrant, 188 A.2d 526, 529 (Del. 1963) (“the sobriety of a person . . . can be
determined by the direct answers of those who have seen him, and they may express their
opinion in relation thereto, as intoxication may fairly be considered in the realm of common
knowledge”).

                                              -14-
injury, went to the hospital, and at some point curiously left before Tpr. Gaffney

could complete his investigation. 42           The trial judge derived these facts and

circumstances from the trial evidence, drew reasonable inferences therefrom, and

found Stevens was guilty beyond a reasonable doubt of driving under the

influence. It was proper to do so.

       This Court finds no error in the trial judge’s denial of the motion for

judgment of acquittal. Viewing the evidence in the light most favorable to the

State, there is sufficient evidence to support the findings made by the trial judge,

who employed an orderly and logical deductive process.                        The nature and

circumstances surrounding the accident, and the testimony about Stevens that

night – including his demeanor and behavior both at the accident site and at the

hospital – clearly present sufficient probative evidence that he was under the

influence of alcohol. 43 A rational trier of fact could, and did, find that Stevens was,

because of alcohol, less able, either mentally or physically, to exercise clear

judgment, sufficient physical control, or due care in the driving of his vehicle when

he crashed head-on into the Melchiores.

42
        The trial judge specifically discounted Mr. Melchiore’s use of the phrase “happy” in
describing whether Stevens seemed sober. Ex. A to Appellant’s Op. Br. at 63. The trial judge
also refused to ascribe any nefarious motive to the defendant’s leaving the hospital. Id. at 64-65.
43
        Although it arguably could, see State v. Cagle, 332 A.2d 140, 142 (Del. 1972), this Court
need not and does not consider that which was expressly discounted by the trial judge – the
testimony that Stevens seemed “happy” or the fact that he did not return to the hospital as the
police investigator requested – to affirm here.

                                               -15-
    VI.     CONCLUSION

         For the foregoing reasons, the Court finds that the Information flaw issue has

been waived, and that there is sufficient evidence to support Stevens’ DUI

conviction. The Court of Common Pleas’ judgment of conviction on that charge

is, therefore, AFFIRMED. Because the sentences for registration card and lane

change violations do not meet the jurisdiction requirement, the appeal as to those

convictions must be DISMISSED without review.44

         IT IS SO ORDERED.


                                                     /s/ Paul R. Wallace
                                                     Paul R. Wallace, Judge
Original to Prothonotary




    44
        See Reese v. State, 2014 WL 4059213, at *1 (Del. Aug. 15, 2014) (Supreme Court must
dismiss appeal of any individual sentence that fails to meet the constitutional threshold for
appealable sentences); Castura v. State, 2009 WL 2365558, at *2 (Del. July 16, 2009) (when
appeal is to the Supreme Court, “each sentence [imposed] must be evaluated individually in
order to determine whether it meets the constitutional threshold” and for those sentences that do
not “meet the jurisdictional requirement . . . appeal as to those convictions must be dismissed
without review”); Johnson v. State, 2008 WL 2721698, at *1 (Del. July 14, 2008) (same for
appeals to this Court from the Court of Common Pleas).



.

                                              -16-
