         IN THE SUPREME COURT OF THE STATE OF DELAWARE

  OMERE ALEXANDER,                       §
                                         §   No. 1, 2018
        Defendant Below-                 §
        Appellant,                       §
                                         §
              v.                         §   Court Below—Superior Court
                                         §   of the State of Delaware
  STATE OF DELAWARE,                     §
                                         §   Cr. ID N1705021718
        Plaintiff Below-                 §
        Appellee.                        §

                           Submitted: June 4, 2018
                           Decided:   August 13, 2018

Before VAUGHN, SEITZ, and TRAYNOR, Justices.

                                     ORDER

      Upon consideration of the appellant's brief filed under Supreme Court Rule

26(c), his attorney's motion to withdraw, and the State's response, it appears to the

Court that:

      (1)     Following a bench trial in October 2017, the Superior Court convicted

the appellant Omere Alexander of one count each of Possession of a Firearm by a

Person Prohibited (“PFPP”), Possession of Ammunition by a Person Prohibited

(“PAPP”), Possession of a Deadly Weapon and Drugs, and Resisting Arrest but

acquitted him of Carrying a Concealed Deadly Weapon (“CCDW”). The Superior

Court sentenced Alexander to a total period of fourteen years at Level V
incarceration, to be suspended after serving five years in prison for eighteen months

at Level III probation. This is Alexander’s direct appeal.

      (2)    Alexander’s counsel on appeal has filed a brief and a motion to

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

examination of the record, there are no arguably appealable issues. By letter,

Alexander’s attorney informed him of the provisions of Rule 26(c) and provided

Alexander with a copy of the motion to withdraw and the accompanying brief.

Alexander also was informed of his right to supplement his attorney's presentation.

Alexander responded with a document containing thirteen numbered paragraphs but

raising only two distinct legal issues. First, he contends that the police lacked

reasonable and articulable suspicion to stop him. Second, he asserts that the

evidence was insufficient to sustain his convictions because the State presented no

DNA or fingerprint evidence. The State has responded to the position taken by

Alexander’s counsel, as well as to the points raised by Alexander, and has moved to

affirm the Superior Court's judgment.

      (3)    The standard and scope of review applicable to the consideration of a

motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a) this

Court must be satisfied that defense counsel has made a conscientious examination

of the record and the law for arguable claims; and (b) this Court must conduct its

own review of the record and determine whether the appeal is so totally devoid of at


                                         2
least arguably appealable issues that it can be decided without an adversary

presentation.1

       (4)    The record at trial fairly established that, on the morning of May 31,

2017, Wilmington police officers were patrolling in the area of Fifth and Monroe

Streets. The officers were aware that Alexander was wanted on two active capiases,

and they had a description of him and what he was wearing. They saw him standing

on a corner with other individuals. One of the officers exited the patrol vehicle and

asked if he could speak to Alexander. The officer testified that Alexander placed his

hand on the front of his jacket and turned his body away from the officer, in a manner

consistent with someone trying to conceal a firearm. Alexander then fled on foot.

The officer apprehended Alexander after he fell on North Madison Street. In

conducting a search incident to arrest, the officer seized a loaded handgun from

Alexander’s jacket pocket. The officer also recovered a clear plastic bag, which later

tested positive as marijuana. Alexander stipulated that he was a person prohibited

from possessing a firearm due to a 2013 felony drug conviction. Alexander did not

testify at trial. Defense counsel made a motion for a judgment of acquittal after the

State rested, which the Superior Court denied.




1
 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
         (5)   Alexander’s first issue on appeal is that the police officers violated his

constitutional rights because they lacked reasonable and articulable suspicion to stop

him. As a result, according to Alexander, the evidence seized incident to the search

of his person should have been suppressed. Alexander did not file a motion to

suppress in the Superior Court. Accordingly, we review this claim for plain error

only.2

         (6)   Plain error exists when the error complained of is apparent on the face

of the record and is so prejudicial to a defendant’s substantial rights as to jeopardize

the integrity and fairness of the trial.3 The burden of persuasion is on the defendant

to show prejudice.4 In this case, Alexander does not dispute that he had two active

capiases against him, nor does he challenge the validity of those warrants. The

officers testified that they knew Alexander was wanted, and they had a description

of Alexander and were able to identify him from that description. Under the

circumstances, Alexander’s status as a wanted individual, along with the description,

gave the police reasonable suspicion to stop the person they believed to be

Alexander. We find no merit to his first claim on appeal.




2
  Del. Supr. Ct. R. 8.
3
  Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
4
  Brown v. State, 897 A.2d 748, 753 (Del. 2006).
                                              4
       (7)    Alexander’s remaining issue is a challenge to the sufficiency of the

evidence. He seems to assert that the Superior Court acquitted him of CCDW

because the State offered no DNA or fingerprint evidence, which should have led to

his acquittal on the weapon-related charges. Alexander is factually incorrect,

however. The trial transcript reflects that the Superior Court acquitted Alexander on

the CCDW charge because the State failed to prove that Alexander did not have a

license to carry a concealed deadly weapon. The Superior Court expressly found

sufficient evidence that Alexander possessed a loaded gun while in possession of

marijuana and that he was a person prohibited from possessing a gun. After

reviewing the evidence in the light most favorable to the prosecution, we conclude

that a rational trier of fact could have found the essential elements of the other crimes

beyond a reasonable doubt.5 Thus, we find no merit to Alexander’s second argument

on appeal.

       (8)    The Court has reviewed the record carefully and has concluded that

Alexander’s appeal is wholly without merit and devoid of any arguably appealable

issue. We also are satisfied that Alexander’s counsel has made a conscientious effort

to examine the record and has properly determined that Alexander could not raise a

meritorious claim in this appeal.




5
 Williams v. State, 539 A.2d 164, 168 (Del. 1988) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)).
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      NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to

withdraw is moot.

                                 BY THE COURT:

                                 /s/ Collins J. Seitz, Jr.
                                        Justice




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