IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ANDREW J. DEASCANIS, )
)

Defendant Below, )

Appellant, )

)

V. ) Case No. 1710014022

)

STATE OF DELAWARE, )
)

Plaintiff Below, )

Appellee. )

Submitted: July 19, 2019
Decided: October 18, 2019

Appeal from Court of Common Pleas.
AFFIRMED

ORDER
1. On the night of October 23, 2017, Lt. John McDerby, an officer with
the Division of Natural Resources and Environmental Control (“DNREC”) was
patrolling the area of the C&D Canal.' He came across a pair of headlights out in a
field on the park grounds.* After investigating, he learned that the headlights

belonged to a pickup truck that had overturned in the field.? In due course, it was

 

1D I. 4 at 16.
2 Id. at 29.
3 Id. at 30-32.
learned that the Defendant, Andrew Deascanis, had been drinking and driving in the
pickup truck and flipped it over while chasing deer across the field.*

2. In a nutshell, those are the facts that brought the Defendant’s case into
the Court of Common Pleas, where he was tried for driving under the influence
before a jury that found him guilty of the offense.? He filed this appeal making
several claims of error in the Court of Common Pleas.° Each of these claims will be
addressed seriatim.

3. Defendant’s first argument is that the evidence was insufficient to
support a conviction.’ When such claims are raised on appeal, the Court looks to at
the evidence in the light most favorable to the verdict winner.®

4. Here, the Defendant, once found in the field with his overturned truck,
admitted he had been at a fundraiser at a bar earlier in the evening and then to another
bar to watch a football game at which he drank, by his own admission, four beers.’
Upon drinking beers and getting into his pickup truck, he decided that this would be

a good night to venture out onto closed state parkland, through a field and, upon

 

4 Td. at 35-39.

> DI. 4 at 128.

® See DI. 14.

"Id. at 4.

8 Anderson v. State, 930 A.2d. 898, 901 (Del. 2007); State v. Godwin, 2007 WL
2122142, at *2 (Del. Super. Ct. July 24, 2007).

° DI. 4 at 94.

2
observing a herd of deer, give pursuit across uncharted terrain.'® When the deer
turned, so did he, the deer apparently more deftly than his truck. The truck he flipped
over had a cooler with beers in it.'! The arresting officer noted that his speech was
slightly slurred, his eyes were glassy and bloodshot, and he smelled of alcohol.'*

5. The testimony at trial indicated that the Defendant succeeded in passing
a number of field sobriety tests, but when offered a portable breath tester and a later
intoxylizer breath test, he demurred, professing a disbelief in the accuracy of the
machinery.!> This, apparently, is the basis for his belief that his conviction is without
support in the record.

6. But the Defendant’s admissions to drinking that evening, the alcohol at
the scene, his odor of alcohol, his bloodshot and glassy eyes, his recklessly flipping
over his truck in an open field, and his refusal to undergo sobriety testing were all
enough for the jury to conclude that he had been driving the truck while under the

influence of alcohol.'* Defendant continues to argue the evidence that was not

 

10 Td. at 88.

"DT. 4 at 35.

2 Td. at 37-38.

'3 Td. at 100. Church v. State, 2010 WL 5342963, at * 2 (Del. December 22, 2010)
(“A defendant's refusal to submit to testing may be used for any relevant purpose
including to show consciousness of guilt”); accord Rybicki v. State, 119 A.3d 663,
675 (Del. 2015); Shaw v. State, 2007 WL 866196 *1 (Del. March 23, 2007)
(“Chemical testing is not required to prove impairment’).

14 State v. Durrant, 188 A.2d 526, 528 (Del. 1963) (“[I]t is proper in a criminal case
to show defendant's conduct, demeanor, and statements, whether oral or written. . .

3
present, (i.e., a blood alcohol test), and the differing explanations for the evidence
that was present, (i.e., that he did not drink the beer cans that were found in the
cooler), but those arguments were all placed before the jury and the jury found, on
balance, that the State had made its case beyond a reasonable doubt.

7. Certainly, to give the Defendant his due, the verdict was not a foregone
conclusion and the jury may have chosen to find the State’s evidence insufficient to
prove Defendant’s guilty beyond a reasonable doubt. But this is the very essence of
a jury verdict and presents no occasion for the Court to second guess the jury’s
decision. The State presented evidence on each element of the offense and the jury
chose to credit the evidence presented by the State. The Court cannot overturn the
verdict simply because the defendant still believes he should have been acquitted.!°

8. Next, Defendant argues that the instructions were in error because the
trial judge told the jury it “should consider only the evidence in the case” while the
Superior Court standard jury instruction contains the somewhat sterner admonition
that it “must determine whether the defendant is guilty or not guilty solely from the

evidence presented during the trial.””!®

 

Their weight is for the jury to determine. The fact that defendant declined to submit
to a sobriety test is such a circumstance which a jury may consider’).

'5 Davis v. State, 453 A.2d 802 (Del. 1982); Jackson v. Virginia, 443 U.S. 307, 301
(1979); Lively v. State, 427 A.2d 882 (1981).

6D]. 4 at 114.

4
9. So the argument is that it is fatal to the verdict if the judge says the jury
“should” consider only the evidence at trial instead of the jury “must” consider only
the evidence at trial.'? The Supreme Court has said that in reviewing jury
instructions, they will be deemed sufficient “so long as they are reasonably
informative and not misleading, judged by common practices and standards of verbal
communication.”!® Some deficiencies in jury instructions will be tolerated, so long
as the instructions are “a correct statement of the substance of the law ... [and the
jury was able to] intelligently perform its duty in returning a verdict.”'”

10. In this case, the jury was not invited to consider evidence that was not
presented at trial. While “must” may connote a more mandatory, restrictive tone
than “should,” there was no other evidence the jury might have considered that could
have changed the result. Additionally, this was not a case involving a violent assault
or deeply held moral or religious beliefs that might cause a jury to base its verdict
on matters not introduced at trial. Particularly in the absence of a contemporaneous

objection to the instruction, the Court cannot find that the use of should instead of

must was plain error implicating the Defendant’s right to a fair trial.”°

 

"DI. 14 at 9-13.

'8 Rybicki, 119 A.3d 664, 675 (Del. 2015). See also Flamer v. State, 490 A.2d 104,
128 (Del. 1983); Baker v. Reid, 57 A.2d 103, 109 (Del. Super. Ct. 1947).

9 Rybicki, 119 A.3d 664, 675 (Del. 2015) quoting Floray v. State, 720 A.2d 1132,
1138 (Del. 1998).

20 Sanders v. State, 585 A.2d 117, 133 (Del. 1990).

5
11. Defendant makes a generalized claim of prejudice from the
prosecutor’s repeated insertion of the first-person pronoun in his closing argument.
It is well understood that the prosecutor is not permitted to insert his personal opinion
of the defendant’s guilt to the jury.”! But the record clearly shows that the prosecutor
was in fact admonished by the judge and jury was instructed to ignore comments of
personal belief by the attorney.” Finally, the comments were not an inflammatory
effort to get the jury to trust the prosecutor as the voice of the state but more the
uncertain averments of a young prosecutor speaking to a jury honestly about his
beliefs — error to be sure, but not deliberate jury manipulation. Defendant, to his
credit, agrees the errors were in good faith and, the Court finds, did not so prejudice
the jury as to undermine faith in the verdict.”

As Defendant has raised no issue on appeal warranting reversal of the jury’s

finding, his conviction is AFFIRMED.

IT IS SO ORDERED.

   
   

x)
Buftér

 

 

Judge Charles E.

 

21 Morales v. State, 133 A.3d 527, 530 (Del. 2016).

2211. 4 at 109.

3 Wiliams v. State, 796 A.2d 1281, 1291 (Del. 2002) (“Prosecutors may not express
their personal opinions or beliefs about the credibility of witnesses or about the truth
of testimony ....”); see also Brokenbrough v. State, 522 A.2d 851, 855 (Del. Super.
Ct. 1987) quoting Sexton v. State, 397 A.2d 540 (Del. Super. Ct. 1979) (“[N]ot every
improper remark by a prosecutor requires reversal, but only that which prejudicially
affects substantial rights of the accused”).

6
