             IN THE SUPREME COURT OF THE STATE OF DELAWARE


JESSICA ANDREAVICH,                         §
                                            §      No. 328, 2017
       Defendant-Below,                     §
       Appellant,                           §      Court Below: Superior Court
                                            §      of the State of Delaware
       v.                                   §
                                            §      Cr. ID. No. 1701002925 (N)
STATE OF DELAWARE,                          §
                                            §
       Plaintiff-Below,                     §
       Appellee.                            §

                             Submitted: June 6, 2018
                             Decided:   June 19, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                          ORDER

       This 19th day of June, 2018, having considered the briefs and the record below,

it appears to the Court that:

       (1)     In October 2016, the police received a tip from a medical marijuana

program compliance manager that Jessica Andreavich was illegally selling medical

marijuana.1 The police investigated Andreavich’s personal Facebook page, as well

as a business page titled “Jekka’s Folly,” listing prices and offering delivery of

marijuana-infused edibles.         A detective messaged Andreavich through her


1
 App. to Opening Br. at 62 (Letter to Sgt. Allen G. Herring, New Castle Cty. Police, from Joseph
F. Schlimer, Med. Marijuana Program Manager (Oct. 3, 2016)).
Facebook, posing as a friend of a veteran suffering from post-traumatic stress

disorder, anxiety, and depression.2 Andreavich responded, offering to speak on the

phone and set up a time to meet. They spoke on the phone, and Andreavich asked

the detective if she had a medical marijuana card. The detective stated that she did

not, but Andreavich agreed to meet with her to discuss how she could help.3 They

met on December 20, 2016, and Andreavich sold the detective $60 worth of

marijuana-infused edibles.

       (2)    On January 5, 2017, the police executed a search warrant at

Andreavich’s house, where they found marijuana and equipment for producing

marijuana-infused edibles. The police arrested Andreavich and she was indicted for

aggravated possession, conspiracy second degree, possession of drug paraphernalia,

and drug dealing. The State entered a nolle prosequi on all charges except the drug

dealing and conspiracy second degree charges related to the December 20th

purchase.

       (3)    At trial, the State presented evidence of five Facebook posts to which

the defense objected.4 In the first post, dated September 14, 2016, Andreavich

encouraged others to “[l]earn what I do and how to replicate and improve on my



2
  Id. at 3536 (Trial. Tr., State v. Andreavich, No. 17010012925, at 8083 (Del. Super. July 25,
2017)); id. at 91.
3
  Id. at 36 (Trial Tr., at 84).
4
  Id. at 2527 (Trial Tr., at 4147).



                                               2
recipes,” and listed her prices for marijuana-infused gummies, tincture, and topical

salve.5 She explained, “I charge only enough to purchase more weed to make more

batches. I accept donations of flower or money from whomever wants to donate.”6

On December 1, 2016, Andreavich posted a photo of a label on a package of

“Marijuana Infused Gummy Leaves,” captioned, “Doing some home deliveries to

Middletown and Bear area!! Call me . . . if you would like to meet me and my

crew!!!!”7 On December 16th, she posted, “Master Kush is available for anyone

needing indicia bud and I have gummies available also on my run downstate today.

Please contact me . . . if you would like a visit from the weed fairies.”8 On December

19th, she posted a photo of herself and two others, captioned “Weed fairy run with

two of my favorite fairies lol.”9 Lastly, on January 10th, after her arrest, she posted,

“I was arrested for selling Cannabis to a Veteran who happened to be a cop who was

in obvious distress at my home. I am 100% guilty of this so called crime and I would

absolutely do it again and again and again.”10 In addition, the compliance manager

testified that Andreavich signed a document stating, “I attest that I will not deliver




5
  Id. at 90.
6
  Id.
7
  Id. at 86.
8
  Id. at 87.
9
  Id. at 88.
10
   Id. at 89.



                                           3
marijuana to any individual or entity that’s not allowed to possess marijuana

pursuant to Title 16 of the Delaware Code Chapter 49(a).”11

       (4)     Andreavich objected to the admission of the Facebook posts, arguing

that they “regarded other times, other alleged sales, possession with intent from other

times,” and thus were unrelated “uncharged misconduct” and irrelevant to the

December 20th sale.12 Andreavich also argued that the prejudicial nature of the posts

outweighed their probative value.13 The court rejected the arguments and found the

posts were admissible as evidence of Andreavich’s knowledge and intent.14 The

court gave the jury detailed limiting instructions when the posts were introduced15

and at the close of trial.16 Andreavich presented a choice of evils defense; but on


11
   Id. at 62 (Trial Tr., Andreavich, No. 1701002925, at 32 (Del. Super. July 26, 2018)).
12
   Id. at 26 (Trial Tr., at 42).
13
   Id. at 2627 (Trial Tr., at 4546).
14
   Id. at 26 (Trial Tr., at 43) (“Ms. Andreavich is being charged with Possession With Intent to
Deliver, so part of the element of that is that she had the intent to deliver it. If the Facebook posts
product lists, in my view that is relevant to the intent to deliver element.”).
15
   Id. at 28 (Trial Tr., at 53) (“[Y]ou are being shown statements that appeared on a Facebook
account. These statements are not admissible to prove the defendant’s character, and you should
not consider that evidence for such. The evidence is admissible only to prove the defendant’s
knowledge and intent to commit the charged crimes on December 20th, 2016.”).
16
   Id. at 81 (Trial Tr., at 10809) (“You have seen and heard some evidence in this case . . . , such
as Facebook posts . . . . You have heard evidence of certain acts allegedly committed by the
defendant. These acts are other than the alleged wrongdoing for which the defendant is not on
trial. You may not consider these other acts for the purpose of concluding that the defendant has
a certain character or character trait and was acting in conformity with that trait with respect to the
crimes charged in this case. You may not use the evidence of other acts to conclude that the
defendant is a bad person or has a tendency to commit criminal acts and is therefore probably
guilty of the charged crimes. You may use evidence related to other acts allegedly committed by
the defendant only to determine issues relevant to the charged crimes. In this case, the State
contends that the evidence of other acts relates to the defendant’s intent and knowledge. You may
consider such evidence of other acts for this purpose only.”).



                                                  4
July 26, 2018, a jury found her guilty on both counts. The court sentenced her to ten

years at Level 5, suspended for one year at Level 3. Andreavich appealed.

       (5)     On appeal, Andreavich argues that the Superior Court erred by

admitting the Facebook posts into evidence because the information was not “plain,

clear, and conclusive,” did not provide evidence of intent, was not material to an

issue or fact in dispute, and was more prejudicial than probative.17 We review a trial

court’s admission of evidence for an abuse of discretion.18 However, “the question

of whether the trial judge properly formulated and applied legal precepts governing

the admissibility of evidence is one of law, reviewed de novo.”19

       (6)     Rule 404(b) governs the admissibility of character evidence and

evidence of prior conduct. The Rule states, “Evidence of a crime, wrong, or other

act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.”20 However,

it may be admissible to prove “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”21 To determine

whether evidence of prior conduct is admissible, this Court applies the analysis set


17
   Opening Br. at 4.
18
   Pope v. State, 632 A.2d 73, 79 (Del. 1993); Weber v. State, 547 A.2d 948, 955 (Del. 1988) (“In
deciding whether to admit evidence, the trial judge acts in his sound discretion, and his decision
will not be disturbed in the absence of a clear abuse of discretion.”).
19
   Allen v. State, 644 A.2d 982, 985 (Del. 1994).
20
   D.R.E. 404(b)(1).
21
   Id. 404(b)(2).



                                                5
forth in Getz v. State,22 which requires the evidence be (1) material to an issue or

ultimate fact in dispute in the case; (2) introduced for a purpose permitted by

404(b)(2) or “any other purpose not inconsistent with the basic prohibition against

evidence of bad character or criminal disposition”; (3) plain, clear, and conclusive;23

and (4) not too remote in time; and in addition, (5) the court must balance the

evidence’s probative value against its unfairly prejudicial effect.24 The trial court

admitted the posts under 404(b)(2), explaining that although the evidence was

“prejudicial in a sense,” it was not unfairly prejudicial because it was “just that

admission of guilt and probative of Ms. Andreavich’s intent and knowledge.”25

       (7)    On appeal, Andreavich argues the court abused its discretion in

admitting the Facebook posts because they were inadmissible prior misconduct.26

She first argues the September 14th post was inadmissible because it is too remote

in time and not plain, clear, and conclusive. She explains that “under certain

circumstances, the conduct referenced in the posts would have been legal.”27 The

post references “sick people,” which she argues “implicat[es] that the defendant’s



22
   538 A.2d 726, 734 (Del. 1988).
23
   See Renzi v. State, 320 A.2d 711, 712 (Del. 1974).
24
   D.R.E. 403 (“The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”).
25
   App. to Opening Br. at 2527 (Trial Tr., at 4246).
26
   Opening Br. at 13.
27
   Id.



                                               6
intent was to provide products and services only to medical marijuana patients.”28

The December 20th sale, she points out was under “very specific factual

circumstances,” rendering the September 14th post immaterial and not probative.29

       (8)    “Evidence is too remote in time ‘only where there is no visible, plain,

or necessary connection between it and the proposition eventually to be proved.’”30

Here, the September 14th post occurred only three months prior to Andreavich’s

arrest and had a visible, plain, and necessary connection to the December 20th sale.

It corroborated the compliance manager’s tip and aided in the detective’s

investigation. The post was plain, clear, and conclusive because it directly showed

Andreavich’s intent to develop and sell marijuana-infused products by listing her

prices and stating she wanted others to learn and improve her recipes.31 While

Andreavich argues the posts are unclear because her intended sales might have been

legal, she provides no factual basis for this assertion. The parties do not dispute that

the December 20th sale was illegal, and the compliance manager testified that

Andreavich was not permitted to sell marijuana to those without a medical marijuana



28
   Id. at 14.
29
   Id. at 15.
30
   Kendall v. State, 726 A.2d 1191, 1195 (Del. 1999) (quoting Lloyd v. State, 604 A.2d 418, 1991
WL 247737, at *3 (Del. 1991) (TABLE)); see also Allen v. State, 644 A.2d 982, 988 (Del. 1994)
(“[A] lengthy time lapse can render the evidence legally irrelevant. Temporal remoteness
depreciates or reduces the probative value of the evidence.” (quoting EDWARD J. IMWINKELRIED,
UNCHARGED MISCONDUCT EVIDENCE § 8:08, at 8–16 (1992)).
31
   App. to Opening Br. at 90.



                                               7
card.32 Thus, the September 15th post is relevant and material, and its probative

value outweighs any prejudicial effect.

       (9)      Andreavich next argues the December posts lacked probative value,

were not plain, clear, and conclusive, and did not provide evidence of intent. She

explains that they did not express “any clear intent to engage in acts of drug dealing,”

but “could have included legal conduct under the Delaware Medical Marijuana

Act.”33 In addition, she points out that they referenced only interest in meeting, and

Andreavich was “within the bounds of the law to meet with people, discuss the

medical marijuana program, or arrange to act as an individual’s caregiver.”34 Thus,

the posts were immaterial to the ultimate fact in dispute—whether the conduct was

justified under a choice of evils defense—and “only tended to inflame the jury due

to a broad scope of potential interpretation.”35 Lastly, she points out that the

recorded conversation was sufficient to show clear evidence of intent, which was not

“so clearly gleaned from her Facebook posts.”36

       (10) In response, the State points out that Andreavich provided no facts to

support its contention that the meetings were legal. In addition, the State argues,


32
   Id. at 6263 (Trial Tr, at. 3039); see id. at 63 (Trial Tr., at 39) (Q. “Is there ever a circumstance
where a cardholder or caregiver or both could transfer marijuana to a noncardholder?” A.
“Absolutely not.”).
33
   Opening Br. at 15.
34
   Id.
35
   Id. at 16.
36
   Id. at 18.



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posts had “independent logical relevance because they tended to make it more

probable that Andreavich was dealing in the illegal sale of marijuana-infused

edibles,” showing her intent and knowledge.37 The State argues the posts were plain,

clear, and conclusive because they bore her name, picture, prices, and offers to

deliver. Thus, the posts were admissible under 404(b).

       (11) We agree. Andreavich’s argument that her proposed sales might have

been legal fails in light of the compliance manager’s testimony.38 He explained that

only First State Compassion may legally sell and transfer marijuana in Delaware,

and no one else. While Andreavich could transfer marijuana to other cardholders,

she could not sell marijuana for any profit or benefit.39 Contrary to her argument

that the posts did not show “any clear intent” to deal marijuana—because she could

have just been meeting with people to discuss the medical marijuana program—she

was posting price lists and offering deliveries, displaying a clear intent to sell. The

posts’ probative value as to Andreavich’s intent and knowledge outweighs any

prejudicial effect, and the jury instructions ensured proper use of the evidence.40

       (12) Lastly, Andreavich argues the January 10th post was “not the type of

evidence intended to be admitted” under 404(b), and “simply reflects a layperson’s


37
   Answering Br. at 13.
38
   App. to Opening Br. at 62 (Trial Tr., at 3033).
39
   Id. at 64 (Trial Tr., at 38–39); id. at 63 (Trial Tr., at 37) (Q. “As a caregiver, is an individual
authorized to sell marijuana?” A. “No, ma’am.”).
40
   Answering Br. at 1213.



                                                  9
lack of knowledge with regard to defenses available under the factual

circumstances.”41 Thus, she asserts, the prejudicial effect outweighs the probative

value.     The State responded that “[i]t was a highly probative admission by

Andreavich of her intent to deal in marijuana regardless of the consequences,” and

it was not unfairly prejudicial.42 Andreavich does not explain why it was not the

“type” of post intended to be admitted under Rule 404(b). Andreavich’s admission

was highly probative, directly showing her intent to deal marijuana with full

knowledge that she was doing so illegally.

         (13) Our case law is consistent with this result. In Torres v. State, the trial

court admitted evidence of a prior uncharged drug transaction between the defendant

and a witness.43 This Court affirmed, explaining that the evidence was admissible

under 404(b) as evidence of intent because it showed “a continuing plan to distribute

cocaine” and made it “more probable” that the defendant dealt a large amount of

cocaine this time.44 In addition, the evidence was plain, clear, and conclusive

because it was presented by direct witness testimony, and the Court found that any

“danger of misuse” of the evidence was “properly dealt with by a limiting

instruction.”45 Similarly, the Facebook posts established Andreavich’s “continuing



41
   Opening Br. at 17.
42
   Id. at 14.
43
   979 A.2d 1087, 1099 (Del. 2009).
44
   Id.
45
   Id. at 1100.


                                           10
plan” to distribute marijuana by listing prices and offering deliveries, and the

evidence was plain, clear, and conclusive because the posts were provided to the jury

and directly testified to by the detective. Lastly, the trial court gave thorough

limiting instructions to prevent any misuse of the evidence. Therefore, like in

Torres, the court did not abuse its discretion in admitting the evidence.46

       (14) In State v. Hynson, this Court reversed the Superior Court’s holding

that evidence of prior uncharged cocaine deals was inadmissible.47 The trial court

found the prejudicial effect outweighed any probative value because the prior deals

were not inextricably intertwined with the deal at issue, the amounts of cocaine

differed, and there was no continuous course of dealing.48 This Court disagreed,

explaining that “the evidence of the prior transactions is highly probative on the issue

of the weight of the drugs” and was not unfairly prejudicial “in light of [the

defendant’s] admission that he possessed cocaine at the time of his arrest.”49 And

the Court explained that “any prejudice resulting from admitting the evidence could

be reduced by a ‘cautionary instruction which fully and carefully explains to the jury

the limited purpose for which the evidence has been admitted.’”50 Similarly, the



46
    See also Kendall, 726 A.2d at 1195 (affirming admission of prior business misconduct as
evidence of intent to commit fraud because it revealed a “common pattern of crime,” was presented
by witnesses with personal knowledge, and the trial court gave limiting instructions).
47
   608 A.2d 730, 1992 WL 53419 (Del. 1992) (TABLE).
48
   Id. at *4.
49
   Id.
50
   Id. (quoting Weber, 547 A.2d at 956).


                                               11
Facebook posts were highly probative of Andreavich’s intent to deal marijuana, they

were not unfairly prejudicial in light of Andreavich’s admission that the December

20th transaction was illegal, and any prejudice was reduced by the jury instructions.

The court did not abuse its discretion in admitting the Facebook posts under Rule

404(b).

       (15) Lastly, we agree with the State that “regardless of the Facebook posts

prior to Andreavich’s arrest, there was overwhelming evidence of Andreavich’s guilt

of drug dealing and conspiracy on December 20, 2016.”51 The compliance manager

testified that Andreavich was not permitted to sell marijuana-infused products, the

December 20th transaction was recorded, and the detective testified about the

surrounding circumstances.52

       NOW, THEREFORE, it is hereby ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                                 BY THE COURT:

                                                 /s/ Collins J. Seitz, Jr.
                                                        Justice




51
 Answering Br. at 1415.
52
 Howard v. State, 704 A.2d 278, 282 (Del. 1998) (“An error in admitting evidence is harmless
where the properly admitted evidence, taken alone, is sufficient to support a conviction.”).


                                            12
