           IN THE SUPREME COURT OF THE STATE OF DELAWARE


NELSON COSBY,                          §
                                       §    No. 361, 2018
      Defendant-Below,                 §
      Appellant,                       §    Court Below: Superior Court
                                       §    of the State of Delaware
      v.                               §
                                       §    Cr. ID. No. 1711009484 (K)
STATE OF DELAWARE,                     §
                                       §
      Plaintiff-Below,                 §
      Appellee.                        §

                          Submitted: February 6, 2019
                          Decided:   February 20, 2019

Before STRINE, Chief Justice; VALIHURA, and SEITZ, Justices.

                                       ORDER

      This 20th day of February 2019, having considered the briefs and the record

below, it appears to the Court that:

      (1)    A Superior Court jury convicted Nelson Cosby of robbery second

degree, conspiracy second degree, and criminal mischief for robbing Sebastian

Battle of two designer belts. On appeal Cosby argues the trial court erred by

admitting a text message sent by Cosby before the crime. He also contends for the

first time on appeal that there was insufficient evidence to convict him of robbery

and related crimes. Finally, Cosby claims for the first time on appeal that the
prosecutor improperly vouched for Battle’s credibility. Because the text message

was relevant and there was no plain error, we affirm Cosby’s convictions.

       (2)    On July 29, 2017, Nelson Cosby agreed to buy two Gucci belts from

Sebastian Battle for $340. Cosby told Battle he would meet him to make the

exchange and was thirty four minutes away and “about” to leave around 9 p.m.1

Around the same time, Cosby sent a text message to an unknown individual, stating

“I’m on my way. We bout to buss [sic] a move.”2 Battle later sent a text message

to Cosby saying “we waiting for you.”3

       (3)    Cosby eventually arrived around 11 p.m. and Battle left his home to

meet Cosby in his car. Cosby examined the two belts for a long time, which Battle

believed was a stall tactic. Then two masked individuals approached the car, held

guns against Battle, and demanded his bag, jacket, and the belts. Battle apparently

“walked away,” leaving the belts which Cosby still had.4 The masked individuals

let him go and got in Cosby’s car before driving away.5

       (4)    The State charged Cosby with the robbery and related crimes. At trial,

Cosby objected to the introduction of the “buss a move” text message, claiming it

was vague and irrelevant. The court overruled the objection, and focused on the text



1
  App. to Opening Br. at A154 (Trial Tr., at A148).
2
  Id. at A236 (Trial Tr., at B70).
3
  Id. at A156 (Trial Tr., at A150).
4
  Id. at A212 (Trial Tr., at B46).
5
  Id.


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message’s use of the word “we” which implied more than one actor in his plans.

During the State’s closing rebuttal, the prosecutor said “[i]s Sebastian Battle’s

testimony credible? Absolutely. Is it corroborated? A hundred percent.” Cosby did

not object to these statements. Cosby also argued that the State had presented

insufficient evidence that Cosby acted as an accomplice to robbery or criminal

mischief. The Superior Court overruled the objection, finding there was enough

circumstantial evidence to merit the accomplice liability instruction. The jury

convicted Cosby of all the charged crimes.

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

“buss a move” text because the State did not present a clear meaning of the words

and thus it could have confused the jury. We review for an abuse of discretion.6 All

parties agree that it was unclear what the text message meant, but the Superior Court

admitted the text message because use of the word “we” around the time of the crime

implied that Cosby was part of the group who robbed Battle.

          (6)    The Superior Court correctly held that the text message was relevant

because the inclusion of “we” in the message makes Cosby’s participation with

others in the robbery more probable. Its probative value outweighs the risk of

confusing the jury because, while the jury might have been unsure what the phrase

“buss a move” means, use of the word “we” and its relevance to the robbery was not


6
    Jones v. State, 940 A.3d 1, 9 (Del. 2007).


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confusing. Thus, the trial judge did not abuse his discretion to admit the text

message.

       (7)    Cosby also argues, for the first time on appeal, that there was

insufficient evidence to support his convictions. When a defendant has not filed a

motion for acquittal before the trial court, we review a claim of insufficient evidence

for plain error.7 Under plain error review, we will only reverse if the error is “so

clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of

the trial process.”8

       (8)    To evaluate Cosby’s claim that the State did not introduce sufficient

evidence for a jury to convict Cosby of conspiracy, we review the evidence in the

light most favorable to the State to decide whether no jury could find the defendant

guilty beyond a reasonable doubt. Conspiracy requires the State show that the

accused committed, or planned to commit, the crime, with the defendant aiding,

planning, requesting, or agreeing with the crime.9      A “conspiracy may be logically

inferred from the record.”10

       (9)    There was sufficient evidence in the record that Cosby agreed,

counseled, or aided in the planning and committing of the crime. Cosby sent a text

message that he was about to do something with others—the “we” in the text


7
  Harris v. State, 968 A.2d 32, 35 (Del. 2009); Supr. Ct. R. 8.
8
  Wainwright v. State, 504 A.3d 1096, 1100 (Del. 1986).
9
  11 Del. C. § 512.
10
   Murray v. State, 880 A.2d 1047, 2005 WL 2219193, at *3 (Del. Aug. 2, 2005) (TABLE).


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message. The masked men approached the car, from both directions, at the same

time as the sale was taking place. The masked men demanded Battle turn over the

belts—an odd request without prior knowledge. Cosby expressed some concern

about Battle not being alone, when Battle said “we waiting.”11 Cosby took much

longer than estimated to arrive at Battle’s house, which supports the idea he was

waiting on others or picking them up. Cosby examined the belts for a long time—

“stalling” in Battle’s opinion. The masked men both held their guns against Battle,

neither of them focused on Cosby. And the masked men got into Cosby’s car and

left. Although Cosby questions the credibility of Battle’s testimony, the credibility

determination is for the jury. Because the foregoing facts introduced at trial support

Cosby’s conspiracy conviction beyond a reasonable doubt, Cosby has not

established plain error.

          (10) Cosby also argues that there was insufficient evidence for the jury to

convict him of robbery and criminal mischief under an accomplice liability theory.

An accomplice liability instruction is warranted when the State has provided

“sufficient evidence from which a jury could reasonably conclude” that the

defendant was an accomplice in the crime.12 The evidence discussed above supports




11
     App. to Opening Br. at A156 (Trial Tr., at A150).
12
     Ayers v. State, 844 A.2d 304, 308 (Del. 2004).


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Cosby’s convictions for robbery and criminal mischief, through accomplice liability,

beyond a reasonable doubt. Thus, Cosby has not established plain error.

       (11) Finally, under plain error review, Cosby cannot meet his burden of

showing he was prejudiced by the prosecutor’s statements.13 The second half of the

prosecutor’s statement—“is it corroborated? A hundred percent”—is a comment on

the evidence noting that there was corroborating evidence despite Cosby’s closing

argument. The other half—“is Sebastian Battle’s testimony credible? Absolutely”—

is more problematic. “Improper vouching occurs when the prosecutor implies some

personal superior knowledge, beyond that logically inferred from the evidence at

trial, that the witness has testified truthfully.”14

       (12) While Battle’s credibility was a major issue in this trial, the

prosecutor’s brief remark is not enough to show prejudice under plain error review.

We have been reluctant to find that a single instance of vouching constitutes plain

error.15 Here, we also believe that the prosecutor did not imply “some personal


13
   Brown v. State, 897 A.2d 748, 752 (Del. 2006) (“In demonstrating that a forfeited error is
prejudicial, the burden of persuasion is on [the defendant].”); but see Baker v. State, 906 A.2d 139,
150-51 (Del. 2006) (rejecting the heightened interpretation of plain error “that prosecutorial
misconduct or improper comments will only lead to reversal under the plain error standard where
credibility is a central issue in a close case and the prosecutorial misconduct is so clear, and defense
counsel's failure to object so inexcusable, that a trial judge, in the interest of fundamental fairness,
has no reasonable alternative other than to intervene sua sponte and declare a mistrial or issue a
curative instruction.”).
14
   White v. State, 816 A.2d 776, 779 (Del. 2003).
15
   See Abbatiello v. State, 170 A.3d 779, 2017 WL 3725063, at *3 (Del. Aug. 29, 2017) (TABLE)
(finding no prejudice where there was “only one isolated comment that was arguably a logical and
proper inference drawn from the evidence.”); Trump v. State, 753 A.2d 963, 969-70 (Del.



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superior knowledge” by the statement. As such, the comments were not “so clearly

prejudicial to substantial rights” as to constitute plain error.16

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

Superior Court is AFFIRMED.

                                                      BY THE COURT:

                                                      /s/ Collins J. Seitz, Jr.
                                                             Justice




2000)(ruling that statements by the prosecutor that she believed the victim was telling the truth did
not constitute plain error); see also Rasin v. State, 187 A.3d 1209, 2018 WL 2355941, at *2 (Del.
May 23, 2018) (TABLE) (finding no improper vouching where the State repeatedly made
inferences from the evidence that supported the credibility of their witnesses in closing); Whittle
v. State, 77 A.3d 239, 243 (Del. 2013) (finding improper vouching where the State said a witness
was “correct” or “right” at least twenty times).
16
   Baker, 906 A.2d at 154.


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