          IN THE SUPREME COURT OF THE STATE OF DELAWARE

PHILLIP ROSSI,                        §
                                      §       No. 374, 2015
     Defendant Below-Appellant,       §
                                      §       Court Below: Superior Court
     v.                               §       of the State of Delaware
                                      §
STATE OF DELAWARE,                    §       Cr. ID Nos. 1208010002,
                                      §       1204018462, 1210000519, and
     Plaintiff Below-Appellee.        §       1209011646

                         Submitted: March 2, 2016
                         Decided:   March 24, 2016

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

Upon appeal from the Superior Court. REVERSED AND REMANDED.

Robert M. Goff, Esquire, Office of Public Defender, Wilmington, Delaware, for
Appellant.

Gregory E. Smith, Esquire, Department of Justice, Wilmington, Delaware, for
Appellee.

STRINE, Chief Justice:
                                   I.      INTRODUCTION

          After being out of prison for two days and while on probation, Phillip Rossi

was spotted at a JCPenney department store with a woman who was believed to

have stolen almost $200 of merchandise. Rossi was the suspected lookout. The

alleged scheme culminated in Rossi supposedly returning the stolen items to a

different JCPenney for store credit later that same day. Criminal charges followed

soon after the incident. And although the State entered a nolle prosequi on all

charges against Rossi subject to certain conditions, it nonetheless sought to revoke

Rossi‘s probation, and the Superior Court found that Rossi had violated terms of

his probation by shoplifting.

          On appeal, Rossi argues that the State did not present an adequate record

upon which the Superior Court could find that the alleged shoplifting occurred.

Thus, Rossi argues, the Superior Court could not find that he violated probation by

shoplifting.

          The State‘s burden to prove a violation of probation is much lighter than it is

to convict a defendant of a crime. All that the State must do is prove by a

preponderance of the evidence that the ―conduct of the probationer has not been as

good as required by the conditions of probation.‖1 And, the State can support its

case by relying upon hearsay evidence. But, under long-standing precedent that


1
    Collins v. State, 897 A.2d 159, 160 (Del. 2006).
                                                  1
the State does not ask us to revisit—specifically, Brown v. State2 and Collins v.

State3—the State must present some competent evidence that supports a finding

that the defendant violated probation. Competent evidence is evidence that would

be admissible at trial and that tends to prove two critical factors necessary to a

violation of probation finding: i) an act constituting a violation occurred; and ii) the

defendant is linked to that act.4 In Collins, we reversed a finding of a violation of

probation because, even though there was competent evidence showing that a

crime occurred, there was no admissible evidence linking the defendant to the

crime.5 Here, we confront a similar situation.         The only piece of competent

evidence the State produced showed that Rossi was at the JCPenney on the key

date in question. But, the State did not introduce any competent evidence that

showed a crime had been committed there. Adhering to Collins, we reverse.

                                 II.       BACKGROUND

       The only undisputed fact in this case is that on April 14, 2015, Rossi and his

girlfriend, Rachel Thomas, were at the JCPenney store inside the Christiana Mall.

       The State claimed that, based on information obtained from a police

investigation, Thomas was stealing merchandise while Rossi was acting as the

lookout. The State alleges that there is a surveillance video showing Rossi and

2
  249 A.2d 269 (Del. 1968).
3
  897 A.2d at 159.
4
  Id. at 160–62; Brown, 249 A.2d at 272.
5
  Collins, 897 A.2d at 162.
                                             2
Thomas at the store, and the JCPenney loss-prevention manager saw the two

leaving the mall together. Less than an hour later, Rossi allegedly arrived at a

different JCPenney store and returned the stolen items in exchange for store credit.

And, in making the exchange, Rossi presented his photo identification to store

personnel. Thomas told essentially the same set of facts to Delaware State Police

Corporal Thomas Rhoades, but she claimed that it was Rossi‘s idea to shoplift

―because he was getting sick.‖6 Corporal Rhoades questioned Rossi within days

after the incident, and Rossi admitted to being at the Christiana JCPenney with

Thomas, but nothing more.

       On April 20, the State charged Rossi for theft under $1,500, conspiracy third

degree, shoplifting under $1,500, and receiving stolen property. But, it ultimately

entered a nolle prosequi as to all charges against him subject to three conditions,

one of which required Rossi to pay $194.31 in restitution to JCPenney.

       On April 30, Rossi‘s probation officer filed a report with the Superior Court

alleging that Rossi had violated the terms of his probation by shoplifting. A

contested violation-of-probation hearing was held on July 15. The State presented

only one witness to establish that the alleged shoplifting occurred, and that was

Corporal Rhoades. The State did not present any physical evidence, photographs,



6
 App. to Opening Br. at 27 (Testimony from Corporal Rhoades). The record is not clear as to
what ―getting sick‖ meant.
                                            3
video, or § 3507 statements.7 Corporal Rhoades had no personal knowledge of

what occurred at the JCPenney; he had only information that he gathered after the

event from witnesses with direct knowledge, principally the loss-prevention

manager.8

         Corporal Rhoades‘s testimony was essentially as follows: He went to the

Christiana JCPenney on April 16 or April 17 and spoke with the loss-prevention

manager, who told him that there was video surveillance showing Rossi acting as a

lookout for Thomas. Corporal Rhoades never watched the surveillance video, but

he saw what the manager told him were still images from the video, which he

compared to other images of potential suspects and used to determine that Rossi

and Thomas were the suspects. The manager also told Corporal Rhoades that

Rossi went to another JCPenney to return the stolen items in exchange for store

credit. Corporal Rhoades also testified as to his own direct conversations with

Thomas and Rossi.

         During closing argument, Rossi relied on this Court‘s rulings in Brown and

Collins and argued that, aside from his own statement to Corporal Rhoades,

everything else was inadmissible hearsay. He further argued that although the


7
    10 Del. C. § 3507 (―Use of prior statements as affirmative evidence‖).
8
    App. to Opening Br. at 33 (Testimony of Corporal Rhoades):
          Defense:      So, everything about the description of the crime that‘s alleged to
                        have taken place, was described to you by Adrian Wilson, the
                        [loss-prevention manager], correct?
          Rhoades:      That‘s correct, sir.
                                                 4
Superior Court may consider inadmissible hearsay at a violation-of-probation

hearing, there must be some competent, admissible evidence that shows he

shoplifted, and that no evidence of that kind was presented.9

       The Superior Court found that there was ―overwhelming hearsay evidence

which is admissible to show that [Rossi] participated in the shoplifting.‖10

Addressing Rossi‘s argument, the court noted Collins and went on to find that

there was competent evidence that connected Rossi to the crime:

              Looking at the Collins case, I need to see competent evidence
       that relates the defendant to the crime.

              Here, I find that competent evidence in the form of the
       photograph that was identified by the police officer as being that of
       the defendant, the defendant‘s statement that he was at the store, and
       the girlfriend‘s statement that the defendant participated in the crime;
       and, therefore, I find the defendant in violation of his probation.11

       After ruling that Rossi violated probation, the Superior Court sentenced him

to three years in prison with credit for time previously served.                 This appeal

followed.




9
  Rossi argued the following at the hearing: ―[C]ompetent evidence, [as] interpreted under Brown
vs. State at 249 A.2d 269 from 1968, and then reaffirmed by Collins vs. State, 897 A.2d 159,
2006, is, that competent evidence is evidence that would be admissible at trial.‖ Transcript of
Contested Hearing at 29–30, State v. Rossi, Cr. ID Nos. 1208010002, 1204018462, 1210000519,
1209011646 (Del. Super. July 15, 2015).
10
   App. to Opening Br. at 46 (Superior Court‘s Ruling).
11
   Id. at 47–48.
                                               5
                                   III.   ANALYSIS

       We review the Superior Court‘s decision to revoke probation for abuse of

discretion.12

       The parties‘ duel over whether competent evidence supported the Superior

Court‘s finding turns on the application of settled principles of Delaware law. The

State shoulders a less hefty weight in a violation-of-probation proceeding than in a

criminal trial.13 Instead of having to prove its case beyond a reasonable doubt, the

State need only show by a preponderance of the evidence that the defendant

violated probation.14 And the usual hearsay prohibitions are non-existent.15 But,

that does not mean the State can rely entirely on inadmissible hearsay.16 There

must be ―some competent evidence to prove the violation asserted.‖17

       ―Competent evidence‖ has not been expressly defined, but a close reading of

the relevant case law reveals its definition to be straightforward: It is evidence that

would be admissible in a criminal trial and is proof that the defendant violated the




12
   See Collins, 897 A.2d at 162; Brown, 249 A.2d at 271–72 (―Just as probation is an act of
grace, revocation of probation is an exercise of broad discretionary power; and on appellate
review, the question may be limited to whether there has been an abuse of such discretion.‖)
(internal quotation marks omitted).
13
   Stigile v. State, 2015 WL 3938205, at *2 (Del. June 25, 2015).
14
   Id.
15
   Collins, 897 A.2d at 160.
16
   Id. at 160–61; Brown, 249 A.2d at 272.
17
   Brown, 249 A.2d at 272.
                                             6
terms of his probation.18         Inadmissible hearsay, without some corroborating

admissible evidence, is ―a basis too untrustworthy [to terminate a person‘s

freedom].‖19

       Rossi claims that the only piece of competent evidence admitted at the

violation-of-probation hearing was his own statement, which came in through

Corporal Rhoades‘s testimony. But, Rossi notes that the statement only contained

his admission to being at the JCPenney with Thomas. Rossi said nothing about the

alleged shoplifting. Thus, he asserts that there is not competent evidence that both

i) shows a crime occurred; and ii) links him to that crime. Without competent

evidence also tending to show a crime had been committed that day at the

JCPenney, the State, Rossi argues, fell short of its light burden.

       To parry this thrust, the State argues that several pieces of the record were

competent evidence for purposes of finding that the alleged shoplifting occurred.

In addressing this case, we stress that the State has not asked us to overturn or



18
   See, e.g., Stigile, 2015 WL 3938205, at *1–2 (holding that defendant‘s admission to possessing
drugs was competent evidence); Jenkins v. State, 8 A.3d 1147, 1152–53 (Del. 2010) (holding
that testimony from a police officer with personal knowledge that defendant violated probation,
among other things, was competent evidence); Kurzmann v. State, 903 A.2d 702, 716–18 (Del.
2006) (holding that admissible hearsay and in-court testimony from a witness was ―sufficient
competent evidence‖ for finding that the defendant violated probation); Collins, 897 A.2d at 161
& n.9 (citing Bunting v. State, 870 A.2d 1191, 2005 WL 580308 (Del. Mar. 7, 2005); White v.
State, 844 A.2d 991, 2004 WL 527935 (Del. Mar. 12, 2004); Hester v. State, 791 A.2d 750, 2002
WL 243323 (Del. Feb. 13, 2002); State v. Gatlin, 2003 WL 23095682 (Del. Super. Dec. 17,
2003)); Brown, 249 A.2d at 272.
19
   Brown, 249 A.2d at 272.
                                               7
modify Brown and Collins in any respect, but tries to argue that it satisfied the

requirements established by those cases.

      To isolate the key question before us, we proceed in this manner: We first

examine the State‘s arguments that there were several pieces of competent

evidence introduced at the violation-of-probation hearing other than Rossi‘s own

out-of-court statement to Corporal Rhoades. After addressing each argument and

explaining why we conclude they lack merit, we focus on the one piece of

competent evidence that was presented at the violation-of-probation hearing, which

was Rossi‘s admission to being at the Christiana JCPenney with Thomas. We then

examine whether that testimony was sufficient under our case law to establish that

Rossi took part in the alleged shoplifting and to allow the finding of a violation of

probation against Rossi to stand.

    A.     The Only Competent Evidence The State Presented Was Rossi’s
                    Admission To Being At The JCPenney

      The State argues that it presented sufficient competent evidence at the

violation-of-probation hearing through Corporal Rhoades‘s testimony, which was

based on his direct conversations with Rossi, Thomas, and the loss-prevention

manager. Of the evidence to which Corporal Rhoades testified at the hearing, the

State contends that the following pieces were sufficient to support a finding that

Rossi shoplifted: i) Thomas‘s statement to the police; ii) Rossi‘s agreement to pay

JCPenney restitution as a condition of the nolle prosequi; iii) Corporal Rhoades‘s
                                           8
testimony regarding the still images; and iv) Rossi‘s admission to being at the

JCPenney with Thomas. We address each one in turn.

       First, the State claims that Thomas‘s statement to the police accusing Rossi

of planning the shoplifting—made after the criminal act was accomplished and

while being questioned by police—was a statement from a co-conspirator in the

course and in furtherance of the conspiracy, so it is not hearsay according to

Rule 801(d)(2)(E).20        This does not square with the plain wording of

Rule 801(d)(2)(E) or any interpretation of that Rule or its federal equivalent.21

       Rule 801(d)(2)(E) provides that an out-of-court statement is not hearsay if it

is ―a statement by a co-conspirator of a party during the course and in furtherance

of the conspiracy.‖22 By the Rule‘s plain words, the conspiracy must be ongoing,

not a thing of the past.23 The Rule also requires that, in order to be non-hearsay,

the statement must be made for the purpose of furthering the interests of the




20
   D.R.E. 801(d)(2)(E).
21
   See, e.g., Charbonneau v. State, 904 A.2d 295, 313–15 (Del. 2006); Smith v. State, 647 A.2d
1083, 1089 (Del. 1994); 5 WEINSTEIN‘S FEDERAL EVIDENCE § 801.34, at 801-112–125 (2d ed.
2015) (citing federal cases).
22
   D.R.E. 801(d)(2)(E).
23
   E.g., Smith, 647 A.2d at 1089 (citing Lutwak v. United States, 344 U.S. 604, 616 (1953))
(―[G]enerally a conspiracy terminates upon accomplishment of the principal objective unless
specific evidence is introduced indicating that the scope of the original agreement included acts
taken to conceal the criminal activity.‖); WEINSTEIN‘S, supra note 21, § 801.34[4][a], at 801-112
(―To be admissible as a coconspirator statement, the statement must be made ‗during‘ the
conspiracy. Statements made after the main objective of the conspiracy has been either achieved
or thwarted do not fall within the rule‘s coverage.‖).
                                               9
conspiracy.24 Thomas‘s statement to Corporal Rhoades does not satisfy these

requirements because, at the time it was given, the alleged conspirators

accomplished their goal and the statement was inimical to the conspiracy.

Accordingly, Rule 801(d)(2)(E) does not apply and Thomas‘s statement to

Corporal Rhoades was inadmissible hearsay.

       The State argues next that Rossi‘s agreement to the nolle prosequi

conditions, and specifically his agreement to pay restitution to JCPenney, is

competent evidence. Here, the problem is not one of hearsay. 25 The problem is

instead that the agreement is inadmissible under Rule 410, which involves the

―[i]nadmissibility of pleas, offers of pleas and related statements.‖26 The Rule

states in pertinent part:

       [E]vidence of a plea of guilty later withdrawn with court permission,
       or a plea of nolo contendere, or of an offer to plead guilty or nolo
       contendere to the crime charged or any other crime, or of statements
       made in connection with, and relevant to, any of the foregoing pleas



24
   E.g., Charbonneau, 904 A.2d at 313–15 (holding that a statement from co-conspirator trying
to solicit another to join the conspiracy was made for the purpose of furthering the conspiracy);
Reyes v. State, 819 A.2d 305, 313 (Del. 2003) (holding that co-conspirator‘s statements made in
an attempt to conceal a crime were in furtherance of the conspiracy); WEINSTEIN‘S, supra note
21, § 801.34[5], at 801-117 (―[I]t allows admission of any statement that can reasonably be
interpreted as encouraging a co-conspirator or other person to advance the conspiracy, or as
enhancing a co-conspirator or other person‘s usefulness to the conspiracy.‖) (internal quotation
omitted); id. § 801.34[5], at 801-125 (―Key in the determination is whether it was the speaker‘s
purpose to advance the conspiracy.‖).
25
   Rossi‘s agreement to pay restitution to JCPenney may be admissible under Rule 801(d)(2) as a
statement by a party-opponent or Rule 804(b)(3) as a statement against interests if it were not for
Rule 410.
26
   D.R.E. 410.
                                               10
       or offers, is not admissible in any civil or criminal proceeding against
       the person who made the plea or offer.27

       Because nolle prosequi is a total dismissal,28 which is separated even further

from a finding of guilt than the other actions listed in Rule 410, it falls within

Rule 410‘s reach and is inadmissible.29 Notably, the Superior Court itself did not

use the nolle prosequi condition as a basis to find that Rossi violated probation.30

       The State also makes a one-sentence claim, unsupported by legal authority,

that Corporal Rhoades‘s testimony regarding the still images that were allegedly

taken from the surveillance video is sufficient competent evidence.                      But, the

images were not offered as evidence and Corporal Rhoades was not in a position to

authenticate them.        Relatedly, Corporal Rhoades‘s testimony is inadmissible

hearsay because the only reason that he believes those images came from the

surveillance video is because that is what the loss-prevention manager told him.


27
   Id.
28
   See Thornton v. State, 1998 WL 309837, at *1 (Del. June 3, 1998) (quoting Winston v. State,
1993 WL 22014 (Del. Jan. 11, 1993)) (―A nolle prosequi is merely a decision by the Attorney
General not to prosecute a particular charge.‖); 21 AM. JUR. 2D Criminal Law § 720, at 789
(2008) (―A nolle prosequi order is not a final disposition of a criminal case, but leaves the matter
in the same condition as before the charges were filed. In other words, it lays to rest that
indictment and the underlying warrant without disposition, as though they had never existed.‖).
29
    ―Rule 410‘s exclusion of [pleas, offers of pleas, and related statements] represents a
substantive policy to promote the disposition of criminal cases by compromise.‖ 2 WEINSTEIN‘S
FEDERAL EVIDENCE § 410.03[2], at 410-9 (2d ed. 2015); see also id. § 410.06[3], at 410-14
(―The use of a nolo plea as tantamount to an admission of guilt would defeat one of the primary
purposes of 410—to encourage compromise in criminal cases, which, in turn, lessens the burden
on courts, defendants and prosecutors, producing a more efficient criminal justice system.‖).
30
   See supra note 11 and accompanying text; cf. Cropper v. State, 2000 WL 139992, at *4 (Del.
Jan. 21, 2000) (reviewing appeal from sentencing order for abuse of discretion and only
reviewing the evidence that the Superior Court ―actually relied upon‖).
                                                11
Put simply, it is not clear how Corporal Rhoades‘s testimony that he saw a photo

of people at a JCPenney on a day he was not there was evidence at all. If it were,

any witness who met Rossi could be shown a photo or video of out-of-court events

the witness did not see and testify that Rossi was the person depicted. Thus,

Corporal Rhoades‘s testimony regarding the still images is not competent evidence

showing that Rossi violated probation by shoplifting.

      Therefore, the only part of Corporal Rhoades‘s testimony that would have

been admissible at trial was his recitation of Rossi‘s admission to being at the

JCPenney with Thomas.31 Accordingly, our focus is narrowed to determining

whether Rossi‘s admission is sufficient competent evidence to allow the Superior

Court to find a violation of probation.

     B.    Brown And Collins Require Competent Evidence That A Crime
           Occurred And That The Crime Involved The Defendant

      The resolution of this case therefore comes down to what the requirement to

submit ―some competent evidence to prove the violation asserted‖ means.32 Must

competent evidence include both admissible evidence i) that a crime occurred; and

ii) linking the defendant to that crime? Or is it sufficient that the State submit

competent evidence that goes to one of those factors as long as there is hearsay or



31
   Rossi‘s admission is non-hearsay under Rule 801(d)(2) because it is a statement from a
party-opponent.
32
   Brown, 249 A.2d at 272.
                                           12
other traditionally inadmissible evidence rationally supporting the existence of the

other factor?

       This Court‘s decisions in Brown and Collins are instructive in resolving that

issue. Brown established the principle that ―a probation revocation may not stand

unless‖ there is ―some competent evidence‖ apart from ―pure hearsay‖ that tends to

―prove the violation asserted.‖33 In Brown, the State claimed that the defendant

violated probation by committing or assisting in the commission of an abortion.34

The State‘s only witness at the violation-of-probation hearing was the probation

officer, and ―his only sources of information about the alleged probation violation

were newspaper accounts and a copy of a 10 page police investigation report.‖35

The Superior Court found that the defendant violated probation.36 On appeal, this

Court looked to precedent from other jurisdictions, which discussed the need for

―ample evidence‖ or ―ample competent proof,‖ apart from inadmissible hearsay,

that is sufficient to find that the defendant violated probation.37                   This Court

observed that ―pure hearsay‖ was ―a basis too untrustworthy‖ to terminate a

person‘s freedom, and it held that ―there being no competent evidence upon which




33
   249 A.2d at 272.
34
   Id. at 270.
35
   Id.
36
   Id. at 271.
37
   Id. at 272 (quoting United States v. Register, 360 F.2d 689, 689 (4th Cir. 1966); State v. Elder,
95 N.W.2d 592, 595 (S.D. 1959)).
                                                13
to base the exercise of sound judicial discretion, the revocation of the probation

and the imposition of the prison sentence constituted an abuse of discretion.‖38

       In sum, Brown requires the State to present proof of the alleged violation,

which, in Brown and in this case, is proof that the defendant committed a crime.39

It follows that, in cases where the State alleges that the defendant violated

probation by committing a crime, there must be some proof other than inadmissible

hearsay that shows a crime occurred and the defendant committed it.40

       More recently in Collins, this Court reaffirmed Brown and held that when

the State claims that a defendant violated probation by committing a crime, the

State must produce competent evidence that shows not only that a crime occurred,

but also that the defendant is linked to the crime. 41 In Collins, the State claimed

that the defendant violated probation when he broke into his ex-girlfriend‘s home

and caused extensive damage inside.42 The only evidence the State presented at

the violation-of-probation hearing was testimony from the investigating police

officer.43 Although the officer personally observed the damage at the home, he had

no personal knowledge of what caused that damage.44 The Superior Court found

that the defendant violated probation based on the officer‘s personal observation of

38
   Id.
39
   Id.
40
   See id.
41
   Collins, 897 A.2d at 162.
42
   Id. at 160.
43
   Id.
44
   Id.
                                         14
the damage and his recitations of inadmissible hearsay.45 On appeal, this Court

noted that ―[a]lthough physical evidence of the damage to the apartment may have

indicated that criminal conduct had occurred, it did not connect Collins to that

crime.‖46 This Court reversed, explaining that because the only evidence linking

the defendant to the crime was inadmissible hearsay, ―the revocation of his

probation was an abuse of discretion.‖47

        In this case, Rossi‘s admission to being at the JCPenney would have been

powerful competent evidence connecting him to the crime had there also been

competent evidence that a crime was committed. Had the State put on one of the

witnesses from JCPenney who could have presented competent evidence that

JCPenney had been victimized by theft, Rossi‘s admission would have put him at

the scene of the crime, on the right day and time, and with the alleged co-

conspirator. But, the problem under the evidentiary standard is simple: Brown and

Collins require competent evidence of two facts, which are that i) a crime was

committed; and ii) the defendant is linked to the crime. Rossi‘s admission satisfied

only the second part and not the first. The question therefore is whether the State

needs competent evidence of both, or can rely on hearsay to satisfy one, if it has

competent evidence as to the other. Brown and Collins would seem to say both.


45
   Id.
46
   Id. at 162.
47
   Id.
                                           15
      Here, there is competent evidence establishing a link to an alleged crime, but

no competent evidence that the alleged crime occurred.         Without competent

evidence that shows a crime occurred, under Collins (and Brown), the Superior

Court should not have revoked Rossi‘s probation.

      Although the State‘s burden in proving a violation of probation is not an

onerous one, that burden has long required that the State at least present some

competent evidence that shows the defendant did not comply with the terms of his

probation. No doubt that burden will require the State to put on more than one

witness in certain circumstances, or to use a witness with personal knowledge

rather than an investigator as a witness in others.        But given the serious

consequences that can result from a violation of probation—as exemplified here by

the three-year sentence reinstated because of a shoplifting that the State chose not

to prosecute directly as a crime—the bottom line requirement set by Brown and

Collins is a reasonable one that provides the responding probationer with an

important procedural protection, while still leaving the State well-positioned to

prosecute probation violations much more inexpensively and efficiently than

crimes.

                                 IV.   CONCLUSION

      Therefore, this matter is reversed and remanded to the Superior Court for a

new hearing consistent with this opinion.

                                        16
