           IN THE SUPREME COURT OF THE STATE OF DELAWARE

ORLANDO INGRAM,                         §
                                        §       No. 460, 2014
      Defendant Below,                  §
      Appellant,                        §       Court Below: Superior Court
                                        §       of the State of Delaware in
      v.                                §       and for Kent County
                                        §
STATE OF DELAWARE,                      §       Cr. ID No. 1209003136D
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                          Submitted: November 26, 2014
                           Decided:  February 11, 2015

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

                                     ORDER

      This 11th day of February 2015, upon consideration of the appellant’s brief

under Supreme Court Rule 26(c), his attorney’s motion to withdraw, and the

appellee’s response, it appears to the Court that:

      (1)    On September 27, 2012, Dover police arrested the appellant, Orlando

Ingram, in the living room of his sister’s apartment in Dover, Delaware. The

police had a warrant for Ingram’s arrest because he was a suspect in the September

4 robbery of a Family Dollar store in Dover. Ingram put up a fight when the police

entered the apartment to arrest him. After Ingram was subdued and taken into

custody, Ingram’s sister gave the police written consent to search the apartment.



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During the search, the police discovered a loaded handgun under the living room

couch.

       (2)    On December 3, 2012, Ingram was indicted on multiple offenses in

connection with various robberies and attempted robberies in the Dover area in

August and September 2012, including offenses arising from the September 4

robbery and Ingram’s September 27 arrest. After a jury trial in November 2013,

Ingram was convicted, as charged, of the September 4 robbery and September 27

arrest-related offenses, except for two counts of Possession of a Firearm by a

Person Prohibited (“PFBPP”), which were severed before trial. By Order dated

December 30, 2014, this Court affirmed Ingram’s November 2013 convictions.1

       (3)    On May 5, 2014, Ingram went to trial on the two counts of PFBPP.

One count, which was charged in connection with Ingram’s September 27 arrest,

was tried before a jury. The other count, which was charged in connection with the

September 4 robbery, was tried before the trial judge but then nolle prossed.2

       (4)    After a two-day trial, the jury found Ingram guilty of PFBPP. On

August 13, 2014, the Superior Court declared Ingram a habitual offender and




1
  See Ingram v. State, 2014 WL 7465977 (Del. Dec. 30, 2014) (affirming the Superior Court’s
judgment of convictions in State v. Ingram, Cr. ID No. 1209003136C)). The Court has taken
judicial notice of the proceedings.
2
  See docket at 5, State v. Ingram, Cr. ID No. 1209003136E (May 7, 2014). The Court has taken
judicial notice of the proceedings.

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sentenced him to twenty-five years mandatory at Level V incarceration followed

by one year at Level III probation. This is Ingram’s direct appeal.

         (5)     On appeal, Ingram’s defense counsel (“Counsel”) has filed a no-merit

brief and a motion to withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”).

Counsel asserts that, based upon a complete and careful examination of the record,

there are no arguably appealable issues. Ingram, through Counsel, has submitted

three points for the Court’s consideration. The State of Delaware, has responded to

Ingram’s points and to the position taken by Counsel and has moved to affirm the

Superior Court judgment.

         (6)     When reviewing a motion to withdraw and an accompanying brief

under Rule 26(c), the Court must be satisfied that the appellant’s counsel has made

a conscientious examination of the record and the law for arguable claims. 3 Also,

the Court must conduct its own review of the record and determine whether “the

appeal is indeed so frivolous that it may be decided without an adversary

presentation.”4

         (7)     In his first point on appeal, Ingram claims that his 2014 conviction

and sentencing for PFBPP subjected him to double jeopardy because of his 2013




3
 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).
4
    Penson v. Ohio, 488 U.S. at 81.

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conviction and sentencing for Possession of a Firearm During the Commission of a

Felony (“PFDCF”).5 Ingram’s claim is without merit.

          (8)     Double Jeopardy prohibits successive prosecutions and cumulative

punishments for greater-and-lesser-included-offenses that are based on the same

conduct.6 A lesser-included offense is one that does not require proof of elements

beyond those required by the greater offense.7

          (9)     In this case, PFBPP was not a lesser-included offense of PFDCF, as

Ingram contends. PFBPP required proof of an element not required by PFDCF,

namely a prior conviction of a felony or violent crime involving physical injury to

another.8 Also, the two offenses were not based on the same conduct. Ingram was

charged with PFDCF based on the factual allegation that he possessed a firearm

when committing a robbery on September 4, 2012. Ingram was charged with

PFBPP based on the factual allegation that, on September 27, 2012, he possessed a




5
 The Double Jeopardy Clauses of the United States and Delaware Constitutions protect a
criminal defendant against multiple punishments or successive prosecutions for the same offense.
U.S. Const. amend. V; Del. Const. art. I, § 8. See Evans v. State, 445 A.2d 932, 933 (Del. 1982).
6
    Blake v. State, 65 A.3d 557, 561 (Del. 2013) (citing Brown v. Ohio, 432 U.S. 161, 169 (1977)).
7
    Id. (citing 11 Del. C. § 206).
8
  Compare 11 Del. C. § 1447A(a) (providing that “[a] person who is in possession of a firearm
during the commission of a felony is guilty of possession of a firearm during the commission of
a felony”) with 11 Del. C. § 1448(a)(1) (providing that “[a]ny person having been convicted in
this State or elsewhere of a felony or a crime of violence involving physical injury to another” is
“prohibited from . . . possessing or controlling a deadly weapon or ammunition for a firearm
within the State”).

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firearm and had been previously convicted of a felony or crime of violence

involving physical injury to another.

           (10) In his second point on appeal, Ingram contends that there was

insufficient evidence for the jury to find him guilty of PFBPP. Ingram made the

same claim in a motion for judgment of acquittal, which was denied at trial. When

denying the motion, the Superior Court found that:

                 The evidence that’s been submitted by the State indicates
                 that: Upon entry into a residence where Mr. Ingram was
                 occupying, he was subdued by officers involved here.
                 And there has been evidence to indicate that he made
                 multiple attempts to reach for an item or object under a
                 couch that’s been later identified as a handgun.9

           (11) This Court reviews the denial of a motion for judgment of acquittal de

novo to determine whether any rational trier of fact, viewing the evidence in the

light most favorable to the State, could find the defendant guilty beyond a

reasonable doubt of all the elements of the crime.10                          When making our

determination, we do not distinguish between direct and circumstantial evidence.11

           (12) The record reflects that, midway through the first day of trial, Ingram

stipulated that he was a person prohibited from possessing a firearm on September

27, 2012. As a result, the jury was required only to determine whether there was


9
    Trial Tr. at B-59 (May 6, 2014).
10
     See, e.g., Lum v. State, 101 A.3d 970, 971 (Del. 2014) (citing cases).
11
     Id.

                                                   5
proof beyond a reasonable doubt that Ingram knowingly was in actual or

constructive possession of the firearm on that date.12

         (13) Having reviewed the trial court record, we conclude that the evidence

was sufficient to support the jury’s finding that Ingram was guilty of PFBPP. Two

police officers testified that, when struggling with them in the living room of his

sister’s apartment on September 27, Ingram made repeated attempts to reach under

the couch in an area where the police later discovered a loaded handgun.

         (14) In his third point on appeal, Ingram contends that the evidence seized

when he was arrested on September 27 should have been suppressed because his

sister did not consent to the search of her apartment. Ingram concedes that he

unsuccessfully raised the same claim during his 2013 trial and in his appeal from

those convictions.

         (15) As noted, Ingram did not prevail in his appeal from the 2013

convictions. Indeed the Court’s Order affirming the convictions concluded that

Ingram’s challenge to the validity of his sister’s consent to search was without

merit.13 Under these circumstances, having previously considered Ingram’s direct



12
  The trial judge properly instructed the jury that actual possession required proof beyond a
reasonable doubt that Ingram “knowingly had direct physical control over the firearm,” and that
constructive possession required proof beyond a reasonable doubt that Ingram “had both the
power and the intention, at a given time, to exercise control over the firearm.” Accord Lum v.
State, 101 A.3d 970, 971 (Del. 2014).
13
     Ingram v. State, 2014 WL 7465977, at *3 (Del. Dec. 30, 2014).

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challenge to the validity of his sister’s consent and denied the claim as without

merit, the Court concludes that the same claim raised in this appeal is moot.

      (16) The Court concludes that Ingram’s appeal is wholly without merit and

devoid of any arguably appealable issue. We are satisfied that Counsel made a

conscientious effort to examine the record and the law and properly determined

that Ingram could not raise a meritorious claim on appeal.

      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/ Leo E. Strine, Jr.
                                             Chief Justice




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