Submitted: March 4, 2015
Court Below: Family Court of the State of Delaware in and for New Castle County No. 1405026663
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
On this 26th day of March 2015, it appears to the Court that:
(1) Defendant-Below/Appellant Russell Smith appeals from a Family Court order adjudicating him delinquent for committing the offenses of Possession of a Deadly Weapon by a Person Prohibited ("PDWPP") and Carrying a Concealed Deadly Weapon ("CCDW"). He also appeals from the trial court's sentence order, which imposed a six-month minimum mandatory commitment to a treatment facility. Smith raises two claims on appeal. First, he contends that the State failed to establish beyond a reasonable doubt that he knowingly possessed, either actually or constructively, a deadly weapon. Second, he contends that the Family Court committed plain error by failing to infer that the State's failure to collect a duffel bag and a long-sleeved t-shirt for DNA testing deprived him of exculpatory evidence.We find no merit to Smith's appeal. Accordingly, we affirm.
(2) Smith's charges arose out of a May 31, 2014 traffic stop on Wilton Boulevard in New Castle, Delaware. Officers Daniel Elwood and Matthew Arnold of the New Castle County Police Department noticed that Smith was driving his vehicle while not wearing a seatbelt. When Officer Elwood activated the police car's emergency lights, Smith sped up slightly and appeared to be leaning toward the right, in the direction of the center console, causing the car to move in and out of the traffic lane. Smith eventually pulled off to the side of the road.
(3)When Officer Arnold approached the car, he immediately smelled the odor of burnt marijuana. The vehicle contained five occupants including Smith. Officer Arnold asked Smith and his four passengers about the odor, but received no response. Officer Elwood then began removing the occupants from the vehicle one at a time, patting them down, and asking them to go to the curb at the rear of the vehicle so that the officers could search the vehicle for marijuana.
(4)The officers found "crumbs of a green, leafy plant-like substance, consistent with marijuana" on one of the rear seat passengers, but did not otherwise find any evidence of drugs or drug paraphernalia. Officer Elwood did, however, find a black duffel bag on the center console in the vehicle. On top of the bag was a 12-inch knife with a 7-inch blade wrapped inside a long-sleeved t-shirt. The knife was in a sheathe, but the snap on the sheathe used to hold the knife in place was unsnapped. Officer Elwood asked to whom the knife belonged, but none of the five occupants responded.
(5)The knife was located less than one foot away from the driver's seat. The front seat passenger was not leaning in the direction of the knife when the officers observed the vehicle prior to the stop. The front seat of the car was a bench seat, which prevented the rear seat passengers from reaching the knife. Due to the knife's location, and Smith's proximity to the knife, Smith would have been able to reach the knife within seconds while he was driving. Based on the officers' observations of Smith leaning toward the right-the direction where the knife was located-the officers believed that Smith was the one who possessed the knife.
(6)Smith had a prior delinquency adjudication for Conspiracy Second Degree and was, therefore, a person prohibited from possessing a deadly weapon. He was arrested and charged with CCDW and PDWPP. The Family Court held a bench trial on July 21, 2014. At the close of the State's case, Smith moved for judgment of acquittal. The court denied the motion and found Smith delinquent on both charges. Smith was sentenced to a six-month minimum mandatory commitment to a treatment facility. This appeal followed.
(7) We review a Family Court judge's denial of a motion for judgment of acquittal "to determine whether a rational trier of fact could have found that the evidence, viewed in the light most favorable to the State, supported each element of the offense beyond a reasonable doubt." For the purposes of this inquiry, "[w]e do not distinguish between direct and circumstantial evidence" of a defendant's guilt.
(8)Under 11 Del C. § 1442, a person is guilty of CCDW "when the person carries concealed a deadly weapon upon or about the person without a license" Whether a weapon is "about the person" is determined by considering whether the weapon was immediately available and accessible to the person. "We also have explained that the following factors-known as the Dub in factors-should be considered in evaluating the question of accessibility of the deadly weapon: (1) whether the defendant had to change [his] position appreciably to reach the weapon, (2) whether the defendant could reach the weapon while driving, and (3) the amount of time it would take for the defendant to reach the weapon, if the defendant were provoked."
(9) In this case, Smith does not challenge the fact that the knife was immediately available and accessible to him, and he concedes that the knife in question meets the definition of a "deadly weapon." In addition, the Dubin factors each strongly support a finding of actual possession under 11 Del. C. § 1442 as the knife was less than a foot away from Smith in the vehicle and nothing obstructed his immediate possession of it. Smith contends, however, that the State failed to prove that he had actual knowledge of the knife's presence in the car, and thus failed to prove that he knowingly possessed the weapon.
(10)Knowledge of a weapon may be proved by circumstantial evidence. For example, in Ross v. State, the defendant was charged with CCDW following a traffic stop during which police discovered a .38 caliber revolver under the defendant's seat along with two .38 caliber rounds on the ground near where the defendant had been searched. The defendant was convicted of CCDW. On appeal, we affirmed the trial court's denial of the defendant's motion for judgment of acquittal, finding that the ...