Submitted: February 15, 2017
Below-Superior Court of the State of Delaware Cr. ID No.
VALIHIJRA, VAUGHN, and SEITZ, Justices.
13th day of April 2017, upon consideration of the
appellant's Supreme Court Rule 26(c) brief, the
State's response, and the record below, it appears to the
June 1, 2016, a Superior Court jury found the appellant,
William Bessicks, guilty of Possession of a Firearm by a
Person Prohibited ("PFBPP") and Possession of
Ammunition by a Person Prohibited
("PABPP"). The Superior Court sentenced Bessicks as
follows: (i) for PFBPP, five years of Level V incarceration
with credit for 72 days served, followed by Level IV Work
Release; and (ii) for PABPP, eight years of Level V
incarceration, suspended for one year of Level III probation.
This is Bessicks' direct appeal.
appeal, Bessicks' counsel ("Counsel") filed a
brief and a motion to withdraw pursuant to 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. Counsel informed Bessicks
of the provisions of Rule 26(c) and provided Bessicks with a
copy of the motion to withdraw and the accompanying brief
Counsel also informed Bessicks of his right to identify any
points he wished this Court to consider on appeal. Bessicks
has raised an issue for this Court's consideration. The
State has responded to the issue raised by Bessicks and moved
to affirm the Superior Court's judgment.
When reviewing a motion to withdraw and an accompanying
brief, this Court must: (i) be satisfied that defense counsel
has made a conscientious examination of the record and the
law for arguable claims; and (ii) conduct its own review of
the record and determine whether the appeal is so totally
devoid of at least arguably appealable issues that it can be
decided without an adversary presentation.
trial record in this case reflects that, on April 2, 2015,
Delaware State Police executed search warrants at two
residences in Magnolia. One of the residences was a blue
mobile home. When the police arrived at the mobile home to
execute the search warrant, they found Bessicks, his
girlfriend, and several children present.
During the search, the police found a box of ammunition in a
plastic bag hanging over the nightstand on the left side of
the bed in the master bedroom. There was male clothing on the
left side of the bed. The police found a magazine for a .22
caliber handgun under the right side of the mattress. The
police found a loaded .22 caliber handgun on the floor of the
bedroom closet. At the mobile home, Bessicks told the police
the items under the mattress belonged to him. Bessicks'
girlfriend told the police, in Bessicks' earshot, that
she once had a handgun in the home, but she had given it away
to a homeless person in the area.
police subsequently interviewed Bessicks and his girlfriend
at the police station. After receiving Miranda
warnings, Bessicks told the police he and his girlfriend had
the gun because of violence in the neighborhood. He said he
knew they should not have the gun in the house, but they had
to do something. Bessicks also said his girlfriend got the
gun from a junkie and he told her the gun was unnecessary and
unwise. According to Bessicks, his girlfriend told him that
she gave the gun away. As to the box of ammunition over the
nightstand, Bessicks said a friend gave it to him because it
was the right type of ammunition for the gun. Bessicks put
the box of ammunition in a bag and forgot about it.
Bessicks' girlfriend told the police that the gun and
magazine belonged to her. At trial, Bessicks' girlfriend
testified that the gun, magazine, and box of ammunition
belonged to her and Bessicks never touched them.
Bessicks' girlfriend pled guilty to possession of the
gun. She testified that she obtained the gun due to violence
in the neighborhood. She admitted that she was not truthful
when she told the police at the house that she had given the
police did not attempt to collect any fingerprint or DNA
evidence from the gun. A certified Superior Court record
showing Bessicks' 2005 conviction for Robbery in the
Second Degree was admitted into evidence. The jury found
Bessicks guilty of PFBPP and PABPP.
appeal, Bessicks argues there was insufficient evidence to
support his PFBPP conviction. Bessicks claims he could not
possess a gun his girlfriend told him she gave away. Bessicks
also emphasizes that his girlfriend testified the gun
belonged to her and that Bessicks never touched the gun.
Generally, we review a sufficiency of evidence claim de
novo to determine whether any rational trier of fact,
viewing the evidence in the light most favorable to the
State, could have found the defendant guilty beyond a
reasonable doubt. Here, however, Bessicks did not move for a
directed verdict or judgment of acquittal so we review this
claim for plain error. "[P]lain error is limited to material
defects which are apparent on the face of the record; which
are basic, serious and ...