Submitted: April 16, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
L. Valihura Justice.
29th day of May 2018, upon consideration of the
appellant's Supreme Court Rule 26(c) brief, the
State's response, and the record below, it appears to the
February 22, 2017, a Superior Court jury found the appellant,
David Crosby-Avant, guilty of Assault in the Third Degree, as
a lesser included offense of Assault in the Second Degree,
Possession of a Firearm by a Person Prohibited
("PFBPP"), and Possession of Ammunition by a Person
Prohibited ("PABPP"). The jury found Crosby-Avant
not guilty of Possession of a Firearm During the Commission
of a Felony ("PFDCF"). The Superior Court sentenced
Crosby-Avant as follows: (i) for PFBPP, ten years of Level V
incarceration, suspended after five years for decreasing
levels of supervision; (ii) for PABPP, five years of Level V
incarceration suspended for one year of Level III probation;
and (iii) for Assault in the Third Degree, one year of Level
V incarceration suspended for one year of Level II probation.
This is Crosby-Avant's direct appeal.
trial, Detective William Ball of the Wilmington Police
Department testified that, on March 15, 2016, he responded to
a report regarding a man who walked into Wilmington Hospital
with a gunshot wound to his foot. Detective Ball spoke to the
gunshot victim, who was Crosby-Avant's father.
Photographs of the victim and the injury to his foot, a
projectile recovered from the victim's foot, the
victim's bloody sock, and the victim's medical
records were admitted into evidence. The victim did not
appear at trial because he was in assisted living and unable
March 16, 2016, Crosby-Avant went to see Detective Ball.
Detective Ball interviewed Crosby-Avant. A video recording of
the interview was played at trial. In the interview,
Crosby-Avant said he found a gun on the street near a bus
stop. He thought it was probably fake, but was also concerned
about the presence of children nearby. He took the gun home
with him, even though he was prohibited from possessing a
gun, and gave the gun to his father. Shortly thereafter when
the father and Crosby-Avant were exchanging the gun, it
discharged into the father's foot. Crosby-Avant ran to
Brandywine Park and disposed of the gun in a porta-potty.
police looked for the gun, but were unable to find it.
Detective Ball testified that the police did not test
Crosby-Avant for gunshot residue at his interview because the
shooting had occurred the previous day and any residue was
likely to have been washed away. The parties stipulated that
Crosby-Avant was a person prohibited from possessing a gun or
the conclusion of the State's case, Crosby-Avant's
counsel moved for judgment of acquittal on the Assault in the
Second Degree and PFDCF charges and asked for a jury
instruction for the lesser included offense of Assault in the
Third Degree. The State opposed the motion for judgment of
acquittal. The Superior Court denied the motion for judgment
of acquittal, but agreed to give a jury instruction for
Assault in the Third Degree.
During deliberations, the jury asked for clarification
regarding whether Assault in the Third Degree was a felony
for purposes of the PFDCF charge. The Superior Court, with
the parties' agreement, informed the jury that if they
found Crosby-Avant not guilty of Assault in the Second Degree
then there was no felony for the PFDCF charge. The jury found
Crosby-Avant guilty of Assault in the Third Degree, as a
lesser included offense of Assault in the Second Degree,
PFBPP, and PABPP and not guilty of PFDCF.
appeal, Crosby-Avant's counsel ("Counsel")
filed a brief and a motion to withdraw under Supreme Court
Rule 26(c). Counsel asserts that, based upon a complete and
careful examination of the record, there are no arguably
appealable issues. Counsel informed Crosby-Avant of the
provisions of Rule 26(c) and provided Crosby-Avant with a
copy of the motion to withdraw and the accompanying brief.
Counsel also informed Crosby-Avant of his right to identify
any points he wished this Court to consider on appeal.
Crosby-Avant has several points for this Court's
consideration. The State has responded to the Rule 26(c)
brief and has moved to affirm the Superior Court's
When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), 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 ...