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Crosby-Avant v. State

Supreme Court of Delaware

May 29, 2018

DAVID CROSBY-AVANT, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: April 16, 2018

          Court Below-Superior Court of the State of Delaware Cr. ID No. N1603012462

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

          ORDER

          Karen L. Valihura Justice.

         This 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 Court that:

         (1) On 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.

         (2) At 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 to communicate.

         (3) On 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.

         (4) The 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 ammunition.

         (5) At 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.

         (6) 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.

         (7) On 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.

         (8) 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 judgment.

         (9) 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 ...


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