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Cosby v. State

Supreme Court of Delaware

February 20, 2019

NELSON COSBY, Defendant-Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff-Below, Appellee.

          Submitted: February 6, 2019

          Court Below: Superior Court of the State of Delaware Cr. ID. No. 1711009484 (K)

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

          ORDER

          COLLINS J. SEITZ, JR. JUSTICE

         This 20th day of February 2019, having considered the briefs and the record below, it appears to the Court that:

         (1) A Superior Court jury convicted Nelson Cosby of robbery second degree, conspiracy second degree, and criminal mischief for robbing Sebastian Battle of two designer belts. On appeal Cosby argues the trial court erred by admitting a text message sent by Cosby before the crime. He also contends for the first time on appeal that there was insufficient evidence to convict him of robbery and related crimes. Finally, Cosby claims for the first time on appeal that the prosecutor improperly vouched for Battle's credibility. Because the text message was relevant and there was no plain error, we affirm Cosby's convictions.

         (2) On July 29, 2017, Nelson Cosby agreed to buy two Gucci belts from Sebastian Battle for $340. Cosby told Battle he would meet him to make the exchange and was thirty four minutes away and "about" to leave around 9 p.m.[1]Around the same time, Cosby sent a text message to an unknown individual, stating "I'm on my way. We bout to buss [sic] a move."[2] Battle later sent a text message to Cosby saying "we waiting for you."[3]

         (3) Cosby eventually arrived around 11 p.m. and Battle left his home to meet Cosby in his car. Cosby examined the two belts for a long time, which Battle believed was a stall tactic. Then two masked individuals approached the car, held guns against Battle, and demanded his bag, jacket, and the belts. Battle apparently "walked away," leaving the belts which Cosby still had.[4] The masked individuals let him go and got in Cosby's car before driving away.[5]

         (4) The State charged Cosby with the robbery and related crimes. At trial, Cosby objected to the introduction of the "buss a move" text message, claiming it was vague and irrelevant. The court overruled the objection, and focused on the text message's use of the word "we" which implied more than one actor in his plans. During the State's closing rebuttal, the prosecutor said "[i]s Sebastian Battle's testimony credible? Absolutely. Is it corroborated? A hundred percent." Cosby did not object to these statements. Cosby also argued that the State had presented insufficient evidence that Cosby acted as an accomplice to robbery or criminal mischief. The Superior Court overruled the objection, finding there was enough circumstantial evidence to merit the accomplice liability instruction. The jury convicted Cosby of all the charged crimes.

         (5) On appeal, Cosby argues that the Superior Court erred by admitting the "buss a move" text because the State did not present a clear meaning of the words and thus it could have confused the jury. We review for an abuse of discretion.[6] All parties agree that it was unclear what the text message meant, but the Superior Court admitted the text message because use of the word "we" around the time of the crime implied that Cosby was part of the group who robbed Battle.

         (6) The Superior Court correctly held that the text message was relevant because the inclusion of "we" in the message makes Cosby's participation with others in the robbery more probable. Its probative value outweighs the risk of confusing the jury because, while the jury might have been unsure what the phrase "buss a move" means, use of the word "we" and its relevance to the robbery was not confusing. Thus, the trial judge did not abuse his discretion to admit the text message.

         (7) Cosby also argues, for the first time on appeal, that there was insufficient evidence to support his convictions. When a defendant has not filed a motion for acquittal before the trial court, we review a claim of insufficient evidence for plain error.[7] Under plain error review, we will only reverse if the error is "so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process."[8]

         (8) To evaluate Cosby's claim that the State did not introduce sufficient evidence for a jury to convict Cosby of conspiracy, we review the evidence in the light most favorable to the State to decide whether no jury could find the defendant guilty beyond a reasonable doubt. Conspiracy requires the State show that the accused committed, or planned to commit, the crime, with the defendant aiding, planning, requesting, or agreeing with the crime.[9] A "conspiracy may be logically inferred from the record."[10]

         (9) There was sufficient evidence in the record that Cosby agreed, counseled, or aided in the planning and committing of the crime. Cosby sent a text message that he was about to do something with others-the "we" in the text message. The masked men approached the car, from both directions, at the same time as the sale was taking place. The masked men demanded Battle turn over the belts-an odd request without prior knowledge. Cosby expressed some concern about Battle not being alone, when Battle said "we waiting."[11] Cosby took much longer than estimated to arrive at Battle's house, which supports the idea he was waiting on others or picking them up. Cosby examined the belts for a long time- "stalling" in Battle's opinion. The masked men both held their guns against Battle, neither of them focused on Cosby. And the masked men got into Cosby's car and left. Although Cosby questions the credibility of ...


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