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Selby v. State

Superior Court of Delaware

July 31, 2019

TYKEEM J. SELBY, Defendant-Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff-Below, Appellee.

          Submitted: May 31, 2019

         Upon Appeal from the Court of Common Pleas of the State of Delaware in and for New Castle County, AFFIRMED

          Gabriel M. Baldini, Esquire

          Anthony J. Hill, Deputy Attorney General

          ORDER

          Paul R. Wallace, Judge

         This 31st day of July, 2019, upon consideration of the Appellant Tykeem J. Selby's brief filed under Supreme Court Rule 26(c) (made applicable to here via Superior Court Criminal Rule 57(d)), [1] his attorney's motion to withdraw, the State's answer, and the record in this case, it appears to the Court that:

         (1) The defendant, Tykeem Selby, was charged by Information in the Court of Common Pleas with one count of Driving Under the Influence.

         (2) The evidence at trial demonstrated that shortly after midnight on May 2, 2018, Delaware State Police Corporal Demi Moore was called to a Wawa in New Castle.[2] When she arrived, Cpl. Moore spoke to the reporting store employee who had called about a person passed out and slumped over the steering wheel of a vehicle in the Wawa's parking lot.[3] Cpl. Moore found the car straddling two parking spaces with Selby passed out behind the wheel.[4] Selby eventually awoke when Cpl. Moore knocked on the driver's window.[5] Cpl. Moore recounted that as she and another trooper checked on him, Selby's "speech wasn't a hundred percent correct," his eyes were glassy and bloodshot, he smelled strongly of alcohol, and went quickly from being cooperative to argumentative and cocky.[6] Selby admitted that he had been drinking earlier in the evening.[7] And the troopers saw a nearly empty bottle of Bacardi rum in the car.[8]

         (3) Cpl. Moore conducted several field sobriety tests with Selby in the Wawa parking lot. He performed poorly on each of them.[9] At Delaware State Police Troop Two, Selby was administered an Intoxilyzer breath test just after 2:00 a.m. The result of that test revealed Selby had a breath alcohol content of .219 grams of alcohol per 210 liters of breath - almost three times the legal limit.[10]

         (4) Selby's defense at his Court of Common Pleas trial was that he was merely napping in his car during a break from work, that he was not under the influence of alcohol when discovered by the police, and that, in fact, he had not been drinking at all.[11] Selby claimed then (and now) that he passed all tests and was only taken into custody after Cpl. Moore "caught an attitude" with him.[12]

         (5) But following that non-jury trial, the Court of Common Pleas found Selby guilty of Driving Under the Influence of Alcohol. He was fined and sentenced to 120 days of imprisonment; that imprisonment was suspended in whole for one year of non-reporting unsupervised probation with certain treatment and education conditions required by the Delaware DU1 law. Execution of this sentence was stayed pending Selby's direct appeal.[13] This is that direct appeal.

         (6) This Court takes criminal appeals from the Court of Common Pleas.[14]Such appeals are "reviewed on the record," not "tried de novo."[15] And when considering such appeals, this Court "functions in the same manner as the Supreme Court, in its position as an intermediate appellate court, when considering an appeal from the Court of Common Pleas."[16] An appeal from a verdict of the Court of Common Pleas, sitting without a jury, "is upon both the law and the facts." [17] The Court reviews errors of law de novo;[18] it reviews the trial court's factual findings to determine if they are "sufficiently supported by the record" and "the product of an orderly and logical deductive process."[19]

         (7) Selby's appellate counsel ("Counsel")-who had also represented him at trial-has filed a motion to withdraw with an accompanying brief and appendix pursuant to Supreme Court Rule 26(c). Prior to their filing, Selby was informed that he had a right to respond to the motion to withdraw and to supplement the Rule 26(c) brief. Counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. Selby has submitted a written statement and additional materials he wished the Court to consider on appeal.[20]

         (8) When considering a brief filed pursuant to Rule 26(c), the Court must be satisfied that defense counsel made a conscientious examination of the record and the law for claims that could arguably support the appeal.[21] The Court must also 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.[22]

         (9) Selby's supplement to the opening brief challenges the sufficiency of the evidence. Specifically, Selby claims that he was "wrongfully charged with a [DUI] for sitting in [his] car at work," that Cpl. Moore's testimony "is a lie," and that any alcohol content registered by the Intoxilyzer must have resulted from him drinking Kombucha tea.[23] Selby has included some internet materials to his statement and pictures of a Kombucha tea bottle and its nutrition information label.[24]The State has responded to Selby's claims as well as the position taken by Counsel. The Court treats the State's answering brief as a motion to affirm the Court of Common Pleas' judgment.

         (10) "When considering on appeal the sufficiency of evidence to convict, the Court must discern 'whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"[25] The Court takes into account all probative evidence, whether direct or circumstantial.[26] If the trial court's findings are sufficiently supported by the record, this Court must accept them.[27] It does not "make its own factual conclusions, weigh evidence, or make credibility determinations."[28] Only where the record below indicates the trial court's findings are "clearly wrong" may the Court, "injustice," correct them.[29]

         (11) Selby was charged with Driving a Vehicle While Under the Influence or with a Prohibited Alcohol Content in violation of Title 21, Section 4177(a) of the Delaware Code.[30] The Court of Common Pleas convicted Selby of that offense as it is defined under § 4177(a)(5).[31] Under that DUI provision: "No person shall drive a vehicle . . . [w]hen the person's alcohol concentration is, within 4 hours after the time of driving .08 or more."[32] The State, therefore, had the burden of proving the following elements: 1) Selby's driving; and 2) that his alcohol concentration was, within four hours after the time of driving .08 or more-the registered alcohol concentration resulted from an amount of alcohol present in, or consumed by Selby when he was driving."[33]

         (12) As to the first element, under Delaware's DUI statute, driving a motor vehicle includes "driving, operating, or having actual physical control of [the] vehicle."[34] And so, the necessary "driving" element may be met even if the defendant's motor vehicle wasn't actually in motion. Because the statutory prohibition against mixing alcohol and vehicles isn't limited only to one actually operating a moving vehicle-it also prohibits one's physical control of a vehicle. As explained by the Delaware Supreme Court, and as applicable here: "Insofar as 'physical control' refers to something other than 'driving' or 'operating, '... physical control is meant to cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property."[35]

         (13) Here, the trial evidence supports the finding that Selby had actual physical control of a vehicle. He was found passed out behind the wheel of a car that was straddling two Wawa parking spots.[36] The keys were in the ignition and the engine was running when Cpl. Moore arrived and aroused Selby.[37] A rational trier of fact could find that Selby was "driving" as defined by § 4177(c)(5).[38]

         (14) As to the second element, one violates § 4177(a)(5) when the "person's alcohol concentration is, within 4 hours after the time of driving .08 or more."[39]According to the Intoxilyzer results-which the trial judge credited-Selby had a breath alcohol concentration of .219 grams of alcohol per 210 liters of breath -almost three times the legal limit.[40] The trial evidence clearly demonstrated that test result was obtained well within four hours of when Selby was found passed out at the Wawa and that it was the result of an amount of alcohol present in, or consumed by the Selby when he was in physical control of a car there.

         (15) No doubt, Selby disagrees and attempts to explain away that considerable concentration of alcohol. But just as with the finding of any other necessary element, the trial judge could "properly infer that alcohol was the influencer of [Selby]'s ability and conduct from all evidence presented-direct and circumstantial."[41] And this allows the drawing of a proper inculpatory inference that his Intoxilyzer reading resulted from an ...


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