Bessicks v. State ( 2017 )

IN TI-IE SUPREME COURT OF TI'IE STATE OF DELAWARE
WILLIAM BESSICKS, §
§ No. 431, 2016
Defendant Below- §
Appellant, § Court Below_Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1504001053B
STATE OF DELAWARE,
Plaintiff Below-
Appellee.
¢-O'JC-O’J¢-O'J¢O‘§
Submitted: February 15, 2017
Decided: April 13, 2017
Before VALIHURA, VAUGHN, and SEITZ, Justices.
O R D E R
This 13‘h 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 Court that:
(l) On 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”).l 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
l Bessicks’ flrst trial on these charges ended in a mistrial.
Level V incarceration, suspended for one year of Level IIl probation. This is
Bessicks’ direct appeal.
(2) On appeal, Bessicks’ counsel (“Counsel”) filed a brief and a
motion to withdraw pursuant to Supreme Court Rule 26(0) (“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
(3) 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 presentation2
z Pen.s'on v. Ohir), 488 U.S. 75, 33 (1983); Leacock v. State, 690 A.Zd 926, 927-28 (Del.
l996y
l\.)
(4) The trial record in this case reflects that, on April 2, 20]5,
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.
(5) 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.
(6) The police subsequently interviewed Bessicks and his girlfriend
at the police station. After receiving Miranda wamings, 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 girlli‘iend 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.
(7) 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 truthiiil When she told the police at the house that
she had given the gun away.
(8) 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.
(9) On 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.
(10) Generally, We review a sufficiency of evidence claim de novo
to determine whether any rational trier of fact, viewing the evidence iri the
light most favorable to the State, could have found the defendant guilty
beyond a reasonable doubt.3 l-lere, 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 fundamental in their
character, and which clearly deprive an accused of a substantial right, or
which clearly show manifest injustice.”5
(l 1) A conviction for PFBPP requires proof that the defendant is a
prohibited person and that he knowingly “possesses, purchases, owns or
controls a deadly weapon or ammunition for a firearm.”6 As to possession,
sufficient evidence of constructive possession will support a PFBPP
conviction.7
To prove constructive possession of a firearm, the State must
show that the defendant: (i) knew the location of the gun; (ii) had the ability
to exercise dominion and control over the gun; and (iii) intended to exercise
3 Fariiie)‘ i'. Slafe, 844 A.2d 297, 300 (Del. 1990).
4 Supr. Ct. R. 8; Sii'cm v. Stcile. 820 A.Zd 342. 358 (Del. 2003).
5 Wciimi’right ii. Srcile, 504 A.2d 1096, 1100 (Del. 1986).
" ll Del. (`. § 1448(b).
7 Lecciie.s' i’. Slcile, 987 A.2d 413, 426 (Del. 2009).
dominion and control over the gun.8 Constructive possession may be proven
with circumstantial evidence.° Establishing PFBPP does not require
evidence that the Weapon was physically available and accessible to the
defendant at the time of arrest."’
(12) There is no plain error here. There was sufficient evidence to
support Bessicks’ PFBPP conviction The trial record reflects that Bessicks
was a prohibited person because he was convicted of Robbery in the Second
Degree in 2005.1' The trial record further reflects Bessicks told the police he
and his girlfriend had the gun for protection, Bessicks and his girlfriend
shared the bedroom with the closet where the gun was found, and Bessicks
kept a box of ammunition that could be used with the gun. As the sole judge
of the witness’ credibility,12 the jury could find the testimony of Bessicks’
girlfriend that she had sole possession of the gun not credible.
(13) This Court has reviewed the record carefully and has concluded
that Bessicks’ appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Counsel has made a
3 ]d.
9 Id.
"’ itt ai 420-21.
" ii net ct § 1448(3)(1).
'2 Pi'yor v, Sicile. 453 A.2d 98, 100 (Del. 1982).
conscientious effort to examine the record and the law and has properly
determined that Bessicks could not raise a meritorious claim in this appeal.
NOW, THEREFORE, lT IS ORDERED that the judgment of the
Superior Court is AFFlRl\/IED. The motion to withdraw is moot.
BY THE COURT:
C. )Ev"l"§l‘,i/h___f l i./ng
<` Justice