Davis v. State of Delaware.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY ELLEN M. DAV IS Defendant Below Appellant v. STATE OF DELAWARE Plaintiff Below Appellee ) ) ) ) ) ) ) ) ) ) CRIMINAL ACTION NUMBER 01-11-3103 SUPERIOR COURT ID NUMBER 0110011512 Submitted: November 1, 2002 Decided: January 3, 2003 MEMORANDUM OPINION Upon Appeal from Jury Conviction of the Court of Com mon Pleas - AFFIRMED HERLIHY, Judge Ellen Dav is has app ealed a C ourt of C omm on P leas jury conviction for offensive touching. She was fined $125.00. Her attorney has filed a Ru le 26(c) brie f in this Cou rt. Counse l s reference to Rule 26(c) in basic terms requires an attorney representing a defendant who is convicted at trial to appeal if the client directs. But the attorney is permitted to withdraw if he or she sees no merit to the appeal. The client is to be notified of this and is given an opportunity to raise issues the clien t contends s hould be c onsidered on appea l. Counsel is confused since it is Supreme Court Rule 26(c), which only governs appeals to that court. This Court has no suc h rule or any equivalent. App eals of criminal matters are governed by Superior Court Criminal Rule 39. If the Rule 26(c) procedure were to appear anywhere in this Court s rules that would be the place. Even without such a procedure, however, counsel s ent the brief to Davis who has filed no response. The Court has considered alternative ways to handle the current appeal. One, of course, is to require counsel to brief any appr opriate i ssue. That would be an obvious exercise in futility, in light of counsel s affirmative statem ent in the Rule 26(c) b rief that there are no arguable issues. Another alternative is to iss ue a rule to sh ow cau se to Dav is. That too would be futile. Counsel sent her Rule 26(c) brief on May 30, 2002. Neither counsel nor this Court have received a response f rom Davis in ne arly half a year. There is another, perhaps more compelling reason why any alternative other than an affirmance is unnecessary. A review of the evidence presented to the jury below dem onst rates why. 1 Facts On October 16, 2001, apartment manager Danielle Darring ( Darring ) was in the apartment of Ellen M. Davis ( Davis ) for the purpose of a regular, scheduled inspection of the premises. Davis lives in a Section 8 unit which is subject to semi-annual inspections by the State Housing Authority. Darring s inspection is a separate inspection leading up to the State inspection. According to Darring, after inspecting the kitchen, she went into a hallway in the apartment on the w ay to the bedroom. W hen she paused to inspect a smoke d etector, Davis ch arged her a nd slamm ed her into a wall. Dav is then pok ed Darrin g with her finger. Darring called for help and left the apartme nt. Thereaf ter, Davis w as charged with intentionally touching Darring, either with a member of her body or with any instrument, knowing that she was thereby causing offense and alarm. Davis denied that the intentio nal touc hing ev er happ ened. Instead, she testified that the supposed inspection w as pretextua l and that the a ctual purpo se of the vis it was retaliatory harassme nt. At the time of th e incident, D avis had alre ady comm enced a c ivil action in which Darring was a defendant. That suit sought compensation for injuries suffered by Davis when she slipped and fell on the prope rty. In addition, D avis had file d compla int with the Delaware Housing Authority. Furthermore, Davis emphasized the fact that she was not properly dressed at the time of the inspection and that, despite her several requests of Darring to leave, Darring continued the inspection. Hoping to prevent Darring from entering her bedroom, Davis told Darring that another person was sleeping in the room and blocked the room s entrance w ith her body. A ccording to the State, it wa s at this point that the attack 2 occurred. Davis, on the other hand, maintained that no physical contact took place. In fac t, there was no o ne in the bedroom. Also, there was a dispute about what David did or did not have on. The jury found Davis gu ilty of offensiv ely touching Darring and she was sentenced to pay costs and a fine of $125.00. Discussion There were no legal issues raised during the proceedings in the Court of Common Pleas. The Court has read the trial transcript and can find no legal issues which should have been raised below or issues which should be raised on appeal. This Court s independent review of the transcript and record show that the only issued below was factual: Did the incident take place as Darring sa id or should the jury have believed Davis denial? That denial was accompanied by testimony from Davis about reasons why Darring would have personal reasons to fabricate the criminal charge. If the jury believed Darring s testimony there was sufficient factual basis to sustain a conviction for offensive touching. If the jury accepted Davis denial and/or her testimony about Darring s motives to lie, it would have to find her not guilty. The issue, therefore, was one of cr edib ility fo r the jury to dete rmin e. It is the sole ju dge of cr edib ility. 1 The jury, hearing and seeing the only two witnesses to the incident chose to believe Darring and reject Dav is testimony. Th is Court s independent review of the record below shows that this issue o f credibility was all that w as involved . Davis has not chose n to raise any other issue s in six mon ths. There is n o merit to the appeal. 1 Tyre v. S tate, 412 A.2d 32 6, 330 (Del. 1980). 3 Conclusion For the reasons stated herein, the judgment of the Court of Common Pleas is affirmed. IT IS SO ORDERED. J. 4
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