Opinion
No. 303, 2001
Decided: March 7, 2002
Court Below — Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN00051184-85, IN01010769-73 and IN01011814-19
Affirmed.
Unpublished opinion is below.
KEVIN R. CUFF, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 303, 2001 In the Supreme Court of the State of Delaware. Submitted: February 7, 2002 Decided: March 7, 2002
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices.
RANDY J. HOLLAND, Justice:
ORDER
This 7th day of March 2002, on consideration of the briefs of the parties, it appears to the Court that:
(1) The defendant-appellant, Kevin R. Cuff, appeals his Superior Court convictions of Aggravated Menacing and Possession of a Firearm During the Commission of a Felony. Cuff argues that the evidence presented at trial was insufficient to sustain a conviction for Aggravated Menacing, and thus, the predicate felony did not exist to support a conviction for the Possession of a Firearm During the Commission of a Felony. We have concluded that the record evidence is sufficient to support Cuff's convictions.
Cuff was indicted on June 5, 2000 of Carrying a Concealed Deadly Weapon and Possession of a Deadly Weapon by Person Prohibited. On January 2, 2001, a reindictment was returned charging Cuff with Reckless Endangering in the Second Degree, Aggravated Menacing, Possession of a Deadly Weapon During the Commission of a Felony, Carrying a Concealed Deadly Weapon and Possession of a Deadly Weapon by Person Prohibited. At trial, Count III of the reindictment "Possession of a Deadly Weapon During the Commission of a Felony" was amended to "Possession of a Firearm During the Commission of a Felony" to conform to the language of the offense charged. A second reindictment on January 29, 2001 additionally charged Cuff with Criminal Contempt. Prior to submission of the case to the jury, the State nolle prosequied the Criminal Contempt charge. The Superior Court additionally dismissed sua sponte the Reckless Endangering in the Second Degree charge. On April 11, 2001, the remaining offenses were submitted to the jury, which found Cuff guilty on all charges. On appeal, Cuff challenges only his convictions of Aggravated Menacing and Possession of a Firearm During the Commission of a Felony.
2) The testimony presented at trial established that on May 8, 2000, Robert Cooper took his two Rottweiler dogs for a walk in Speakman Park in Wilmington. As he was walking, Cooper heard Cuff yell at and then saw Cuff punch a small boy. Cooper approached Cuff and confronted him about hitting the child. Cuff became agitated, and while reaching down toward his pants, told Cooper "Dog, if I reach down here, you won't like what I pull up." Cooper, believing Cuff had a handgun in his pants, retreated and walked away. Upon reaching a walkway, Cooper called 911 and reported that a man with a gun threatened him in the park.
3) Two Wilmington police officers were dispatched to Speakman Park in response to Cooper's 911 call. As the officers approached the park, Cooper flagged them down and gave them a description of the man that had threatened him. Officer Kent approached Cuff, who fit the description given by Cooper, and stopped him. The officer performed a pat down search and discovered a loaded semiautomatic handgun in the front waistband of Cuff's pants, which had been concealed by Cuff's untucked shirt. Cuff was immediately arrested and taken to the police station.
The facts were taken, in part, from the State's Answering Brief.
4) At trial, Cooper and Officer Kent testified for the State. The State also played the tape of Cooper's 911 call for the jury. No evidence or testimony was presented by Cuff.
5) In reviewing the sufficiency of the evidence, this Court inquires into "whether any rational trier of fact, viewing the evidence in the light most favorable to the [State], could have found the essential elements of the charged offense beyond a reasonable doubt." In making this determination, the Court does not distinguish between direct and circumstantial evidence. At trial, the State had to prove that Cuff displayed a deadly weapon when he "intentionally place[d] [Cooper] in fear of imminent physical injury." Cuff does not dispute that the evidence supports the fact that he "displayed" a handgun to Cooper in the park.
Morrisey v. State, 620 A.2d 207, 213 (Del. 1993) (citing Robertson v. State, 596 A.2d 1345, 1355 (Del. 1991)); see Davis v. State, 706 A.2d 523, 525 (Del. 1998); Barnett v. State, 691 A.2d 614, 618 (Del. 1997); Monroe v. State, 652 A.2d 560, 563 (Del. 1995); Skinner v. State, 575 A.2d 1108, 1121 (Del. 1990); Williams v. State, 539 A.2d 164, 168 (Del. 1988) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
Monroe v. State, 652 A.2d at 563 (quoting Robertson v. State, 596 A.2d at 1355).
Del. C. Ann. tit. 11, § 602(b) (2001).
State v. Smallwood, 346 A.2d 164, 166-67 (Del. 1975).
Cuff only disputes whether the State presented sufficient evidence to demonstrate that Cuff intentionally placed Cooper in fear of imminent physical injury.
6) Cooper's testimony presented substantial evidence to demonstrate that he felt threatened by Cuff. The evidence demonstrated that Cuff displayed a gun to Cooper during a confrontation, Cooper immediately retreated from the area and Cooper made a 911 call to report a man with a gun had threatened him in the park. From the testimony presented at trial by the State's witnesses and the 911 call, a rational trier of fact could conclude that Cooper was placed in fear of imminent physical injury by Cuff. Therefore, we find that Cuff's challenge to the sufficiency of the evidence for a conviction of Aggravated Menacing, and thus Possession of a Firearm During the Commission of a Felony, is without merit.
Since the jury is "the sole judge of the credibility of the witnesses," this Court may not substitute its judgment for that of the jury. Harding v. State, 1991 WL 316935, at *2 (Del.Supr.) (quoting Tyre v. State, 412 A.2d 326, 330 (Del. 1980)); see McRae v. State, 2001 WL 1175349, at *6 (Del.Supr.); Sheeran v. State, 526 A.2d 886, 892 (Del. 1987).
NOW, THEREFORE, IT IS ORDERED, that the judgment of the Superior Court is Affirmed.