Opinion
No. 3, 2003
Submitted: May 13, 2003
Decided: June 10, 2003
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN01-10-0975 and -0976
Affirmed.
Unpublished opinion is below.
MOHAMMED NAJEM, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 3, 2003 Supreme Court of Delaware. Submitted: May 13, 2003 Decided: June 10, 2003
Before VEASEY, Chief Justice, HOLLAND, and STEELE, Justices.
ORDER
E. Norman Veasey, Chief Justice
This 10th day of June 2003, upon consideration of the appellant's Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) The defendant-appellant, Mohammed Najem, and his codefendant, Shacin Patel, were convicted by a Superior Court jury of felony theft and second degree conspiracy. The Superior Court sentenced Najem on both charges to a total period of two years at Level V incarceration, suspended entirely for two years probation. This is Najem's direct appeal.
(2) Najem's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Najem's counsel asserts that, based upon a complete and careful examination of the record, the appeal is wholly without merit. Counsel, however, has asserted one arguable issue on Najem's behalf. By letter, Najem's attorney informed him of the provisions of Rule 26(c) and provided Najem with a copy of the motion to withdraw and the accompanying brief. Najem also was informed of his right to supplement his attorney's presentation. Najem has not raised any issues for this Court's consideration. The State has responded to the position taken by Najem's counsel and has moved to affirm the Superior Court's decision.
(3) The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a) this Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (b) this Court must 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.
(4) Najem's counsel asserts that the only arguable issue raised by the record is whether the evidence at trial was sufficient for the jury to find Najem guilty beyond a reasonable doubt. In reviewing a challenge to the sufficiency of the evidence, this Court must determine, viewing the evidence in the light most favorable to the State, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(5) In this case, the testimony at trial established that Najem and his codefendant, Shacin Patel (Shacin), entered a Sunoco minimart on August 24, 2001 between 6 pm and 7 pm. The clerk on duty, Priten Patel (Priten), testified that he knew Najem, who was a former employee of the minimart, and Shacin, who was an acquaintance of the store's owner, Fazal Rashid. Priten testified that Najem stood talking to him while Priten waited on customers. Priten did not see where Shacin was at that time, but later saw Shacin exiting the store's office. When Priten asked what he was doing, Shacin replied he needed to make a phone call. Priten did not see Shacin leave the office with anything in hand. After they left the store, Priten called Rashid to tell him that Najem and Shacin had been to the store and that Shacin had been in Rashid's office.
(6) Rashid also testified at trial. He stated that he kept prepaid phone cards in the desk of his office in the minimart. He testified that he had taken an inventory of the cards on August 23, 2001, as part of his regular closing procedures. After receiving the phone call from Priten on August 24, 2001 about Najem and Shacin, Rashid returned to the store and discovered that 350 phone cards, worth more than $1000, were missing from his office. Rashid testified that Najem was the only other person who knew where Rashid kept the phone cards. Neither Najem nor Shacin testified at trial, nor did Najem present any other evidence in his defense.
(6) To find Najem guilty of felony theft, the jury had to find beyond a reasonable doubt that Najem took, or aided Shacin to take, the minimart's phone cards with the intent to appropriate them. To convict Najem of second degree conspiracy, the jury had to find beyond a reasonable doubt that Najem intended to facilitate the commission of the theft, agreed with Shacin to commit the theft, and Najem or Shacin committed an overt act in committing theft.
(7) On the record presented, viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the State, we hold that a rational jury could find beyond a reasonable doubt that Najem and Shacin agreed to steal the phone cards and helped each other to do so. Accordingly, we conclude that Najem's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Najem's counsel has made a conscientious effort to examine the record and the law and has properly determined that Najem could not raise a meritorious claim in this appeal.
Patel, through his trial counsel, filed a separate appeal in case No. 718, 2002.
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
Monroe v. State, 652 A.2d 560, 563 (Del. 1995).
The jury could find Najem guilty of felony theft as an accomplice if they found beyond a reasonable doubt that Najem intended to facilitate Shacin's commission of the theft and aided Shacin in planning or committing the offense. DEL. CODE ANN. tit. 11 Del. C. § 271(2) (2001).
DEL. CODE ANN. tit. 11 Del. C. § 841 (2001).
DEL. CODE ANN. tit. 11 Del. C. § 512 (2001).
See Dixon v. State, 567 A.2d 854, 857 (Del. 1989).
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
The motion to withdraw is moot.