Summary
awarding attorneys' fees after appeal was dismissed for appellant's lack of standing
Summary of this case from Scion Breckenridge Managing Member, LLC v. ASB Allegiance Real Estate FundOpinion
No. 121,1987
9-29-1987
Wendell HUSSER, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
Wendell HUSSER, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.
Submitted: Sept. 29, 1987.
Decided: Oct. 16, 1987.
Superior Court, New Castle County, 452 A.2d 649.
AFFIRMED.
Before CHRISTIE, Chief Justice, and HORSEY and HOLLAND, Justices.
ORDER
CHRISTIE, Justice.
This 16th day of October, 1987, the Court, after reviewing the appellant's opening brief and the appellee's motion to affirm, concludes that:
(1) Wendell Husser, the appellant, was convicted of possession with intent to deliver cocaine (and of other crimes) following a jury trial in Superior Court. After sentencing he appealed only the conviction as to possession with intent to deliver cocaine.
(2) Husser contends that the trial judge erred as a matter of law in delivering an instruction to the jury on possession with intent to deliver cocaine. The only argument on appeal depends on the contention that the evidence was not sufficient on the issue of the intent to deliver cocaine to justify the submission of that charge to the jury.
(3) The evidence established that on March 6, 1986, Husser, then a sentenced inmate on supervised custody, reported to his correction officer at the Plummer Center for a routine visit and drug screen. Husser was given notice that he would be searched. After providing the required urine sample, Husser attempted to flush down the toilet a plastic bag which he had removed from his jacket. The bag was retrieved by the correction officer following a struggle. It was subsequently discovered that the bag contained twelve smaller plastic bags containing cocaine. A search of Husser's person revealed that he had $110.00 (ten one dollar bills, twelve five dollar bills, and two twenty dollar bills).
(4) At trial, a detective of the Wilmington Police force testified as an expert witness that the manner in which the cocaine was packaged indicated that it was packaged for street sale. Specifically, he stated that the twelve smaller plastic bags of cocaine appeared to have been packaged for individual sale as twenty dollar bags and fifty dollar bags. He further testified that the amount and the denominations of the currency found on Husser's person were consistent with profiles of street sellers.
(5) Husser testified that the cocaine was not intended for sale; rather, he indicated, it was for his own personal consumption and that he had nearly a gram because he had negotiated a price of $100.00 for all twelve bags. As indicated Husser contends that the trial judge erred, as a matter of law, in submitting the question of possession with intent to deliver cocaine to the jury because there was not sufficient evidence to support such a claim.
(6) Quantity and possession alone do not prove an intent to deliver drugs. Wilson v. State, Del.Supr., 343 A.2d 613, 618 (1975) (quoting Perry v. State, Del.Supr., 303 A.2d 658, 659 (1973)). However, in this case the quantity possessed was not the sole evidence upon which the prosecution relied. Rather, the relevant attendant circumstances include the quantity and packaging of the cocaine and the denominations and amount of currency found on Husser. In addition, the State presented testimony of an expert who offered the opinion that the cocaine was packaged for individual street sale.
(7) The instant case is remarkably similar to Byrd v. State, Del.Supr., 458 A.2d 23 (1983) (per curiam ), and Williams v. State, Del.Supr., 286 A.2d 756 (1971). In both cases, the quantity and packaging of the drugs found in the defendant's possession as well as expert testimony to the effect that the drugs were packaged for street sale were deemed sufficient to justify a jury instruction for the charge of possession with intent to deliver (sell) drugs. Id.
(8) Therefore, to the extent that the issue in the instant appeal is factual in nature, there is sufficient evidence to support the findings of fact made in the Superior Court. To the extent that the issue in the instant appeal is legal in nature, it is controlled by the Delaware cases cited above. We rule that the trial court did not err as a matter of law in instructing the jury on the crime of possession with intent to deliver cocaine.
NOW, THEREFORE, IT IS ORDERED that the motion to affirm the Superior Court is GRANTED and that judgment is AFFIRMED.