Bush v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
ANTOINE M. BUSH, §
§ No. 9, 2016
Defendarit Below, §
Appellant, § Court Below-Superior Court
§ of the State of Delaware,
V- §
§ Cr. ID No. 1505024972
STATE OF DELAWARE, §
§
Plaintift` Below, §
Appellee. §
Submitted: May 16, 2016
Decided: June 14, 2016
Before VALIHURA, VAUGI~IN, and SEITZ, Justices.
0 R D E R
This 14"‘ day of June 2016, 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 October 22, 20l5, after a one day trial, a Superior Court
jury found the appellant, Antoine M. Bush, guilty of Resisting Arrest with
Force or Violence. Bush was sentenced to six months of Level V
incarceration. This is Bush’s direct appeal.
(2) On appeal, Bush’s counsel ("Counsel") filed a brief and a
motion to withdraw pursuant to Supreme Court Rule 26(c) ("Rule 26(0)").
Counsel asserts that, based upon a complete and careful examination of the
record, there are no arguably appealable issues. Counsel informed Bush of
the provisions of Rule 26(c) and provided Bush with a copy of the motion to
withdraw and the accompanying brief. Counsel also informed Bush of his
right to identify any points he wished this Court to consider on appeal. Bush
has raised several issues for this Court’s consideration. The State has
responded to the issues raised by Bush 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 presentation.l
(4) The record reflects that Bush was indicted for Resisting Arrest
with Force or Violence, Offensive Touching of a Law Enforcement Officer,
Disorderly Conduct, and Harassment Before trial, the State entered a nolle
prosequi on the Disorderly Conduct and Harassment charges. The following
evidence was presented at trial. On May 3l, 2015, Wilmington police
responded to a 911 call reporting that a man was throwing a woman’s
' Perzson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. Slate, 690 A.Zd 926, 927-28 (Del.
1996).
belongings out of a house. At the scene, Officer Kroll saw a large pile of
items on the front yard. Officer Kroll also saw Bush standing near the front
door of the house.
(5) After speaking with Bush’s girlfriend and her parents who were
standing near the pile of items, Offrcer Kroll asked Bush if he lived at the
house. Bush said no, he did not. Officer Kroll then told Bush that he had
been asked to leave and to provide the key to the house.
(6) Bush, who appeared agitated, denied having a key to the house,
took off his necklace, and appeared to be preparing for a fight. Officer Kroll
and another police officer, Officer Begany, decided to detain Bush for
everyone’s safety. The police officers asked Bush to put his hands behind
his back and took hold of his wrist to put on handcuffs. According to
Officer Kroll, Bush pulled away, grabbed him in a bear hug and pinned him
to the house. Officer Kroll hit Bush several times, but Bush did not let go.
(7) Another police officer, Officer Rivell, arrived on the scene.
Officer Rivell testified that he saw Officer Kroll and Officer Begany trying
to take Bush in custody, but Bush was pulling away and clenching his fists.
After Bush ignored Offlcer Rivell’s warnings that he would deploy his taser
if Bush did not put his hands behind his back, Officer Rivell deployed his
taser. Bush and Offlcer Kroll fell to the ground, but Bush continued to
struggle. Officer Kroll testified that Bush punched him in the face. 0fficer
Kroll deployed his taser. The police were eventually able to subdue Bush.
(8) Bush was taken to the hospital. On the way to the hospital,
Bush told one of the police officers that he had been trying to take away
Of`ficer Kroll’s taser. Bush’s girlfriend testified that Bush was verbally
combative with the police officers, but not physically combative. She also
testified that the police threw Bush to the ground and tasered him multiple
times without provocation.
(9) Bush testified that he was drunk and verbally combative with
the police, but that he put his hands on the wall as directed by the police.
When one of the police officers grabbed his neck, Bush testified that he
grabbed the officer’s arm to remove it because he could not breathe.
According to Bush, that is when the police began tasering and hitting him.
Bush claimed that he did not hit any of the police officers or use any force to
get away from the police officers.
(10) The jury found Bush guilty of Resisting Arrest with Force or
Violence and not guilty of Offensive Touching of Law Enforcement Officer.
The State filed a motion to declare Bush a habitual offender under ll DeI C.
§ 42l4(a). After Bush’s counsel indicated that he had no good faith basis to
challenge the State’s motion to declare Bush a habitual offender and Bush
stated that he did not have anything to say before the Superior Court ruled
on the motion, the Superior Court granted the motion. The Superior Court
sentenced Bush as a habitual offender to six months of Level V
incarceration. This appeal followed.
(l l) 0n appeal, Bush argues that: (i) Offlcer Kroll assaulted him and
used excessive force; (ii) he did not put his hands on anyone; (iii) he was
guilty of Resisting Arrest, which is a misdemeanor, not Resisting Arrest
with Force or Vio1ence, which is a felony; and (iv) he should not have been
declared a habitual offender. We construe Bush’s first three claims as an
argument that there was insufficient evidence to support Bush’s conviction
for Resisting Arrest with Force or Violence. Bush did not move for a
directed verdict or judgment of acquittal so we review this claim for plain
error.z
(12) In reviewing whether there was sufficient evidence supporting
Bush’s convictions, the Court must determine whether, viewing the evidence
in the light most favorable to the State, a rational trier of fact could have
found the defendant guilty beyond a reasonable doubt.3 A person is guilty of
Resisting Arrest with Force or Violence when they intentionally prevent or
attempt to prevent a peace officer from making an arrest or detention of the
2 supr. ct R. s; swan v. S¢a¢e, 320 A.zd 342, 353 (1)¢1. 2003).
3 williamson v. smre, 113 A.sd 155, 153(1)¢1.2015).
person by use of force or violence toward the officer." A person is guilty of
Resisting Arrest when they intentionally prevent or attempt to prevent a
peace arresting from making an arrest or detention of the person or when
they intentionally flee from the peace officer.$
(l3) There was testimony that Bush physically pulled away from
Offlcer Kroll and Officer Begany when they tried to detain him and that
Bush pinned Officer Kroll. As to the existence of conflicting testimony
among the witnesses, the fact-finder "is the sole judge of a witness’
credibility and is responsible for resolving conflicts in testimony."° Viewing
the evidence in the light most favorable to the State, a rational trier of fact
could find Bush guilty of Resisting Arrest with Force or Violence beyond a
reasonable doubt.
(l4) Bush next argues that he should not have been declared a
habitual offender. He offers nothing in support of this contention. Under ll
Del. C. §42l4(a), any person who has committed three felonies and commits
a fourth felony can be declared a habitual offender, subjecting that person to
enhanced sentencing.
4 ll Del. C. § l257(a)(l).
5 11 Del. c. § 1257(1>).
‘ pryor v. Szaze, 453 A.zd 93, 100 (t)el. 1932).
(15) The State’s habitual offender motion was based on Bush’s
convictions for Rape in the Fourth Degree in 1999, Failure to Properly
Report as a Registered Sex Offender in 2009, and Possession of
Ammunition by a Pers0n Prohibited and Drug Dealing in 2012. Neither
Bush nor his counsel opposed the motion. We conclude therefore that the
Superior Court did not err in declaring Bush a habitual offender under ll
Del. C. §4214(a).
(l6) This Court has reviewed the record careh.llly and has concluded
that Bush’s appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Counsel has made a
conscientious effort to examine the record and the law and has properly
determined that Bush could not raise a meritorious claim in this appeal.
NOW, TI-[EREFOR_E, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED. The motion to withdraw is moot.
BY HE COURT: