IN THE SUPREME COURT OF THE STATE OF DELAWARE

XAVIER M. BROOMER, § § No. 133, 2015 Defendant Below-Appellant, § § Court Below: v. § Superior Court of the § State of Delaware, in and for STATE OF DELAWARE, § New Castle County § Plaintiff Below-Appellee. § Cr. I.D. No. 1408010120

Submitted: October 28, 2015 Decided: October 29, 2015

Before STRINE, Chief Justice, HOLLAND and VALIHURA, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Bernard J. O’Donnell, Esquire, Office of Public Defender, Wilmington, Delaware for Appellant.

Morgan T. Zurn, Esquire , Department of Justice, Wilmington, Delaware for Appellee.

VALIHURA, Justice: The appellant, Xavier M. Broomer (“Broomer”), filed this appeal from the

Superior Court’s bench ruling of March 9, 2015, which denied his post-verdict Motion

for Judgment of Acquittal. Broomer raises one argument on appeal. The jury acquitted

Broomer of Aggravated Possession and Drug Dealing. However, the jury convicted

Broomer of Conspiracy in the Second Degree. Broomer argues that his acquittal on the

underlying offense of Drug Dealing precludes his conviction on Conspiracy in the

Second Degree. We disagree and AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2013, the Wilmington office of the Federal Bureau of Investigation (“FBI”)

initiated a wiretapping and surveillance program monitoring Aaron Cephas and Deshawn

Broomer (“Deshawn”).1 The program authorized the FBI to intercept phone calls

associated with two of Deshawn’s phones, in connection with a heroin-related drug

investigation. Review of recordings from Deshawn’s phones revealed two conversations

with Broomer, both of which were played for the jury at Broomer’s trial.

First, on June 9, 2014, Broomer called Deshawn seeking to purchase eight logs of

heroin. Broomer and Deshawn agreed on a price for the heroin. Because Broomer was

in Atlantic City at the time, Broomer informed Deshawn that his brother, Donte Broomer

1 The parties’ briefs and the record use “Deshawn” and “Dashawn” interchangeably to refer to the same person. This Opinion uses the former spelling to be consistent with the name used in the indictment. Deshawn is Broomer’s cousin. 1 (“Donte”), would contact Deshawn to arrange the sale.2 On the same day, shortly after

Broomer’s conversation with Deshawn, Donte sent multiple text messages to Deshawn.3

Second, on June 10, 2014, Broomer called Deshawn to advise him that he had

returned from Atlantic City and to inquire as to whether the price for the heroin remained

the same. The police presented Broomer with transcripts of these conversations after his

arrest. Broomer told the police that he never completed the heroin transaction and that

Deshawn was “stringing him along.” A recording of this statement was played for the

jury at trial.

The indictment alleged three counts against Broomer: Aggravated Possession,

Drug Dealing, and Conspiracy in the Second Degree.4 The count concerning Conspiracy

in the Second Degree (“Count III”) alleged the following:

DONTE BROOMER AND XAVIER M. BROOMER, on or between the 9th day of June, 2014, and the 25th day of June, 2014, in the County of New Castle, State of Delaware, when intending to promote or facilitate the commission of the felony of Drug Dealing . . . did agree with Deshawn Broomer to commit said crime and one or more of them did commit an overt act in pursuance of said conspiracy by engaging in conduct constituting said felony or an attempt to commit said felony or by committing some other substantial step in pursuance of the conspiracy.

On January 28, 2015, the jury found Broomer guilty of Conspiracy in the Second Degree,

but not guilty of Aggravated Possession and Drug Dealing.

2 A40 (Tr. 36:9-14). 3 A23 (Tr. 19:14-22). Although the jury heard FBI Special Agent Joseph M. Oliver’s testimony that Donte sent text messages to Deshawn, the content of these text messages was not presented to the jury. Ex. A to Op. Br. (Tr. 14:22-15:1-8). 4 A5-6. 2 Broomer filed a Motion for Judgment of Acquittal on February 6, 2015. In his

Motion, Broomer argued that the State presented insufficient evidence to sustain a

conviction or to satisfy the corpus delicti rule.5 On March 9, 2015, after hearing

arguments from counsel for Broomer and for the State, the trial court denied Broomer’s

Motion for Judgment of Acquittal, reasoning that there was “more than sufficient

evidence” from which the jury could conclude that there was an agreement between

Broomer and Deshawn.6 The Court also found that Donte’s text message communication

with Deshawn “alone constitutes the overt act” in furtherance of the conspiracy.7

II. CONTENTIONS OF THE PARTIES

On appeal, Broomer argues that his conviction on Conspiracy in the Second

Degree was legally inconsistent with the jury’s acquittal on the underlying felony of Drug

Dealing.8 He contends that his acquittal on the Drug Dealing charge barred his

conviction of Conspiracy in the Second Degree. The State contends that Broomer’s

5 A45-50. The object of the corpus delicti rule is to require the State to present:

. . . some evidence of the existence of a crime, independent of [a] defendant’s confession, to support a conviction. Its purpose is to prevent individuals from being convicted of a crime by confession when there is no other evidence that a crime has been committed. It is enough if there is some evidence of the corpus delicti corroborating the confession, provided that all the evidence taken together proves the corpus delicti beyond a reasonable doubt.

Shipley v. State, 570 A.2d 1159, 1168-69 (Del. 1990) (internal citations omitted). In his Motion for Judgment of Acquittal, Broomer claimed that this rule required that evidence in the form of Broomer’s phone calls and post-arrest statement could not be considered in weighing the sufficiency of the evidence. The Superior Court rejected this contention, finding that “conversations that were intercepted during the commission of a crime are [not] the kinds of statements contemplated by the corpus delicti rule.” Ex. A to Op. Br. (Tr. 16:14-16). 6 Ex. A to Op. Br. (Tr. 16:18-17:3). 7 Ex. A to Op. Br. (Tr. 17:5-7). 8 See Op. Br. at 5-9. 3 argument is waived, in view of the fact that Broomer did not present it to the trial court

during the proceedings below.

III. STANDARD AND SCOPE OF REVIEW

Because Broomer raises the argument that his acquittal on the underlying offense

precludes his Conspiracy in the Second Degree conviction for the first time on appeal, we

review for plain error.9 “Under the plain error standard of review, the error complained

of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and

integrity of the trial process.”10 Further, “plain error is limited to material defects which

are apparent on the face of the record; which are basic, serious[,] and fundamental in their

character[;] and which clearly deprive an accused of a substantial right, or which clearly

show manifest injustice.”11

IV. ANALYSIS

Count III alleged that Broomer and Donte conspired with Deshawn in violation of

11 Del. C. § 512, which, in subsection (2), requires “an overt act in pursuance of the

conspiracy.”12 Proving the existence of an overt act does not require “a completed crime

9 See DEL. SUPR. CT. R. 8 (“Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented.”); see also Williams v. State, 98 A.3d 917, 920 (Del. 2014) (citing Turner v. State, 5 A.3d 612, 615 (Del. 2010)) (“Because [the defendant] failed to raise these claims in the proceeding below, [the defendant] must show plain error to have his conviction overturned on appeal.”). 10 Dougherty v. State, 21 A.3d 1, 3 (Del. 2011) (quotation and citation omitted). 11 Id. (quotation omitted). 12 In pertinent part, 11 Del. C. § 512 provides:

A person is guilty of conspiracy in the second degree when, intending to promote or facilitate the commission of a felony, the person . . . (2) Agrees to aid another person or persons in the planning or commission of the felony or an attempt or 4 or even an act that would amount to a substantial step in furtherance of the underlying

felony; rather, it may be any act in pursuance of or tending toward the accomplishment of

the conspiratorial purpose.”13 Here, the indictment alleged that one or more of Broomer,

Donte, and Deshawn “did commit an overt act in pursuance of [the] conspiracy by

engaging in conduct constituting [the underlying] felony or an attempt to commit [the

underlying] felony or by committing some other substantial step in pursuance of the

conspiracy.”14

“Under Delaware law, it is not necessary for a defendant to commit the overt act

underlying the conspiracy charge. It is sufficient that a co-conspirator commit the overt

act.”15 To support a conspiracy charge against a defendant on the basis of a co-

conspirator’s overt act, the indictment must allege that a co-conspirator committed the

act.16 When the State alleges overt acts other than the core offense, “acquittal on the

underlying substantive crime does not preclude a conspiracy conviction.”17

solicitation to commit the felony; and the person or another person with whom the person conspired commits an overt act in pursuance of the conspiracy. 13 Younger v. State, 2009 WL 2612520, at *2 (Del. Aug. 26, 2009) (citation and internal quotation omitted). 14 A6. 15 Holland v. State, 744 A.2d 980, 982 (Del. 2000) (citing 11 Del. C. § 512; Stewart v. State, 437 A.2d 153, 156 (Del. 1981)). 16 See Johnson v. State, 409 A.2d 1043, 1044 (Del. 1979) (determining that a defendant’s conspiracy conviction was precluded by his acquittal on the underlying felony where the indictment did not allege an overt act by any of the defendant’s co-conspirators); Holland, 744 A.2d at 982. 17 See Younger, 2009 WL 2612520, at *2 (citing Holland, 744 A.2d at 982) (“When the only overt act alleged in the indictment is the underlying substantive crime, a defendant’s acquittal on this charge negates the overt act element of a conspiracy charge, unless a co-conspirator committed the overt act.”). 5 To support his argument that his acquittal on the underlying offense precludes his

conviction on Conspiracy in the Second Degree, Broomer cites to our decisions in

Younger v. State18 and Johnson v. State.19 The State responds that the indictment alleged

that a substantial step in pursuance of a conspiracy qualified as an overt act. We agree.

In Younger, this Court considered the conspiracy conviction of a defendant where

the indictment alleged overt acts other than the underlying felony.20 The defendant, after

he and others attacked a group of teenagers, was convicted of Conspiracy in the Second

Degree, but acquitted of Assault in the Second Degree.21 Evidence at trial suggested that

one of Younger’s group brought a glass bottle to the attack, and another brought a blade.

This Court affirmed Younger’s conviction, noting that “[w]hen the State has alleged

other overt acts, . . . acquittal on the underlying substantive crime does not preclude a

conspiracy conviction.”22 To support its charge of Conspiracy in the Second Degree, the

Younger indictment alleged that one of the co-conspirators took “some other overt act in

pursuance of the conspiracy.”23 This Court found that a jury, viewing the evidence in the

light most favorable to the State, could rationally conclude that retrieving a bottle or knife

prior to the attack would constitute an overt act as alleged in the indictment.24

18 2009 WL 2612520 (Del. Aug. 26, 2009). 19 409 A.2d 1043 (Del. 1979). 20 Younger, 2009 WL 2612520, at *3 (observing that the indictment alleged, in part, that the defendant “did agree with unidentified subjects that one, the other or all of them would engage in conduct constituting the felony and one, the other or all of them did commit an overt act in pursuance of said conspiracy by engaging in conduct constituting Assault Second Degree or by committing some other overt act in pursuance of the conspiracy.”) (emphasis in original). 21 Id. at *2-3. 22 Id. at *2 (citing Holland, 744 A.2d at 982). 23 Id. at *3 (emphasis in original). 24 Id. (citation omitted). 6 In Johnson, the jury acquitted the defendant of Burglary in the Third Degree and

Attempted Theft charges, but found him guilty of Conspiracy in the Second Degree.25

The defendant appealed, contending that the jury’s verdicts were inconsistent and that he

did not perform the overt act required for conspiracy because he was acquitted of the

underlying offense.26 This Court reversed, but noted that “[t]he finding by the Trial

Judge that the jury may have believed that the overt act was committed by the

defendant’s unnamed co-conspirators is irrelevant to the defendant’s guilt under this

indictment, since there is no allegation that the overt act was performed by any co-

defendant.”27

In this case, like Younger and unlike Johnson, the indictment alleged that one or

more of the conspirators performed the requisite overt act.28 The jury found beyond a

reasonable doubt that Broomer engaged in conduct sufficient to convict him of

Conspiracy in the Second Degree. The telephone conversations between Broomer and

Deshawn demonstrated an agreement to engage in a drug transaction. Broomer indicated

25 Johnson, 409 A.2d at 1043-44. 26 Id. 27 Id. at 1044 (citations omitted) (emphasis added). The indictment in Johnson stated:

RAY THOMAS JOHNSON, on or about the 28th day of February, 1978, in the County of New Castle, State of Delaware, when intending to promote the commission of a felony, did agree with two unknown males, to engage in conduct constituting the felony of Burglary Third Degree and did commit an overt act in furtherance of said conspiracy, to wit: Burglary Third Degree as set forth in Count I of this Indictment which is incorporated herein by reference.

Stewart, 437 A.2d at 156 (quoting the indictment in Johnson). 28 Compare Younger, 2009 WL 2612520 at *3 (referencing that the indictment read, in part, as follows: “. . . or by committing some other overt act in pursuance of the conspiracy”) (emphasis removed) with Count III (“. . . one or more of them did commit an overt act in pursuance of said conspiracy . . . by committing some other substantial step in pursuance of the conspiracy”). 7 that he would have Donte contact Deshawn to proceed with the transaction. Shortly

thereafter, Donte sent text messages to Deshawn. The jury, viewing the evidence in the

light most favorable to the State, could rationally conclude beyond a reasonable doubt

that Donte’s text messages to Deshawn were substantial steps taken in pursuance of the

conspiracy. Broomer agreed to aid in the commission of a felony, his co-conspirator

committed an overt act in pursuance of the conspiracy, and the indictment alleged that

one or more of the conspirators performed the requisite overt act. Consequently, the jury

did not need to find that Broomer also committed the underlying offense. Thus, there is

no inconsistency in the verdict. We find no error in the judgment below.

V. CONCLUSION

Based upon the foregoing, the judgment of the Superior Court is hereby

AFFIRMED.

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