IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) 

) 

v. ) Case No.: 2202013005

) 

SAMUEL WATERS, ) 

) 

Defendant. )

Submitted: May 2, 2024

Decided: May 8, 2024

OPINION AND ORDER

On Defendant’s Motion for Judgment of Acquittal

DENIED

Zoe Plerhoples, Esquire, Deputy Attorney General, Attorney General’s Office, 

820 N. French Street, 7th floor, Wilmington, Delaware.

Attorney for the State of Delaware.

John S. Malik, Esquire, 100 East 14th Street, Wilmington, DE 19801. 

Attorney for Defendant

Jones, J.
1

In September 2021 Samuel Waters (“Defendant” or “Waters”), was 

involved in two separate incidents involving two separate individuals where it was 

alleged that Waters used improper force, made false statements in warrants, and 

engaged in officer misconduct while he was in the course and scope of his official 

duties as a City of Wilmington police officer. The first incident involved an 

investigation of a domestic disturbance. The second incident involved an 

altercation with Dwayne Brown (“Brown”) at a convenience store in Wilmington.

An indictment was presented to the grand jury based on the two separate incidents.

A New Castle County Grand Jury indicted Samuel Waters for Perjury Second 

Degree in violation of 11 Del.C. §1222, Tampering with Physical Evidence in 

violation of 11 Del.C. §1211, three counts of Assault Third Degree in violation of 

11 Del.C. §611, and one count of Falsifying a Business Record in violation of 11 

Del.C. §871. Counts 1 through 3 of the indictment involved the domestic 

disturbance. The remaining counts (counts 4 through 7) involved the Brown 

encounter. 

A jury trial began on June 23, 2023. On June 26, 2023, the jury returned its 

verdict. The jury acquitted Waters as to all counts involving the domestic 

disturbance. As to the matter involving Brown, the jury found Waters guilty of 

Official Misconduct, Tampering with Public Records, Falsifying a Business 
2

Record, and Assault Third Degree. The jury acquitted Waters of the Perjury 

Second Degree charge. 

Waters has filed a Motion for Judgment of Acquittal pursuant to Superior 

Court Criminal Rule 29. Waters makes two arguments. First, Waters argues that 

the jury’s acquittal on the Perjury Second Degree charge is inconsistent with the 

conviction on the Tampering charge. Second, Waters contends that there was 

insufficient evidence to support a finding of guilt for Official Misconduct and 

Falsifying a Business Record.

INCONSISTENT VERDICT

In Count Five of the indictment, Defendant was charged with Perjury in the 

Second degree in violation of 11 Del. C. §1222.1 To convict for Perjury, the State 

must prove beyond a reasonable doubt that a defendant has “sworn falsely and 

[that] the false statement is: 1) made in a written instrument for which an oath is 

required by law; 2) made with intent to mislead a public servant in the performance 

of official functions; and 3) material to the action, proceeding, or matter involved.”

The indictment specified that Defendant was charged with Perjury for his 

acts of writing a warrant against Brown wherein he indicated that he “immediately 

recognized Mr. Brown” and later admitted to the hospital constables (on body1 A18.
3

worn camera) that he did not know Brown.2 The jury was instructed on each 

element of the offense.3

 At trial, the State introduced evidence intended to show 

that Defendant had made a false statement in the affidavit attached to his warrant 

for Brown’s arrest, namely, that he “immediately recognized Mr. Brown,” that the 

statement was intended to mislead the magistrate who issued the warrant, and that 

the statement was material to the magistrate’s decision and performance of their 

functions in issuing the warrant. 

In Count Six of the indictment,4 Defendant was charged with Tampering 

with Public Records in violation of 11 Del. C. §876, which reads as follows:

A person is guilty of tampering with public records in the first 

degree when, with intent to defraud, and knowing that the person 

does not have the authority of anyone entitled to grant it, the 

person knowingly removes, mutilates, destroys, conceals, makes

a false entry in or falsely alters any record or other written 

instrument filed with, deposited in or otherwise constituting a 

record of a public office or public servant. 

The Tampering charge was factually predicated upon Defendant’s police 

report regarding his arrest of Brown and specified two statements in the report as 

false: 1) Defendant’s statement that he was “immediately familiar” with Brown;” 

and 2) Defendant’s description of his use of force towards Brown. The jury was 

instructed as to the elements of a Tampering charge in the jury instructions. The 

2 Id.

3 A437-438. 4 A18-19.
4

instructions also set forth the two allegedly false statements and instructed the jury 

that their “verdict must be unanimous as to which of the two incidents, if any, you 

rely upon as a basis for your verdict.”5

The Perjury charge as alleged in the indictment was premised on Defendant 

falsely swearing that he recognized Brown “immediately” and that the false 

statement was material to the magistrate’s decision to issue a warrant and set bail. 

The state had to prove both elements, falsity and materiality, to prevail on that 

charge. The jury was free to accept or reject the evidence at trial on the issue of 

whether Defendant knew Brown’s name or his face, or both. 

By contrast, the Tampering charge required only that the State prove that 

Defendant made a false entry in a public record, in this case, a police report, not 

that the statement was “material.” Moreover, the jury had two statements to 

choose from, and they were instructed that they must be unanimous in determining 

which statement was false. The false entry could have been Defendant’s statement 

that he recognized Brown immediately, or his description of the use of force, 

which was also captured by surveillance video. The jury viewed the video multiple 

times throughout the trial and was therefore free to draw their own conclusion as 

to whether Defendant’s statements in the report matched what they saw in the 

5 A439-440.
5

video. The jury could find tampering without the need to find whether Waters 

recognized Brown immediately.

An inconsistent verdict occurs when, in a single trial, one of the convictions 

necessarily established an element which is incompatible with an element 

necessary to the other convictions. The two contradictory elements cannot 

coexist.6

 That is not the case here. Defendant concedes that the Perjury and 

Tampering charges are not statutory compound crimes as neither offense is an 

element of the other offense, and the conviction of one offense is not a predicate 

for conviction on the other.7

 Defendant also concedes that a rational factfinder 

could find sufficient evidence for the Tampering conviction based on the record 

evidence.8

 The jury could have found the Tampering charge was based on Waters 

description of the force used against Brown and not based on whether Waters knew 

Brown. Such a finding supports the conclusion that the verdicts on the two charges 

are consistent. 

Defendant argues that because the jury was not required to state their factual 

basis for the finding of guilt on the Count of Tampering, it is possible to speculate 

that the jury’s verdict was inconsistent. But all the Defendant can do is speculate

because he has not presented any evidence that would tend to show improper or 

6 Tilden v. State, 513 A.2d 1302 (Del 1986). 7 Def. Op. Br., at 19.

8 Id.
6

inappropriate deliberations, nor any reason to intrude into the jury’s deliberative 

process in this case. As the United States Supreme Court noted in Powell:

We also reject, as imprudent and unworkable, a rule that would 

allow criminal defendants to challenge inconsistent verdicts on 

the ground that in their case the verdict was not the product of 

lenity, but of some error that worked against them. Such an 

individualized assessment of the reason for the inconsistency 

would be based either on pure speculation or would require 

inquiries into the jury's deliberations that courts generally will 

not undertake. Jurors, of course, take an oath to follow the law 

as charged, and they are expected to follow it.

Delaware Courts have also recognized this principle.9 This Court will not 

engage in speculation, nor will it inquire into a jury’s deliberations. There is 

simply no evidence overcoming the presumption that the jury did not follow the 

Court’s instructions.10 In fact, the verdict leads to a conclusion that the jury did 

follow the Court’s instructions in applying the law to the facts. Defendant’s 

motion based on the argument that the verdict was inconsistent is DENIED.

11

SUFFICIENCY OF EVIDENCE TO SUPPORT 

A FINDING OF GUILT FOR OFFICIAL MISCONDUCT

AND FALSIFYING A BUSINESS RECORD

Supreme Court Criminal Rule 29(c) permits a motion for judgment of 

acquittal pursuant to Rule 29(a) after the jury returns a verdict of guilt. A motion 

9 State v. Thompson, No. 2005007025, 2021 WL 6014939 (Del. Super. 2021). 10 Smith v. State, 963 A.2d 719 (Del. 2008). 11 Defendant has raised a constitutional challenge as to whether Delaware law permits inconsistent verdicts. As 

this Court has determined that the verdict is not inconsistent, this Court need not address the constitutional 

issues.
7

for judgment of acquittal pursuant to Rule 29(a) may be granted if “the evidence 

is insufficient to sustain a conviction of such offense or offenses.” When 

considering a motion for a judgment of acquittal, the Court examines “whether any 

rational trier of fact, viewing the evidence and all reasonable inferences to be 

drawn therefrom in the light most favorable to the State, could find the defendant 

guilty beyond a reasonable doubt of all the elements of the crime.”12 The mere fact 

that evidence is in conflict does not render it “insufficient.”13 When the facts are 

viewed as required, this Court concludes that there is sufficient evidence to sustain 

the verdict.

Defendant was charged with Official Misconduct in violation of 11 Del. C. 

§1211(a)(1) for his encounter with Brown on September 21, 2021, and his 

inappropriate use of force, in that he intended to harm someone (Brown) or to 

obtain a benefit in the exercise of his authority.14 Defendant argues that the State 

did not introduce any evidence tending to show that he intended to harm Brown, 

or to obtain a benefit in the exercise of his authority. This argument ignores the 

record evidence and the law regarding how a jury may infer intent from a 

defendant’s conduct. 

12 Castro v. State, 266 A.3d 201, 204 (Del. 2021). 13 State v. McGuiness, No. 2206000799, 2022 WL 3971195, at *4 (Del. Super. Aug. 30, 2022) (quoting State v. 

Dixon, No. 2109010261, 2022 WL 2840041, at * 2 (Del. Super. July 20, 2022)). 14 A16-17.
8

Pursuant to 11 Del. C. §307: 

(a) The defendant’s intention, recklessness, knowledge, or belief at 

the time of the offense for which the defendant is charged may 

be inferred by the jury from the circumstances surrounding the 

act the defendant is alleged to have done. In making the 

inference permitted by this section, the jury may consider 

whether a reasonable person in the defendant’s circumstances at 

the time of the offense would have had or lacked the requisite 

intention, recklessness, knowledge, or belief. 

(b)When the defendant’s intention, recklessness, knowledge, or 

belief is an element of an offense, it is sufficient to establish a 

prima facie case for the State to prove circumstances 

surrounding the act which the defendant is alleged to have done 

from which a reasonable juror might infer that the defendant’s 

intention, recklessness, knowledge, or belief was of the sort 

required for commission of the offense.

The State produced the following evidence at trial: Defendant confronted 

Brown in the 3 C’s convenience store and attempted to detain him. When Brown 

did not immediately comply, Defendant elevated his use of force to deadly force, 

slamming Brown’s head forcibly against a plexiglass window. A civilian who 

witnessed the encounter called Defendant “out of control,” and stated that his 

actions were disproportionate to the situation. Evidence adduced at trial also 

showed that Defendant was aware of, or had at least been trained in, the use of force 

and defensive techniques.15 The Wilmington Police Department’s (“WPD”) use of 

force instructor stated that not only was Defendant’s use of force against policy, but 

15 A277-281.
9

that striking a suspect in that manner could cause serious physical injury or death. 

Defendant’s own expert, another former use of force instructor, noted that 

Defendant was likely stressed out by Brown’s initial non-compliance and so striking 

his head into the plexiglass was just “what he chose to do.”16

The jury was free to draw logical inferences from Defendant’s conduct 

before, during, and after the encounter. Notably, Defendant did not turn on his 

body-worn camera prior to entering the store and confronting Brown, a clear 

violation of WPD policy. Defendant attempted to gain immediate compliance from

Brown. When Brown questioned why he was being detained in a non-aggressive 

manner, Defendant wasted no time in escalating his use of force with Brown, and 

used a tactic not supported, encouraged, or taught by WPD. Defendant did not 

accurately describe his knowledge of Brown in a sworn warrant affidavit or in his 

police report, and his account in his police report distorted and minimized his 

conduct.17

The jury could infer from the video surveillance footage, combined with

Brown’s testimony and the witness’s testimony, the assessment by the State’s use 

of force expert, and Defendant’s after the fact actions that Defendant intended to 

harm Brown at the moment he used disproportionate deadly force against him and 

16 A404. 17 “Simultaneously this officer grabbed Brown’s [sic] left Trapezius and stepped forward.” Defendant did not note 

that his hands were anywhere near Brown’s head/skull area, i.e., the “red zone.”
10

put him at risk of serious physical injury or death during what should have been a 

routine encounter for a misdemeanor complaint. There was sufficient evidence to 

convict Waters of Official Misconduct. 

There was also sufficient evidence to find Defendant guilty of Falsifying a 

Business Record.18 In the indictment, Defendant was specifically charged with 

“omitting relevant facts in his police report regarding his interaction with 

[Brown].”19 There was no dispute at trial that the police report was a business

record, or that Defendant was under a legal duty to write an accurate police report. 

The State also successfully showed that Defendant omitted some key facts in his 

report detailing his use of force and that it was a logical inference that he did so 

because he knew his use of force was not appropriate.

The evidence supporting the Tampering charge also supports the Falsifying 

charge. As noted above, Defendant did not write in his police report that he placed 

his hands in the area of Brown’s head/skull and forcibly pushed Brown into the 

plexiglass window, a physical encounter that the jury viewed for themselves, on 

surveillance footage. Defendant instead wrote that he grabbed Brown’s trapezius 

and “stepped forward,” causing Brown to press against the glass. This is not 

consistent with the surveillance footage, nor is it consistent with the witness who 

18 Defendant was charged under 11 Del.C. §871(b)(3). 19 A19-20.
11

testified that Brown’s head striking the plexiglass sounded like a “bomb going 

off.”20 Given these conflicts between what Defendant wrote and what actually 

happened as shown by the evidence, a rational jury, viewing the evidence in the 

light most favorable to the State, could certainly find sufficient evidence to convict 

Defendant for omitting evidence in a business record, i.e., his police report.

There is sufficient evidence to support a finding of guilt for Official 

Misconduct and for Falsifying a Business Record.

For the above reasons, Defendant’s Motion for Judgment of Acquittal is 

DENIED.

IT IS SO ORDERED.

 /s/ Francis J. Jones, Jr.

 Francis J. Jones, Jr., Judge

cc: Original to Prothonotary

20 A201-202.