IN THE SUPREME COURT OF THE STATE OF DELAWARE

SIMON FRENCH,1

Defendant Below, 

Appellant,

v.

THE STATE OF DELAWARE,

Plaintiff Below, 

Appellee.

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No. 272, 2019

Court Below: Family Court

of the State of Delaware

Case No. 1902000989 (N)

Submitted: May 20, 2020

Decided: July 7, 2020

Before VALIHURA, VAUGHN, and MONTGOMERY-REEVES, Justices.

ORDER

This 7th day of July 2020, upon consideration of the parties’ briefs and the 

record on appeal, it appears that:

(1) The appellant, Simon French, appeals from a Family Court decision 

adjudicating him delinquent of Possession of a Firearm by a Person Prohibited 

(Juvenile) (PFPP (Juv.)). His one claim on appeal is that no rational trier of fact, 

viewing the evidence in the light most favorable to the State, could have concluded 

beyond a reasonable doubt that he possessed a firearm.

 

1 A pseudonym was assigned to appellant pursuant to Supreme Court Rule 7(d).
2

(2) In the early morning on February 2, 2019, officers with the Wilmington 

Police Department responded to a 911 call in which the caller indicated that her 

vehicle was stolen by “two (2) unknown black males,”2 one of whom put a gun to 

her head.

(3) Officers tracked the vehicle to West 27th and North Market Streets. A 

video surveillance camera at Pete’s Pizza, located at or near the intersection, shows 

the vehicle within its view. Two video recordings, an unaltered copy of the Pete’s 

Pizza recording and a zoomed-in version of the same, were admitted at Mr. French’s 

eventual trial.

(4) The grainy, black-and-white video recordings show that the vehicle 

suspected of being stolen came to a stop behind a parked vehicle. Officers in police 

vehicles then pulled up behind the allegedly stolen vehicle. The recordings show 

the front passenger door of that vehicle being opened and then shut. The door then 

reopens and a front seat passenger, later identified as French, exits the vehicle. The 

video also shows the driver, Yahim Harris, dash out of the vehicle. While the driver 

ran, he made a swinging motion with his left arm at least twice.

(5) One officer chased after Harris and shot him. The parties stipulated at 

French’s trial that Harris told the officer, “Why did you shoot me? I didn’t even 

 

2 App. to Opening Br. at A7.
3

have the gun anymore, I got rid of the gun.”3

(6) A second officer approached French. That officer patted French down 

for weapons several times and neither found weapons on him nor saw any weapons 

near him. French informed the officer that he did not have a gun. Additional officers 

assisted in securing French in the back of a patrol vehicle. French told the officers, 

“[y]ou guys shouldn’t have shot my friend.”4

(7) Another officer searched for surveillance cameras or other evidence in 

relation to the incident. He observed a firearm underneath the vehicle on the 

passenger side between the front and rear doors. A member of the Forensic Services 

Unit with the Wilmington Police Department examined the firearm and determined 

that it was a Rugar LCP hammerless .38 caliber revolver with a gold cylinder and 

black frame. No other firearms were found at the scene.

(8) The weather that day was very cold. There was snow, and possibly ice, 

on the ground. The firearm that was discovered was found resting on top of snow 

underneath the vehicle, but there was no snow on top of the revolver. 

(9) When officers later executed a search warrant at Harris’s home, they 

found ammunition for a .38 caliber gun that was the same type as the ammunition in 

the revolver found at the scene.

 

3

Id. at A263.

4

Id. at A129.
4

(10) French was fifteen (15) years old at the time of this incident. He was 

charged with Carjacking in the First Degree, Possession of a Firearm During the 

Commission of a Felony, Possession of a Firearm by a Person Prohibited (by a prior 

adjudication), Possession of a Firearm by a Juvenile, and Conspiracy in the Second 

Degree. In an amended juvenile petition, the State dropped the charge of Possession 

of a Firearm by a Person Prohibited (by a prior adjudication). On the day of trial, 

the alleged carjacking victim failed to appear, and the State entered a nolle prosequi 

on the charges of Carjacking, Conspiracy in the Second Degree, and Possession of 

a Firearm During the Commission of a Felony. The case proceeded to trial on the 

remaining charge of Possession of a Firearm by a Juvenile.

(11) Testimony from responding officers, the video recordings, and pictures 

of the vehicle and the gun found beneath it were admitted into evidence. Although 

the alleged victim did not testify, a recording of the 911 call she made was played at 

trial.

(12) At trial, the prosecutrix and one of the responding officers, Officer 

Thomas Curley, engaged in the following dialogue:

Q: Did you observe the gun under the passenger side of 

the car?

A: Yes, I did.

Q: Did you observe the snow on the ground?

A: Yes.
5

Q: Did you observe any snow on the gun?

A: There was no snow on the gun.

Q: Did you have occasion to look . . . at it, look at the 

scene, or the car, from like the driver’s side to the 

passenger side underneath of the car?

A: I specifically looked to see if the driver could have 

been the one who tossed the gun under the car. There 

was a softer snow in between the car tires.

. . .

A: . . . And there were no skid marks or anything about 

that gun sliding under the car.

Q: So nothing either -- was there anything either on the 

ground or on the gun itself to indicate that it would have 

traveled across?

A: It didn’t travel across.5

(13) On cross-examination, defense counsel elicited the following from the 

same officer:

Q: Okay. And you’re saying that there’s just no way 

that Mr. Harris could have discarded the firearm by 

throwing it under the car because there’s no traces, 

meaning snow traces?

A: There -- from what I observed there’s no way --

Q: Okay.

 

5

Id. at A204-05.
6

A: -- and now look, and my part in this case you know I 

would . . . like that to be possible. But I’m telling you 

here it’s just . . . it’s not possible.

Q: And did you do any tests yourself? Throw it down 

underneath to see what would happen?

A: No, I’m just telling you that there was soft snow in 

between those tires and there’s no way that gun could 

have gotten from that side of the car to the other side of 

the car without going through that snow.6

(14) The State’s theory of the case was that French placed the weapon under 

the car and therefore possessed it while doing so. Defense counsel argued that this 

theory was “very weak,” at best.7 He argued that it was much more likely that Harris, 

rather than French, got rid of the gun.

(15) The Family Court appeared to agree with defense counsel that it would 

be more likely that Harris was the one who disposed of the gun underneath the 

vehicle. But examining the video, the court observed that Harris fled the vehicle 

quickly without any appearance that he paused before or while doing so,

8

and French 

was seen opening and shutting the front passenger-side door of the vehicle.9 The 

court also considered the weather conditions at the time of the incident, photographs 

 

6

Id. at A222-23.

7

Id. at A241-42 (“So although this is a constructive possession case it’s a very weak case in the 

defense opinion.”).

8

Id. at A245 (“He just seemed to dart right out of that -- I was sort of surprised how fast he got 

out of the car and ran down that alley.”).

9

Id. (“I did see the passenger’s drive [sic] door . . . . The first thing I noticed was the door opened 

and shut and then opened again when the individual I now know as the defendant got out.”).
7

from the scene, and testimony opining on the likelihood that Harris was the one who 

tossed the firearm underneath the vehicle. The court reasoned:

it can very well be that . . . this is Mr. Harris’[s] gun, 

similar bullets were found in his apartment in [the] search 

warrant, but looking at -- I feel that the . . . gun was placed 

there fairly recently, there was no snow on top of it, and 

what I looked, and nobody really pointed out, I didn’t see 

any -- I looked for marks on these photographs, and I think 

it was [Officer Curley] that testified he didn’t see any of 

the what I would call horizontal going across the car, any 

marks and it was soft snow. I do see that . . . soft snow 

and I don’t see any tracks as he testified. I do see a small 

vertical going to the side, just a very small for a few inches 

that could have been if the defendant had . . . dropped it 

with a little bit of a forward motion of his hand as he was 

trying to get rid of it when that door first opened.10

(16) On that basis, the court adjudicated French delinquent of PFPP (Juv.). 

The court sentenced him to the mandatory minimum sentence, six months at the 

Ferris Wharton School for Boys, “with credit for time served providing he 

successfully complete[d] the Ferris School Program,” and ordered that he have no 

contact with Harris, regularly attend and use his best efforts at school, and obey a 

curfew set by a probation officer.11

(17) On appeal, French argues that there was insufficient evidence to convict 

him of PFPP (Juv.). He claims the State failed to prove beyond a reasonable doubt 

that he possessed the handgun found underneath the vehicle. He notes that Harris 

 

10 Id. at A245-46.

11 Opening Br. Ex. A.
8

can be seen, from the video recordings, making a motion with one of his arms as he 

fled the vehicle, “in a manner akin to flinging an object.”12 He further argues that 

Officer Curley’s testimony regarding how the revolver could have ended up 

underneath the vehicle was expert testimony which was not properly admitted. He 

argues that the prosecutor did not notice or qualify the officer as an expert, and the 

officer did not testify that his testimony was based on training or experience. 

(18) The State responds that the evidence, when viewed in the light most 

favorable to the State, was sufficient for any rational trier of fact to conclude, beyond 

a reasonable doubt, that French possessed the firearm. As for Harris’s arm-motion, 

a rational trier of fact could conclude that motion was consistent with the arm 

movement of a person running, not the driver of a vehicle, mid-flight, disposing of 

a firearm that officers ultimately found underneath the passenger side of the vehicle. 

The State also argues that French waived any objection to Officer Curley’stestimony 

by failing to object at the bench trial and, in any event, the officer’s testimony falls 

within the scope of admissible lay witness testimony.

(19) French’s attorney did not move for judgment of acquittal. In Harris v. 

State13 and Richards v. State,

14 this Court held that when defense counsel fails to 

move for judgment of acquittal under Rule 29 of the Family Court Rules of Criminal 

 

12 Opening Br. at 18.

13 968 A.2d 32, 35 (Del. 2009).

14 865 A.2d 1274, 1280 (Del. 2004). 
9

Procedure, the standard of review is plain error.15 In Harris, we stated that “[a]n 

error is plain where it is ‘so clearly prejudicial to substantial rights as to jeopardize 

the fairness and integrity of the judicial process.’”16 More recently, in Williamson 

v. State, we held that where the Superior Court holds a bench trial in a criminal case, 

it is not necessary to move for judgment of acquittal in that court in order to preserve 

a challenge to the sufficiency of the evidence.17 We reasoned that the defendant’s 

plea of “not guilty” was itself sufficient to preserve the issue for appeal. 

Accordingly, we reviewed the defendant’s conviction in that case to determine 

“whether any rational trier of fact, viewing the evidence in the light most favorable 

to the State, could find [a] defendant guilty beyond a reasonable doubt.”18 We find 

it unnecessary to address this apparent inconsistency in the standards of review we 

have articulated for a bench trial in a Family Court delinquency proceeding and a 

bench trial in a Superior Court criminal proceeding because in this case we come to 

the same result applying either standard of review.

(20) Section 1448(a)(5) of Title 11 of the Delaware Code prohibits juveniles 

“from purchasing, owning, possessing, or controlling a deadly weapon or 

 

15 Family Court Criminal Rule of Procedure 1(a) provides that the criminal rules apply to 

delinquency proceedings.

16 968 A.2d at 35 (quoting Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (en banc) (relying 

on Dutton v. State, 452 A.2d 127, 146 (Del. 1982))).

17 113 A.2d 155, 158 (Del. 2015). 

18 Id. (alteration in original) (quoting Monroe v. State, 652 A.2d 560, 563 (Del. 1995) (quoting 

Robertson v. State, 596 A.2d 1345, 1355 (Del. 1991))).
10

ammunition for a firearm within the State,” including a handgun, unless a limited 

exception applies.

(21) Actual or constructive possession is sufficient,

19 and possession may be 

proven through circumstantial evidence.20 “To prove constructive possession of a 

gun, the State must show that the defendant: (i) knew the location of the gun; (ii) 

had the ability to exercise dominion and control over the gun; and (iii) intended to 

exercise dominion and control over the gun.”21 The State need not offer “evidence 

that the weapon was physically available and accessible to the defendant at the time 

of arrest.”22

(22) We find that there was sufficient evidence presented at trial for the 

Family Court judge to conclude beyond a reasonable doubt that Mr. French 

possessed the revolver. At trial, the following facts were established. Officers 

received a report that a person called 911 because her vehicle had allegedly been 

stolen by two individuals, one of whom had a firearm. Officers tracked the vehicle 

to a location where it was stopped and observed that Mr. Harris, the driver, quickly 

fled the vehicle. Around the same time Mr. Harris ran from the vehicle, the 

passenger, Mr. French, opened and shut the front passenger side door just prior to 

 

19 Lecates v. State, 987 A.2d 413, 421 (Del. 2009).

20 Triplett v. State, 91 A.3d 562, 2014 WL 1888414, at *2 (Del. May 9, 2014) (ORDER).

21 Id.

22 Id.
11

exiting the vehicle. The weather was cold, and there was snow, and possibly some 

ice, on the ground. Underneath the vehicle, officers found a revolver, the only 

firearm recovered from the scene, on top of the snow. No snow was on top of the 

gun. The revolver was found underneath the passenger side of the vehicle, 

somewhere between the front and back doors on the passenger side. The snow had 

no indentations or markings in it that would indicate that the revolver had been 

tossed or slid from the driver side of the vehicle.

(23) From the above, viewing the evidence in the light most favorable to the 

State, a rational trier of fact could conclude beyond a reasonable doubt that Mr. 

French possessed the weapon. The State presented sufficient evidence for the 

Family Court to conclude that Mr. French was the one who placed the revolver

underneath the vehicle. To place the handgun there, Mr. French would necessarily 

have been in actual possession of the weapon, however briefly, before tossing it 

under the car.

(24) While Mr. Harris did make a motion with his left arm, a rational trier 

of fact could have concluded that the motion was consistent with Mr. Harris running, 

not tossing the gun underneath the vehicle. Indeed, the Family Court took note of 

the speed with which Mr. Harris fled from the car, observing that Mr. Harris did not 

appear to stop as he ran. 
12

(25) French’s claim concerning Officer Curley’s testimony is reviewed for 

plain error. The officer’s testimony consisted of factual observations and common 

sense inferences drawn from those observations. There is no plain error in his 

testimony.

NOW, THEREFORE, IT IS ORDERED that the Superior Court’s decision 

adjudicating Mr. French delinquent of PFPP (Juv.) is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr.

Justice