IN THE SUPREME COURT OF THE STATE OF DELAWARE
DANIEL BOBILIN, § § No. 399, 2022 Defendant Below, § Appellant, § Court Below–Superior Court § of the State of Delaware v. § § Cr. ID No. 2105013864 (N) STATE OF DELAWARE, § § Appellee. § §
Submitted: April 20, 2023 Decided: June 29, 2023
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
After consideration of the brief and motion to withdraw filed by the
appellant’s counsel under Supreme Court Rule 26(c), the State’s response, and the
Superior Court record, it appears to the Court that:
(1) In July 2021, a Superior Court grand jury indicted the appellant, Daniel
Bobilin, for two counts of the commission of a hate crime, two counts of terroristic
threatening, two counts of harassment, and one count of disorderly conduct. The
charges arose out of an encounter between Bobilin and two women, Diamond and
Rosemary Lewis,1 in an apartment building in Claymont, Delaware.
1 Because the victims share the same last name, we refer to them by their first names for clarity. We intend no familiarity or disrespect. (2) In September 2022, the case proceeded to a jury trial. Diamond, a
resident of the apartment building, testified that in the afternoon of May 26, 2021,
she and her grandmother, Rosemary, had returned to the building after an outing.
Diamond entered the building first and propped open the door between the lobby
and foyer areas of the building to allow Rosemary, who was trailing behind, to enter
the lobby area without using a security card. Another resident of the apartment
building, later identified as Bobilin, closed the propped-open door. When Diamond
went to prop open the door again, Bobilin told Diamond that the door was not
supposed to be left open. According to Diamond, Bobilin then launched into a racist
tirade, during which he stated, among other things, “I hate you [B]lack people. You
shouldn’t be here.”2 After Bobilin left the lobby via the elevator, Diamond called
911 and reported the episode. Diamond further testified that, as a result of the
encounter, she became quite fearful of living in the building and moved out a few
months later.
(3) Rosemary testified that Diamond had propped open the door to the
lobby to allow Rosemary to re-enter after she left briefly to retrieve something from
her car. When she returned, she found Diamond and Bobilin in the middle of an
altercation. According to Rosemary, Bobilin threatened Rosemary and called her
derogatory and racist names. Through the chief investigating police officer, the State
2 App. to Opening Br. at A34. 2 admitted the audio recording of Diamond’s 911 phone call and video of the
building’s foyer area that showed a portion of the physical encounter between
Diamond and Bobilin.3 Relevant here, the video recording shows someone outside
of the camera angle propping open the door to the lobby, Bobilin shutting the door,
someone propping the door open again, Bobilin again shutting the door and
gesturing toward what appears to be a sign on the door, someone again propping
open the door, and Rosemary walking through the door to the lobby shortly
thereafter.
(4) At the close of the State’s case, Bobilin moved for a judgment of
acquittal on all counts. The Superior Court denied the motion. However, because
the State had not secured the video from the apartment’s lobby area, where Diamond
and Rosemary alleged Bobilin acted aggressively and made the threatening and
derogatory comments, the Superior Court granted Bobilin’s request for a missing-
evidence instruction. Bobilin then took the stand and testified for the defense.
Bobilin acknowledged that he had closed the door after Diamond had propped it
open because propping the door open violated the apartment building’s rules. But
Bobilin denied making threatening statements or using derogatory or racist
language.
3 The video did not have audio. 3 (5) The jury acquitted Bobilin of terroristic threatening and committing
hate crimes but found him guilty of two counts of harassment and one count of
disorderly conduct. The Superior Court deferred sentencing to permit the parties to
submit sentencing memoranda. On October 13, 2022, the Superior Court sentenced
Bobilin for the harassment convictions to an aggregate two years of incarceration,
suspended for one year of Level II probation. The court also imposed a $250 fine
for the disorderly conduct conviction. This appeal followed.
(6) Bobilin’s counsel on appeal has filed a brief and a motion to withdraw
under Rule 26(c). Counsel asserts that, after a complete and careful examination of
the record, he could not identify any arguably appealable issues. Counsel informed
Bobilin of the provisions of Rule 26(c) and provided him with a copy of the motion
to withdraw and a draft of the accompanying brief. Counsel also informed Bobilin
of his right to supplement his attorney’s presentation. The State has responded to
the Rule 26(c) brief and has moved to affirm the Superior Court’s judgment.
(7) The standard and scope of review applicable to the consideration of a
motion to withdraw and an accompanying brief under Rule 26(c) is twofold. First,
the Court must be satisfied that defense counsel has made a conscientious
examination of the record and the law for claims that could be arguably raised on
4 appeal. 4 Second, the Court must 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.5
(8) In his supplement to Counsel’s opening brief, Bobilin challenges the
sufficiency of the State’s evidence. Specifically, Bobilin claims that the video
recording of the foyer area captured the entire encounter between him and Diamond
and belies the State’s argument that he engaged in a heated altercation with her.
Bobilin also claims that he did not interact with Rosemary.
(9) When reviewing a claim of insufficient evidence, the Court must
determine whether, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.6 When making that determination, the Court does
not distinguish between direct and circumstantial evidence.7 Moreover, when the
determination of facts turns on a question of witness credibility, we will not
substitute our opinion for that of the trier of fact.8
4 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wis., 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 5 Penson, 488 U.S. at 81-82. 6 Williams v. State, 2005 WL 2414375, at *2 (Del. Sept. 29, 2005). 7 Id. 8 Dryden v. State, 2008 WL 555956, at *1 (Del. Mar. 3, 2008). 5 (10) Our review of the record does not support Bobilin’s claim. The jury
was solely responsible for judging the credibility of the witnesses and resolving
conflicts in the testimony.9 It was entirely within the jury’s purview to credit
Diamond’s and Rosemary’s testimony—both of whom testified that their interaction
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE SUPREME COURT OF THE STATE OF DELAWARE
DANIEL BOBILIN, § § No. 399, 2022 Defendant Below, § Appellant, § Court Below–Superior Court § of the State of Delaware v. § § Cr. ID No. 2105013864 (N) STATE OF DELAWARE, § § Appellee. § §
Submitted: April 20, 2023 Decided: June 29, 2023
Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.
ORDER
After consideration of the brief and motion to withdraw filed by the
appellant’s counsel under Supreme Court Rule 26(c), the State’s response, and the
Superior Court record, it appears to the Court that:
(1) In July 2021, a Superior Court grand jury indicted the appellant, Daniel
Bobilin, for two counts of the commission of a hate crime, two counts of terroristic
threatening, two counts of harassment, and one count of disorderly conduct. The
charges arose out of an encounter between Bobilin and two women, Diamond and
Rosemary Lewis,1 in an apartment building in Claymont, Delaware.
1 Because the victims share the same last name, we refer to them by their first names for clarity. We intend no familiarity or disrespect. (2) In September 2022, the case proceeded to a jury trial. Diamond, a
resident of the apartment building, testified that in the afternoon of May 26, 2021,
she and her grandmother, Rosemary, had returned to the building after an outing.
Diamond entered the building first and propped open the door between the lobby
and foyer areas of the building to allow Rosemary, who was trailing behind, to enter
the lobby area without using a security card. Another resident of the apartment
building, later identified as Bobilin, closed the propped-open door. When Diamond
went to prop open the door again, Bobilin told Diamond that the door was not
supposed to be left open. According to Diamond, Bobilin then launched into a racist
tirade, during which he stated, among other things, “I hate you [B]lack people. You
shouldn’t be here.”2 After Bobilin left the lobby via the elevator, Diamond called
911 and reported the episode. Diamond further testified that, as a result of the
encounter, she became quite fearful of living in the building and moved out a few
months later.
(3) Rosemary testified that Diamond had propped open the door to the
lobby to allow Rosemary to re-enter after she left briefly to retrieve something from
her car. When she returned, she found Diamond and Bobilin in the middle of an
altercation. According to Rosemary, Bobilin threatened Rosemary and called her
derogatory and racist names. Through the chief investigating police officer, the State
2 App. to Opening Br. at A34. 2 admitted the audio recording of Diamond’s 911 phone call and video of the
building’s foyer area that showed a portion of the physical encounter between
Diamond and Bobilin.3 Relevant here, the video recording shows someone outside
of the camera angle propping open the door to the lobby, Bobilin shutting the door,
someone propping the door open again, Bobilin again shutting the door and
gesturing toward what appears to be a sign on the door, someone again propping
open the door, and Rosemary walking through the door to the lobby shortly
thereafter.
(4) At the close of the State’s case, Bobilin moved for a judgment of
acquittal on all counts. The Superior Court denied the motion. However, because
the State had not secured the video from the apartment’s lobby area, where Diamond
and Rosemary alleged Bobilin acted aggressively and made the threatening and
derogatory comments, the Superior Court granted Bobilin’s request for a missing-
evidence instruction. Bobilin then took the stand and testified for the defense.
Bobilin acknowledged that he had closed the door after Diamond had propped it
open because propping the door open violated the apartment building’s rules. But
Bobilin denied making threatening statements or using derogatory or racist
language.
3 The video did not have audio. 3 (5) The jury acquitted Bobilin of terroristic threatening and committing
hate crimes but found him guilty of two counts of harassment and one count of
disorderly conduct. The Superior Court deferred sentencing to permit the parties to
submit sentencing memoranda. On October 13, 2022, the Superior Court sentenced
Bobilin for the harassment convictions to an aggregate two years of incarceration,
suspended for one year of Level II probation. The court also imposed a $250 fine
for the disorderly conduct conviction. This appeal followed.
(6) Bobilin’s counsel on appeal has filed a brief and a motion to withdraw
under Rule 26(c). Counsel asserts that, after a complete and careful examination of
the record, he could not identify any arguably appealable issues. Counsel informed
Bobilin of the provisions of Rule 26(c) and provided him with a copy of the motion
to withdraw and a draft of the accompanying brief. Counsel also informed Bobilin
of his right to supplement his attorney’s presentation. The State has responded to
the Rule 26(c) brief and has moved to affirm the Superior Court’s judgment.
(7) The standard and scope of review applicable to the consideration of a
motion to withdraw and an accompanying brief under Rule 26(c) is twofold. First,
the Court must be satisfied that defense counsel has made a conscientious
examination of the record and the law for claims that could be arguably raised on
4 appeal. 4 Second, the Court must 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.5
(8) In his supplement to Counsel’s opening brief, Bobilin challenges the
sufficiency of the State’s evidence. Specifically, Bobilin claims that the video
recording of the foyer area captured the entire encounter between him and Diamond
and belies the State’s argument that he engaged in a heated altercation with her.
Bobilin also claims that he did not interact with Rosemary.
(9) When reviewing a claim of insufficient evidence, the Court must
determine whether, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.6 When making that determination, the Court does
not distinguish between direct and circumstantial evidence.7 Moreover, when the
determination of facts turns on a question of witness credibility, we will not
substitute our opinion for that of the trier of fact.8
4 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wis., 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 5 Penson, 488 U.S. at 81-82. 6 Williams v. State, 2005 WL 2414375, at *2 (Del. Sept. 29, 2005). 7 Id. 8 Dryden v. State, 2008 WL 555956, at *1 (Del. Mar. 3, 2008). 5 (10) Our review of the record does not support Bobilin’s claim. The jury
was solely responsible for judging the credibility of the witnesses and resolving
conflicts in the testimony.9 It was entirely within the jury’s purview to credit
Diamond’s and Rosemary’s testimony—both of whom testified that their interaction
with Bobilin extended into the lobby area of the apartment building, an area not
visible in the foyer video recording, and that Bobilin verbally threatened and
intimidated them there. That is, there was clearly sufficient evidence presented at
trial to support Bobilin’s convictions for harassment10 and disorderly conduct.11
(11) The Court has reviewed the record carefully and has concluded that
Bobilin’s appeal is wholly without merit and devoid of any arguably appealable
issues. We are also satisfied that Counsel has made a conscientious effort to examine
the record and the law and has properly determined that Bobilin could not raise a
meritorious claim in this appeal.
9 Id. 10 See 11 Del. C. § 1311(a) (“A person is guilty of harassment when, with intent to harass, annoy, or alarm another person: (1) That person insults, taunts or challenges another person or engages in any other course of alarming or distressing conduct which serves no legitimate purpose and is in a manner which the person knows is likely to provoke a violent or disorderly response or cause a reasonable person to suffer fear, alarm, or distress….”). 11 See 11 Del. C. § 1301 (“A person is guilty of disorderly conduct when: (1) The person intentionally causes public inconvenience, annoyance or alarm to any other person, or creates a risk thereof by: … (b) Making … an offensively coarse utterance … or addressing abusive language to any person present….”). 6 NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court be AFFIRMED. Counsel’s motion to withdraw is moot.
BY THE COURT:
/s/ Collins J. Seitz, Jr. Chief Justice