Unpublished Opinion is below.
FARHAT MGHBIRI, Defendant-Below, Appellant, v. STATE OF DELAWARE, Plaintiff-Below, Appellee. No. 47, 2000 In the Supreme Court of the State of Delaware Submitted: June 2, 2000 Decided: July 5, 2000
Before VEASEY, Chief Justice, HARTNETT and BERGER, Justices.
CAROLYN BERGER, Justice.
ORDER
This 5th day of July 2000, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c) ("Rule 26(c)"), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) In August 1999, Farhat Mghbiri was indicted by a grand jury and charged with having committed Unlawful Sexual Contact in the Second Degree and Indecent Exposure in the First Degree. In November 1999, after a two-day jury trial in the Superior Court, the jury found Mghirbi guilty of Unlawful Sexual Contact in the Second Degree and not guilty of Indecent Exposure in the First Degree. On January 7, 2000, the Superior Court sentenced Mghirbi to two years at Level V supervision, with credit for time served, suspended for eighteen months at Level III supervision. This is Mghirbi's direct appeal.
(2) Mghbiri's defense counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). 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: (a) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal; and (b) 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.
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
(3) Mghbiri's defense counsel asserts that, based upon a careful and complete examination of the record, there are no arguably appealable issues. By letter, counsel informed Mghbiri of the provisions of Rule 26(c) and provided Mghirbi with a copy of the motion to withdraw, the accompanying brief, and the complete trial transcript. Mghbiri also was informed of his right to supplement his counsel's presentation. Mghbiri submitted points to his counsel, raising claims of insufficient evidence and ineffective assistance of counsel. The State has responded to the position taken by Mghbiri's counsel as well as to the points raised by Mghbiri and has moved to affirm the conviction.
(4) The victim in this case was a 15-year-old girl who worked as a cashier, dishwasher and bus person at Porky Pete's, a diner on Long Neck Road in Sussex County, Delaware. Mghbiri worked in the same diner as a cook and manager. The victim testified that during her shift, Mghbiri would walk behind her, grab her hips, and pull her toward his penis. According to the victim, Mghbiri would rub his penis against her backside, kiss her on the neck and talk to her about sex. Once, according to the victim, Mghbiri pulled out his penis and put the victim's hand on it. The victim testified that she was scared by Mghbiri's actions and quit work after only a few weeks. The victim told her mother and another employee what Mghribi had done to her. She also contacted the Delaware State police and gave a statement. Mghbiri was arrested and charged. At trial, Mghbiri denied the victim's claims, leaving the jury with a determination of credibility.
(5) Mghbiri alleges that his counsel was ineffective at trial. In addition, Mghbiri alleges that his trial counsel is ineffective on appeal.
Mghbiri alleges that his counsel failed to: (i) obtain defense witnesses; (ii) object to the State's rebuttal witness; (iii) discuss discovery with Mghbiri; (iv) cross-examine key witnesses; and (v) establish that the real motive for the victim's complaint against Mghbiri was that she was angry because she was fired from her job at the diner.
(6) This Court will not consider on direct appeal any claim of ineffective assistance of counsel that was not raised below. Accordingly, we will not consider Mghbiri's claims of ineffective assistance of trial counsel, as those claims have been raised for the first time in this direct appeal.
Wing v. State, Del. Supr., 690 A.2d 921, 923 (1996).
(7) Mghbiri claims that his counsel is ineffective for having filed a Rule 26(c) brief when there are meritorious issues that counsel could have raised on appeal. Mghbiri's claim is without merit. Mghbiri's counsel has followed the requirements of Rule 26(c). Furthermore, Mghbiri has taken the opportunity to submit issues for this Court's consideration. Mghbiri's counsel cannot be held to be ineffective for failing to raise other unidentified issues that Mghbiri had the opportunity to raise, but did not.
Getz v. State, Del. Supr., No. 301, 1994, Veasey, C.J., 1994 WL 622022 (Oct. 31, 1994) ORDER.
(8) Mghbiri complains that the prosecution's evidence was based on "total hearsay." Mghbiri fails, however, to direct this Court to any specific references in the record to support his claim, and our review of the record does not reveal any hearsay violations.
The record reflects that a Delaware State Police detective testified as to the victim's out-of-court statement. The statement was admitted under 11 Del. C. § 3507 which creates a hearsay exception for "the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination."
(9) Mghbiri claims that the prosecution's "entire case was circumstantial." Mghbiri is mistaken. The record indicates that there was direct testimony from the victim concerning the alleged sexual offenses. The victim's testimony concerning the alleged unlawful sexual contact was sufficient to support the jury's guilty verdict. Although Mghbiri denied the victim's accusations and testified that the victim quit because Mghbiri refused to give her money, this conflict in testimony and the credibility of the witnesses were for the jury to resolve. It is entirely within the discretion of the jury to accept one witness's testimony and reject the conflicting testimony of the same witness or that of other witnesses. After giving careful consideration to the record, we are satisfied that there was sufficient evidence for any rational trier of fact to have found the essential elements of the crime of Unlawful Sexual Contact in the Second Degree, beyond a reasonable doubt.
Furthermore, it is settled law in Delaware that direct evidence is not necessary to establish guilt; circumstantial evidence is sufficient. Seward v. State, Del. Supr., 723 A.2d 365, 369 (1999).
See Styler v. State, Del. Supr., 417 A.2d 948, 950 (1980).
Chao v. State, Del. Supr., 604 A.2d 1351, 1363 (1992) (citing Pryor v. State, Del. Supr., 453 A.2d 98, 100 (1982)).
Pryor v. State, 453 A.2d at 100.
See 11 Del. C. § 768 (providing that a person is guilty of unlawful sexual contact in the second degree when the person intentionally has sexual contact with another person who is less than 16 years of age or causes the victim to have contact with the person or a third person).
(10) We are further satisfied that defense counsel made a conscientious effort to examine the record and correctly concluded that Mghbiri could not raise a meritorious claim on appeal. Having independently reviewed the record, we find that Mghbiri's appeal is wholly without merit and devoid of any arguably appealable issue. Our finding that the appeal is without merit renders defense counsel's motion to withdraw moot.
NOW, THEREFORE, IT IS ORDERED, pursuant to Supreme Court Rule 26(c), that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.