State v. George

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
v. ) I.D. Nos. 2410011201A&B
) 2410009458
JHASIR GEORGE, )
)
Defendant. )

Submitted: June 25, 2025
Decided: July 25, 2025

MEMORANDUM OPINION AND ORDER

Upon Defendant’s Motion To Sever Offenses

DENIED

Upon Defendant’s Motion In Limine To Exclude Evidence of Other Bad Acts

DENIED

Kevin B. Smith, Deputy Attorney General, Department of Justice, Dover,
Delaware, Attorney for the State.

Zachary A. George, Esquire, George & Vyas, LLC, Dover, Delaware, Attorney for
the Defendant.

Primos, J.
Defendant Jhasir George is implicated in a shooting near a public park. Two
weeks after the shooting, one of the guns was found in a backpack at Defendant’s
feet—apparently in the same vehicle that had dropped off the shooters. Defendant
faces various charges, including one count of Carrying a Concealed Deadly Weapon
(“CCDW”) stemming from the gun’s discovery. Defendant moves this Court to
sever the CCDW charge, which would require that offense to be tried separately
from the others. Defendant also moves this Court to exclude any evidence of the
CCDW charge from the trial for the other alleged offenses, and to exclude any
mention of the other charges from the CCDW trial. Defendant contends that the
evidence would be inadmissible under Delaware Rule of Evidence 404(b), which
bars the use of uncharged acts to prove a defendant’s criminal propensity. The Court
concludes that joinder of the offenses is proper, and that Defendant has failed to
show a reasonable probability of substantial prejudice from such joinder. Therefore,
the offenses should not be severed. Because the Court has determined that severance
is not appropriate, Rule 404(b) is inapplicable: the CCDW charge will not be an
uncharged offense for purposes of trial.
Accordingly, Defendant’s motion to sever is DENIED. Defendant’s motion
in limine to exclude evidence is likewise DENIED.
I. BACKGROUND 1
A. Procedural History
On July 3, 2024, a grand jury indicted Defendant on five counts: Possession
of a Firearm During the Commission of a Felony; Possession, Purchase, Own, Or
Control A Firearm By a Person Prohibited; and three counts of Reckless
Endangering First Degree.2 On March 3, 2025, Defendant was reindicted on seven
counts: those previously indicted; one count of Conspiracy Second Degree; and one

1
Citations in the form of “D.I. ___” refer to docket items in case number 2410011201A.
2
D.I. 1.
2
count of Carrying a Concealed Deadly Weapon, Firearm. 3
On April 16, 2025, Defendant filed a motion to sever the Person Prohibited
charge, which the Court ultimately granted as unopposed. 4 On April 17, 2025,
Defendant filed an additional motion to sever the CCDW offense, along with a
motion in limine to exclude any evidence of the CCDW offense in the separate trial
for the other offenses and vice versa, citing Delaware Rule of Evidence 404(b). 5 The
State opposes the second motion to sever and the motion in limine. 6
On May 30, 2025, the Court heard oral argument on Defendant’s pending
motions. Argument was abbreviated because defense counsel contended that an
evidentiary hearing was required to establish the operative facts before the Court
could rule. At a June 5, 2025, office conference, the Court informed the parties that
an evidentiary hearing would not be required because, consistent with the Supreme
Court’s decision in Wiest v. State,7 the Court could evaluate Defendant’s motions in
reliance on the State’s proffer of evidence. Following a second oral argument on
June 25, 2025, the Court took the pending motions under advisement.

3
D.I. 14. The CCDW charge is classified under case number 2410009458.
4
D.I. 19.
5
Def.’s Second Mot. to Sever Offenses and Mot. In Limine to Exclude Evid. of Other Bad Acts
(hereinafter “Defendant’s Motion”) (D.I. 20, 21).
6
State’s Response to Def.’s Second Mot. to Sever Offenses and Mot. In Limine to Exclude Evid.
of Other Bad Acts (hereinafter “State’s Response”) (D.I. 27).
7
542 A.2d 1193 (Del. 1988). The Wiest Court reversed the trial court not because it relied on the
State’s representations in deciding a motion to sever, but instead because when those
representations were shown to be materially inaccurate the trial judge failed to order a new trial.
Id. at 1196. The Court explained that, “in the absence of the representations by the State . . . [the
defendant’s] motion to sever the trials would have been granted . . . . When the representation that
resulted in the single trial on both sets of charges failed to materialize, judicial economy was
outweighed by the prejudice to [the defendant] and the motion for a new trial should have been
granted.” Id. Thus, the Supreme Court has implicitly held that, rather than holding an evidentiary
hearing to determine what evidence the State will present, the trial court may rely on the State’s
representations. If these representations differ from the evidence presented at trial, the Court can
consider whether prejudice to Defendant necessitates a new trial.
3
B. Statement of Facts
The State has proffered that it will present evidence of the following facts at
trial. Consistent with its earlier ruling, the Court will credit the State’s
representations for purposes of the pending motions.
On the evening of July 3, 2024, surveillance cameras captured a shootout
between the passengers of a gray Nissan Altima and at least two individuals on foot.8
In the surveillance video, the passenger in the right rear seat of the Nissan is seen
leaning out of the side window of the vehicle and firing at pursuers.9 As those
pursuers enter the frame, one is firing a pistol at the fleeing car. 10 The other
individual, whom the State believes to be Defendant, is nearly struck by another car
and then stashes what appears to be a handgun in the pocket of his hooded
sweatshirt. 11
Police recovered fourteen .45 caliber, six .40 caliber, and six 9-millimeter
shell casings from the scene. 12 Forensic testing indicated that the rounds were fired
from four separate firearms: one chambered in .45 caliber, one in .40 caliber, and
two in 9-millimeter. 13
The State also connected a tan Lexus RX SUV to the shooting. 14 Through
review of surveillance, the SUV was observed an hour prior to the shooting and was
also observed leaving the park where the shooting occurred immediately prior to the
shooting.15 Jashawn Moore, a probationer wearing a GPS tracking device, was at
the scene of the shooting for thirty minutes before it took place but departed

8
State’s Response 2–4.
9
Id. at 3.
10
Id. at 3–4.
11
Id.; accord D.I. 38 (edited surveillance video provided to the Court by the State with Defendant’s
assent).
12
State’s Response 2.
13
Id.
14
Id. at 5.
15
Id.
4
approximately thirty seconds before it occurred. 16 On July 17, 2024, police
intercepted a tan Lexus RX SUV driven by Moore.17
When police approached the Lexus on July 17, they observed four passengers
in addition to Moore, including Defendant.18 Defendant was seated in the left rear
seat of the five-seat SUV.19 Upon removing the occupants, police discovered a black
backpack in the Lexus’s left rear footwell. 20 The backpack contained a 9-millimeter
Polymer80 handgun 21 without a serial number. 22 Forensic testing revealed that two
of the 9-millimeter casings recovered after the July 3 shooting were fired from that
gun.23 Also inside the backpack was a bag of marijuana bearing Defendant’s
fingerprint.24
II. ANALYSIS
A. Defendant’s motion to sever fails because he has not made the
requisite showing of prejudice from joinder.
1. Standard of review
Defendant’s motion to sever is governed by Superior Court Criminal Rules
8(a) and 14. Rule 8(a) provides that:
Two or more offenses may be charged in the same indictment or
information in a separate count for each offense if the offenses charged
are of the same or similar character or are based on the same act or

16
Id.
17
Id.
18
Id.
19
Id.
20
Id.
21
A Polymer80 is a “ghost gun” clone of the popular Glock series of handguns; due to the manner
in which “ghost guns” are manufactured and assembled, they historically have been sold without
serial numbers. See generally Bondi v. VanDerstock, 145 S.Ct. 857 (2025) (holding that federal
law requires firearms kits like and including the Polymer80 to bear serial numbers, contrary to
their prior commercial practice); see also id. at 867 (noting that a Polymer80 handgun is sold as a
kit containing all of the components necessary to assemble a fully-operational firearm with
common tools); id. at 872–73 (describing the process of completing the frame of the weapon).
22
State’s Response 5.
23
Id.
24
Id.
5
transaction or on two or more acts or transactions connected together
or constituting parts of a common scheme or plan.
“The joinder of charges under . . . Rule 8(a) is designed to promote judicial economy
by permitting the State to try related charges together.”25
Rule 14 protects defendants’ countervailing interests by permitting the Court
to order separate trials “[i]f it appears that a defendant . . . is prejudiced by joinder.”26
“In determining whether joinder is proper, ‘Superior Court Criminal Rules 8 and 14
must be read together.’” 27 In other words, “[t]he rule of joinder is designed to
promote judicial economy and efficiency, as long as the defendant’s rights are not
compromised.”28
The critical question for severance under Rule 14 is whether Defendant has
shown that there is a reasonable probability that he would be substantially prejudiced
by joinder, or whether his claims of such prejudice are instead conclusory 29 or
hypothetical.30 Delaware law recognizes that prejudice can arise when the jury
might: (1) “cumulate the evidence of the various crimes charged” to find guilt when
it would not find such guilt had the crimes been considered separately; (2) infer a
“general criminal disposition” from one of the crimes to convict the defendant of
one of the others; or (3) when “the defendant might be subject to embarrassment or
confusion in presenting different and separate defenses to different charges.” 31 In

25
Gibson v. State, -- A.3d --, 2025 WL 1514413, at *7 (Del. May 28, 2025) (ORDER) (quoting
Caldwell v. State, 780 A.2d 1037, 1054–55 (Del. 2001)).
26
Super. Ct. Crim. R. 14.
27
Gibson, 2025 WL 1514413, at *7 (quoting Jackson v. State, 990 A.2d 1281, 1286 (Del. 2009)).
28
Id. (quoting Jackson, 990 A.2d at 1286).
29
Id. at *9.
30
Skinner v. State, 575 A.2d 1108, 1118 (Del. 1990) (“As a general rule, it may be said that [the
trial court’s] discretion has been abused by denial [of a motion to sever] when there is a reasonable
probability that substantial prejudice may result from a joint trial. The defendant has the burden
of demonstrating such prejudice and mere hypothetical prejudice is not sufficient.” (citing Bates
v. State, 386 A.2d 1139, 1141–42 (Del. 1978))).
31
Ashley v. State, 85 A.3d 81, 84–85 (Del. 2014) (citing Wiest, 542 A.2d at 1195).
6
evaluating prejudice, “[a]dmissibility [of evidence of each alleged crime] in separate
trials [for the others] is not a requisite for joinder of charges[.]” 32 However, a
“‘crucial’ factor . . . is whether evidence of the one crime would be admissible in the
trial of the other crime.” 33 “No prejudicial effect would result from the joinder of
trials if the evidence pertaining to one crime would be admissible in the trial of
another offense.” 34
2. Joinder is proper under Rule 8(a) because the July 3 and July
17 incidents are logically connected.
Rule 8(a) permits joinder when two offenses are “connected together.”
Charges may be connected either temporally or logically.35 The charges at issue in
this case are, at minimum, logically connected.
The Supreme Court has approved joinder in circumstances closely analogous
to these. In Rosser v. State, the Court found that the trial court did not err by joining
charges for a shooting and an armed robbery allegedly committed by the same
defendant on the same evening. 36 The Court noted that the two incidents were
connected “because they happened close in time and close in location and involved
interconnecting evidence, namely [the defendant’s] SUV and the revolver used in
both offenses.”37 Although not as close in time as in Rosser, the two incidents in
this case are also linked by an SUV and a gun.
Also instructive, in Cannon v. State the Supreme Court approved joinder of

32
Wood v. State, 956 A.2d 1228, 1232 (Del. 2008); Caldwell, 780 A.2d at 1056, n.62 (citing
Skinner, 575 A.2d at 1118).
33
Rosser v. State, 135 A.3d 764, 2016 WL 1436604, at *2 (Del. Apr. 5, 2016) (ORDER) (quoting
Kemske v. State, 918 A.2d 338, 2007 WL 3777, at *3 (Del. Jan. 2, 2007) (ORDER)); accord
Gibson, 2025 WL 1514413, at *8 (quoting Wiest, 542 A.2d at 1195 n.3).
34
Justiniano v. State, 185 A.3d 694, 2018 WL 2072816, at *3 (Del. May 2, 2018) (ORDER)
(quoting State v. Cooke, 909 A.2d 596, 600 (Del. Super. 2006)).
35
Cannon v. State, 994 A.2d 744, 2010 WL 1543852, at *3 (Del. Apr. 19, 2010) (ORDER) (citing
Wiest, 542 A.2d at 1195).
36
2016 WL 1436604, at *2.
37
Id. at *2.
7
charges for a home invasion resulting in a firearm theft with a charge for Possession
of a Firearm by a Person Prohibited resulting from the discovery of a stolen gun in
the defendant’s home the following month.38 The Court noted that there was a
logical connection between the two events. 39 There is no less a connection between
the weapon used in a crime and the crime itself (i.e., in this case) than there is
between a weapon stolen in the course of a crime and the crime itself (i.e., in
Cannon).
Under Rosser and Cannon, the July 3 and July 17 charges are sufficiently
connected to be joined under Rule 8(a). The Court must therefore consider whether
Rule 14 requires that the charges nonetheless be severed.
3. Rule 14 does not require severance, because, if the charges were
tried separately, the evidence from the July 17 search would be
admissible in the trial for the July 3 shooting.
i. Applying Rule 14 to this case requires the Court to
consider the factors the Supreme Court established in
Getz v. State.
As noted supra, one factor for the Court to consider is whether evidence of
the July 3 offense would be admissible in a trial of the July 17 offense, and vice-
versa. Defendant contends that this evidence is not reciprocally admissible, pointing
to Delaware Rule of Evidence 404(b)’s prohibition on the use of other bad acts to
prove that a defendant acted in conformity with his character on a given occasion
(so-called “propensity evidence”). Although this prohibition is commonly referred
to by the shorthand “prior bad acts,” Rule 404(b) is applicable to evidence of acts
occurring either prior to or subsequent to the charged offenses. 40

38
2010 WL 1543852, at *3.
39
Id.
40
See, e.g., Deshields v. State, 706 A.2d 502, 506 (Del. 1998) (applying Rule 404(b) to evidence
of a similar crime committed the following month); Torres v. State, 979 A.2d 1087, 1099–1100
(Del. 2009) (applying Rule 404(b) to evidence of a crime “days after the charged offenses”).
8
Rule 404 has a limited scope, however. “[E]vidence of a . . . bad act that is
otherwise inadmissible may be admitted . . . if it is offered to prove something other
than a propensity to commit the charged offense, such as ‘proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident,’” 41 and if its probative value for that purpose is not substantially
outweighed by the danger of unfair prejudice. 42
At the outset, the Court notes some doubts as to whether Rule 404(b) applies
to this case at all. In Strickland v. State, the Supreme Court adopted a long line of
federal precedent standing for the proposition that evidence “directly prov[ing] the
charged offense” does not implicate Rule 404.43 The State asserts that the July 17
evidence is “intrinsic” to the July 3 shooting.44 The State’s argument is, in essence,
that because Defendant allegedly possessed the firearm on both July 3 and July 17,
the State should be permitted to pursue the theory that he did so continuously. The
State further avers that “[t]he continuous possession of the same gun does not
amount to a series of crimes, but rather constitutes a single offense.”45
The State’s position, if accepted by this Court, would constitute an extension
of Strickland, which concerned the possession of a firearm during a shooting, rather
than two weeks later. 46 Ultimately, the Court need not determine whether such
extension is warranted, nor whether the challenged evidence would be admissible

41
McCray v. State, 15 A.3d 217, 2011 WL 497197, at *3 (Del. Feb. 11, 2011) (ORDER) (quoting
D.R.E. 404(b)).
42
Campbell v. State, 974 A.2d 156, 161–62 (Del. 2009) (citing Getz v. State, 538 A.2d 726, 730
(Del. 1988)).
43
328 A.3d 286, 295–96 (Del. 2024).
44
State’s Response 9–10.
45
Id. at 10 (quoting U.S. v. Towne, 870 F.2d 880, 886 (2d Cir. 1989)).
46
See Strickland, 328 A.3d at 296 (“Here, it cannot be disputed that the video evidence depicting
the discharge of the weapon from the car [the defendant] was driving was intrinsic to the crime
charged. As [the defendant] himself concedes, it showed that the car’s occupant possessed a
firearm and ammunition. The evidence proved the very acts with which [the defendant] was
charged and thus does not fall within the ambit of D.R.E. 404(b).”).
9
on the related (but distinct) ground that it is “inextricably intertwined” 47 with the
charged offense. For the reasons that follow, even assuming neither of these
exceptions to Rule 404(b) applies, the CCDW charge need not be severed.
On the assumption that Rule 404(b) is applicable, the Delaware Supreme
Court’s opinion in Getz v. State guides this Court’s analysis: 48
(1) The evidence of other crimes must be material to an issue of
ultimate fact in dispute in the case. If the State elects to present
such evidence in its case-in-chief[,] it must demonstrate the
existence, or reasonable anticipation, of such a material issue.
(2) The evidence of other crimes must be introduced for a purpose
sanctioned by Rule 404(b) or any other purpose not inconsistent
with the basic prohibition against evidence of bad character or
criminal disposition.
(3) The other crimes must be proved by evidence which is “plain,
clear[,] and conclusive.”
(4) The other crimes must not be too remote in time from the charged
offense.
(5) The Court must balance the probative value of such evidence
against its unfairly prejudicial effect, as required by D.R.E. 403.
(6) Because such evidence is admitted for a limited purpose, the jury
should be instructed concerning the purpose for its admission as
required by D.R.E. 105.49
Because reciprocal admissibility is not a prerequisite to joinder, the Court will
primarily focus on the admissibility of the CCDW evidence from July 17 in a
hypothetical separate trial for the July 3 shooting. In this posture, the Court’s

47
The “inextricably intertwined” doctrine applies to evidence which, if excluded, would “create a
chronological and conceptual void in the state’s presentation to the jury that would likely result in
significant confusion.” Pope v. State, 632 A.2d 73, 76 (Del. 1993) (internal quotation and citation
omitted); accord Taylor v. State, 76 A.3d 791, 801 (Del. 2013) (evidence of gang affiliation was
inextricably intertwined with defendant’s violent crimes because omission would have precluded
evidence of motive, making them seem like “random acts.” (citing Younger v. State, 496 A.2d 546,
550 (Del. 1985))).
48
Joynes v. State, 797 A.2d 673, 675 (Del. 2002).
49
Getz, 538 A.2d at 734.
10
analysis treats these offenses as uncharged bad acts, even though, as noted in Section
II.B. of this opinion, separate criminal acts tried in a single trial are not subject to
exclusion under Rule 404(b).50
ii. The first two Getz factors favor admissibility.
The State intends to offer the evidence from July 17 for the purpose of proving
identity—i.e., that Defendant was one of the shooters on July 3. 51 Identity is one of
the purposes specifically sanctioned by Rule 404, and it is at issue in this case.52
Although the State procured video footage of the incident, it is at a distance, and the
individual the State believes to be Defendant is wearing a head covering that
conceals his features.53 That Defendant was present and involved in the shooting is
material to his guilt, and undoubtedly will be disputed at trial.
In State v. Gibson, the Supreme Court found that identity was a material fact
in dispute in two shootings and that the first Getz factor favored the State because a
common modus operandi, including the same type of gun and the use of rare
frangible ammunition, tied them together.54 Here, the Court is presented with a
dispute of identity resolved not just by the same type of gun and ammunition, but the
same gun. Following Gibson, both the first and second factors favor the State.55

50
In other words, if the charges are properly joined, Rule 404(b) (and, thus, Getz) is not implicated,
but an analysis of Rule 404(b) is a crucial test of the propriety of joinder and the necessity of
severance. See Section II.A.1., supra.
51
State’s Response 12.
52
See Ward v. State, 239 A.3d 389, 2020 WL 5785338, at *5 (Del. Sept. 28, 2020) (ORDER)
(stating that the test for whether a fact is at issue under Getz is, in essence, one of relevance).
53
D.I. 38.
54
2025 WL 1514413, at *9.
55
The State asks the Court to analogize this case to State v. Washington, in which a Superior Court
Commissioner concluded, and the Supreme Court ultimately agreed, that evidence that the
defendant had accidentally discharged a fully automatic submachine gun some time before a
murder using a similar weapon was admissible in a trial for the murder. 2016 WL 5407852 (Del.
Super. Sept. 27, 2016) (Manning, C.), aff’d, 164 A.3d 56, 2017 WL 1573119 (Del. Apr. 28, 2017)
(ORDER). The flaw in this analogy is that, in Washington, the Commissioner held that the
challenged evidence was admissible because the accidental firing was not a “bad act” requiring
Getz balancing. Id. at *5. Thus, despite its factual similarities to this case, Washington cannot be
11
iii. The third Getz factor favors admissibility.
The evidence that Defendant possessed the firearm on July 17 is plain, clear,
and conclusive. Although the Delaware Supreme Court has not fully explicated the
standard for such evidence, it held in Monroe v. State that physical proximity to a
robbery and flight therefrom were sufficient circumstantial evidence of involvement
in the crime to clear the bar.56 As in Monroe, Defendant’s possession is supported
by both proximity and additional corroborative evidence—his fingerprint on a bag
of drugs in the same backpack. Defendant’s fingerprint is at least as probative of
Defendant’s firearm possession as was the Monroe defendant’s flight from the
robbery in that case to involvement therein. Thus, if Monroe is any guide, the State
will be able to “conclusively” prove Defendant’s possession of the firearm with the
evidence it has proffered.
An alternative analysis suggested by Delaware caselaw renders the same
result. If the evidence of an uncharged crime would be sufficient to sustain a
conviction for that crime by proof beyond a reasonable doubt, the evidence is plain,
clear, and conclusive. 57 Here, the only element of CCDW relevant to the Court’s
analysis is possession. Thus, the third Getz factor is satisfied by the conclusion that
the State’s proffered evidence, if presented at trial, would be sufficient to prove that

taken as probative of the Getz analysis that the Commissioner declined to perform. Nor does
Washington suggest that Getz is not implicated in this case. The jury in this case, unlike in
Washington, will necessarily be informed that CCDW is a crime—a bad act—whereas the
negligent discharge in Washington was a mere accident. Id. (noting that “the jury was not aware,
until he testified at least, that [the defendant] had a criminal record or might be a person prohibited
from owning or possessing a firearm.”).
56
28 A.3d 418, 429–31 (Del. 2011) (although neither witness saw defendant commit robbery, it
was enough that both placed him at the scene, and one saw him “fleeing up the street while another
individual was ‘tussling’ with” victim).
57
See Lloyd v. State, 604 A.2d 418, 1991 WL 247737, at *3 (Del. Nov. 6, 1991) (ORDER) (“It
would be odd indeed to hold that such testimony is sufficient to support a criminal conviction yet
insufficient to show reliability under the ‘plain, clear and conclusive’ standard of Getz. If such
evidence may be considered proof beyond a reasonable doubt, it certainly may be considered
‘plain, clear, and conclusive.’”).
12
Defendant possessed the firearm on July 17, 2024.
“A person is guilty of carrying a concealed deadly weapon when the person
carries concealed a deadly weapon upon or about the person without a license to do
so[.]” 58 “[T]he key to whether a concealed deadly weapon may be deemed to be
‘about’ the person should be determined by considering the immediate availability
and accessibility of the weapon to the person.” 59 Because the pistol was immediately
available and accessible by retrieving it from the bag near Defendant’s feet, it was
about his person.60
Of course, “[m]ere proximity to, or awareness of [the firearm] is not
sufficient” to find possession.61 Here, however, the State has marshaled more
evidence than mere proximity. Further proof of Defendant’s possession comes from
the fingerprint on the marijuana. “[I]t is well established that circumstantial
evidence may prove constructive possession.” 62
To avoid any ambiguity, it is not the criminality of the act but the strength of
the evidence that Defendant possessed a firearm used in the shooting that is relevant
to the Court’s analysis.63 Even if Defendant were not a person prohibited from
possessing a firearm, and even if he had a license to carry one concealed, his

58
11 Del. C. § 1442. Although the statute has been amended since the time of the alleged offense,
those amendments did not alter this language. See 84 Del. Laws ch. 371 (2024).
59
Gallman v. State, 14 A.3d 502, 504 (Del. 2011) (quoting Dubin v. State, 397 A.2d 132, 134 (Del.
1979)).
60
See Buchanan v. State, 981 A.2d 1098, 1104–1105 (Del. 2009) (firearms in zippered bag behind
driver’s seat were sufficiently available and accessible to support conviction even though they
were not loaded).
61
Sawyer v. State, -- A.3d --, 2025 WL 707871, at *3 (Del. Mar. 5, 2025) (ORDER) (quoting
Lecates v. State, 987 A.2d 413, 426 (Del. 2009) (alteration in original)).
62
Smith v. State, 2015 WL 1422427, at *3 (Del. Mar. 26, 2015) (ORDER) (quoting Lecates, 987
A.2d at 426); cf. id. at *1–3 (testimony that, when pulled over by police, juvenile leaned toward
vehicle’s center console, where knife was concealed, was adequate for Family Court to find
constructive possession in delinquency adjudication).
63
Cf. Risper v. State, 250 A.3d 76, 89 (Del. 2021) (fact that victim stole from defendant, not the
fact that the stolen item was illicit drug, was logically relevant to defendant’s motive to murder
victim).
13
possession of the firearm used in the July 3 shooting would still be relevant to his
participation therein. That the proffered evidence of possession would be sufficient
to convict Defendant is merely one test to show that the proof Defendant in fact
possessed said firearm on July 17 is plain, clear, and conclusive.
iv. The fourth Getz factor favors admissibility.
The two weeks that elapsed between the shooting and the discovery of the
firearm do not render the incidents so remote that Rule 404(b) frustrates the State’s
efforts. “Evidence is too remote in time ‘only where there is no visible, plain, or
necessary connection between it and the proposition eventually to be proved.’”64
Although frequently analogized to the ten-year test for impeachment by prior
criminal conviction under D.R.E. 609(b), Getz’s remoteness standard is not a bright
line.65 The Supreme Court has approved the use of novel analyses when a case
presents issues not contemplated by the generic Getz framework. 66
This, however, is not a case requiring a novel conceptual construct or clever
analogy. This case can instead be decided by an intuitive application of the general
rule: Defendant was found with the gun implicated in the shooting, two weeks after
it occurred, in the car that had apparently delivered the shooters to the scene of the
crime. The connection between those facts and his identity as one of the shooters is
plain, which is why Defendant hopes to avoid the jury’s learning of them. Thus, the
fourth Getz factor strongly favors the State.
v. Neither the fifth Getz factor nor D.R.E. 403 requires
excluding the challenged evidence.
Even if Getz were otherwise inapplicable, Rule 14 would still require the
Court to apply its fifth factor, which balances the challenged evidence’s probative

64
Kendall v. State, 726 A.2d 1191, 1195 (Del. 1999) (quoting Lloyd, 1991 WL 247737, at *3).
65
State v. Slaughter, 2017 WL 87061, at *5 (Del. Super. Jan. 10, 2017) (citing Allen v. State, 644
A.2d 982, 988 (Del. 1994)).
66
See Taylor v. State, 777 A.2d 759, 768–69 (Del. 2001).
14
value with the risk of undue prejudice, consistent with D.R.E. 403.67 The CCDW
evidence is not barred by Rule 403, because Defendant has failed to make the
requisite showing. In Gibson, the Supreme Court summarily rejected the
defendant’s claims under the fifth Getz factor because the defendant “ma[de] only
conclusory statements as to any prejudice incurred.” 68 The Court noted that there is
always “potential for prejudice inherent in a joint trial of separate offenses,” but that
trying a murder and attempted murder in the same trial likely caused that defendant
“minimal, if any” prejudice, because the defendant could posit only that “cumulation
of evidence and the inference of criminal disposition” prejudiced him.69 Here,
Defendant’s motion similarly asserts that “[t]he jury will likely infer criminal
disposition and not be able to compartmentalize the evidence[.]” 70 Defendant’s
claim is, as in Gibson, conclusory. Moreover, as the Gibson Court recognized, these
risks are common to any trial of multiple offenses. If Defendant’s claims mandated
severance, joinder would be categorically barred—an extreme outcome for which
no authority exists. “Severance is not required ipso facto, simply because the alleged
charges . . . occur[red] at separate times.” 71
Rather than relying entirely on an analogy to previous cases, however, this
Court must conduct its own analysis. “When considering the fifth Getz factor . . .
the trial court must consider the nine factors set forth by [the Supreme Court] in
Deshields v. State.”72 Those factors are: (1) the extent to which the point to be
proved is disputed; (2) the adequacy of proof of the other conduct; (3) the probative

67
Pope, 632 A.2d at 78.
68
Gibson, 2025 WL 1514413, at *9.
69
Id.
70
Defendant’s Motion ¶ 5.
71
Fortt v. State, 767 A.2d 799, 803 (Del. 2001); accord Ashley, 85 A.3d at 85 (“The mere fact that
the crimes were ‘separate’, [sic] and were committed against individuals with a lapse of time
between them, does not require severance.” (quoting Skinner, 575 A.2d at 1118)).
72
Gibson, 2025 WL 1514413, at *15 (citing Deshields, 706 A.2d 502).
15
force of the evidence; (4) the proponent’s need for the evidence; (5) the availability
of less prejudicial proof; (6) the inflammatory or prejudicial effect of the evidence;
(7) the similarity of the other wrong to the charged offense; (8) the effectiveness of
limiting instructions; and (9) the extent to which other act evidence would prolong
the proceedings. 73
These factors are in part duplicative of the broader Getz analysis, and thus
merit only brief discussion. Applied to this case, the Deshields factors militate for
the same result Gibson suggests. Here, (1) identity is disputed, as stated supra; (2)
the proof of Defendant’s firearm possession on July 17 is, as also stated supra,
compelling; (3) Defendant’s possession of one of the guns used in the July 3 shooting
and tie to the Lexus/its driver are highly probative of his identity as one of the
shooters; (4) the State is in need of the evidence because it cannot prove its case
without evidence of Defendant’s identity as a shooter; (5) relatedly, neither party has
identified any less prejudicial proof of identity that could substitute, 74 nor is there an
apparent way to sanitize the evidence while maintaining its probity; 75 (6) the

73
Deshields, 706 A.2d at 506. As originally formulated, the Deshields test contemplated only
“prior” bad acts. The Court has rephrased it here, given that the discovery of the firearm in this
case was subsequent to the shooting and that, as noted supra, Rule 404(b) does not distinguish
between prior and subsequent uncharged bad acts.
74
See Gibson, 2025 WL 1514413, at *16–17 (approving trial court’s analysis referencing the
parties’ failure to identify such alternative evidence). Other than the firearm discovered on July
17, the only facts tying Defendant to the July 3 shooting are his presence in the tan Lexus two
weeks later and the fact that the other suspected shooter posted an image to social media on July
18 depicting three individuals in a similar vehicle. The State contends that the driver and front
passenger were dressed as the Lexus’s driver and one of the shooters did on July 3, and initially
contended that the rear passenger was Defendant. The State has now acknowledged some
ambiguity about the rear passenger’s identity (because Defendant’s distinctive dreadlocks are not
visible in the image) and has asked the Court not to rely on the social media post in deciding this
matter. Even had the State not made this effective concession, the probative value of the
photograph would be limited, because the rear passenger is not dressed like either shooter and the
photograph is undated.
75
Compare State v. Lecompte, 2024 WL 980484, at *4 (Del. Super. Mar. 6, 2024) (when defendant
possessed vehicles was probative of identity, but fact that vehicles were obtained via carjacking
was unduly prejudicial and should be excluded).
16
possession evidence is substantially less inflammatory than the evidence of the
shooting, and the former thus presents little danger of unfair prejudice in a trial for
the latter;76 (7) although the two incidents are linked in that both involved the same
firearm, CCDW is a mere possessory crime, so the jury is unlikely to infer violent
propensity from it,77 particularly given the proper jury instruction; 78 (8) the Court
sees no reason that a limiting instruction would be ineffective in this case; 79 and (9)
the admission of the possession evidence would not meaningfully lengthen the trial
and would, if severed, result in a significant judicial inefficiency given the need for
duplicative testimony in separate trials.
vi. The Getz and D.R.E. 403 analyses require that
Defendant’s motion to sever be denied.
Considering all of the foregoing, the Court concludes that Defendant’s claims
of prejudice do not rise above the hypothetical. In other words, Defendant has not

76
Viewed from the other perspective, although the evidence of the shooting could be somewhat
inflammatory relative to the CCDW charge, it would be no more prejudicial than other bad acts
that have been found properly joined. See, e.g., Gibson, 2025 WL 1514413, at *16 (redacted video
depicting a murder); Wood, 956 A.2d at 1232 (allegations of child sexual abuse); Morse v. State,
120 A.3d 1, 9–11 (Del. 2015) (abusive physical discipline of child); Phillips v. State, 154 A.3d
1146, 1157–59 (Del. 2017) (en banc) (evidence of gang participation).
77
The Court notes that, although CCDW is illegal in Delaware, reasonable minds may differ on
whether carrying a firearm in a bag is an inherently wrongful act (malum in se), or whether this
species of CCDW is merely legally prohibited (malum prohibitum). See, e.g., Buchanan, 981 A.2d
at 1105 (describing Delaware’s statutory prohibition on such transport as “odd”). Certain other
states also generally authorize concealed carry of firearms without obtaining a permit. See, e.g.,
MO. REV. STAT. § 571.030 (2023). In short, the stigma attached to, and therefore the negative
inferences a jury is likely to draw from, this sort of CCDW is less than that involved with other
crimes that are universally abhorred (e.g., rape or murder).
78
Cf. Morse, 120 A.3d at 10 & n.48 (approving trial court’s determination that, in case for assault,
reckless endangering, and endangering the welfare of a child, accusations of prior abuse were
“similar to the charged offenses, but not so similar to close the jury’s mind given the proper
instruction.”).
79
See Revel v. State, 956 A.2d 23, 27 (Del. 2008) (“Juries are presumed to follow the trial judge’s
instructions.”); see also State v. Gibson, 2023 WL 7004105, at *12 (Del. Super. Oct. 23, 2023),
aff’d, 2025 WL 1514413 (Del. May 28, 2025) (ORDER) (“limiting instructions are likely to be
effective because the proffered evidence is no more inflammatory, and possibly less inflammatory
when redacted, than the charged crimes[.]”); Lecompte, 2024 WL 980484, at *4 (same).
17
shown a reasonable probability that he would be substantially prejudiced by joinder.
It may well be that severing the charges would better Defendant’s chances in a
separate trial for the possession charge. This is not enough, however. “[A]
defendant is not entitled to a separate trial merely because he might then stand a
better chance of being acquitted.”80 Nonetheless, the Court will, consistent with the
sixth Getz factor, give the jury a limiting instruction if this case proceeds to trial.
B. The Court’s rejection of Defendant’s motion to sever moots his
motion in limine, because Rule 404(b) does not require the
exclusion of evidence concerning bad acts charged and tried
together.
As the Court has already determined that Rule 404(b) would not bar admission
of the CCDW evidence in a separate trial for the other charges, Defendant’s motion
in limine could be denied on that basis alone. However, the Court’s conclusion that
the charges should not be severed requires that Defendant’s motion be denied for a
more fundamental reason. As the Supreme Court explained in Getz, “D.R.E. 404(b)
forbids the proponent . . . from offering evidence of the defendant’s uncharged
misconduct to support a general inference of bad character.” 81 Rule 404(b) simply
is inapplicable to evidence of charged misconduct used for purposes other than
propensity.82 “If charges are properly joined, there is no longer concern about prior
conduct that was never proven. Rather, in one trial, the State must prove beyond a
reasonable doubt that each set of conduct occurred for the defendant to be found
guilty on all counts.”83 Interpreting D.R.E. 404 otherwise would impracticably (and
contrary to Rule 8’s preference for judicial economy) necessitate separate trials for

80
Taylor, 76 A.3d at 801 (quoting Bradley v. State, 559 A.2d 1234, 1241 (Del. 1989)).
81
538 A.2d at 730 (emphasis supplied); accord Pope, 632 A.2d at 76 (“The policy underlying
D.R.E. 404(b) . . . mandates that evidence of uncharged misconduct be analyzed first, vis-à-vis the
listed exceptions, even though the rule is ‘inclusionary[.]’”) (partial emphasis in original).
82
State v. Lamb, 2010 WL 3103393, at *12 (Del. Super. May 18, 2010) (Parker, C.).
83
Wood, 956 A.2d at 1232.
18
nearly every charge, even if not mandated by Rule 14.
III. CONCLUSION
For the foregoing reasons, Defendant’s motion to sever is DENIED.
Defendant’s motion in limine to exclude evidence is likewise DENIED.
IT IS SO ORDERED.

NEP/tls
oc: Prothonotary
cc: Counsel of Record

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