Delgado v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ALEXANDER DELGADO, §
§ No. 134, 2024
Defendant Below, §
Appellant, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ Cr. ID. No.: 2110007977 (N)
STATE OF DELAWARE, §
§
Appellee. §

Submitted: April 2, 2025
Decided: May 28, 2025

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER
This 28th day of May, 2025, after consideration of the parties’ briefs and the

record on appeal, it appears to the Court that:

(1) Alexander Delgado seeks review of his convictions for robbery in the

first degree and possession of a firearm during the commission of a felony

(“PFDCF”). Delgado claims that the evidence the State presented at trial was

insufficient for the jury to find that he shared his accomplice’s intent to brandish a

firearm during the robbery. He also claims that the accomplice-liability instruction

given by the Superior Court was deficient and that this deficiency resulted in plain

error. We conclude that Delgado’s arguments lack merit and affirm.
(2) Two masked men, later identified as Keith Gibson and Alexander

Delgado, walked into the Rite Aid pharmacy at the Adams Four shopping center in

Wilmington shortly after it opened for the day on June 8, 2021. Gibson walked up

to the counter with Delgado trailing behind. When he reached the counter, Gibson

pointed a gun at the clerk, Sandra Collins. Collins opened the cash register for

Gibson, and Gibson handed Collins a plastic bag. Collins had been trained, in the

event of a robbery, to hand over the money in the cash register and to include with

it a modified stack of bills—kept in the cash register at all times—that housed a GPS

tracking device. Following her training in this instance, she put the stack of GPS-

traceable money into Gibson’s bag. After Collins had turned most of the money in

the cash register over to Gibson, Gibson asked her if she could open the store’s safe.

Collins told him that she could not because she was not a manager.

(3) While Collins was handing over the money from the cash register to

Gibson, Delgado stepped behind the counter and began to shovel packs of Newport

cigarettes into a red bag. When asked at trial why she permitted Delgado to step

behind the counter, Collins answered, “Because there was a gun pointed at me.”1

The entire theft was over in under two minutes, and Gibson and Delgado left the

Rite Aid without further incident. Surveillance cameras from the Rite Aid captured

the robbery in its entirety.

1
App. to Opening Br. at A107.
2
(4) The removal of the GPS tracker from the cash register triggered a

notification on the cellphone of Rite Aid’s regional asset-protection leader, Pete

Vari. He called Collins to ask what happened, and Collins explained to him that a

theft had occurred. Vari then contacted the Wilmington Police Department and

provided the location data from the GPS tracker.

(5) Police quickly located Gibson and Delgado, who had taken the money

to an empty property less than two blocks from the Rite Aid. Gibson fled into an

alleyway but ultimately failed to evade police. A search of Gibson’s person revealed

a large amount of cash, an empty gun holster, a large knife, and some .357 caliber

ammunition. A search of the alley where Gibson was caught yielded a .357 caliber

revolver. There is no indication in the record that Delgado ever touched the gun.

Shortly after Gibson was arrested, police also arrested Delgado, who was still near

the property.

(6) Delgado was indicted on three counts: robbery in the first degree,

PFDCF, and conspiracy in the second degree. Though he admitted that he was guilty

of conspiracy to commit robbery, Delgado argued at trial that he should be acquitted

of PFDCF and convicted only of the lesser included offense of robbery in the second

degree because he did not know that Gibson intended to use a firearm or other deadly

weapon during the theft. Delgado was convicted on all counts.

3
(7) During the proceedings in the Superior Court, Delgado filed two

motions for judgment of acquittal—one after the State had presented its case-in-chief

and the other after the jury returned its verdict—arguing that the State had failed to

meet its burden of proving beyond a reasonable doubt that Delgado was an

accomplice to robbery in the first degree and PFDCF. Delgado also moved for a

new trial, challenging the Superior Court’s accomplice-liability instruction and again

arguing that the evidence presented by the State was insufficient to support a

conviction of robbery in the first degree and PFDCF. The Superior Court denied all

three motions and sentenced Delgado to six years of Level V incarceration plus

probation.2 This appeal followed.

(8) On appeal, Delgado challenges his first-degree robbery and PFDCF

convictions. He first repeats the sufficiency-of-the-evidence argument that he

advanced in his motions for judgment of acquittal below. Specifically, he argues

that the evidence presented did not show that Delgado “shared [Gibson]’s purpose

to commit the robbery with a deadly weapon.”3 Delgado also claims that a jury

instruction given by the Superior Court on the issue of accomplice liability was

legally incorrect. Delgado did not object to the instruction in the trial court but

2
See Opening Br. Ex. A (denying motion for judgment of acquittal during trial); State v. Delgado,
2023 WL 4692507 (Del. Super. Ct. July 21, 2023) (denying post-trial motions for judgment of
acquittal and new trial); Opening Br. Ex. C (sentence order).
3
Opening Br. at 10 (quoting Allen v. State, 970 A.2d 203, 213 (Del. 2009)).
4
argues now that it was so plainly erroneous that it warrants reversal in the interests

of justice.

(8) “We review the denial of a motion for acquittal de novo ‘to determine

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

to the State, could find the defendant guilty beyond a reasonable doubt.’”4

Unpreserved objections to jury instructions are reviewed for plain error.5 To amount

to plain error, “the error complained of must be so clearly prejudicial to substantial

rights as to jeopardize the fairness and integrity of the trial process.”6 Our review is

limited to material defects that are “apparent on the face of the record; which are

basic, serious and fundamental in their character, and which clearly deprive an

accused of a substantial right, or which clearly show manifest injustice.”7 To rise to

the level of plain error, an alleged defect “must have affected the outcome of the

trial.”8

(9) Delgado first argues that his convictions for robbery in the first degree

and PFDCF should be vacated because “there was no evidence [presented at trial]

4
Pardo v. State, 160 A.3d 1136, 1149–50 (Del. 2017) (quoting Milton v. State, 67 A.3d 1023,
2013 WL 2721883, at *2 (Del. June 11, 2013) (TABLE)).
5
Burrell v. State, 332 A.3d 412, 432 (Del. 2024).
6
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
7
Id.
8
Hastings v. State, 289 A.3d 1264, 1271 (Del. 2023) (quoting Buckham v. State, 185 A.3d 1, 19–
20 (Del. 2018)) (internal quotation marks omitted).
5
that [Delgado] was aware that Gibson intended to use the gun during the robbery.”9

We are unpersuaded by this argument.

(10) Under 11 Del. C. § 271(2)(b), a person is liable for the conduct of

another when, “[i]ntending to promote or facilitate the commission of the offense[,]”

he “[a]ids, counsels or agrees or attempts to aid the other person in planning or

committing [the offense].” And under 11 Del. C. § 274, when an offense is divided

into degrees, an accomplice is guilty “of an offense of such degree as is compatible

with that person’s own culpable mental state and with that person’s own

accountability for an aggravating fact or circumstance.” A person is guilty of

robbery in the first degree when, in the course of committing robbery in the second

degree,10 “the person or another participant in the crime . . . [d]isplays what appears

to be a deadly weapon . . . .”11 So, to prevail, Delgado must show that, viewing the

evidence in the light most favorable to the State, no reasonable factfinder could find

beyond a reasonable doubt that Delgado was aware that Gibson possessed and

intended to display a firearm during the robbery.12 Delgado’s argument falls short

here.

9
Opening Br. at 10.
10
Since Delgado admits that he would be guilty of robbery in the second degree, we need not
discuss the elements of that crime.
11
11 Del. C. § 832(a), 832(a)(2).
12
See Allen, 970 A.2d at 213; Clay v. State, 164 A.3d 907, 914 (Del. 2017).
6
(11) To be sure, the State only presented circumstantial evidence of

Delgado’s mental state. Specifically, it presented a video recording of the robbery

taken by the store’s surveillance cameras.13 But as the Superior Court noted in its

bench ruling on Delgado’s first motion for judgment of acquittal, and as this Court

has held, “[w]e do not distinguish between direct and circumstantial evidence.”14

And “Delaware law allows the state to convict an individual solely on circumstantial

evidence.”15 When evaluating a motion for judgment of acquittal, “[w]e treat

circumstantial evidence the same as testimonial evidence and draw inferences from

that evidence.”16

(12) The evidence in this case speaks for itself. The jury was shown a video

of the entire robbery, and there is no dispute that the men in the video are Delgado

and Gibson. The two men enter the store together; at one point in the video, they

are shown standing next to each other at the counter and Gibson’s gun is clearly

visible—only a few feet away from Delgado.17 Collins recoils when Gibson steps

up to the counter gun in hand, and Delgado’s head is also turned toward the gun. At

no point does Delgado show alarm or surprise at Gibson’s display of the gun. In

fact, as the gun is first displayed, Delgado moves closer to Gibson. He then steps

13
State’s Ex. 2.
14
Vincent v. State, 996 A.2d 777, 779 (Del. 2010).
15
Id.
16
Id.
17
State’s Ex. 2 at 00:00–00:20.
7
behind the counter and begins to steal cigarettes. Though the footage is only

circumstantial evidence of Delgado’s mental state, a jury could easily infer from this

evidence that, from the moment the two men entered the store, Delgado was aware

that Gibson possessed and intended to display a firearm in the course of the robbery.

(13) In Clay v. State, we addressed a similar argument and reached the same

conclusion. In that case, also a store robbery, the defendant argued that the evidence

was insufficient to establish his liability as an accomplice to first-degree robbery and

PFDCF because “the State did not present evidence that [the defendant] knew that

[the principal] possessed a firearm during the robbery.”18 We upheld the defendant’s

conviction based on a video of the defendant and the principal entering and exiting

the store and police testimony that, shortly after the robbery, the defendant made a

“throwing motion” while running from them, and that a firearm was recovered near

where defendant made the “throwing motion.”19 We found that, viewing this

evidence in the light most favorable to the State, this evidence was sufficient for a

reasonable jury to find beyond a reasonable doubt that the defendant knew that the

principal had a firearm during the robbery.20

(14) Delgado’s briefing quibbles that merely proving his knowledge that a

weapon was displayed by Gibson is insufficient to secure a conviction for first-

18
Clay, 164 A.3d at 914.
19
Id.
20
Id.
8
degree robbery. He argues that even if we find that the State presented evidence

sufficient to prove that he knew Gibson was displaying a firearm, it failed to present

evidence showing that he knew Gibson intended to use the firearm in the course of

the robbery. This argument is without merit. Given the content of the surveillance

footage, it is almost inconceivable that a reasonable jury could reach the conclusion

that Delgado was not aware that Gibson had the intent to use a firearm during the

robbery.

(15) As to Delgado’s PFDCF conviction, we have held that “[a] defendant,

by participating in the robbery, is responsible under Section 271 for the felony-

weapons offense which was an integral part of the robbery.”21 In Cubbage v. State,

we found that “[the defendant] had vicarious accomplice liability despite not

personally possessing the weapons because the gun and the bat were used as an

integral part of the robbery and [the defendant] participated in planning and

committing the robbery.”22 This case is no different. As discussed above, the

evidence presented by the State was sufficient to support a conviction for first degree

robbery. It follows that the evidence was also sufficient to convict Delgado of the

firearm offense that was integral to the robbery. In sum, viewing the evidence

presented in the light most favorable to the State, we are convinced that the evidence

21
Cubbage v. State, 827 A.2d 30, 2003 WL 21488129, at *3 (Del. June 25, 2003) (TABLE).
22
Id.
9
was sufficient for a reasonable jury to convict Delgado of first-degree robbery and

PFDCF.

(16) Delgado next claims that the jury was provided with an incorrect

statement of the law of accomplice liability. Though he raised a form of this

argument in his motion for a new trial, Delgado concedes that he failed to properly

preserve an objection to the jury instructions at the time they were finalized in the

Superior Court. We thus review for plain error.23

(17) The jury was instructed on the issue of accomplice liability under

Section 274 as follows:

When two or more persons are criminally liable for an offense which is
divided into degrees, each person is guilty of an offense of such degree
as is compatible with that person’s own accountability for an
aggravating fact or circumstance.24

(18) The Superior Court then explained to the jury the effect of Section 274

on Delgado’s robbery charge:

If you unanimously find beyond a reasonable doubt that there was a
principal[/]accomplice relationship between the defendant and another
person with respect to the alleged robbery, you must also unanimously
decide what degree of robbery is compatible with this defendant’s own
accountability for the aggravating fact or circumstance of knowingly or
intentionally displaying what appeared [to be] a deadly weapon in the
course of the commission of the crime regardless of the accountability
of any principal for that same aggravating fact or circumstance. In other
words, even though you may find that the defendant was an accomplice

23
Burrell, 332 A.3d at 432.
24
App. to Opening Br. at A326.
10
in the robbery alleged, each accomplice, including the defendant, is not
necessarily guilty of robbery in the same degree.25

(19) These instructions, according to Delgado, enabled the jury to “convict

him of crimes absent a finding beyond a reasonable doubt of the requisite intent.”26

This argument lacks merit. The jury was instructed that they could only convict

Delgado of the degree of robbery that was “compatible with [Delgado’s] own

accountability for the aggravating fact or circumstance of knowingly or intentionally

displaying what appeared to be a deadly weapon in the course of the commission of

the crime.”27 This instruction encompasses Delgado’s awareness of Gibson’s intent

to display the weapon in the course of the robbery, and thus the Superior Court did

not err in instructing the jury in this manner.

(20) Delgado repeats this argument for his PFDCF charge. This argument,

too, is unavailing. As explained above, a person need not actually possess a gun

during the commission of a felony to be convicted of PFDCF. He may be convicted

of PFDCF where the gun was possessed by an accomplice during the commission of

the felony.28 The jury was properly instructed that to convict Delgado it needed to

25
Id. at A329–30.
26
Opening Br. at 17.
27
App. to Opening Br. at A329 (emphasis added).
28
Cubbage, 2003 WL 21488129, at *3.
11
find beyond a reasonable doubt that Delgado “knew or was aware his accomplice

was in possession of a firearm during the robbery.”29

(21) As mentioned, Delgado did not properly preserve any objection to the

jury instructions in the Superior Court. Hence, we review for plain error. This

means that if there were any error in the jury instructions, such error “must have

affected the outcome of the trial.”30 The weight of the surveillance video evidence,

as described above, is crushing. It is highly unlikely, if not impossible, that a jury,

having viewed those images, could conclude that Delgado did not share Gibson’s

intent to display the gun in the course of the robbery.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court be AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor
Justice

29
App. to Opening Br. at A334 (emphasis added).
30
Hastings, 289 A.3d at 1270 (quoting Buckham, 185 A.3d at 19–20).
12