For Publication
IN THE SUPREME COURT OF THE VIRGIN ISLANDS
PEOPLE OF THE VIRGIN ISLANDS, ) §. Ct. Crim. No. 2022-0044
Appellant/Plaintiff, ) Re: Super. Ct. Crim. No. ST-2020-CR
) 00003 (STT)
)
y )
SHEKIL BERTHIER,
Appellee/Defendant )
)
On Appeal from the Superior Court of the Virgin Islands
Division of St. Thomas & St. John
Superior Court Judge: Hon. Kathleen Mackay
Argued: October 10, 2023
Filed: November 18, 2024
Cite as: 2024 V.1. 32
BEFORE RHYS S. HODGE, Chief Justice; MARIA M. CABRET, Associate Justice
and, IVE ARLINGTON SWAN, Associate Justice
APPEARANCES
Michael R. Francisco, Esq
Assistant Attorney General
St. Thomas, U.S.V.1
Attorney for Appellant,
Adam G. Christian, Esq
Ogletree, Deakins, Nash, Smoak & Stewart, LLC
St. Thomas, U.S.V.I
Aitorney for Appellee
OPINION OF THE COURT
CABRET, Associate Justice
ql The People of the Virgin Islands (“People”) appeal from the Superior Court’s July 26,
2022, order which granted Shekil Berthier’s post-verdict motion for judgment of acquittal on
People v. Berthier 2024 V.I. 32
8. Ct. Crim. No. 2022-0044
Opinion of the Court
Page 2 of 9
the charge of reckless endangerment in the first-degree, based upon insufficient evidence to
support the jury’s verdict.' For the reasons that follow, we affirm the judgment of the Superior
Court
I FACTS AND PROCEDURAL HISTORY
VA Because this appeal arises from the grant of a post-verdict motion for judgment of
acquittal, we recite the evidence introduced at trial in the light most favorable to the People
People v. Clarke, 55 V.}. 473, 474 (V.I. 2011). On October 16, 2019, Renaldo Penn drove to
his residence in Estate Frydenhoj to let his girlfriend, Sylvia Samuel, into their home because
she had forgotten her key. As he approached his home at some point between 6:00 p.m. and
7:00 p.m., he saw a white vehicle with two male occupants blocking the road.? Penn waved
and blew his horn to signal his desire to pass but received no response from the occupants
Penn then exited his vehicle and verbally asked the occupants of the other vehicle to move so
that he could pass. At that point, another man—later identified as Berthier—went down the
' In its notice of appeal, the People state that it is seeking review of the Superior Court’s order
granting acquittal as to Counts Two, Three, and Four. However, the People’s brief does not set
forth arguments against the Superior Court’s decisions as to Counts Two and Four, addressing
the order solely as it pertains to Count Three
Supreme Court Rule 4(c) states that a notice of appeal “shall designate the
judgment, order, or part thereof appealed from and the reason(s) or issue(s) to
be presented on appeal.” However, “an appellant [must] raise an issue in his
opening brief or else waive the issue on appeal.” United States v. Hoffecker, 530
F.3d 137, 162 (citing United States v. Pelullo,
399 F.3d 197, 222 (3d Cir
2005)). Thus, issues raised in a notice of appeal but not argued in an appellant's
brief are waived. See Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515,
526 (3d Cir. 2003) (citing FDIC v. Deglau,
207 F.3d 153, 169 (3d Cir
2000)); see also Hoffecker, 530 F.3d at 163 (“Inasmuch as [appellant] did not
raise in his opening brief the issue[,] ... he has waived the issue.”). [Appellant]
therefore, is deemed to have waived his sufficiency of the evidence claim
Dowdle v. People, 55 V.1. 736, 750 (V.1. 2011). Thus, we consider only the People’s arguments
addressing the Superior Court’s ruling regarding Count Three, Reckless Endangerment
* A second vehicle was parked along the side of the road preventing Penn from going around
the white vehicle blocking the road
People v. Berthier 2024 VI. 32
S. Ct. Crim. No. 2022-0044
Opinion of the Court
Page 3 of 9
stairs to a nearby house, came back with a rifle, and fired a single shot at Penn from less than
five feet away. Berthier then returned to that house, and the white vehicle reversed direction,
turned around, and headed out toward the road’s other exit
bk) The People ultimately charged Berthier with several offenses stemming from this
incident, including assault, reckless endangerment, unauthorized possession of a firearm, and
unauthorized possession of ammunition. The matter proceeded to a jury trial that began on
March 7, 2022, and concluded on March 10, 2022. At the close of the People’s case in chief,
Berthier orally moved for judgment of acquittal on all four counts pursuant to Rule 29(a) of the
Virgin Islands Rules of Criminal Procedure. With respect to the reckless endangerment charge,
Berthier contended that the People failed to prove that the Frydenhoj road where the incident
occurred had been a “public place” as required under the reckless endangerment statute. The
Superior Court did not deny the motion, but reserved judgment and allowed the trial to
continue. After closing arguments, the jury deliberated and found Berthier guilty of all counts
44 On April 4, 2022, Berthier filed a written post-verdict motion for judgment of acquittal,
renewing his previous argument that the incident did not occur in a public place as required by
the reckless endangerment statute. On July 26, 2022, the Superior Court denied Berthier’s Rule
29 motion as to the first-degree assault conviction, but granted it as to the other three charges
As to reckless endangerment, the Superior Court agreed with Berthier that the People failed to
establish beyond a reasonable doubt that Frydenhoj road, where the underlying incident
occurred, was a public place as contemplated by 14 V.I.C. § 625, and accordingly granted
Berthier’s motion for judgment of acquittal on the reckless endangerment conviction. People
v. Berthier, ST-2020-CR-00003, 2022 V.I. LEXIS 60 (Super. Ct. July 26, 2022). On August
People v. Berthier 2024 V.1, 32
S. Ct. Crim. No, 2022-0044
Opinion of the Court
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24, 2022, the People timely filed its notice of appeal, challenging the Superior Court’s ruling?
II JURISDICTION AND STANDARD OF REVIEW
q5 Pursuant to the Revised Organic Act of 1954, this Court has appellate jurisdiction over
“all appeals from the decisions of the courts of the Virgin Islands established by local law[.]
48 U.S.C. § 1613a(d). Title 4, section 32(a) of the Virgin Islands Code vests this Court with
jurisdiction over “all appeals arising from final judgments, final decrees, [and] final orders of
the Superior Court.” 4 V.LC. § 32(a). Title 4, section 33(d)(1) of the Virgin Islands Code
specifically permits the People, in a criminal case, to appeal
from a decision, judgment, or order of the Superior Court dismissing an
indictment or information or otherwise terminating a prosecution in favor of the
defendant, as to any one or more counts, or any part thereof, except that no
appeal shall lie where the double jeopardy clause of the United States
Constitution or the Revised Organic Act prohibits further prosecution
4 V.1.C § 33(d)(1). We have found that where the Superior Court enters a judgment of acquittal
after a jury has rendered a guilty verdict, the “People may . . . appeal from that ruling without
subjecting the defendant to double jeopardy.” People v. Clarke, 55 V.1. 473, 477 (V.I. 2011)
(citing Smith v. Massachusetts, 543 U.S. 462, 467 (2005)). Therefore, we possess jurisdiction
over this appeal
This Court exercises plenary review over all questions of law, and reviews factual
findings only for clear error. Thomas v. People, 63 V.1. 595, 602-03 (V.I. 2015) (citing
Simmonds v. People, 53 V.1. 549, 555 (V.I. 2010)). Regarding sufficiency of the evidence
claims, we apply a “particularly deferential standard of review’ . . . and will affirm the verdict
so long as the evidence, when viewed in a light most favorable to the People—including the
3 After his sentencing, on January 4, 2023, Berther filed a notice of appeal from his first-degree
assault conviction, which this Court docketed as Berthier v. People, S. Ct. Crim. No. 2023
0002. Although Berthier maintains in his appellate brief in this case that the disposition of his
other appeal might render the People’s appeal moot, this Court has not yet issued an opinion in
that matter; therefore, the instant appeal is not moot at this time
People v. Berthier 2024 V.I. 32
S. Ct. Crim. No. 2022-0044
Opinion of the Court
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benefit of all reasonable inferences—would allow a rational jury to find all elements of each
offense proven beyond a reasonable doubt.” Ponce v. People, 72 V.1. 828, 834 (V.I. 2020)
(citations omitted)
Ill. DISCUSSION
6 As we articulated in Davis v. People, 69 V.I. 619 (V.1. 2018): “In order to obtain a
conviction for first-degree reckless endangerment, the People must prove the defendant “(1)
recklessly engaged in conduct (2) in a public place that (3) created a grave risk of death to
another person (4) under circumstances evidencing a depraved indifference to human life.” Jd.
at 635 (citing 14 V.1.C. § 625; Woodrup v. People, 63 V.1. 696, 711 (V.1. 2015)), quoted in
Berthier, 2022 V.1. LEXIS 60, at *17. The reckless endangerment statute defines a public place
as a “place to which the general public has a right to resort; but a place which is in point of fact
public rather than private, and visited by many persons and usually accessible to the public.’
14 V.L.C. § 625(c)(2). See Davis, 69 V.1. at 635
q7 In granting Berthier’s post-verdict motion for judgment of acquittal, the Superior Court
determined that the People had failed to prove beyond a reasonable doubt one of the necessary
elements of the charge, specifically, that the roadway where the underlying incident occurred
qualified as a “public place” for purposes of the statute. Berthier,
2022 V.I. LEXIS 60, at *20
21
48 The Superior Court noted that the only evidence introduced by the People regarding the
“nature or location” of the roadway at issue was the testimony of Ms. Samuel, who “testified
the road leads to ‘the gut’ and to ‘the bridge’, [sic] and in the opposite direction it leads to the
‘main road’ and the Frydenhoj ballfield or ballpark”; the testimony of Mr. Penn who “referred
to it as an ‘unpaved, neighborhood road’”; and, “the photographs admitted at trial [that] display
the road was [sic] unpaved and very narrow, with residences on both sides.” Berthier, 2022
People v. Berthier
2024 V.I. 32
S. Ct. Crim. No. 2022-0044
Opinion of the Court
Page 6 of
9
V.I. LEXIS 60, at *21. Based upon that limited evidence, the Superior Court concluded that no
rational jury could find that “the road is used by the public in general rather than only the
residences next to the area, as is the standard established in Davis.”
Id.
q9 The People maintain that the Superior Court erred
by applying Davis’ private property analysis to this case. Instead, the Superior
Court should have held that the evidence presented, when properly viewed in
the light most favorable to the People, was sufficient for a rational jury to find
the location of the shooting was a public road, which “is in point of fact public.’
In addition, the court should not have rejected the reasonable inference that
Berthier’s reckless conduct endangered members of the general public like the
occupants of the white car or anyone else in range of Berthier’s shot. By
considering whether the court itself was swayed by the People’s argument
concerning these reasonable inferences, the court improperly invaded the
province of the jury to whom it owed “substantial deference.” See, Todman v
People of the Virgin Islands, 59 V1. 675, 681 (V.I. 2015)
App’ant Br. at 19
410 The People cite to several cases that mention the “public place” element of Section 625
that they claim are analogous to the facts presented in this matter. App’ant Br. at 16-17 n.3
However, such reliance upon those cases is misplaced, as the finding of a “public place” is
confined to the individual facts and evidence presented in each case. For example, in Woodrup
v. People, 63 V.1. 696 (V.I. 2015), the definition of public place was not before this Court on
appeal. The focus of that appeal was on “recklessness.” Moreover, in Woodrup the verdict was
supported by “testimony that Woodrup fired several gunshots on a public street populated by
several members of the public * Id. at 711. Here, the evidence did not include such
testimony
As the Superior Court found, the People failed to establish that the road in question in
Estate Frydenhoj was a “public” road. The sole issue implicated in this appeal is whether
Berthier fired the rifle in a “public place.” The Superior Court determined that “a public place
requires general access to the public, rather than merely to residences nearby, so although the
People v. Berthier 2024 V.1. 32
S. Ct. Crim. No. 2022-0044
Opinion of the Court
Page 7 of 9
public can access the Estate Frydenhoj roadway, it is a residential area utilized by those who
live along the neighborhood roadway and their visitors.” Berthier, 2022 V.I. LEXIS 60, at *20
21 (citing Davis, 69 V.I. at 637). In other words, the Superior Court concluded that the People
were required to prove that the “road is used by the public in general rather than only the
residences next to the area” to establish its “burden of proving the incident occurred in a ‘public
place,’ beyond a reasonable doubt.” Jd. at *22
ql1 We agree that the People failed to establish the public place element under this statute
As we previously explained
On many occasions we have found that reckless endangerment occurred in a
public place where the conduct at issue occurred on a public road. It does not
follow, however, that all residential streets will be “in point of fact public.”
Residential streets may also exist within private communities—places to which
the general public may not have a right to resort or which are not, “in point of
fact public.” The question of whether a specific area constitutes a “public place”
under section 625 necessarily turns on the facts of each case
Wallace v. People, 71 V.1. 703, 721 (V.I. 2019) (internal citations omitted). Because the
question whether a place or, as in this case, a road is public for purposes of Section 625 turns
on the facts of each case, this Court has never adopted the per se rule that a private road can
never meet the definition of a public place. Rather, to determine whether a road that is private
nevertheless constitutes a public place under Section 625, we employ the same test that applies
to other “ostensibly private areas” and will consider whether the road is “actually accessible to
the public” or is “so close to areas that are used by the public that the defendant’s conduct could
cause a grave risk of death to those in the public area.” Powell v. People, 70 V.1. 745, 754 (V.1
2019). For example, this Court applied this standard in holding that a staff-only area of a
government office where a shooting occurred nevertheless constituted a “public place” for
purposes of the reckless endangerment statute because the staff-only area bordered an area
accessible to the public “‘where a discharged gun could easily result in injury to innocent
People y. Berthier 2024 V.1. 32
S. Ct. Crim. No, 2022-0044
Opinion of the Court
Page 8 of 9
people who regularly pass close by.’” Jd. (quoting Davis, 69 V.I. at 637)
"12 Yet, as with other elements of a crime, the People bear the burden to prove beyond a
reasonable doubt that the public may lawfully access the private road or that the private road
is sufficiently near an area used by the public. We agree with the Superior Court that the People
failed to meet that burden. The Superior Court correctly recognized that the only evidence the
People introduced at trial in any way probative of whether the Estate Frydenhoj road satisfies
the public place element are photographs depicting an “unpaved and very narrow” road “with
residences on both sides,” as well as witness testimony describing it as a “neighborhood road”
that “leads to the ‘the gut’ and to ‘the bridge’” in one direction and “to the ‘main road’ and the
Frydenhoj ballfield or ballpark” in the other. Berthier, 2022 V.I. LEXIS 60, at *21. This
evidence, even when viewed in the light most favorable to the People, fails to establish that
people other than residents of the neighborhood are authorized to use the road. Even if we were
to assume that the “main road” to which the Estate Frydenhoj road connects is a public road,
Virgin Islands law expressly allows for private roads to connect to public roads as of right
without destroying their private nature. See 20 V.I.C. § 7. And, while the Estate Frydenhoj road
may connect to the “main road” at one end and a “ballfield or ballpark” on the other end, this
fact, standing alone, does not establish that Berthier discharged his rifle from a private location
that was nevertheless “close to areas that are used by the public.” Powell, 70 V.I. at 754. The
evidence introduced at trial, even if viewed in the light most favorable to the People, established
only that Berthier shot at Penn from the portion of the road that bordered private residences
Even if we were to assume that either the ballfield or “main road” is a place accessible to the
public, the People produced no evidence to show how far the shooting occurred from either
location, let alone any evidence to establish that discharging a rifle in that portion of the Estate
Frydenhoj road could “easily result in injury to innocent people” at those public places. Jd.
People v. Berthier
2024 V.I. 32
S. Ct. Crim. No. 2022-0044
Opinion of the Court
Page 9 of 9
Therefore, the Superior Court correctly held that the People failed to introduce sufficient
evidence to establish the “public place” element
IV. CONCLUSION
413 The People did not introduce sufficient evidence from which a rational jury could
conclude that Berthier shot at Penn in a “public place.” Consequently, the Superior Court
committed no error when it granted Berthier’s post-verdict motion for judgment of acquittal on
the reckless endangerment charge. Accordingly, we affirm the July 26, 2022 order setting aside
the reckless endangerment conviction
Dated this 18th day of November, 2024
BY THE COURT
C C
FS Se)
CL ifr f 7. Cate
C MARIA M. CABRET
ssociate J nee oa oe 4
ATTEST x
VERONICA J. HANDY, ESQ
Clerk of the Court
By Matha An
Deputy Clerk
pate: _||-|B- AOR
SWAN, Associate Justice, dissenting.
Il. FACTS AND PROCEDURAL HISTORY
ql4 Onthe evening of October 16, 2019, at approximately 6:00 p.m., Renaldo Penn was driving
to his residence in Estate Frydenhoj after work. Penn’s house is situated on a neighborhood road
that leads in one direction to a ravine and bridge and in the other direction to a main road and
Frydenhoj Ballpark. Penn was within view of his house when he was impeded from traveling any
further by a white vehicle with two male occupants. The vehicle had stopped in the middle of the
road, thereby blocking Penn’s path, as the parked vehicles on the sides of the road prevented Penn
from circumnavigating the stopped vehicle. Penn attempted to signal to the other driver to move
off the roadway to allow him to pass, but Penn was ignored by the occupants of the other vehicle
When Penn exited his vehicle to ask the other driver to move, a young man outside the white
vehicle, whom Penn later identified as Appellee Shekil Berthier, left the road, descended a flight
of stairs into a nearby home, and immediately returned with a firearm, discharging a shot at Penn
from approximately four or five feet away. The shot missed Penn, who was then standing between
his vehicle’s open driver-side front door and the body of the vehicle. After staring at Penn fora
minute, saying nothing, Berthier turned and descended the stairs to the home from which he had
emerged while the white vehicle quickly departed. Penn then returned to his vehicle and proceeded
to enter his driveway. It was only after the incident that Penn’s girlfriend, Sylvia Samuel, who
had witnessed the incident from Penn’s driveway, observed that a bullet had cracked the
windshield of Penn’s vehicle and left a hole in its frame
415 Berthier was arrested and charged with four counts, including reckless endangerment. A
jury trial was held from March 7-10, 2022. At trial, Berthier moved for judgment of acquittal on
all four charges, including Count Three: Reckless Endangerment in the First Degree, in violation
People v. Berthier 2024 V.1. 32
S. Ct. Crim. No. 2022-0044
Dissenting Opinion
Page 2 of 8
of t4 V.LC. § 625(a). The trial court reserved ruling on the motion for Count Three and tater
granted Berthier’s motion for judgment of acquittal with regard to Count Three, finding that the
People had failed to prove the element of Reckless Endangerment providing that the incident must
have occurred in a “public place”. The People appealed.
Ht. JURISDICTION AND STANDARD OF REVIEW
416 This Court retains appellate subject matter jurisdiction over “all appeals from the decisions
of the courts of the Virgin Islands established by local law.” Act to Revise the Organic Act of the
Virgin [slands of the United States, Pub. L. 517, 68 Stat. 497, 497 (1954) (as amended) (48 U.S.C
§ 16!3a(d)). In accordance with the grant of such authority from Congress, the Virgin Islands
Legislature established this Court and granted it jurisdiction over all appeals arising from a final
order of the Superior Court. 4 V.LC. § 32(a); see 4 VLC. § 33(a) (“Appealable judgments and
orders ... shall be available only upon entry of final judgment in the Superior Court.”). Within the
territory, “title 4, section 33(d) of the Virgin {slands Code provides the people with the statutory
authority to appeal certain criminal judgments.” People v. Pratt, 50 V1. 318, 324 (V.1. 2008). This
authority extends to appeals from judgments of acquittal entered by a trial court after a jury has
rendered a guilty verdict. People v. Clarke, 55 V.I. 473, 477 (V.I. 2011). The instant matter
therefore falls within our jurisdiction
q\7 This Court exercises plenary review over claims of sufficiency of the evidence,
“interpret{ing] the evidence in the light most favorable to the People.” Viera v. People, 71 V.1
The Superior Court also granted acquittal as to Counts Two and Four. The People's notice of appeal sought review
of the Superior Court's ruling on Counts Two, Three, and Four, bul, as the majority’s opinion correctly notes. the
Peuple’s brief fails to provide argumentation against the Superior Court’s decision regarding Counts Two and Four,
thus waiving the issue as to those counts. See Dowdye v. Peaple, 55 V.¥. 736, 750 (V.1. 2011)
People v. Berthier 2024 V.I. 32
S. Ct. Crim. No. 2022-0044
Dissenting Opinion
Page 3 of 8
669, 679 (V.I. 2019) (citing Simmonds v. People, 59 V.1. 480, 485-86 (V.1. 2013)). We apply toa
jury’s verdict a “particularly deferential standard of review.” James v. People, 60 V.1. 311, 317
(V.I. 2013). We must affirm a jury verdict provided that considerable evidence was presented at
trial such as would allow a rational trier of fact, under a “beyond a reasonable doubt” standard
and viewing the evidence in the light most favorable to the People, to convict. Fahie v. People
62 V.I. 625, 630 (V.1. 2015)
UI. DISCUSSION
418 Subsection a of section 625 of title 14 of the Virgin Islands Code provides that a person
is guilty of reckless endangerment in the first degree when, under the circumstances
evidencing a depraved indifference to human life, he recklessly engages in conduct
in a public place which creates a grave risk of death to another person
Subsection ¢(2) provides the following definition of “public place” as it is to be understood within
the section
[Public place means a place to which the general public has a right to resort; but a
place which is in point of fact public rather than private, and visited by many
persons and usually accessible to the public
This Court has analyzed this definition of “public place” in previous matters. We declared in
Tyson v. People that, in plain terms, the “public place” portion of section 625 “requires only a
showing that the conduct was done in a place that is open to the public or where the public has a
right to be, thereby posing a risk of death to members of the public who may be in the area.” Tyson
v, People, 59 V.1. 391, 417-18 (V.1. 2013) (emphasis added); see also Augustine v. People, 55 V.1
678, 690 (VI. 2011). In Powell v. People, we recognized that a public place “may include
ostensibly private areas that are nevertheless actually accessible to the public, or which are so close
to areas that are used by the public that the defendant’s conduct could cause a grave risk of death
People v. Berthie 2024 V.1. 32
S.Ct. Crim. No. 2022-0044
Dissenting Opinion
Page 4 of 8
to those in the public area.” 70 VI. 745, 754 (V.I. 2019) (citing M4. Davis v. People, 69 VJ. 619
636-37 (V.E. 2018))
4i9 Despite previous analysis, however, the language of section 625’s definition of “public
place” merits further examination in the instant matter. It is a simple enough definition, one which
may be broken down into four separate components
i. A place tu which the general public has a right to resort;
2. A place which is in point of fact public rather than private;
3. [A place] visited by many persons; and
4. {A place] usually accessible to the public
The first and the fourth components may be easily consolidated as concerning whether the general
public has both a right and access to the place in question. Here, it is obvious that the public has
both a right and access to the road on which the crimes occurred. The people presented evidence
that the road where the incident occurred was not a dead-end road but rather a “thru” road, leading
to “‘the bridge’” on one side and to “‘the main road’” on the other. The road passes through a
residential neighborhood and is bordered by private properties, yet everyone has the right to utilize
the road, either to conduct business or social engagements with a resident of the area, to access the
adjacent public Frydenhoj Ballpark, or to pass through on the way to another part of the island. A
public thoroughfare, absent any physical or legal impediment at either end of it declaring it a
“private” or “limited use” road, is inherently both accessible and free for public use. See Phillip
v, People, 58 V.1. 569, 591 (V.L. 2013) (holding that a shooting on a road ina residential area, near
a public basketball! court, occurred in a public place); see also Tyson, 59 V.I. at 417 (declaring that
a shooting from a vehicle on a road adjacent to a public graveyard occurred in a public place)
People v. Berthier 2024 V.L. 32
S. Ct. Crim. No, 2022-0044
Dissenting Opinion
Page Sof 8
q20 = The trial court contradicted itself in attempting to interpret section 625’s definition of
“public place” when it stated that “a public place requires general access to the public, rather than
merely to residences nearby, so although the public can access the Estate Frydenhoj roadway, it
is a residential area utilized by those who live along that neighborhood roadway and their visitors
(emphasis added.) The court stated that a public place requires general public access, then stated
that the general public can, in fact, access the roadway in question. Yet the court appears to have
found that, because the roadway was in a residential area and was therefore more likely to be used
by residents than by nonresidents, it somehow was not public. The trial court further found that
the evidence presented by the People to the jury “was not sufficient for a rational jury to draw a
conclusion that the road is used by the public in general rather than only the residences next to the
area,” and therefore that the People “failed to carry the burden of proving the incident occurred in
a ‘public place.” However, these statements reflect a flagrantly incorrect understanding of the
statute
21 Simply because a roadway, an amenity, a business, etc., is most frequently or commonly
used by those living in proximity does not make the roadway, amenity, or business any less
available to the public at large. For example, while public dumpsters found on the side of the road
throughout the territory are accessible to the public at large to utilize, each dumpster is likely
primarily used either by those living closest to it, or by those for whom it is conveniently located
along their daily commuting route. This fact does not make each dumpster any less accessible to
any other member of the public who may desire to use it, however. Likewise, roads within
residential areas are doubtless more likely to be used by the residents of those particular areas than
by the public at large. Yet, this sole fact does not make those roads any less accessible to other
People v. Berthies 2024 V1. 32
S. Ct. Crim. No. 2022-0044
Dissenting Opinion
Page 6 of 8
members of the public who desire or wish to utilize them. See Powell, 70 V.1. at 754 (“A [public
place] may include ostensibly private areas that are nevertheless actually accesstble to the
public.”’). Here, the People proved that the public at large has both access to, and the right to use
the road on which the crimes occurred. Whether that right is frequently or widely exercised is
irrelevant on these issues
22 Thesecond portion of the definition of “public place” in 14 V.LC. § 625 identifies a public
place as ‘ a place which is in point of fact public rather than private.” The focus of this phrase is
to exclude from the definition of “public place” all places that are, instead, private. To determine
whether the roadway at Estate Frydenhoj could possibly be identified as “‘private,” and therefore
be excluded from identification as a public space, we must define “private.” According to Black’s
Law Dictionary, “private” is defined as “[rJelating or belonging to an individual, as opposed to the
public or the government.” BLACK’S LAW DICTIONARY 1315 (9th ed. 2009). This definition is
both commonsensical and defined by exclusivity: privacy implies the exclusion of some or all of
the public from access or right to a thing, place, etc. Once again, in the instant matter, there is no
exclusion whatsoever. The People sufficiently proved that anyone who wishes to utilize the
roadway in issue has the right and accessibility to traverse it. No evidence was provided to the
court suggesting any impediment or obstruction to the flow of public access on the road: no sign
stating “private,” or “no trespassing” or, even more clearly, “no public access”; no gate or other
barrier limiting access; and no obstacle or obstruction that would allow residents, but not
nonresidents, of the neighborhood to use the roadway. Accordingly, the unavoidable conclusion
is that the roadway is no/ private, and if it is not private, then it must be, by process of elimination,
public
People v, Berthier 2024 V.1. 32
S. Ct. Crim. No. 2022-0044
Dissenting Opinion
Page 7 of 8
{23 +The third portion of section 625’s definition of ‘public place,” and the last one remaining
to be analyzed, defines a public place as a place “visited by many persons.” This phrase is easy to
apply to places like parks, restaurants, museums, and the like, but it does not naturally describe the
public’s relationship with roadways. Grammatically speaking, one does not “visit” a roadway;
rather, one “uses” it, “drives on” it, “traverses” it, etc. Therefore, we must substitute these more
accurate terms for that used in the definition. Can it thus be determined that the People provided
enough evidence to find that the Estate Frydenhoj roadway is “used by many persons” within the
intendment of the third component of the definition set out in 14 V.I.C. § 625? I assert that the
many photos of the roadway provided by the People reveal sufficient evidence that the roadway
has many users. Even if, as the trial court found, the roadway were primarily used only by residents
of the immediate area, the photos of the scene disclose just how “many persons” are, in fact,
residents of the immediate area. The photos reveal both sides of the roadway glutted with parked
vehicles. It appears evident that the parking availability along the roadway can barely provide for
those who use it. Aside from the many vehicles, the road is lined with multi-story dwellings, the
residents of which no doubt own many of the aforementioned vehicles. In short, the roadway
clearly passes through a densely populated residential area. Even were it not accessible to the
public, the nearby residents alone would surely constitute “many persons.” for purposes of the
definition set out in 14 V.LC. § 625. See Burke v. People , 60 V.1. 257, 263 (V.I. 2013) (stating
that a shooting from the courtyard of a multi-unit residential building toward a balcony of the same
residential building occurred in a public place); see also Cascen v. People, 60 V.I. 392, 408-09
(V.1. 2014) (holding that a shooting into a crowd outside ofa public housing community took place
in a public place). All those nonresidents who use the road on visits, business, or simply to pass
People v. Berthier 2024 VI. 32
S. Ct. Crim. No. 2022-0044
Dissenting Opinion
Page 8 of 8
through only add to that already-substantial number of users. Thus, it appears perfectly reasonable
to find that the People sufficiently established this portion of the definition of “public place
{24 Accordingly, [ conclude that the People provided sufficient evidence that the location of
the shooting incident substantiated each of the elements of the definition of “public place” as
defined in section 625 of title 14 of the Virgin Islands Code, such that a rational jury could have
found the location to be a “public place” for purposes of the “reckless endangerment” statute. |
would therefore reverse the trial court’s July 26, 2022 order setting aside Appellee Shekil
Berthier’s reckless endangerment conviction
Pa a
Dated this /0__ day ontaber 2024 tba,
— MV,
/ IVE ARLINGTON SWAN
Associate Justice
ATTEST
VERONICA J. HANDY, ESQ
Clerk of the Court
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