IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS ) CASE NO ST 2020 CR 00003
)
Plaintiff )
vs ) 14 V I C § 297(a)(2)
) 14 V l C §2253(a)
SHEKIL JAMAC BERTHIER ) 14 V I C § 625(a)
) 14 V l C §2256(a)
Defendant )
)
2022 VI Supei 68U
DIEMORANDUM OPINION
fill This matter is bef01e the Court on Dcfendant Shekil Berthier s( Berthier or Defendant )
Motion for Judgment of Acquittal, pursuant to Rule 29 of the Virgin l§lands Rules of Criminal
Procedure ( V I R CRIM P ) filed on April 4 2022 ‘ Defendant seeksjudgment ofacquittal on
all charges For the reason: set iorth herein the Court will grant Defendant s motion in part and
deny it in part
BACKGROUND AND PROCEDURAL POSTURE
W This matter was tried to a jury beginning on March 7, 2022 The People of the Virgin
Islands (the People ) charged Berthier with fou: counts (1)Third Degree Assault in violation of
V I CODI- ANN tit 14 §297(a)(2) (2) Unauthorized Possession Ufa Firearm During Commission
ofa Clinic OfViolenLe, in violation 0f 14 V I C § 2253(a); (3) Reckless Endangcnncnt in the Fiist
' The motion is lully bneled The People filed an opposition on April 25 2022 and Defendant filed his reply on May
23 2022
People 0mg Virgin Mam t Shela! 3mm;
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Memorandum Opinion
Page 2 uf21
Degree in violation 0t 14 V l C § 625(a) and (4) Unauthorized Possession at Firearm
Ammunition, in violation of 14 V I C § 2256(a)
113 On March 9 2022 the People completed presentation of their case in chief Afier the
People rested Detendant orally moved tor judgment of acquittal On all four charges pursuant to
V I R CRIM P 29 and the People orally objected The Court denied Defendant s motion as to
Counts One (third degree assault) and Four (unauthori7ed possession of firearm ammunition), but
reierved ruling on the motion for Counts Two (unduthoiized possession of a firearm during
commission of a crime of violence) and Three (reckless endangemicnt in the first degree) In the
instant motion, Berthier requests the Court reverse its oial ruling denying judgment of acquittal
for Counts 0110 and Four and moves for judgment of aequittal on all four counts
FACTS
1% At trial, during the People a presentation of their case in chief, the Court heard testimony
from Penn, Sylvia Samuel (Penn 5 girlfriend) Virgin Islands Police Department ( VIPD )
Lieutenant Jergo Gonzalez, and VIPD Detective Cherese Thomas, among others These witnesscs‘
testimony will be discussed in detail throughout the analysis However, a general overview ot the
fact: ofthis matter is as follows
15 The evidence admitted at trial revealed that on October 16 2019 Renaldo Penn ( Penn )
was driving home to Estate Frydcnhoj, St Thomas, U S Viigin Islands, and he was within view
of his home when he came upon a Vehicle stopped in the road, impeding Penn from pieceeding to
his home Penn testified there were two (2) persons inside the vehicle and one (1) person standing
outside the vehicle talking to the occupants 0fthe vehicle Penn teetified he honked and waved at
the Vehicle in the road, and then opened the door of his truck, exited, and stood between his truck
and the driver’s side front door, motioning for the driver of the vehiele to move so Penn could
People 0/1/19 Vugm [vlzmdr 1 5710‘” Berliner
Case No ST 2020 CR 00003 Cue an 2022 VI Supcl 68U
Memorandum Opinion
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pass Penn testified the person standing outside talking to the persons in the Vehicle then went
down a set of stairs leading to a home below the load returned up the stairs carrying a firearm
and fired a shut at Penn from four (4) or five (5) feet away The item shot from the firearm hit
Penn’s truck, creating a hole in the driver’s side frame and a crack in the windshield The Vehicle
blocking the road drove away
1‘6 Samuel testified that during the incident she was seated in her parked car slightly up the
mad outside Penn’s home, waiting for him to arrive as she was locked out of their shared home
She witnessed the events from her vantage point, including noticing an individual who was
standing outside a car parked in the roadway She heard a Lommotion and saw the individual
standing outside walk down nearby stairs and return with something “long with a strap" She then
heard a single shot fired
117 Thereafier Penn joined Samuel outside their home and Samuel noticed the cracked
windshield and the hole in the frame ufthe trunk 50 she called the police to repon the incident 2
VIPD reported to the scene and Detective Thomas took Penn’s statement describing the event
VIPD Crime Scene Technician, Debra Mahoncy, also reported to the scene and took photographs
of the location and the cracked windshield which were admitted at trial ‘
LEGAL STANDARD
1B The relevant portions ofV I R CRIM P 29 read as follows
(a) Betore Submission to the Jury After the government closes its evidence or after
the close of all the evidence, the court on the defendant’s motion must entet a
judgment of acquittal of any otfcnsc fol which the evidence is insufficient to sustain
a conviction The court may on its own consider whether the evidence is insufficient
to sustain d. Lonviution If the court denies a motion for a judgment ofacquittal at
l A recording 01 Samuel 5 call l0 VIPD was admttted al trial as People a Exhibit L
3386 People sEXhibitS H1 H2 H3 H4 I] 12 I3 [4 15 11 J2 J3 and M
People ufthe Vugm Islands I Shem Berth“?!
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the close of the government's evidence, the defendant may offer evidence without
having reserved the right to do 50
(b) Reserving Decision The court may reserve decision on the motion, proceed with
the trial (where the motion is made before the close at all the evidence), submit the
case to the jury and decide the motion either before the jury returns a verdict or
afier it returns a verdict of guilty or is discharged without having returned a Verdict
[fthe court reserves decision, it must decide the motion on the basis 0fthe evidence
at the time the ruling was reserved
(c) After Jury Verdict 0r Discharge
(1) Time to: a Motion Unless otherwise extended by the court a detendant
may move tor a judgment 0t acquitted, or renew such a motion, within 14
days after a guilty verdict or after the court discharges the ju1y, whichever
is later
(2) Ruling on the Motion Ifthejury has returned a guilty Verdict the court may
set aside the verdict and cute! an aequittal If the jury has failed to return a
verdict, the court may enter ajudgmcnt of acquittal
(3) No Prior Mution Required A defendant is not required to move for a
judgment oi acquittal betore the court submits the ease to the Jury as a
prerequisite for making, such a motion after jury discharge
119 The Virgin Islands Supreme Court has articulated clear standards tor deteimining whethet
judgment of acquittal is appropriate following a jury’s guilty Verdict, such inquiry is also
frequently referred to as a “sufficiency ofthc evidence" analysis When reviewing a challenge to
the sufficiency of evidence leading to a conviction, the standard 0f review is whether there is
substantial evidence to support the jury s verdict when viewed in the light most favorable to the
govemment Gumbs \ People 64 V I 491 499 (V I 2016) (quoting McIntosh \ People 57 V I
669, 678 (VI 2012)) Moreover, the court must affirm a jury’s veldict as long as substantial
evidence was presented at trial to allow a rational tiier 0t tact t0 nonvict when the evidence is
viewed in a light most tavorable to the People Id At 500 (quuting James \ PLOPIL 60 V I 311
318 (V I 2013))
P201116 0/111; V11 gm Numb . 3111111391111th
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1110 A reviewing mun must be particularly deferential when determining whether a jury
Verdict rests on insufficient evidence, so as not to “usurp the role 0fthe jury by re weighing the
evidence and re assessing the credibility 0f witnesses Hcylzgcr People 66 V I 340 348 (V I
2017) (quoting [odman \ People
59 VI 675 681 (VI 2015)) If any rational jury Lould find
that the People proved, beyond a reasonable doubt, each element of the offense for which a
defendant seeks acquittal, the convictionmust be affirmed Mendoza v Vzrgm IYlmldT, 55 V I 660,
(:67 (V I 2011) Only when the record contains no evidence from which ajuxy Lould find guilt
beyond a reasonable doubt, regardle» ofhow such evidence is weighed, may the court overturn a
jurys Verdict Pcop/L v Marian
57 VI 72 76 (VI Super Ct 2012) (quoting Umch Stain v
McNezI]
887 F 2d 448 450 (3d Cir 1990)) Ifthc People 5 evidence was insufficient however a
guilty verdict will be vacated Hey/lger 66 V I at 357 (citing United States L Babb: 629 F 3d
1199 1203 (10111 Cir 2011))
ANALYSIS
I The People presented sufficient evidence for a jury to find Defendant guilty on
Count One Third Degree Assault
TI] 1 The Court orally denied Berthier’s 1equest forjudgment of quuittdl on Count One at tnal,
and Bcrthicr now moves the Court to reconsider its ruling pursuant to V I R CRIM P 29(c)
fill As 1elevant to the instant matter, the charge of third degree assault is defined as
[w]hoever under circumstances not amounting to an assault in the first or seLond degree
assaults another with a deadly weapon 14 V I C § 297(a)(2) Accordingly the elements which
must be proven are (1) the defendant (2) committed an assault of the type specified, and (3) the
assault did not 1150 to the level offirst or second degree assault See Dam: v People, 69 V I 619,
Permit amt 1/1/ng Nam \ Shela] Butluu
Case No ST 2020 CR 00003 Clte as 2022 VI Supci MU
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632 (V I 2018) Beithier argues his conviction on Count One must be vacated because there Was
insufficient evidence to identify Berthier as the assailant in this matter "
1H 3 Bcrthier argues Penn should not have been permitted to testify regarding Berthier 5 identity
at trial because the pi atrial identification process failed to meet due process standards He contends
Penn obtained the details of Berthier’s family, relationships, and other identifying information
from other unidentified persons tendeiing Penn 5 testimony regarding Berthier 3 identity to he
hearsay The People iespond the Court has aheady addressed Bcrthier’s identification arguments
on two oceasions having responded to both Bcrthier’s motion to suppress identification evidence
as well as Berthier’s motion In [mime to exclude identification testimony from Penn The People
fithher contend Perm testified to his prim personal knowledge ofBerthicr from visual familiarity,
familial ielationships, and personal recognition, and Samuel also testified to her visual familiarity
with Berthier such that the evidence admitted is sufficient to enable identification of Bcrthier
Ultimately the People argue viewing the evidence in the light most favorable to the People they
introduced sutticient evidence to identify Benhier as Penn’s assailant
1H 4 Despite the Court’s pietiial rulingsS regarding identification of Berthier, which favored the
People the People still had the burden at trial to prove all elements 0f the Charges beyond a
reasonable doubt At trial the People elicited testimony from Penn and Samuel regarding their
familiarity with Berthiei and his family Penn and Samuel both testified they were Visually familiar
with Berthier Penn testified he had spoken to Berthier many times and Berthiel had even given
him a ride once Penn further testified he knew Berthicr’s uncle and moth; and he had seen
4 Berthier argue: because identity is an essenlial element at all criminal charges, his argument for 3 Judgment of
gcquittal ofCoum One aim applies to Counts Two Three and Four
‘ The Court first addressed Defendant‘s identification concerns in its memorandum opinion denying Berthicr s motion
tosuppress Pwplc mm Vngm Islandsi 521mm 2022 v1 Super 110 enteredJanuary 27 2022 and 1gain m an
Order denying Berlhier’: motion In [mime to exclude Penn 5 identification testimonyv entered on March 3, 2022
People We Vzrgm mam t 5'thth 3mm
Case No SF 2020 CR 00003 Cite as 2022 V15uper68U
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Page 7 onl
Berthier around the uncle’s Estate Frydenhoj residence for ‘ yeais” Penn noted he know which
house Berthier frequented he simply did not know whether Berthier s uncle lived in the upstairs
0r downstairs unit Samuel testified she lived at the Estate Frydenhoj iesidence with Penn between
May 2019 and February 2022 and she saw Berthier three or tour times per week during that period
including seeing Beithicr diive a gas truck around the neighborhood on multiple occasions Samuel
tux’thel testified she had seen Berthier 0n the scene of the incident on October 16 2019
Immediately following the incident on October 16, 2019, Penn provided a description of his
assailant ta Detective Thomas as ‘ red skin, slim, braids, and in his teens to early twenties,” Whieh
was memoriali/ed in Detective Thomas’s initial report and admitted as evidence during trial 6
Although Penn also told Detective Thomas he did not “know“ Beithier, at the time of that initial
report, Penn did say he knew Bcrthicr’s uncle and he was Visually familiar with Berthici At tiizd,
Penn testified “I know him, there’s no doubt in my mind I did not know his name, but I know
him Further Penn and Samuel both provided in court identifications oi Betthier during direct
examination
1115 Berthier claims such evidence is insufficient to prove his identity as Penn’s assailant
beyond a icasonablc doubt The Court disagrees finding a iationaljury could determine that Penn
and Samuel weie peisondlly familiai with Berthier and that the witnesses identification ofBerthier
was valid The Court finds the testimony admitted shows Penn and Samuel’s personal familiarity
with Benhier and his family, and accordingly it was not hearsay It is nut for this Court to reassess
the credibility of these witnesses who pioclaim their familiarity with Berthier paiticularly when
they were cross examined on such familiarity at trial
t See Defendant's minim D2
People ofthe V17 gm 111ml; 1 SheltzIBerthzeI
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1|16 Taking the evidence in the light most favorable to the People the Court finds the People
presented sufficient evidence fox a rational jury to identify Berthicr as Penn 5 assailant beyond a
reasonable doubt As a result the Court has no baiis to void the jury s verdict on this charge
Accordingly, thejury’s verdict on Count One, third degree assault, will stand, and the Court will
deny Bcrthicr‘s motion with respect to Count One 7
II The People did not present sufficient evidence for a jury to find Berthier guilty
on Count Two Unauthorized Possession ofa Firearm During a Crime of
Violence
1117 At trial Betthiel orally requested a judgment of acquittal on Count Two claiming the
People did not prove Berthier hacked a license to possess a firearm on October 16, 2019 The Court
reserved ruling on Berthier s oral request 101 judgment of acquittal on that charge both at the
conclusion 0fthe People‘s ease in chiefand at the close ofevidencc
1118 Section 2253(a) of title 14 cf the Virgin Islands Code provides the standard required to
plove unauthorized possession of a firearm during a crime of violence The section states, in
pertinent part
Whoever, unless otherwise authoxized by law, has, possesses, hears, transports or carries
either, actually or constructively, openly 0r concealed any firearm, as defined in Title 23,
section 451(t) of this code loaded or unloaded may be arrested without a warrant or if
such firearm or an imitation thereof was had, pussessed, borne, transported or carried by
or undet the proximate control of such person dllliltg the commission or attempted
commission ofa crime ofviolence, as defined in subsection (d) hereof
The Tenitorial Court ofthc Virgin Islands held the elements of14 V I C § 2253(a) to be that the
defendant (1) without authority of law, (2) possessed; (3) a firearm, (4) openly 01 concealed, on
7 As a result of this ruling on identity, the portmn oi the Defendant’s motion moving for acquittal on all charges due
to in:ufficicm identification must also fall
Pmp/a 0mg Vugm Islamlrt Shem 3011/1191
Case No ST 2020 CR 00003 Cite a: 2022 VI Super 68U
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or about his person and loaded or unloaded Gav t 12/”th Virgin Islands 1 Small; 32 V I 175
178 (V I Super Ct 1995) In the intervening years, no majority opinion from the Virgin lslands
Supreme Court has interpreted this section at the Code, but multiple concurring opinions2g have
stated that the elements of 14 V 1 C § 2253(a) require ptoof beyond a reasonable doubt of (l)
the defendant (2) the firearm (3) possession of the firearm by the defendant (4) knowledge of
the firearm by the defendant and (5) lack eflawfill authorization for the defendant to possess the
firearm ” Ponce 1 Pmple,
2020 VI 2, at 1} 149 (Swan,J concurring in part and dissenting in part);
rec also Dams, 69 V I at 665 (Swan, J concurring in part and dissenting in part) (stating the
elements which must be proven under 14 V I C § 2253(a) are (l) the defendant (2) knowingly
possessed; (3) a firearm; (4) without lawful authorization, (5) under one of the five aggravating
circumstances )
A The People introduced no evidence that Berthier lacked a firearms license at the
time of the incident
$9 The only disputed element 0t Count Two (unauthorized possession of a fiream during a
crime of violence) is without iawt'ul authorization which tequires the People prove beyond a
reasonable doubt the Defendant was not licensed to carry a firearm in the territory of the Virgin
Islands at the time ofthe incident Dam \ People 59 V I 539 550 (V 1 2013) (Citing Ambrose
v PLoplc 56V1 99 106 08 (VI 2012))
K The Court notes that the elemental breakdown of 14 V I C § 2253(a) Wm not addressed within the majority opinion
In Pane: \ Pwplc or Dam \ Pwple beeause the conatruetion of that specific :tatute was not at |SSue within those
matters However, Justine Swan’s partial concurrence: and partial diner“: on each respective ammo" delve into the
elemental structure of the provlsion to provide additional context and baLkgmund for his ecueurrenee/dtssent
Notably the discussions of the elements within these opinions were inducted Within the concurring rather than
diesentmg portions of the opinions
People ems V12 gm 171.1an: v Shela! 3mm;
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Page 10 of2l
1120 Berthler argues that although the People called VlPD Lieutenant Gonzalez to testify
regarding a search of firearms records for Berthier, no evidence was ultimately admitted regarding
Berthier’s firearm licensure statu: Moreover, Betthier contends there was no evidence to show he
lacked authortzatinn to possess a firearm The People counter that for the element without lawful
authorization the burden of proof shifis to the defendant as an affirmative defense rather than
being an essential element for the People to prove, biting to Justice Swank partial concurrence and
partial dissent in Dar tr \ People 9 The Court rejects this argument as even Justice Swan says, for
purposes of the Dams opinion, “without lawful authorization” is an element of the crime that must
be proven by the People Data: 69 VI at 663 n 34 Although the People attempted to introduce
testimony that Berthier did not have a license to carry a firearm at trial, the Court found all the
proffered evidence to be inadmissible pursuant to the rules of evidence '0 Therefore, no evidence
was admitted regarding Berthler‘s licensure status or authorization to possess a firearm
B There Was insufficient evidence for ajury to determine beyond a reasonable doubt
that Berthier was under 21 years of age at the time of the incident
1|21 As stated, there was no evidence admitted regarding Betthier’s actual firearm lteensure
status In tact, the only evidenee ofBerthter’s possible status offireatm lieertsure is brict testimony
9 thhm his parttal concurrence and parttal dissent in But is, Justtee Swan noted that tt Is an ‘ open question whether
wttltout lawful authonzation is an element rather than an affinnattve defense Dan: 69 VI at 663 n 34
Nevertheless Justice Swan Stated for purpuae: ofthis opimon “e Include in the statement of elements the language
unleas authorized by law 1:! He reserve[d] funhet considetanon on the question of whether the <tatutory language
read m [mu nmlmm supports the coneluston that thi: language is an element of the crtme rather than an atfirmattve
defense Ir! In Ponu the Virgin Islands Supreme Conn also left the status of the element unless othenuse
authorized by law , as an “open question”, agam noting that for the purposes of the instant opmion, the Supreme
Leurt would Include tt as a required element for the charge Ponce 2020 VI 2 m1] 149 n 30 lhus because the Virgtn
Islands Supreme Cmtrt has [hue far treated wtthout la“ ful authortzatton as an element this Court follows that
Interpretation of §2253(a) 4‘
'“ VlPD Lieutenant Gonzalez testified that he searched firearm records to delermtne ll Berlhler posseased a fiream
lteeme on October 19 2019 Instead fit the actual date of the alleged inetdenl Oelober 16 2019 As a result the
majority of L|eutenant Gonzalez’s testimony was atricken from the record
People 0/1/18 V17 gm Aland: » SheM/Belrlnel
Case No ST 2020 CR 00003 CllC as
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from VIPD Lieutenant Gonzalez, stating a person must be at ledst 21 years of age to legally possess
a firearm in the Virgin Islands 1‘
1|22 Betthier argues thejury did not have sufficient evidence to find he was too young to obtain
a lieense to carry a firearm, and as a result the People failed to prove a required element of the
crime beyond a reasonable doubt The People respond there was sufficient circumstantial evidence
tor ajury to inter Berthier was under 21 years ofage at the tithe ot the alleged incident, so he was
not old enough to obtain a license for a firearm Speeifically, the People point to Detective
Thomas’s investigation and her testimony that Berthiet attended Eudora Kean High School, the
case was turned over trom the Juvenile Bureau to the Criminal Investigation Bureau, as well as
Penn 3 testimony he had seen Berthier in a Eudora Kean High School uniform
1123 The Court finds there was insutficient evidence to determine Berthier s age at the time of
the incident Although there were several mentions of Betthier’s attendance at Eudoxa Kean High
School there was no testimony regarding the timeframe in which he attended that school or
whethet he was attending the school at the time ot the incident Even ifBerthier was attending the
school at the time of the incident, the evidence nftered no certainty that he was under 21 years 0t
age during his period at attendance or on Oetobet 16 2019 Detective Thomas did testify she
viewed Berthier’s dtivel’s license and he was not a minor on October 16, 201‘), and by the time of
“ In Berthier s reply to hm motion tortudgment ct acquittal Benlnet makes an argument that there is no pmvtsion
in the Virgin Islands Lode indicating a person must be at least 21 years of age to obtain a license to can'y a firearm
other than a handgun He points out the Vtrgm Islands Code only includes an age provision for carrying a concealed
handgun .5122 23 V I L § 454(a) [stating [t]t) obtain a license to carry a Loncealed hmdgtm on 24 hour basis the
applicant must be at least 21 years of age ) However Berthier did not raise this argument m his mutton for
judgment of acqumat, he only tamed II In his reply Theretore, the argument was waived Yea Peicz \ R112 Cm [Ion
{Vllgm Islands) Inc 59 v1 522 528 n 4 (V1 2013) ( like an issue raised for the first mm m an,appe11ate reply
brief, an issue raised for the first time in a reply brief supporting summary judgment is deemed waiV ed because the
opposing party typically does not have the opportumty to respond ) Bur/amm t AlG 1n: (.0 anR 56 VI 558
567 568 (V I 2012) (deeming an argument solely mused within a party 5 reply brief to be waived)
PA 0171: 0/ l/tK Vtrgm mama v SthI/Eelthter
Case No ST 2020 CR 00003 Cite as 2022 V1 Super 6811
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Page 12 01 21
the trial he was “approximately 21 ’ years of age But that testimony is not sufficient to establish
he was less than 21 years of age on October 16 2019 A rational jury could not find beyond a
reasonable doubt that Berthiet was less than 21 years of age just because he was more than 18
years of dge Although the Peuple attempted to introduce evidence of Bcrthier 5 date ofbirth they
were unsuccessful Therefore, no specific evidence was admitted legarding Betthier’s age at the
time of the incident and the ciicumstantial evidence is too vague for a tational jury to conclude
beyond a reasonable doubt that Benhiei lacked lawful authorization to possess a firearm
1124 The Court therefore finds the People failed to introduce sufficient evidence to prove
Bcrthicr lacked a firearm license on October 16, 201‘), or he was not ofproper age to obtain and
possess such licensure Accmdingly even viewing the evidence in the light most favorable to the
People, the Court finds the People did not prove all elements 0t Count Two beyond a leasonable
duubt Thus, the Court will vacate Berthicr‘s conviction on Count Two, unauthorized possession
at a firearm during a crime nfviolence, and acquit him 0fthat Chaxge
III The People did not present sufficient eVidenee for a jury to find Bcrthier guilty
on Count Three Reckless Endangerment in the First Degree
1125 At the conclusion of the People‘s case in chief and attet the close of evidence, the Court
reserved ruling on Bcrthier’s oial request torjudgment oi acquittal on Count Three In his renewed
motion Betthiet teiterates his argument from trial that the People failed to prove the alleged
incident oceurred in a “public place ”
1126 To obtain a conviction on a charge of 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) undet circumstances evidencing a depraved indifference to
People 9/ 1m Vugm mam!) . Shem 3mm
Case No ST 2020 CR 00003 Cite as 2022 VI Supci 68U
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human life Dan: 69 VI at 635 (citing I4 V I C § 625 Waadmp \ People 63 VI 696 71]
(V I 2015))
1|27 Of the tour elements of the crime of first degree reckless endangerment Defendant argues
only that the People did not introduce sufficient evidence to prove the incident occurred in a
public place A public place is defined as a place to which the general public has a right to
resott but a place which is in point uffdet public rather than private and visited by many persons
and usually deeessible to the public Dams 69 V I at 635 (citing 14 V I C § 625(e)(2)' Eslzck v
PGOPIL
62 VI 604 615 (VI 2015)) To prove a location is public it must have been used by
the public in general lather than only the iesidences next to the area 1d at 637 (quoting Chrlstian
\ State 897 N E 2d 503 505 (Ind Ct App 2008) (applying a definition of public place similar
1014 V I C §625))
$8 In the Dam: opinion, the Viigin Islands Supleme Court extensively analyzed whethei the
location at issue was in tact ‘publie” under the statutory definition The Dawn court interpreted
witness testimony and evidence as to the location ofa shooting to locate the incident “near a tree,
which appears to be located on privately owned property on or adjacent to d. privately owned gut
and/or a privately owned dirt load " Dams, 69 V1 at 636 Ultimately, because there was no
testimony regarding the level of public access to the location under the tree and the location
appeared to be located on private land in a largely residential area, the Dam: coun deteimined the
People fdiIed to show the shooting occurred in a “public place” and Vaulted the conviction 0n the
reckless endangerment Charge Id at 636 37 On the other hand the Virgin Islands Supreme Court
deemed a place to be “public” when a ‘ Shooting between [a suspect] and three officers occuned
on a street directly in trout of and around [a] testaurant and [a] mini mart [and] several
People u/ the 11114171 Alum \ Shem Bertltzer
Case No ST 2020 CR 00003 Cite an 2022 VI Super68U
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Page 14 0t 21
individuals [were] operating a fruit stand in close proximity to the mini mart ”Augmtme v Virgm
Islands 55 V I 678 689 90 (V I 2011)
1129 Betthier claims the instant incident occurred in the same vicinity as the incident in the
Dams case, and he claims the People failed to show the area of the incident was “in point Oftact
public, ‘ beyond a reasonabh: doubt Betthiel contends this Court is bound to follow Davis under
the doctrine 0t Wale deems '2 Betthier further argues there were no pelsons other than Perm
present on the scene at the time of the incident (thus not componing with the requirement that the
shooting occur in a public place) The People counter Dans is distinguishable from the instant
matter because the Dam: incident took place under a tree on private property a location the public
has no right to be wheieds the instant incident occurred on the Estate Frydenhoj roadway, a
" Berlhier arguea became the doctrine of ital? [lecmt has not been formally adopted in the Virgin Islands, that the
assessment and adoption of the tlaetrine rcquirca a Bunk: analysts Hnwever in Banks \ Immnarmnnl Rama! (1m!
Lemmg Curputulmn, the Vlrgm 1:1anda Supreme (.ourt actually discussed Mme (162mm 111 dicta, the Virgin Islands
Supreme Court stated the followmg
Slate dean: is not an inexorable command McDamI/tl \ CW ofthimgn, 561 U S 742‘ 812 (2010)
(Thoma: J concurring) (quoting Lamencet Tam 539 US 558 577 (2003)) Indeed as the Supreme
Court of the United States has made clear, “mm“: (least: is the preferred course because it promotes the
evenhdnded, predictable, and consistent development 01 legal principles, fosters reliance on judicial
deci:iom and contributes to the actual and perceived Integrity of theJudicial process Payne v Tenneasee
501 U S 808 827 (1991) [citing qumzt HIM!) 474 US 254 265 266 (1986)) Nevertheless when
govcming decisions are unworkable or are badly reasoned,” the Count has never felt constrained to follow
preeedent Id (quoting Smit/n AIIM/lg/tl 321 U S 649 665 (1944)) Thi: i: so became mm. them: 15 a
prinLiple of policy and not a mechanical fommla 0t adherence however questionable when such
adherenee invokes collision with a doctnne more embrang m ita scope, intrinsically sounder, and
verified by experience Ileltclmgt Hallmk 30‘) U S 106 119 [1940) We agree
Bank“ 1m [Rental & LEdVng Col]; 55 V1 967 985 n 10 (VI 2010) Numerous other cases have dtseuncd and
utilized the duetrme ofsmm dost“: within their decisions as Well SCI 6 g Gan 1a \ (I(HCIU, 59 V I 758, 776 (V I
2013) In re Temp Cam 1::be 47 VI 178 189 [VI Super Ct 2005) (citing thzvlmmnn \ C011 Imlimltxu
Opualmg Corp 436 u s 800 817 (1988)) People 0/111: Vtrgm 131mm“ Szmmonde 43 v1 320 333 34 n7 (VI
Supei Ct 2007) A1though not explicitly adopted wtthin the territory the Court finds no need to engage in 3 Bart)»;
anaIyai: for the doctrine of slum deans 9mm (IPCIAM is a well developed and well understood legal eoncept whiLh
Virgin Islanda court: have already been following when necessary Americanjurisprudence requires the lower courts
to lollow findings and holding: of the higher courts and thus this Court is bound by the precedent of the Virgin
Islands Supreme Court Accordingly, it is unnecessary to perform a Bank; analysis, and the Court W111 tollow the
Virgin Island Supreme Coun'e findings in Dam t0 the extent necessary to reaolve the instant matter
People 0/01; Pugm Islands \ Shtltll 8272/1127
Case No ST 2020 CR 00003 Cite as
2022 VI Super 68U
Memorandum 0mm"
Page 15 of2]
publie throughway where the public may freely access The People further note the vehicle that
was blocking Penn 5 path was able to drive through the neighborhood and down the road The
People claim the statute does not require persons were actually present for the incident just that
membels 0fthe public could access the location
130 Pursuant to the standard articulated in Dan: the Conn finds the People have tailed to meet
the burden ofpmving the Estate Frydenhoj roadway where a fireann was discharged at Penn meets
the definition of a “public plane ’, beyond a reasonable doubt As found in Dams, a public place
requires general access to the public lather 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 See Dans 69 V I at 637 Samuel testified the
road leads to the gut andto the bridge and in the opposite direction it leads to the main road
and the Frydenhoj ballfield or ballpark However, Samuel said it is not a dead end road Penn
refened to it as an unpaved neighborhood toad The photographs admitted at trial further display
the road was unpaved and vety natrow, with residences on both sides '3 There Was no further
evidence regarding the nature of the road 01 its loeation Further, the COLllt is not swayed by the
People a argument that the vehicle blocking Penn 5 way ferward was able to drive down the
roadway as evidence the area is a public place because the ptesence of a vehicle does not
automatically deem an area a “public place" and the People introduced no evidence regarding the
identity of the individuals or the vehicle or their purpose for being in that location
1]} I The Coun finds the evidence was not sufficient for a rational jury to dlaw a conclusion that
the road is used by the public in general rather than only the residences next to the area, as is the
” 31L People 5 Exhibits III H2 H3 II 12 J3 and J4 which diapldy the roadway Penn 5 home and the stairwell
Penn and Samuel teatll'ied Bcnhier dcacexided to retrieve lhe fiream], and acme of the surrounding residences
People ufrhe Vugm Nam . shew 827N116!
Case No 51 2020 CR 00003 Cite as 2022 VI SuperéSU
Memorandum Opinion
Page 16 0le
standard established in Dm IS Aucordingly the Court finds the People failed to Larry the burden
of proving the incident occurred in a public place beyond a reasonable doubt Therefore the
People did not introduce sufficient evidence to establish all requisite elements beyond a reasonable
doubt for Count Three reckless endangetment in the first degree, and will acquit Betthier of that
change and vacate the conviction
IV The People did not present sufficient evidence for a jury to find Berthier guilty on
Count Four Unauthorized Possession of Firearm Ammunition
182 At trial the Court denied Beithier s oral request for judgment of acquittal on Count Four
and thejuly found him guilty of unauthorized possession of firearm ammunition pursuant to the
relevant statute and jury instructions Berthier 110w requests this Court reconsider its oral ruling,
pursuant to V I R CRIM P 29(0)
1133 The People charged Betthier with unauthorized possession of tiiealm ammunition under
the pertinent section of the Virgin Islands Code which states
a person who is not (1) a licensed firearms 01 ammunition dealer or (2) officer, agent 01
employee ofthe Virgin Islands or the United States on duty and acting within the scope 0f
his duties; or (3) holdei at a valid fireanns license for the same firearm gauge 0r caliber
ammunition 0f the firearm indicated on such license, and (4) who possesses, sells,
purchases, manufactutes, advertises for sale, or uses any firearm ammunition is guilty
subject to imprisonment or a fine
14 V I C § 2256(a) “Firearm ammunition ’ is defined as ‘ any self Lumained cartridge or shgtgun
shell, by whatever name known, which is designed to be used or adaptable for use in a firealm ”
14 V I c §2256(e)(2)
1134 At trial the Court instructed thejury that to establish guilt on Count Four they must find
(1) the Defendant possessed and used firearm ammunition (2) the Defendant was not at the time
the holder of a valid firearms license for the firearm gauge 01 Laliber ammunition of the firearm
People 0/1/16 Vngm Islands \ SheMIEe/Ihzt/
Case No ST 2020 CR 00003 Cite as 2022 VI Super 68U
Memorandum Opinion
Page 17 of 21
used on October 16 2019 and (3) this Londuet occurred on or about October 16 2019 on St
Thomas, Virgin Islands N
A The item shot from the firearm met the definition of “firearm ammunition”
1135 Berthier argues it was impropel for the Court to deny Berthier s oral motion at trial
pursuant to a broader definition of “ammunition’ found in 23 V I C § 451(a), rather than the
definition of‘ firearm ammunition" within 14 V I C § 2256, because the elements Ufa crime must
be derived hem the charging statute '5 Accordingly Berthier argues the Pecple failed to prove the
item that damaged Penn’s truck met the definition of “firearm ammunition” in 14 V l C §
2256(c)(2) The People euunter 23 V I C §§ 451 through 488 and 14 V I C §§ 2251 through
2255'6 deaI with the same subject matter and refer to each Other, so they are in pull mulerm and
must be read together in a hannonious manner
1136 The Court agrees with Berthier that it mistakenly applied the broader definition of
‘ ammunition” from 23 V I C § 451(a), rather than the applicab|e definition of “firearm
ammunition 110m 14 V I C §2256(c)(2) As Berthier points out it is inappropriate for the Court
to rely upon a broadel definition when a more narrowly tailored one is available It is a well
N While diaeuesing the iury metmeuona, the pants: comidered several provision: withm 14 V I c § 2256(3), and
whether they ahould be commend affirmative defame: the Defendant must prove to negate the charge or elements
the People must prove in order to tonvict specifically that the defendant “a: not an officer agent or employee of
the Vtrgin Islands or the United States on duty and tinting within the. acope of his duties or the holder ot a valtd
fireamts license for the same fireamt gauge 0r calmer ammunition of the firearm indicated on such lrcense " The
Court am not include the disputed premium in n: imtruetiona to the jury as required elements ofCount Four In hrs
reply Betthier Lite: to a Virgin blanda Supreme Court cage interpreting 14 V I C § 2256(a) which was decided after
Bcnhier'a tnaI Bertlticr include: an exeemt from the cage, wlnch seems to find that the dtspllted provisions Mould
be considered elements rathertltanaffinnalive defenses Rubem \ People 2022 VI 10 1139 However \thetherthose
provisions are elements or affinnanve defense: it not relevant here at Berthter only argues that he 15 entitled to
Judgment of acquittal beeause the People (ltd not prove that he lacked a firearm license
‘5 The definmon of ammunition wrthin 23 V I C §451(a) ta any bullet cartridge projectile buckshot or any load
placed or whteh may be placed in a firearm to be dracharged whercah 14 v I L § 2256(c)(2) defines firearm
ammuniuon” d3 “any self eontamed cartridge or shotgun shell, by whatever name known, whieh is designed to be
used or adaptable tor use In a firearm
W The Court notes that the People were likely intending to refer to 14 V I C W 2251 through 225821 St) as to Include
the provision at issue 14 V I C § 2256
PLUM: a/the Vzrgm [3111111]: u ShL/alfiuthter
Case No ST 2020 CR 00003 Cue as 2022 VI Super 68D
Memorandum Opinion
Page 18 0t 21
established Lann 0f statutery construction that “when two statutes cover the same situation, the
more specific statute takes precedence over the more geneial one, unless it appears that the
legislature intended for the more general to control Smith t Henley
67 VI 965 971 (2017)
(quoting VI Public Servs Comm 711 V1 Water & PamerAmh
49 VI 478 485 (V I 2008)) In
this instance the sentencing statute 14 V I C § 2256 is the more specific statute providing a
definition for ‘ firearm ammunition” while 23 V I C § 451 provides a definition only for
ammunition Additionally when crafting jury instructions, the parties utilized and adapted the
definition {10m 14 V I C § 2256 to define the elements required to Lonviet on Count Four
Accordingly the Court will apply the definition of firearm ammunition from 14 V I C §
2256(e)(2) for assessment ofthis mattel
1137 As stated, the pertinent definition 0f“firearm ammunition” is “any self contained cartridge
0r shotgun shell, by whatever name known, which is designed to be used or adaptable for use in a
firearm 14 V I C § 2256(c)(2) Benhier contends Penn and Samuel s testimnny where they
describe the item that damaged Penn 5 truek as a bullet is insufficient to satisfy the definition of
flredrm ammunition because neither Penn nor Samuel testified that they saw the objeet emitted
from the firearm nor did they demonstrate they have the applopliate lay knowledge to testify
regarding fliearms, ammunition, or ballistics Accordingly, Berthier argues expert testimoin was
required to identity the item which damaged Penn 5 car citing to a Kentucky Conn of Appeals
ease '7 The People counter they presented sufficient evidence, via Penn and Samuel’s testimony,
to prove Berthier raised a gun and fired a shot at Penn The People additionaIly argue their
introduction of evidence of the damage to Penn’s vehiele where the item hit the windshield was
”Eliza I Commonwealxh No 2007 CA 002213 MR 2009 WL413994 at *2 (Ky Ct App Feb 20 2009)
People amt Virgin [thunk \ sham Bul/uu
Case No ST 2020 CR 00003 Cite as 2022 V! Super 68U
Memorandum Opinion
Page 19 onI
sufficient fin the jury to conclude Berthier possessed firearm ammunition They argue an expert
was not required to assess the item and review the ballistics in this matter because the definition
ofammunition within 23 V I C § 451(a) was broad enough to include numerous projectiles which
could have hit Penn 5 truck
1138 Throughout her testimony, Samuel repeatedly stated she heard a shot, saw a gun shot 01'
bullet hole (referenced interchangeably throughout Samuel’s testimony) in the frame of Penn’s
truck and she saw Deteudant holding a long object with a barrel and a strap Penn too testified
the Defendant had a gun in his hand and ultimately the Defendant shot at [Penn] from four (4)
or five (5) feet away ‘ Penn stated there was a bullet hole in the frame of his truck and there was
a clack in the windshield from the bullet Given the significant testimony that Bcrthier utili/ed a
fixeann of some kind theie was damage to Penn s truck as a result of a projectile coming out of
suLh firedtm, and both Penn and Samuel witnessed the shot either visually 01 audially, the Court
finds there is sufficient evidence fol a jury to conclude the item WhiLh damaged Penn’s truck
satisfies the definition of ‘ fireann ammunition’ The Court finds an expert witness was not
requixed to testify to the status ofthe prOJectile, since it is appaicnt from the cireumstanees of the
ease that something was shot from a firearm which a rational jury can understand without expert
testimony
189 Accordingly the Court finds the People did Larry their burden of pioving the item which
damaged Penn 5 tiuck was in fact firearm ammunition Penn and Samuel s testimony that an
item shot from a firearm and struck Penn’s truck provided sufficient basis for djury to determine
the item which damaged Penn’s truck was ‘ designed or adapted for use in a firearm”, thereby
meeting the appropriate definition fol “firearm ammunition"
Ptople 0fthe Vugm Ivlzmrlsi mm Benin“
Lass N0 ST 2020 CR 00003 Cite as 2022 VI Super 68U
Memorandum Opinion
Page 20 of21
B The People failed to prove a required element of Count Four beyond a reasonable
doubt
1140 As stated to find Berthier guilty of the charge of unlawful possession of firearm
ammunition the People had the burden of proving that (1) Berthier possessed and used firearm
ammunition (2) Berthier was not at that time the holder of a valid firearms license for the firearm
gauge 0r caliber ammunition 0f the firearm used on OLtober 16, 2019; and (3) this conduct
oeeun‘ed on 01 about October 16, 2019, on St Thomas, Virgin Islands
1|4] Betthier argues the People did not prove he was not the holder Ufa valid firearms license
for the same firearm gauge or caliber ammunition of the firearm indicated on such license”, and
thus the guilty verdict cannot stand As discussed in detail in section 11, above, the People indeed
failed to prove Berthier lacked licensure to possess a firearm on October 16, 2019 Therefore, the
People failed to prove an essential element of the crime of unauthorized possessinn of firearm
ammunition
1142 Despite the above finding that the People presented sufficient evidence for a jury to find
the item that wai discharged from Berthier’s firearm was firearm ammunition, the Court still finds
the People failed to carry their burden of proving every lequired element of Count Four
Aeeordingly, the Court will reverse it: original ruling denying Berthier’s requth for judgment of
acquittal on Count Four and Vacate thejury’s finding efguilt Thus, the Court will acquit Berthier
for Count Four, unauthorized possession of firearm ammunition
CONCLUSION
1143 The Court will grant Berthier s motion forjudgment 0f anuittal in part and deny it in part
The Court finds the People introduced sutficient evidence to prove Benhier 5 identity as Penn 5
assailant, and therefore will deny Berthier’s motion d5 to Count One However, the Court finds the
PLOW mm Vugm Islandm SheMIBe/thlu
Case No §T 2020 CR 00003 Cite as 2022 VX Super 68U
Memorandum Opium“
Pa 6 21 of21
People failed to introduce adequate evidence to prove at least one required element for each Count
Two Count Three and Count Four Accordingly the Coun will grant Berthicr s motion with
respect to Counts Two Thee and Four and will vacate the jury s guilty verdicts for those counts
1144 An order consistent herewith will immediately follow
DATED July ,2 Q 2022 W %4&
Kathleen ackay
Judge 0fthe Superior Court
ATTEST 0f the Virgin Islands
TAMARA CHARLES
Clerk ofthe Court
BY ; i @
4,3, LATOYA CAMACHO
Court Clerk Supervism 0 Z LQLUfi
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS, ) CASE NO ST 2020 CR 00003
)
Plaintiff )
vs ) 14 V I C § 297(a)(2)
) 14VIC §2253(a)
SHEKIL JAMAC BERTHIER ) 14 V I C § 625(a)
) 14 V I C §2256(a)
Defendant )
)
ORDER
In accordance with the Memorandum Opinion issued on this day, it is hereby
ORDERED that Defendant Shekil Beithier s Motion for Judgment 0f Acquittal is
GRANTED IN PART and DENIED IN PART' it is further
ORDERED that the portion of the Motion seeking a Judgment of acquittal on Count One
is DENIED it is further
ORDERED that the portion of the Motion seeking judgments of acquittal on Counts Two,
Three, and Four is GRANTED; it is further
ORDERED that Defendant is acquitted of Counts Two, Three and Four; it is further
ORDERED that the Office of Probation shall amend its Presentence Report in accordance
with this Order and the corresponding Memorandum Opinion; it is further
ORDERED that this matter remains scheduled for Sentencing, on Count One, on
Thursday, August 11, 2022, at 10 00 a m IN PERSON and it is finally
People v Shekil Berthier
Case No ST 2020 CR 00003
Order Re Motion for Judgment of Acquittal
Page 2
ORDERED that copies of this Order and the corresponding Memorandum Opinion shall
be served on Defendant Shekil Berthier and copies shall be directed to counsel of record and the
Probation Office
DATED Julygé 2022 W 274%
Kathleen Mackay
Judge of the Superior Court
ATTEST of the Virgin Islands
TAMARA CHARLES
Clerk of the Com
BY
48( LATOYA CAMACHO
Court Clerk Supervisor 07 / a 6/ (949-1