IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS )
Plaintiff ;
v ) CASE NO ST 22 CR 012
SHAMALL FLEMING )
) Cite as 2023 V I Super 2U
Defendant )
)
MEMORANDUM OPINION
fill THIS MATTER is before the Court on the Motion to Dismiss or Consolidate Counts
Five, Seven, Nine, and Eleven ’ filed on July 29, 2022, by Defendant, Shamall Fleming
( Fleming ) pursuant to Virgin Islands Rule of Criminal Procedure 12(b)(B)(ii) Defendant moves
this Court to dismiss or in the alternative, to consolidate counts five (5), seven (7), nine (9), and
eleven (11) as being multiplicitous The People of the Virgin Islands ( the People ) filed an
Opposition on August 1, 2022 For the following reasons, Defendant’s motion to consolidate will
be granted
I FACTUAL AND PROCEDURAL BACKGROUND
112 The People have charged Fleming with several acts of domestic violence against his wife,
Monique Johnson Fleming (“Mrs Fleming”), including assault, rape, disturbance of the peace,
and possession of a dangerous weapon charges The People allege that on the morning of January
6, 2022, Fleming beat his wife by wrapping a towel around his hand and punching her to the back
of her head He then continued beating her by placing a cushion against her head and punching on
it Further, in an attempt to prevent Mrs Fleming from calling the police, the Defendant strangled
his wife by grabbing her by the throat causing her to suffocate for at least five (5) seconds before
releasing her The People also allege that the Defendant subsequently grabbed Mrs Fleming’s
People ofthe Virgin Islands v Shanta]! Fleming Cite as 2023 V I Super 2U
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Memorandum Opinion
phone from her hand and slammed it on the floor, he then picked it up and slammed it against the
wall to ensure that she was not able to contact the police The People fimher averred the cause for
the Defendant’s actions was his frustration about being locked out of an apartment that he shared
with Mrs Fleming and her subsequent request of him to move out of their domicile ' Following
the incident, Mrs Fleming went to the police station and filed a police report In addition to
providing the details about the incident and the nature of her relationship with Defendant Fleming,
Mrs Fleming also provided the police with information about Defendant’s place of employment
and vehicle information for the purposes of his apprehension
{l3 The People timber allege Mrs Fleming eventually left the police station but did not return
home until January 7, 2022 Thereupon, she discovered her husband in the apartment, to her
surprise Immediately after, Defendant allegedly threatened to chop her by placing a machete
against her forehead and demanded that she returns the apartment key she took from him the day
before After her refusal to give him the key, he pressed the machete above her neck, and Mrs
Fleming gave him the key as a result Subsequently Fleming pushed his wife into the bathroom
and then into the bedroom, dragged the wig off her head and demanded sexual intercourse with
her He further threatened to punch her if she continued to resist The People further stated that
after Mrs Fleming refused to copulate with the Defendant, he then threw her on the bed and forced
himself on her
1|4 Several hours later, Detective Chanise Potter approached the Defendant at Hospital Ground
parking lot, St Thomas, Virgin Islands, who advised the Defendant of his constitutional rights
Fleming agreed to provide statements to the police and they proceeded to the police station At the
station, Fleming admitted to having a verbal altercation with his wife on the morning of January
' Affidavit made by Chanise Potter pp 1 2 2
People ofthe Vzrgm Islands v Shaina]! FIemmg Cite as 2023 V 1 Super 2U
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Memorandum Opinion
6, 2022, and to slamming her cell phone twice in an attempt to prevent her from calling the police
However, Fleming denied beating and strangling his wife Upon further questioning, the Defendant
was arrested
'|5 On January 26, 2022 the People formally charged Fleming with twelve counts in the
Information
i CountOne Simple Assault Domestic Violence tit 14VIC §§ 292 299(2) 16
V I C §91(b)(l)(2)
ii Count Two Assault in the Second Degree Domestic Violence, tit 14 V I C §
296(3) 16 V I C § 91(b)(2)-
iii Count Three Disturbance of the Peace Domestic Violence, tit 14 V I C §
622(1) 16 V I C §91(b)(10)
iv Count Four Aggravated Rape in the First Degree Domestic Violence, tit 14
VIC §l700(c) 16VIC §91(b)(6)
v Count Five Possession of a Dangerous Weapon During the Commission of an
Aggravated Rape in the First Degree tit 14 V I C § 2251(a)(2)(B)
vi CountSix Rape in the First Degree Domestic Violence,tit 14V I C § 1701(2),
16 V I C §91(b)(6)
vii Count Seven Possession of a Dangerous Weapon During the Commission of Rape
in the First Degree tit 14 V I C § 2251(a)(2)(B)
viii Count Eight Assault in the First Degree Domestic Violence, tit 14 V I C §
295(3)(4) 16 V I C § 91(b)(1)
ix Count Nine Possession of a Dangerous Weapon During the Commission of an
Assault in the First Degree tit 14 V I C § 2251(a)(2)(B)
x Count Ten Assault in the Third Degree Domestic Violence, tit 14 V I C §
297(a)(2) 16 V I C §91(b)(1)
xi Count Eleven Possession of a Dangerous Weapon During the Commission of an
Assault in the Third Degree tit 14 V I C § 2251(a)(2)(B)
xii Count Twelve Disturbance of the Peace Domestic Violence, tit 14 V I C §
622(1) l6VIC §91(b)(10)
3
People ofthe Virgin Islands v Shaina]! Flemmg Cite as 2023 V I Super 2U
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Memorandum Opinion
{6 On July 29, 2022, Defendant Fleming filed the instant motion In his motion, Fleming
argues dismissal or consolidation of counts 5 7 9 and 11 is necessary on the grounds that they
are multiplicitous and repeatedly charge him with the same offense, possession of a dangerous
weapon during the commission of a crime of violence, in violation of tit 14 V I C §
2251(a)(2)(B) ° Defendant asserts that the offenses charged are alleged to have occurred on the
same day, the facts underpinning the counts are the same and the weapon alleged to be used is the
same in each count Id at p 2 As the Information stands excessive charging prejudices him and
suggests to the jury that he has committed several different crimes Id He concluded that
consolidation of the dangerous weapon charges would still accurately reflect what the People of
the Virgin Islands have alleged against him Hence his motion should be granted Id
t-7 In their opposition, the People contend that the charges are not multiplicitous because each
of the underlying charges are distinct from one another 3 In particular, they state that even though
events occurred within a short period of time the separate charges are appropriate The People
explained that the weapon charges associated with each underlying offense results from separate
criminal acts The assault in the first degree charge stems from the acts of Defendant pushing Mrs
Fleming into the bedroom, dragging the wig offher head and struggling with her to commit a rape,
the assault in the third degree charge arises from the Defendant s threat to chop his wife while
holding the machete against her forehead and demanding the apartment key, the aggravated rape
in the first degree charge is based on Fleming 3 act of holding a machete to his wife 5 face and
pushing her into the bedroom and forcing himself upon her; finally, the rape in the first degree
charge is based on the physical force used by the Defendant in order to overpower his wife and
2 Defendant s Motion to Dismiss, p 1
3 People 5 Opposition, p 3, paras 8 9 4
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Memorandum Opinion
penetrate her In other words, the People posit that each act of violence allegedly committed by
the Defendant represents distinct criminal conduct Therefore to amplify their position, the
government argued that the Virgin Islands Legislature intended that an underlying crime and its
associated weapon charge must be viewed and punished separately Therefore, consolidation of
the weapon charges would fail to accurately capture each criminal conduct As such, Defendant’s
motion to dismiss should be denied
II LEGAL STANDARD
118 Virgin Islands Rule of Criminal Procedure 12(b)(3)(B)(ii) allows a party to challenge a
defect in the charging information before trial namely that the information is charging the same
offense in more than one count (multiplicity) "‘ Title 14 § 104 of the Virgin Islands Code prevents
multiple punishments for a single act or omission that can be charged under several different
counts 5 This rule provides
‘An act or omission which is made punishable in different ways by different
provisions of this Code may be punished under any of such provisions, but in no
case may it be punished under more than one An acquittal or conviction and
sentence under any one bars a prosecution for the same act or omission under any
other
1|9 Multiplicity occurs when an information charges a single crime in several different counts ”
People of the V] v Colon 60 V I 149 158 (V I Super Ct 2014) In determining whether an
indictment is multiplicitous, the Court looks to whether “separate and distinct prohibited acts”
have been committed Umted States v Planck 493 F 3d 501 503 (5th Cir 2007) Where the same
act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or only one is whether each provision requires proof
‘ See also People v Prmgle 2021 VI Super 94U at1| l6
5 [4 v 1 C § 104
5
People ofthc Virgin Islands v Shamall Flemmg Cite as 2023 V I Super 2U
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Memorandum Opinion
of a fact which the other does not Blockburger v United States 284 U S 299 304 52 S Ct 180
76 L Ed 306 (1932) Untied States v Hodge 211 F 3d 74 78 (3d Cir 2000) (using the test set
forth in Blockburger to determine whether certain offenses grew out of the same occurrence); U S
v Ltotard
817 F 2d 1074 1077 1078 (3d Cir 1987)‘ thre v People
70 VI 797 803
2019 VI
3 (2019)
‘10 However, when someone is charged four times under the same statute for conduct
occurring around the same time “[t]he proper inquiry is what unit of prosecution’ has the
Legislature intended as the punishable act Estzck v People 62 V I 604 621 (2015) The unit of
prosecution for a crime may be an act or a course of conduct ” Id (citing Bell v Umted States, 349
U S 81 83 (1955) United States v L mversal C I T Credit Corp 344 U S 218 225 26 (1952))
(where a defendant was twice charged with reckless endangerment in violation of 14 V I C §
625(a))
1|] 1 In Tyson v People 59 V I 391 396 (2013) the Virgin Islands Supreme Court considered
a case where a defendant violated 14 V I C § 2253, Unauthorized Possession of a Fireatm, twice,
for two different murders using the same gun The Court considered the charges multiplicitous
even though two different murders were committed, it was with the same gun and the crime
occurred around the same time Id The Court ultimately concluded that it is multiplicitous to
charge someone for possession of the same weapon multiple times for multiple underlying crimes
when the same weapon is used and the crimes are a pan of the same ongoing criminal activity Id
1|12 In People v Prmgle 2021 VI SUPER 94U this Court adopted the Tyson standard of
reasoning See supra filll The Court considered the issue of whether possession of the same gun
during the commission of several different crimes occurring under the same general criminal
conspiracy constitutes the same offense and therefore, whether the People are prosecuting a single
6
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Memorandum Opinion
violation under separate charges Pringle at 1] 24 Subsequently, the Court found that like in Tyson,
one gun was used in the commission of two related crimes, a kidnapping where the person was
also assaulted 1d Finding that the assault and kidnapping charges against Pringle were
multiplicitous, the Court contemplated whether it should proactively dismiss or consolidate the
charges Id at 1| 25 The Court ultimately decided that the decision should be made on a case by
case basis, considering such factors as judicial economy, risk of prejudice, the totality of the
charges against the defendant, and the severity of those charges 1d As such, the Court
consolidated the firearm charges associated with kidnapping and three counts of assault in the third
degree into one charge Id
111 LEGAL DISCUSSION
1|13 Fleming argues the People improperly charged him because the four disputed counts are
associated with the offenses that occurred in the same course of events on January 7, 2022, and
allegedly involved the same weapon used against a single person 1d Fleming also argues that
keeping the multiplicitous charges will prejudice him in the eyes of the jury and suggests that he
has committed several different crimes Id
‘|14 The People argue, on the other hand, that pursuant to Titre v Pe0ple, the Court must apply
the Blockburger test to see if each underlying charge requires establishing distinct elements of a
crime and whether the Virgin Islands Legislature intended for a specific count to be punished in
conjunction with another 6 The People further aver that although Defendant’s violence occurred in
one string of events on one day, they have appropriately charged the various and distinct acts of
the Defendant 7
6 People 5 Opposition p 3, para 5
7 [bid at para 8 7
People 0fthe Virgin Islands v Shamall Fleming Cite as 2023 V I Super 2U
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Memorandum Opinion
1|15 While the People’s analysis of the application of the Blockburger test is correct, the
analysis does not end there After examining the pertinent statutes, as well as relevant case law
addressing issues of multiplicity of charges and conducting the Blockburger analysis, this Court
agrees with Fleming Here the weapon charges merged at the time when Fleming’s alleged threats
of using the machete and pushing Mrs Fleming into the bedroom facilitated his intent to rape her
Therefore, these separate and distinct acts should not be viewed in isolation Thus, the dangerous
weapon charges associated with these acts of violence should be consolidated
1116 Similarly to Tyson where one gun was used in perpetration of two related murders and
reckless endangerment of the public, one weapon the machete, was also used here in the
commission of an alleged assault and rape of Mrs Fleming Elements of each underlying charge
are facially and substantially under the Blockburger analysis, but the unparalleled circumstances
such as time, space, and victimization of one person warrant consolidation of the dangerous
weapon charges
1H7 The Virgin Islands Code defines aggravated rape in the first degree, 14 V I C § 1700(0),
as
“Whoever perpetrates an act of sexual intercourse or sodomy with a person
(0) Whoever uses a deadly weapon during the commission of an act of rape
as set forth in section 1701
is guilty of aggravated rape in the first degree[ ]”
Additionally, with respect to rape in the first degree, section 1701(2) defines it as
Whoever perpetrates an act of sexual intercourse or sodomy with a person
(2) when the person's resistance is forcibly overcome is guilty of rape in
the first degree ’
Under the Blockburger test elements of both crimes overlap because Fleming 3 use of the
machete immediately before and during the alleged rape of his wife served as a means of
8
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Case No ST 22 CR 012
Memorandum Opinion
intimidation to forcibly overcome his wife’s resistance to copulate The record reveals that
Fleming apparently had the machete in his immediate possession from the moment Mrs Fleming
returned home and throughout the entire argument when he was allegedly pushing her into the
bedroom and sexually assaulting her ( onsequently by committing an act punishable under 14
V I C § 1700(c), use of the machete during unwelcomed intercourse, Fleming simultaneously
committed the crime punishable under 14 V I C § 1701(2), forcible sex Therefore, the
Blockburger test is satisfied As a result, the weapon charge associated with the rape in the first
degree charge is merged into the weapon charge associated with the underlying aggravated rape
in the first degree charge
MS Turning to the assault charges, under section 295(3) and (4), assault in the first degree is
defined as
“Whoever
(3) with intent to commit rape, sodomy, mayhem, robbery or larceny,
assaults another,
(4) commits an act under paragraphs (1) or (2) 0r (3) of this section in an
act of domestic violence as defined in Title 16 Virgin Islands Code, chapter
2, section 91(b) shall be sentenced [ ]’
Additionally, under section 297(a)(2), assault in the third degree is defined as
‘(a) Whoever, under circumstances not amounting to an assault in the first
or second degree
(2) assaults another with a deadly weapon
1119 In reference to the underlying assault charges associated with the dangerous weapon
charges in counts nine and eleven of the Information, the language in 14 V I C § 297(a) provides
for ‘ circumstances not amounting to an assault in the first or second degree However, that
language does not establish an additional element of the offense, but rather constitutes a condition
precedent to the sentencing range prescribed in section 297 szbs v People, 73 V I 617, 622,
9
People ofthe Virgin Islands v Shamall Fleming Cite as 2023 V I Super 2U
Case No ST 22 CR 012
Memorandum Opinion
2020 V I 18, at 12 The language in section 297(a)(2) “assaults another with a deadly weapon” is
not analogous to nor does it overlap with section 295(3) or (4) In this particular context, it punishes
an act of using a dangerous weapon in furtherance of a crime committed under section 295(3) and
(4) Therefore, 14 V I C § 297(a)(2) shall be considered with the assault in the first degree under
§ 295(3) and (4) Here, the facts underlying the assault in the third degree charge stem from
Fleming’s intention to intimidate his wife with the machete in order to repossess the house key
upon her arrival home from the police station The assault in the first degree charge arises from
Fleming s subsequently followed acts of tossing, pushing, and overpowering his wife coupled with
the use of the same machete as a means of intimidation in order to fulfill his objective of having
sex with her Both acts of violence are part of one chain of events involving the same dangerous
weapon used against the same person Since the fine line separating both acts is nearly invisible
under the present circumstances, it is not reasonable to view each instance of using the machete
during the this short lived incident in isolation from one another
1|20 When applying the conclusions of law above and the Blockburger logical analysis to the
case at hand, the weapon charges merge The totality of the circumstances surrounding the incident
that occurred in the early morning hours of January 7, 2022, show that the acts of assault upon
Mrs Fleming occurred immediately upon her return home and ultimately led to her rape The
course of events shows unequivocally that weapon charges should be consolidated
‘21 Consequently, counts seven, nine and eleven should be merged into count five, in that the
People are not required to prove any additional element to obtain convictions for counts seven,
nine, and eleven that are not required to obtain a conviction under count five Hence, the
Blockburger test is satisfied here
'|22 In addressing the People’s concerns that consolidation of four counts into one would fail
to
People ofthe Virgin Islands v Shamall Fleming Cite as 2023 V I Super 2U
Case No ST 22 CR 012
Memorandum OpiniOn
to accurately capture Fleming’s criminal conduct, this Court finds that consolidation will merely
simplify the Information and reduce repetitive charges Fleming is only charged with using a single
weapon, the machete, against a single victim so removing the repetitive charges of possession of
such weapon during the distinct acts of Violence in perpetration of one great crime will not
ultimately alter the crimes charged Therefore consolidating the four disputed charges into a single
charge will more accurately encapsulate the charges against Fleming
‘123 Finally, considering judicial economy and efficiency consolidation of the weapon charges
eliminates the need for the Court and the parties to address jury instructions for four identical
charges of possession of a dangerous weapon during the commission of a violent crime for the
same units of prosecution The Court therefore finds it prudent to consolidate the four disputed
charges into one
IV CONCLUSION
1124 For the reasons provided, this Court finds that consolidation is appropriate at this stage
Accordingly, counts seven, nine, and eleven, each charging Fleming with violating 14 V I C {3
2251(a)(2)(B), shall be consolidated into count five An appropriate order of even date follows
Dated January 2023
r
/ I
A
'
III A[7 '
enee Gu I a
Judge of the Sup 9 or t
of the Virgin slands
ATTEST
Tamara Charles
Clerk of th Co rt
B&M'
é/Latoya C acho
Court Clerk Supervnsor fl/gfiw
ll
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST THOMAS AND ST JOHN
PEOPLE OF THE VIRGIN ISLANDS )
)
Plaintiff )
v ) CASE NO ST 22 CR 012
)
SHAMALL FLEMING )
) Cite as 2023 V I Super 2U
Defendant )
)
ORDER
THIS MATTER is before the Court upon Defendant Shamall Fleming’s Motion to Dismiss”
filed on July 29, 2022 Defendant moves this Court to dismiss counts five (5), seven (7), nine (9), and
eleven ( l l) or in the alternative, to consolidate them into one charge The People of the Virgin Islands
filed their Opposition on August 1, 2022 Consistent with the Memorandum Opinion of even date, it
is hereby
ORDERED that Defendant s motion to consolidate the dangerous weapon charges into one
count is GRANTED, and it is further
ORDERED that Counts 7 9 and 1 1 are CONSOLIDATED into count 5 and it is further
ORDERED that within one week of the date of entry of this Order the People SHALL file
the First Amended Information consolidating the respective counts and reflecting a total of nine
counts; and it is further
ORDERED that copies of the Memorandum Opinion and this Order shall be directed to
Assistant Attorney General Anna B Scott, Esquir nd Territorial Public Defender Mary Ann
Matney, Esquire
I
Dated January 3% 2023
Renee bs Carty
Judge of the uperior Court
of the Vi in Islands
ATTEST
Tamara Charles
Clerk of t C urt
By
a ,Latoya amacho
Court Clerk Sup isor ”Z /&@3
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Thomas/St. John
People of the Virgin Islands Case Number: ST-2022-CR-00012
Charges: 14 V.I.C. 299(2)
vs. 16 V.I.C 91(b); 14 V.I.C. 296 (3)
16 V.I.C 91(b); 14 V.I.C. 622(1)
Shamall Fleming 16 V.I.C 91(b); 14 V.I.C. 1700
16 V.I.C 91(b); 14 V.I.C. 2251(a)(2)(B)
14 V.I.C. 1701(2); 16 V.I.C 91(b)
14 V.I.C. 2251(a)(2)(B); 14 V.I.C. 295(3)
16 V.I.C 91(b); 14 V.I.C. 2251(a)(2)(B)
14 V.I.C. 297(2); 16 V.I.C 91(b)
14 V.I.C. 2251(a)(2)(B); 14 V.I.C. 622(1)
16 V.I.C 91(b)
NOTICE of ENTRY
of
Memorandum Opinion
To: Anna B. Scott, Esquire Mary Ann Matney, Esquire
Please take notice that on January 24, 2023
a(n) Memorandum Opinion
dated January 24, 2023 was entered
by the Clerk in the above-titled matter.
Dated: January 24, 2023 Tamara Charles
Clerk of the Court
By:
Audrey C. Brin
Court Clerk II