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; Case Nu ST 2020 CR 00003 Cite as 2022 VI Super 68U 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 Page 3 0t 21 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“?! Case No ST 2020 CR 00003 Cite as 2022 VI Super 68U Memorandum Opinion Page 4 0le 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 Cage N0 ST 2020 CR 00003 Cue as 2022 VI Super 68U Memorandum Opmlon Page 5 0t 21 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 Memorandum Opinion Page 6 onI 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 Memorandum Opinion 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 Case No ST 2020 CR 00003 Cite as 2022 VI Super 68U Memorandum Opinion Page 8 (>le 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 Memorandum Opinion Page 9 efZl 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; Case No ST 2020 CR 00003 Cite as 2022 VI Super GXU Memorandum Opinton 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