People of the Virgin Islands v. Enoch J. Cole and Avondale A. George, Jr.

Opinion

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

PEOPLE OF THE VIRGIN ISLANDS I PLAINTIFFS,

V SX 16 CR 273 SX 16 CR 274 ENOCH J COLE AND AVONDALEA GEORGE JR Cite as 2020VI Super Ct 040U i DEFENDANTS I

NOT FOR PUBLICA TION

Appearances

Eric Chancellor, Esq V I Department of Justice Kingshill St Croix USVI For the People

Michael Joseph, Esq Kingshill St Croix USVl For Defendant Cole

Yohanna Manning, Esq Christiansted St Croix USVI For Defendant George

MEMORANDUM OPINION

‘III THIS MATTER is before the Court on the Defendants individual Motions for Judgment of

Acquittal or for New Trial On December 3 20l9 after the close of the People’s case in chief,

Defendants Cole and George each made and joined the other 5 oral Rule 29 and 33 Motion for

Judgment of Acquittal or in the Alternative for New Trial The Court denied the motions though each

motion was renewed before instructions were given to the jury Cole submitted a joinder to George’s

renewed motion in writing on December 19, 2019 As the Court understands it, George joined Cole’s

renewed motion at trial The People filed an Opposition to Defendant George’s motion on December Government ofthe Vlrgm Islands v Cale er a1 2020 V I Super Ct 040U SK 2016 CR 271 SX 20l6 CR 274 OPINION Page 2 of 10

23, 2019 Although the People do not appear to respond to Cole 3 motion each motion was made on

the same grounds and the Court will consider them together

BACKGROUND

(“2 On August [7 2015 the Virgin Islands Police Department was alerted to an alleged robbery at

David Hamilton Jackson Park in Frederiksted Detective Lawrence James, Jr arrived at David

Hamilton Jackson Park and observed an elderly man lying face up on the ground, unconscious The

elderly man, later identified as Augustus Bannis, was observed to have swelling around his left eye

and a laceration beneath the left eye and was bleeding from the right side of his head Emergency

Medical Technicians arrived and transferred Mr Bannis to Governor Juan F Luis Hospital where he

received medical treatment Mr Bannis was in a coma and airlifted to Jackson Memorial Hospital in

Miami Florida on August 23, 2015 He died of his injuries on October 19 2015 having never regained

consciousness

‘][3 On September I 2015 police recovered a blue Chevrolet Cavalier belonging to Mr Bannis

from the area of Mutual Homes Apartment Grove Place Frederiksted The car had been dismantled

Upon speaking to concerned citizens in Grove Place, Detective James discovered that there was a

group of young men who socialized together Several names were given to Detective J ames, including

those of the Defendants

‘114 On September 23 2015 a witness Melissa Banuelos came forward and stated to police that

she had seen four individuals personally known to her attack Mr Bannis at David Hamilton Jackson

Park Two perpetrators of the attack were identified by Ms Banuelos as the Defendants who were

minors at the time According to Ms Banuelos, another member of the group initiated the attack by

grabbing Mr Bannis by his neck while appearing to speak to him The initial attacker pulled a black

object from his pocket and used it to strike Mr Bannis in the face Mr Bannis fell to the ground and

the other three attackers began kicking Mr Bannis repeatedly including around his head and upper Gmemmem ofthe Virgin Islamlst Cole eta! 2020 VI Super Ct 040U SX 20l6 CR 273 SX 20l6 CR 274 OPINION Page 3 of IO

body Ms Banuelos testified that the Defendants kicked Mr Bannis until he stopped moving and then

appeared to search his pockets The Defendants then got into a blue Chevrolet Cavalier and drove

away

‘IIS On September 24 2015, Detective James showed four photo arrays to Ms Banuelos and asked

if she could identify anyone in the arrays She identified the Defendants and the two other men already

identified by name As a result the Defendants were arrested on November l2, 2015 On September

9 20l6 the Defendants were transferred from Juvenile Court to the Criminal Division The People

charged each of the Defendants as follows

Count One Murder in the First Degree/Principals in violation of I4 V I C § 922(2) & l 1(a) Count Two Robbery in the First Degree/Principals in violation of 14 V I C § l862(l) & ll(a) Count Three Assault in the First Degree/Principals in violation of 14 V IC § 295(3) & ll(a) and Count Four Unauthorized Use of a Motor Vehicle/Principals in violation of 14 V I C § 1382 & ll(a)

116 Jury trial began on December 2 2019 On December 3, the People filed their Second Amended

Information which added charge of Murder in the Second Degree in violation of l4 V I C § 922(b) as

the new Count Two and lesser included offense of Murder in the First Degree ' The jury began

deliberations on December 4 2019 and returned a verdict on the same day Each Defendant was found

not guilty of Murder in the First Degree but was found guilty of all other charges The Defendants

have based their Motions for Judgment of Acquittal on the grounds that there is insufficient evidence

to convict them of the crimes alleged

‘]|7 In their Opposition to Defendant George s motion the People assert that he makes no factual

or legal argument to support his motion (Opp’n l ) The People also argue that the jury s finding

was reasonable and not in any way a miscarriage of justice ” (Id ) Evidence was presented at trial,

I Thereafter the charges were as follows Count One Murder First Degre CountTwo Murder Second Degree Count Three Assault FirstDegree Count Four Robbery FirstDegree Count Five Unauthorized Use of a Vehicle Gatemmem of (he Vtrginlslandxv Cole eta] 2020 V I Super Ct 040U SX 2016 CR 27% 3X 2016 CR 274 OPINION Page 4 or 10 through eyewitness testimony that Mr Bannis was in David Hamilton Jackson Park on August 17,

2015 where he was then attacked by the Defendants and two others who proceeded to kick him (Id)

The eyewitness also testified that the Defendants took Mr Bannis’ car and drove away in it (Id at 2)

It was also stipulated during trial that Mr Bannis died of the traumatic injuries he sustained that day

(Id)

STANDARD OF LAW

‘Il8 Pursuant to Rule 29 of the Virgin Islands Rules of Criminal Procedure the Court must enter

a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction ”

V IR Crim P 29(a) When considering challenges to the sufficiency of the evidence the question is

whether any reasonable jury when viewing the evidence in the light most favorable to the

government could find the defendant guilty beyond a reasonable doubt Mernfield v People of the

Vtrgm Islands 56 V I 769 774 (Sup Ct 2012) (citing Smith v People of the Virgm Islands 51 V I

396 397 98 (Sup Ct 2009) See McIntosh v People of the Vzrgm Islands 57 VI 669 678 (Sup Ct

2012) (stating that the standard of review is whether there is substantial evidence, when viewed in

the light most favorable to the government to support the jury’s verdict”) A verdict may be upheld

even when it is based on circumstantial evidence James v People of the Virgin Islands, 59 V I 866

877 (S Ct 2013) (finding that a lack of eyewitnesses does not equate to a lack of evidence sufficient

for a conviction, because the jury makes judgments about which witnesses are credible and worth

believing)

919 Under Rule 34 of the Virgin Islands Rules of Criminal Procedure, a “defendant must move to

arrest judgment within 30 days after the court accepts a verdict or finding of guilty ’ V IR Crim

P 34(1)) The Court must arrest judgment if the offense was not charged in the information or if the

Court does not have jurisdiction over the charged offense V I R Crim P 34(3)

DISCUSSION Government ofthe Virgin Islands v Cole e! a! 2020 V I Super Ct 040U SX 2016 CR 27‘; SX 2016 CR 274 OPINION Page 5 of 10

1 The Court has jurisdiction over all counts

‘l[10 In People ofthe Virgin Islands v Morton 57 V I 72 (V I Super 2012) the Court dealt with

a Rule 34 motion to arrest judgment As in the present matter the defendant Morton did not produce

any evidence in support of the motion The Court found that

Although timely Defendant s motion for an arrest of judgment suffers from the lack of a scintilla of evidence to warrant relief Other than his bald request for an arrest of judgment [the Defendant] does not identify any legal standard authority orjustifiable ground recognized by law to support his request Defendant's motion is also bereft of any proof that the Information fails to charge an offense Moreover subject matter jurisdiction is conferred upon this Court pursuant to Section 22(b) of the Revised Organic Act as amended, and Title 4 Section 76(b) of the Virgin Islands Code which vests this Court with “original jurisdiction in criminal matters ’ Ergo the Defendant has failed to satisfy the requirements of Rule 34 and this Court must reject Defendant Morton s demand for an arrest of judgment 57 V I 90 91

‘]| 11 Likewise this Court finds that the Defendants have failed to proffer any cognizable legal

standard or evidence This failure defeats the Defendants’ requests for arrest of judgment The Court

has jurisdiction over the charged offenses via Title 4 Section 76(b) of the Virgin Islands Code and

there is nothing to suggest that the Amended Information was deficient or otherwise improper,

especially since Murder in the Second Degree was properly included as a lesser included offense of

Murder in the First Degree The Court will therefore deny any request for arrest of judgment pursuant

to Rule 34 of the Virgin Islands Rules of Criminal Procedure

2 There is sufficient evidence to convict Defendants Cole and George of Murder in the Second Degree

1112 For Count Two the Defendants were each found guilty of the crime charged, Murder in the

Second Degree Where Murder in the First Degree includes murders that are committed with malice

aforethought Murder in the Second Degree encompasses all other killings 14 V IC § 922(b) Melissa

Banuelos was in the vicinity of David Hamilton Jackson Park in Frederiksted where she observed a

group of males together She testified that another man identified as Mr Bannis was in the park and Government oflhe Virgin mam]: v Cole er a1 2020 V I Super Ct 040U SX 20l6 CR 273 8X 2016 CR 274 OPINION Page 6 of [0

that one member of the group went over to Mr Bannis and grabbed him Ms Banuelos also testified

that this initial attacker struck the victim with an object so that he fell to the ground where he was

repeatedly kicked by the other members of the group including the Defendants When the attack was

over, the Defendants were seen driving away in the victim’s car Ms Banuelos was familiar with the

attackers and was able to identify the Defendants to police prior to seeing photo arrays

1113 The jury also heard the testimony of Detective James he responded to the incident he found

Mr Bannis lying on the ground injured It was stipulated that Mr Bannis died of the injuries he

sustained in the attack

‘lll4 In this case the Defendants’ convictions for Count Two will be upheld because the jury’s

conclusion that the Defendants’ committed Murder in the Second Degree is reasonable after viewing

the evidence in a light favorable to the People Testimony revealed that there was an altercation

between Mr Bannis and the Defendants at David Hamilton Jackson Park and that Mr Bannis was seen

by an eyewitness to have sustained grievous injuries in the altercation Moreover the eyewitness knew

the identities of the attackers and was able to name them The jury can therefore conclude that the

Defendants participated in the attack on Mr Bannis, causing his fatal injuries, but did not necessarily

kill Mr Bannis in a manner indicating malice aforethought For these reasons the verdict will be

upheld as to Count Two

3 There is sufficient evidence to convict Defendants Cole and George of Robbery in the First Degree

‘1115 In Count Three, the Defendants were convicted of Robbery in the First Degree which involves

causing incapacitating physical injury in the course of unlawfully taking property from the possession

of another by means of force or fear 14 V IC § 186] 14 V I C § 1862 Eyewitness testimony

established that the Defendants repeatedly kicked Mr Bannis to the point where he became

unresponsive and ultimately died comatose After the attack the Defendants were seen rifling through Government of the Virgin Island.“ Cole e! a! 2020 V I Super Ct 040U SX 2016 CR 273 SX 2016 CR 274 OPINION Page 7 of 10

Mr Bannis’ pockets before driving away in his car the blue Chevrolet Cavalier The car was later

recovered by police after it was stripped by unknowu parties

9H6 The Court will uphold the Defendants convictions for Robbery because the evidence supports

the conclusion of a reasonable jury that the Defendants inflicted an incapacitating injury on Mr Bannis

in the course of stealing his car

4 There is sufficient evidence to convict Defendants Cole and George of Assault in the First Degree, but the Court may not impose a sentence

‘|[l7 The Defendants were also convicted of Count Four, Assault in the First Degree, which is assault

with the intent to commit murder 14 V IC § 295 ‘ Assault is the attempt to commit a battery or a

threatening gesture showing in itself an immediate intention coupled with an ability to commit a

battery 14 V I C § 291 Based on the testimony and evidence outlined above it is entirely reasonable

for the jury to conclude that the Defendants committed this offense

‘Il18 In addition to beating Mr Bannis the eyewitness testified that the Defendants left Mr Bannis

on the ground of David Hamilton Jackson Park From Detective James’ testimony, Mr Bannis was

unconscious when he arrived on the scene and was injured Mr Bannis never regained consciousness

before his death, which was caused by the severity of the injuries received in the attack This evidence

weighs heavily in favor of finding that the Defendants assaulted Mr Bannis by threatening attempting

and completing a battery § 291 14 V I C § 292 The jury can infer from the method and brutality of

the attack and the lack of care afterward that the Defendants intended to kill Mr Bannis In sum the

evidence elicited at trial is more than sufficient to sustain the convictions for Assault in the First

Degree

‘]|l9 However pursuant to Title 14 Section 104 of the Virgin Islands Code an act that is punishable

under multiple provisions of law may only be punished under a single provision 14 V 1C §l04

[W]here 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 Galemmenl ofrhe Virgin Islandsl Cale e! a! 2020 V I Super Ct 040v SX 2016 CR 273 SX 2016 CR 274 OPINION Page 8 of 10

requires proof of a fact which the other does not People v Vergzle 50 V I 127 I34 45 (S Ct 2008)

The Supreme Court of the Virgin Islands has also determined that [u]nder the merger doctrine an

underlying felony which results in the homicide or which is an integral pan of the homicide cannot be

used as the predicate felony to support a felony murder conviction ’” Hevlzger v People 0fthe Virgin

Islands 66 V I 340 356 57 (S Ct 2017)

1120 In this case, Assault in the First Degree is felony assault with the intent to commit murder 14

V I C § 295(1)" 14 V IC § 922(a)(2) As per the merger doctrine assault with intent to commit murder

is an underlying felony that resulted in homicide (although Murder in the Second Degree is not felony

murder) Given the circumstances of this case it is impossible that the Defendants committed murder

in the manner they did without also committing Assault in the First Degree In contrast Robbery in

the First Degree does not merge because even though Robbery is a felony underlying the murder

Robbery involves proof of a fact which Murder in the Second Degree does not require that the

Defendants unlawfully took Mr Bannis personal property namely his vehicle The Defendants could

have murdered Mr Bannis without stealing from him As such it is proper to impose punishment for

Count Three Robbery in the First Degree but not for Count Four Assault in the First Degree because

to do so would impose punishment for a merged offense

5 There is sufficient evidence to convict Defendants Cole and George of Unauthorized Use of a Motor Vehicle

<|[21 The Defendants final c0nviction is for Unauthorized Use of a Motor Vehicle in violation of

Title 14 Section 1382 of the Virgin Islands Code In other words the Defendants were convicted of

taking, being in possession of and driving Mr Bannis vehicle without his permission and with intent

to deprive him of it 14 V I C § 1382

‘{[22 Here, testimony revealed that after attacking Mr Bannis the Defendants searched his person

and then entered a blue Chevrolet Cavalier and drove away from the crime scene As noted above the

Chevrolet Cavalier has been identified as the vehicle belonging to Mr Bannis After reviewing the Government ofthe Vlrgm Islands v Cole e! a! 2020 V I Super Ct 040U SX 2016 CR 273 SX 2016 CR 274 OPINION Page 9 of IO

evidence in a light most favorable to the People it is reasonable for the jury to have found the

Defendants guilty of Count Five The jury may presume that the Defendants were searching Mr Bannis

for his car keys and that their taking of the car was unlawful and without consent because Mr Bannis

had been violently beaten by the Defendants immediately beforehand It is very unlikely that Mr

Bannis gave consent to the heating or to having his vehicle taken from his possession and subsequently

stripped down by unknown parties The convictions for Count Five will be upheld

CONCLUSION ‘|[23 In sum the Court has jurisdiction over all charges leveled against the Defendants and can find

no reason to arrestjudgment The Court has also reviewed all the evidence in a light most favorable to

the People and determined that there is sufficient evidence particularly in the form of eyewitness

testimony to uphold the Defendants’ convictions on all charges However, Assault in the First Degree

merges with Murder in the Second Degree and at sentencing the Court will not impose a sentence for

Assault in the First Degree Accordingly it is hereby

ORDERED that the Defendants Motions for Judgment of Acquittal or for New Trial are DENIED consistent with the above opinion

DONE and so ORDERED this 3% day of 20

ATTEST ?{é‘ 2 i Tamara Charles HARO D W L WILLOCKS Clerk of the Court ,- Presiding Judge of the Superior Court W4 By Court Clerk W—fl Dated Qk’rlflj 346”