People of the Virgin Islands v. Shekil Jamac Berthier

Opinion

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

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 Memorandum Opinion 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 Memorandum Opinion Page 13 of21

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 Memorandum Opinion 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