S. Ct. Crim. No. 2013-0070

On appeal from convictions for assault, reckless endangerment, and unauthorized possession of a firearm during commission of a crime of violence, the judgment is affirmed in part and reversed in part. The contention that there was insufficient evidence to uphold the convictions because the case rested on testimony of the victim eyewitness is rejected. Assault in the first degree is assault with intent to commit murder, as provided in 14 V.I.C. § 295(1). Evidence presented in this case-viewed in the light most favorable to the People-was sufficient to satisfy the elements of this offense on testimony that defendant held a firearm in his hand, aimed at a vehicle in which the shooting victim and two others were riding, and discharged the firearm, with several bullets striking the vehicle and one bullet striking and injuring the victim. A rational jury could reasonably conclude that defendant intentionally shot into the vehicle with the intent to kill one or more of the occupants. The evidence was also sufficient to support conviction for unauthorized possession of a firearm during a crime of violence under 14 V.I.C. § 2251(a)(2)(B), and the charges for reckless endangerment for shooting on a public road, near an operating restaurant. Improper remarks by the prosecution during closing arguments are grounds for a new trial only if they so infected the trial with unfairness as to make the resulting conviction a denial of due process in light of the entire proceeding, which was not shown here. Nor did the trial court abuse its discretion by preventing defendant from calling an alibi witness at trial after he failed to give proper notice for eight months after written demand by the People, and only announced the witness on the first day of trial. The alibi related to the day before the shooting, and it was not a violation of defendant's right to present a defense to preclude irrelevant testimony. Although defendant did not challenge his sentence on appeal, illegal sentences, by their very nature, affect a criminal defendant's substantial rights and seriously affect the fairness, integrity or public reputation of judicial proceedings. In this case, the defendant was charged with only one unit of prosecution: firing several shots at the occupants of another car while driving on a public road in the vicinity of a specified restaurant. In the circumstances of this case, entry of two reckless endangerment convictions violated the defendant's double jeopardy rights by punishing him twice for the same offense. Finally, under 14 V.I.C. § 104, while an individual can be charged and convicted of violating multiple provisions of the Virgin Islands Code, he may only be punished for one offense arising out of a single act. Therefore, the Superior Court should have stayed the execution of punishment for all but one of the non-firearms convictions. The September 12, 2013 judgment and commitment is affirmed in part and reversed in part, and this case is remanded for the Superior Court to dismiss one count of reckless endangerment and to re-sentence the defendant in conformity with § 104.