S. Ct. Crim. No. 2011-0009

In a prosecution arising from the discharge of a firearm at a distance from the victim, convictions for assault in the third degree under 14 V.I.C. § 297(2) and unauthorized possession of a firearm during commission or attempted commission of a crime of violence, 14 V.I.C. § 2253(a), are reversed. The alleged victim testified to a verbal altercation earlier in the day, but at the time of the alleged crime the defendant had parked 50 feet away behind trees, and the victim did not see the defendant shoot at him and did not hear bullets anywhere nearby. The evidence did not support a finding that the defendant had an immediate intention coupled with an ability to commit a battery upon him, and the People presented insufficient evidence to prove the elements of third degree assault. Defendant's Sixth Amendment rights were not violated by the admission of a laboratory report and testimony by the scientist who prepared and signed the report, since the witness was presented in court and subject to cross-examination. The People failed to prove that defendant was not licensed to carry a firearm in the Virgin Islands since it was not proven that he was not licensed to carry a firearm in the St. Croix district. The evidence, which included gunshot residue test results and recovered bullet casings, was sufficient to support the conviction on the count for discharging a firearm in violation of 23 V.I.C. § 479(a), which is affirmed. Since no separate sentence was imposed on that count, the matter is remanded to the trial court for sentencing on that conviction.