JEAN CLIFTON CONNOR, JR., Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
Connor v. People
HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice. SWAN, Associate Justice, concurring in part and dissenting in part.
JEAN CLIFTON CONNOR, JR., Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
JEAN CLIFTON CONNOR, JR., Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
S. Ct. Crim. No. 2011-0021
Supreme Court of the Virgin Islands
July 2, 2013
KELE C. ONYEJEKWE, Esq., Appellate Public Defender, St. Thomas, USVI, Attorney for Appellant.
PAUL J. PAQUES!, ESQ., Deputy Solicitor General, St. Thomas, USVI, Attorney for Appellee.
HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice. SWAN, Associate Justice, concurring in part and dissenting in part.
OPINION OF THE COURT
(July 2, 2013)
Hodge, Chief Justice.
Jean Clifton Connor appeals from a March 16, 2011 Judgment and Commitment of the Superior Court of the Virgin Islands, adjudging him guilty of four counts, including robbery in the first degree, using a dangerous weapon during the commission of robbery in the first degree, grand larceny, and using a dangerous weapon during the commission of a grand larceny. For the reasons that follow, we affirm.
I. RELEVANT FACTS AND PROCEDURAL POSTURE
On September 28, 2010, Danton Choute was in his residence in the Hospital Ground area of St. Thomas. (J.A. 47.) At about noon, he heard a knock on the door. (Id.) He looked outside, and saw a young man whom he recognized because he had seen the individual "maybe one thousand times" over "four or five years," cleaning for Choute's landlord, Carmen Sanchez Bennett (also referred to as "Ms. Carmello"). (J.A. 47, 56-57.) The man told Choute that he had come to do some cleaning and painting for Ms. Carmello. (J.A. 48.) Choute responded that he was going to call the landlord to verify the information, and turned back inside to retrieve his cell phone from his table. (Id.) The man then entered his room, over Choute's protests, and started looking around. (J.A. 48-49.) Choute had an unopened box containing a laptop computer on his table that he planned to send to his daughter in New York, and the intruder grabbed the laptop and began to quickly leave the home. (J.A. 49.) Choute tried to stop the man, but the intruder lifted his shirt to show Choute a firearm in the waistband of his pants, and told Choute that if he tried to stop him, he would shoot Choute. (J.A. 49-50.) The intruder left. Choute identified Connor as his intruder in a photo array at the police department, and also identified him at trial. (J.A. 76, 53-54.)
Connor denied being on Choute's property on September 28,2010, and presented an alibi defense that he was working at his father's bar at.Coki Point on that day. (J.A. 94.) However, the People had admitted as evidence a statement Connor apparently gave to the police after he was arrested, which indicated that he was at or near Choute's property on September 28, 2010. (J.A. 103.) At trial, Choute testified that the computer cost him $486.00, and with its case, the total cost was $500. (J.A. 54.)
After a one-day trial, which was conducted on February 9, 2011, the jury found Connor guilty of robbery in the first degree, using a dangerous weapon during the commission of robbery in the first degree, using a dangerous weapon during the commission of assault in the first degree, grand larceny, and using a dangerous weapon during the commission of grand larceny. The jury acquitted Connor of assault in the first degree, and when the trial court entered a judgment of conviction on March 16, 2011, it dismissed with prejudice the corresponding charge of using a dangerous weapon during the commission of assault in the first degree. (J.A. 12,14.) Furthermore, the court deemed the grand larceny charge as merged with the robbery in the first degree conviction, and did not impose a separate sentence thereon. (J.A. 13.) Connor filed a timely notice of appeal on March 11, 2011.
II. DISCUSSION
A. Jurisdiction and Standard of Review
This court has jurisdiction of this appeal from the final judgment of the Superior Court entered on March 16, 2011. V.I. Code Ann. tit. 4, § 32(a). Because the Superior Court's March 16,2011 Judgment and Commitment is a final judgment, this Court has jurisdiction to consider Connor's appeal. See, e.g., Browne v. People, 56 V.I. 207, 216 (V.I. 2012) (holding that in a criminal case, a written judgment embodying the adjudication of guilt and the sentence imposed based on that adjudication constitutes a final judgment for purposes of 4 V.I.C. § 32(a)); Melendez v. People, 56 V.I. 244, 251 (V.I. 2012) (same).
The standard of review for this Court's examination of the Superior Court's application of law is plenary, while the trial court's findings of fact are reviewed for clear error. St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007); see also People v. John, 52 V.I. 247, 255 (V.I. 2009) (quoting United States v. Shields, 458 F.3d 269, 276 (3d Cir. 2006)), aff'd 654 F.3d 412, 55 V.I. 1324 (3d Cir. 2011). Where an appellant fails to object to a Superior Court order or decision, we review for plain error. V.I.S.Ct.R. 4(h); Phipps v. People, 54 V.I. 543, 546 (V.I. 2011).
B. Sufficiency of the Evidence
Connor argues that there was insufficient evidence to prove that he was the person who stole Choute's laptop, particularly because the People had only one eyewitness. We find this argument meritless. Here, the eyewitness knew Connor for years and was able to identify him in a photo array and during trial as the man who entered his apartment and stole his laptop. (J.A. 76, 53-54.) Connor urges us to disregard this evidence because, he argues, eyewitness identifications are unreliable. (Appellant's Br. 25.) But "[i]f trustworthy, a single positive eyewitness identification may be sufficient proof of guilt, even if it is contradicted by the accused or by alibi testimony____" 29A Am. Jur. 2D Evidence § 1402 (2012); see also United States v. Bamberger, 456 F.2d 1119, 1127 n.4 (3d Cir. 1972) (" '[I]t is well established at common law . . . that ordinarily the testimony of one eyewitness is sufficient for the purpose of identification of the perpetrator of the crime.' ") (quoting United States v. Levi, 405 F.2d 380, 382 (4th Cir. 1968)); see also United States v. Smith, 49 F.3d 475, 478 (8th Cir. 1995) (finding evidence provided by a single eyewitness to be adequate). Here, Choute did not hesitate to identify Connor, a naan he knew from previous interactions, and there is nothing to suggest that his vision or other observational senses were at all compromised at the time. While Connor attempted to offer alibi evidence, suggesting that he was at Coki Point Beach "the whole day," (J.A. 98), he could offer no corroborating evidence to support this defense, and the statement he provided to police contradicted this testimony. (J.A. 98, 100-02.) Therefore, we find there was sufficient evidence of his guilt.
As a related issue, Connor argues that there was no evidence he ever "used" a firearm during the larceny, because (1) it was alleged only that he displayed the firearm in his waistband, but did not use it, and (2) even if that display constituted "use", the display of the gun took place only after "the crime of larceny was complete." (Appellant's Br. 24-25.) However, nothing in section 2251 requires that a defendant actually use a weapon. Instead, section 2251(a)(1) punishes the mere possession of a certain class of weapons, while section 2251(a)(2) prohibits the possession of another class of weapons, including dangerous or deadly weapons, if they are possessed "with the intent to use the same unlawfully against another." Nanton v. People, 52 V.I. 466, 477 (V.I. 2009) (recognizing that the intent requirement is an essential element of a violation of section 2251(a)(2)). Section 2251(a)(2)(B) provides a greater punishment if the dangerous or deadly weapon is had, possessed, borne, transported, carried or under the defendant's control during the commission or attempted commission of a crime of violence. Again, nothing in the statute requires that a defendant actually use the weapon during the commission or attempted commission of a crime of violence.
As to Connor's temporal argument, it must first be noted that the charged larceny was not complete at the time that Connor picked up Choute's laptop. Instead, larceny is "the unlawful taking, stealing, carrying, leading or driving away the personal property of another," 14 V.I.C. § 1081, and requires, in addition to a taking, the "carrying away (asportation) of another's property." Nugent v. Ashcroft, 367 F.3d 162, 177 (3d Cir. 2004). In this case, there is evidence that Connor possessed his firearm during the entire larceny, from the initial seizure of the laptop, through his escape with the property. Consequently, this argument fails.
C. Double Jeopardy
As his first and third issues on appeal, Connor argues that the People violated his right against Double Jeopardy because they charged two crimes — robbery in the first degree and possession of a firearm during the commission of a robbery first degree — when in reality they constituted the same offense.
However, the United States Court of Appeals for the Third Circuit has previously rejected the very argument Connor presents. In its 1983 decision in Government of the Virgin Islands v. Soto, 718 F.2d 72, 78, 19 V.I. 642 (3d Cir. 1983), the Third Circuit clearly stated that the Legislature intended to authorize multiple punishments when it enacted section 2251(a)(2)(B), which prohibits the use or possession of a deadly or dangerous weapon during thé commission of a crime of violence. See also In the Interest of S.T. v. People, 51 V.I. 420, 437 (2009) (Swan, J., dissenting) (applying Soto). In Soto, the Third Circuit considered the United States Supreme Court's synthesis of this aspect of the Double Jeopardy doctrine as set forth in Missouri v. Hunter, 459 U.S. 359, 365-69, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983), discussing the application of Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932) and related decisions on these issues. The Third Circuit plainly concluded that "section 2251(a)(2)(B) continues to authorize cumulative punishments when robbery, whatever the degree, is committed with a dangerous weapon." Soto, 718 F.2d at 78.
In his Reply Brief, Connor argues that Soto was wrongly decided. The Third Circuit stated in Soto that the Legislature was "clearly aware that certain of the 'crimes of violence' to which section 2251(a)(2)(B) applies . were themselves defined or categorized by use of a dangerous weapon." As an example, the court in Soto referenced the crime of assault in the first degree. 14 V.I.C. § 297(2). It noted that assault committed "with a deadly weapon" constitutes the offense of assault in the first degree, and because it is a crime of violence, it is also one of the crimes for which a possessor of a firearm may be convicted under 2251(a)(2)(B). Soto, 718 F.2d at 78-79. The Third Circuit reasoned then that because the Legislature was punishing the corresponding crime of possession of a deadly weapon during the commission of the crime of violence, along with the primary offense of committing the crime of violence itself, its intention to punish two offenses from the same act was clear. Id.
Connor argues that the Third Circuit erred, and thus he suggests that Soto was wrongly decided, because it quoted the first-degree assault statute as referencing "a deadly or dangerous weapon," while the statute actually only mentions a "deadly weapon." 14 V.I.C. § 297(2). This argument is unavailing. First, Soto's reasoning is not limited to its first-degree assault analogy; instead, Soto noted that "the Virgin Islands legislature explicitly authorized cumulative punishment." 718 F.2d at 79. And the Third Circuit was right: section 2251(a)(2)(B) provides that the "penalty shall be in addition to the penalty provided for the commission of, or attempt to commit, the crime of violence." 14 V.I.C. § 2251(a)(2)(B) (emphasis added). As the Third Circuit correctly concluded, this statutory statement indicates that the Legislature clearly intended to impose multiple punishments, 718 F.2d at 79, and where it does so, it does not violate the Double Jeopardy Clause. See Hunter, 459 U.S. at 367-68 (noting that the Blockburger test often used in Double Jeopardy analysis is a "rule of statutory construction," but it does not apply where clear expressions of legislative intent indicate a desire to impose multiple punishments, and in such cases, there is no constitutional violation) (citing Albernaz v. United States, 450 U.S. 333, 344, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981)).
Connor argues in his Reply Brief that the language in section 2251(a)(2)(B) is not the relevant expression of legislative intent. (Reply Br. 5.) Instead, he urges this Court to consider section 104 of title 14. Section 104 states that
[a]n act or omission which is made punishable in different ways by different provisions of this Code may be punished under any of such provisions, but in no case may it be punished under more than one. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.
14 V.I.C. § 104.
This Court recently addressed the interaction between section 104 and section 2251 of Title 14. Ward v. People, 58 V.I. 277 (V.I. 2013). For the same reasons that we rejected the appellant's section 104 challenge to a conviction pursuant to section 2251 in Ward, 58 V.I. 277, we conclude that section 104 offers Connor no relief, and this argument too must fail.
D. A Firearm is a Dangerous Weapon
Connor argues that a firearm is not a dangerous weapon and that his conviction for possessing a firearm during the commission of a robbery should be overturned. (Appellant's Br. 13 ("Obviously, a gun is not a dangerous weapon under" section 2251).) Section 2251 prohibits the use or possession of a "dangerous or deadly weapon" during the commission of crimes of violence, including robbery. 14 V.I.C. § 2251(a)(2). In this case, the trial court instructed the jury regarding deadly weapons (but not dangerous weapons), stating that "[a] deadly weapon is an object that is used or may be used in such a manner that it is calculated to or likely to produce death or serious bodily harm. Whether an object is a deadly weapon depends on the essential character of the object and the manner in which it is used." (J.A. 159.)
Connor notes that the Information charges him with using a "dangerous weapon," while the trial court instructed the jury on the definition of a "deadly weapon" but not a "dangerous weapon." He argues that this variance violated his rights. Furthermore, he argues that a firearm is not a dangerous weapon within the meaning of section 2251, because it is unlike the other kinds of weapons described in that provision.
Both of these arguments fail. First, it does not appear that Connor ever challenged either the Information or the jury instructions below, so this Court would review only for "plain error." Here, there was no error. The Court need not decide whether all dangerous weapons are also deadly weapons; but surely deadly weapons are also dangerous. As the Third Circuit defined it, a deadly weapon
is one which, from the manner used, is calculated or likely to produce death or serious bodily injury. Thus whether a weapon is deadly depends on two factors: (1) what it intrinsically is and (2) how it is used. If almost anyone can kill with it, it is a deadly weapon when used in a manner calculated to kill.
Gov't of the V.I. v. Robinson, 29 F.3d 878, 886, 30 V.I. 428 (3d Cir. 1994).
A firearm is a weapon that is calculated to produce death and serious bodily injury. See United States v. Glover, 558 F.3d 71, 81 (1st Cir. 2009) (noting that a firearm is a "classic example" of a weapon "designed and constructed to produce death or great bodily harm"). Furthermore, it can be used in a way that is calculated to kill. Therefore, we have no difficulty concluding that a firearm is a "deadly weapon." And because the trial court's instructions as described above on the definition of a deadly weapon are consistent with the Robinson definition, they were not in error.
Furthermore, because a firearm is "calculated or likely to produce death or serious bodily injury," it is not only deadly, but it is also, by definition, dangerous. Finally, any variance between the Information's reference to a "dangerous" weapon and the instruction's reference to a "deadly" one is of no moment, because the change in terminology required the People to prove more than what was charged — that is, they had to prove that the weapon was not simply dangerous but was also deadly. That variance then could not have prejudiced Connor, and therefore could not constitute "plain error."
E. Verdict Forms
The People charged Connor with grand larceny by taking away the personal property of another valued in excess of one hundred dollars with the intent to permanently deprive Choute of it, in violation of sections 1081 and 1083(1) of title 14. (J.A. 15-17.) The jury returned general verdict forms finding Connor guilty of grand larceny. (J.A. 200.) Connor now argues that his conviction should be vacated because title 5, section 3636, of the Virgin Islands Code required that the jury verdict forms specify the value of the stolen property.
Under section 3636, "[w]hen an information charges an offense against property by larceny, embezzlement, or obtaining by false pretenses, the jury, on conviction, shall ascertain and declare in the verdict the value of the property stolen, embezzled, or falsely obtained." 5 V.I.C. § 3636. Thus, the plain language of section 3636 requires the jury to declare in its verdict the value of the stolen property. This interpretation of section 3636 is consistent with that of other jurisdictions considering statutes with identical language. See Hogoboom v. State, 120 Neb. 525, 234 N.W. 422, 424 (1931); State v. Weekly, 76 Ohio App. 199, 63 N.E.2d 558, 559 (1945); Harris v. State, 635 P.2d 1165, 1168 (Wyo. 1981).
Accordingly, the jury was required to declare the value of Choute's stolen property in its verdict, and its failure to do so constitutes error. However, Connor failed to object to this omission at trial. Thus, before this Court reverses the trial court, we must find that the complained-of error is plain and affects substantial rights. See Phipps, 54 V.I. at 546. Moreover, we must find that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.
As noted above, it is clear from the record that the jury failed to determine the value of the stolen property. This failure violates the plain language of section 3636. The jury's failure to declare the value of the stolen property, however, did not affect any substantial right. In Ohio, which had a very similar statute, courts faced with a similar question determined that the defendant must show that he is prejudiced by the failure of the jury to articulate a value of the property. See, e.g., State v. Park, 174 Ohio St. 81, 186 N.E.2d 736, 737-38 (1962); State v. Ridgeway, 35 Ohio App. 2d 254, 301 N.E.2d 716, 717 (Ohio Ct. App. 1972). In Ridgeway, the Ohio Court of Appeals noted that since "[t]he evidence clearly shows the value of the property stolen in this case to have exceeded [the statutory amount]" and since "[n]o objection was made either to the form of the verdict or to the instructions of the court," the fact that the form of the verdict was "technically incorrect," would not require reversal since the defendant had "not shown that he was in anywise prejudiced by this irregularity." Id. Similarly, in Park, the Ohio Supreme Court found no prejudice where the defendant conceded the value of the goods. 186 N.E.2d at 737-38.
Indeed, Connor makes no attempt to show how his substantial rights were violated by the failure to specify a value, nor does he contest below or on appeal that the computer was worth more than $100. There is no question that the jury was properly instructed that it must find beyond a reasonable doubt that the value of the property exceeded $100 in order to return a conviction on the grand larceny charge, and, subsequent to that instruction, the jury did find that the element was proven beyond a reasonable doubt. (J.A. 159.) Accordingly, the jury's failure to declare the value of the property did not affect Connor's substantial rights.
F. Prosecutorial Misconduct
Connor urges this Court to reverse his conviction because, he argues, the trial court improperly denied his motion for a mistrial after the prosecutor asked an improper question during the trial. Connor testified in his own defense, and on cross-examination, the prosecutor asked him, "Isn't it true that your mother made a promise to Mr. Choute to pay for the computer? Are you aware of that?" (J.A. 108.) Connor immediately objected and requested a mistrial. (Id.) The court sustained the objection, overruled the mistrial request, and instructed the jury to "disregard the question." (Id.)
Because Connor lodged a contemporaneous objection, we review for abuse of discretion. Francis v. People, 56 V.I. 370, 379 (V.I. 2012) (noting that evidentiary rulings are reviewed for abuse of discretion, unless the ruling involves the application of a legal precept); In re Kendall, S. Ct. Misc. No. 2009-0025, 2010 V.I. Supreme LEXIS 73 (V.I. July 16, 2010) (unpublished) (noting that denials of motions for mistrial are reviewed for abuse of discretion). If the prosecutor did engage in misconduct, we will reverse unless the error is harmless. United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003); see also DeSilvia v. People, 55 V.I. 859, 873-74 (V.I. 2011) (refusing to reverse because the prosecutor's comments constituted harmless error). Under the harmless error analysis, "[i]f the error is constitutional, we will affirm [only] if we find that the error is harmless beyond a reasonable doubt," while "if the error is non-constitutional, we will affirm when it is highly probable that the error did not contribute to the judgment." United States v. Helbling, 209 F.3d 226, 241 (3d Cir. 2000) (internal quotation marks omitted).
Here, the question was arguably improper. Rule 408 of the Federal Rules of Evidence prohibits the very type of evidence the prosecutor was attempting to solicit: testimony that a party offered to pay a claim in an attempt to compromise it, when offered to prove either the amount or validity of that claim. See United States v. Davis, 596 F.3d 852, 859, 389 U.S. App. D.C. 282 (2010) (prohibiting evidence that a defendant offered to settle with a private party, where that evidence was admitted to prove the criminal defendant's "guilt, or in the words of Rule 408(a), his 'liability' "); see also People v. Brewley, 49 V.I. 137, 144-47 (V.I. Super. Ct. 2007) (finding inadmissible evidence of an attempt to pay restitution to a private party in order to compromise a claim of embezzlement and larceny). We need not in this case, however, determine the application of Rule 408 to bar proof of offers of restitution made by family members, as opposed to the defendant himself, or the probative value of such evidence.
Assuming for purposes of this opinion that the prosecutor's question was improper under Rule 408 standards, the effect of that question was harmless, and it was not an error for the trial court to deny the motion for a mistrial. As discussed above, when we consider non-constitutional errors, such as the one here presented, we will affirm when it is highly probable that the error did not contribute to the judgment. Helbling, 209 F.3d at 241; see also Smith v. People, 55 V.I. 957, 963 (V.I. 2011) (applying this standard in the context of an evidentiary ruling). Given the strong evidence of Connor's guilt and the fact that the question was not answered, as well as the trial court's prompt admonition to the jury to disregard the question (J.A. 108), and the final instruction that the jury must not consider attorneys' questions as evidence (J.A. 146), which we may presume that the jury followed, see Augustine v. People, 55 V.I. 678, 686 (V.I. 2011) (quoting United States v. Liburd, 607 F.3d 339-344, 53 V.I. 890 (3d Cir. 2010)), it is highly probable that the prosecutor's questions did not contribute to Connor's guilty verdict. Moore v. Morton, 255 F.3d 95, 107 (3d Cir. 2001) (indicating that under the harmless error standard, courts should "examine the prosecutor's offensive actions in context and in light of the entire trial, assess [] the severity of the conduct, the effect of the curative instructions, and the quantum of evidence against the defendant"). Therefore, the error was harmless.
III. CONCLUSION
There was sufficient evidence for a rational jury to find that Connor committed the offenses of which he was convicted. Because the Legislature clearly intended to punish multiple offenses when it enacted the statute prohibiting the use or possession of dangerous or deadly weapons during the commission of crimes of violence, Connor suffered no Double Jeopardy violation. Furthermore, a firearm, which is a deadly weapon, is also by definition a dangerous one, and thus the trial court's firearms instructions were not in error. Although the court erred by permitting the jury to submit verdict forms that did not state the value of the stolen property, this error did not affect Connor's substantial rights, because the trial court merged the grand larceny conviction with the first-degree robbery conviction, and did not impose a separate sentence for it. Connor's substantial rights were also unaffected by the prosecutor's improper questions of Choute on cross-examination. For all of these reasons, we affirm the March 16, 2011 Judgment and Conviction.
Respectively, V.I. Code Ann. tit. 14, § 1861,1862(2), 2251(a)(2)(B), 1081,1083(1), and 2251(a)(2)(B).
Connor, in the briefest and most perfunctory manner, makes mention of the sufficiency of the evidence on the "intent" requirement. His opening brief states that, "[E]ven if [Connor] had [the firearm], it was hidden under his waist[band] and was not intended to be used for the larceny which occurred in the home." (Appellant's Br. 25.) However, assuming that this statement was sufficient to raise the issue on appeal, despite its lack of substantial argument or citation to authority, there was sufficient evidence for a reasonable jury to find that Connor intended to use the firearm unlawfully against another. Choute testified that Connor displayed the weapon in a threatening manner in order to facilitate his escape, and in fact told Choute he would kill him if he did not let him go, and the jury could have determined that Connor used the gun by displaying it to facilitate his escape with the property and intended to use it against Choute if Choute continued to block his egress. Consequently, even if this argument had been properly raised, it would not afford Connor any relief.
The Double Jeopardy prohibition found in the Fifth Amendment to the U.S. Constitution applies to the Virgin Islands by virtue of Section 3 of the Revised Organic Act. 48 U.S.C. § 1561 (2006). The complete Revised Organic Act of 1954 is found at 48 U.S.C. § 1541-1645, reprinted in V.I. Code Ann., Historical Documents, Organic Acts, and U.S. Constitution at 73-177 (1995 & Supp. 1997) (preceding V.I. Code Ann. tit. 1).
Connor couches his first argument as one of multiplicity of charges, rather than explicitly referencing Double Jeopardy. "Amultiplicitous indictment charges the same offense in two or more counts and may lead to multiple sentences for a single violation, a result prohibited by the Double Jeopardy Clause." United States v. Pollen, 978 F.2d 78, 83 (3d Cir. 1992). It is clear, then, that both his first argument regarding multiplicity and his third argument regarding Double Jeopardy are really one and the same.
Even if Soto relied only on its reference to assault in the first degree, and not also on the specific language in section 2251(a)(2)(B), its conclusion would still not be erroneous. Although the Third Circuit quoted the statute incorrectly, it was correct that the Legislature had no difficulty punishing both the crime of violence of assault in the first degree — which requires possession of a deadly weapon — and the possession of the deadly weapon itself during the assault. Because it clearly intended to punish the primary crime and the corresponding possession charge, the Legislature expressed its intent to impose multiple punishments when the crime involves a violation of 2251. The fact that the Third Circuit said "deadly or dangerous weapon," rather than "deadly weapon" alone does not alter this analysis. We decline, therefore, to accept Connor's invitation to "ignore" Soto. (Reply Br. 6.)
The statute provides examples of weapons that would violate section 2251, including "blackjack, billy, sandclub, metal knuckles, bludgeon, switchblade knife or gravity knife or electric weapon or device," or "a dagger, dirk, dangerous knife, razor, stiletto, or any other dangerous or deadly weapon." 14 V.I.C. § 2251(a)(1), (a)(2).
We need not and do not reach the question of whether a firearm that is inoperable may be a deadly or dangerous weapon.
There is no definition in the Code of a dangerous weapon. But the Legislature has instructed us that in the absence of a statutory definition, "Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language." V.I. Code Ann. tit. 1, § 42; see also THOMAS JEFFERSON, THE JEFFERSONIAN Cyclopedia 482 (John P. Foley ed., Funk & Wagnalls Co. 1900) ("Laws are made for [people] of ordinary understanding and should, therefore, be construed by the ordinary rules of common sense. Their meaning is not to be sought for in metaphysical subtleties which may make anything mean everything or nothing at pleasure.") The Merriam-Webster dictionary defines "dangerous" as "able or likely to inflict injury or harm," and Black's Law Dictionary defines it as "likely to cause serious bodily harm." Black's Law Dictionary 451 (9th ed. 2009). Any instrumentality that is deadly — that is, "calculated or likely to produce death or serious bodily injury" — is also dangerous — that is, "able or likely to inflict injury or harm" or "likely to cause serious bodily harm." By definition, then, a deadly weapon is also a dangerous one. Moreover, we do not accept Connor's contention that section 2251 "defines dangerous weapons," (Appellant's Br. 26); rather, it simply provides a non-exhaustive list of some weapons that violate 2251, which includes any deadly or dangerous weapon.
Title 14, section 1083 defines the offense of grand larceny:
Whoever takes property-
(1) which is of $100 or more in value; or
(2) from the person of another commits grand larceny and shall be imprisoned for not more than 10 years.
Indeed, in other contexts we have held appellants to the "plain error" standard, even where the trial court allegedly failed to comply with a statute, so long as the appellant failed to object below. See, e.g., Ramirez v. People, 56 V.I. 409, 422 n.6 (V.I. 2012) (declining to examine whether the Superior Court's decision to admit evidence of a confession violated a local statute, 5 V.I.C. § 932(6), because the defendant, having failed to raise the statute below or on appeal, would be subject to the "plain error" standard, which he could not meet).
While the dissent — in Section IV.E. — agrees that there was an error that was plain, it appears to disagree with the Court's conclusion that the error did not affect Connor's substantial rights. It would certainly affect substantial rights if some element of an offense was not submitted to a jury or was not proven, as the dissent suggests; however, in this case, the jury was instructed that they could not find Connor guilty of grand larceny unless they found the value was worth more than $100, and, after this instruction, they did find him guilty beyond a reasonable doubt. Furthermore, we have never held that the mere fact that a statute was violated means that a party's substantial rights were violated. Where a statute is violated — indeed, even where the Constitution itself is violated — an appellant must ordinarily establish each factor of the plain error test if he failed to raise his objection below. See, e.g., Malone v. People, 53 V.I. 408, 417 (V.I. 2010) (noting that, "as a general rule, an appellate court will not consider a constitutional argument raised for the first time on appeal, unless the error is plain," and further explaining that the error must "affect the substantial rights of the Appellant"). Here, the fact that the statute was violated merely shows that there was a plain error, but because the jury had to have found the value of the property was worth more than $100 to convict Connor of grand larceny, he has not demonstrated that the failure to declare the value on a verdict form prejudiced him.
Blyden v. People, 53 V.I. 637, 658 n. 15 (V.I. 2010) (noting that the Legislature adopted the Federal Rules of Evidence by way of Act No. 7161, § 15, which became effective on April 7, 2010), aff'd 437 Fed. Appx. 127 (3d Cir. 2011).
The error relied upon here was not constitutional, as the evidentiary rule it violated was established to encourage, as a matter of policy, compromises and settlements, rather than to protect any constitutional rights. Davis, 596 F.3d at 859 ("The policy embodied in the Rule is to foster compromises.").
See supra Section II.B.
See Christopher v. People, 57 V.I. 500, 514 (2012).
Because Connor failed to raise it on appeal, we will not address at length the question of whether the trial court erred by permitting Elfreda Robinson, the supervisor of the Police Department's Firearms Licensing Division, to testify regarding a Certificate of Contents of Official Record that had been prepared not by Robinson, but by her colleague on St. Croix. Connor objected below on Confrontation Clause grounds pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny, but the trial court decided that the certificate was not testimonial. (J. A. 72-73.) We note that after the trial in this issue, and after the matter was already on appeal, the Third Circuit has made it clear that certificates stating that there is no record in existence indicating that the defendant is licensed to possess a firearm are indeed testimonial in nature, and if they are admitted through a witness who did not prepare the certificate, they violate the defendant's Confrontation Clause rights. Gov't of the V.I. v. Gumbs, 426 Fed. Appx. 90, 94 (3dCir. 2011), cert. denied, 132 S. Ct. 1033, 181 L.Ed. 2d 761 (2012). However, Connor has failed to raise this issue on appeal and has therefore waived it. Bernhardt, 51 V.I. at 346 (explaining that issues not raised on appeal or argued in the appellant's brief are waived). It is not clear, though, why the People presented, or why the trial court accepted, evidence regarding Connor's lack of authorization to own a firearm, as that is not an element of any of the crimes with which he was charged. See 14 V.I.C. § 2251 (a)(2) (containing no requirement to prove that the weapon is possessed without authorization, instead requiring proof that the individual possessed it with an intent to use it).