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Government of Virgin Islands v. Brown

argued: April 27, 1982.

GOVERNMENT OF THE VIRGIN ISLANDS
v.
KENNETH BROWN, APPELLANT



APPEAL FROM THE DISTRICT COURT FOR THE VIRGIN ISLANDS -- DIVISION OF ST. CROIX.

Garth, Rosenn and A. Leon Higginbotham, Jr., Circuit Judges.

Author: Higginbotham

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

The appellant, Kenneth Brown, was convicted and sentenced for first degree robbery, grand larceny, first degree assault and possession of an unlicensed firearm during the commission of a crime of violence. From our review of the record Brown's appeal raises only two significant issues. First, whether Brown was properly convicted of grand larceny; and second, whether there was sufficient evidence to support his convictions for first degree assault. Because we find the district court's instructions to the jury on the grand larceny count (Count II) were deficient, we reverse Brown's conviction for grand larceny and remand Count II for a new trial. Further, because we find the evidence does not support his convictions for first degree assault (Counts IV, V and VI), we vacate the judgments and sentences for first degree assault and remand Counts IV, V and VI to the district court to enter judgments of conviction for third degree assault and to resentence Brown appropriately. On all other counts, we affirm.

I.

Brown and his co-defendants, Orville O'Reilly and Elias Petersen, were arrested July 23, 1980 for the armed robbery of the F.W. Woolworth Store located in the Sunny Isle Shopping Center of St. Croix, Virgin Islands. In an Information filed July 30, 1980, all three men were charged as follows: robbery in the first degree, in violation of V.I. Code Ann. tit. 14, § 1862(2) (Count I); grand larceny, in violation of V.I. Code Ann. tit. 14, § 1083(1) (Count II); assault in the first degree, in violation of V.I. Code Ann. tit. 14, § 295(3) (Counts III, IV, V, VI and VII); possession of an unlicensed firearm during the commission of a crime of violence, in violation of V.I. Code Ann. tit. 14, §§ 2253(a) and 2254 (Count VIII); possession of an unlicensed firearm, in violation of V.I. Code Ann. tit. 14, § 2253(a) (1) (Count IX).

The evidence adduced at trial showed that on July 23, 1980 at approximately 12:45 p.m., three men entered and robbed at gunpoint the F.W. Woolworth Store in the Sunny Isle Shopping Center of St. Croix, Virgin Islands. Wielding a sawed-off shotgun and a handgun, the men ordered the employees and customers in the store to lie face down on the floor while they foraged through the store's cash registers and safe. According to William Anderson, Associate Manager of the store, approximately $375.00 in cash and a check made out to F.W. Woolworth were taken from three of the cash registers. Anderson was also forced to hand over his own wallet, which he estimated contained approximately $63.00.*fn1

Several employees and customers were physically assaulted during the robbery. Anderson and another employee, Yvonne Joseph, were both kicked. Two customers, Blondelle Roberts and Erva Benjamin, were variously pushed, kicked and struck. Anderson, however, was the only person in the store who had personal property taken.

Immediately following the robbery, three men were observed fleeing from the Woolworth store. Police officers pursued the men into the bush and fields to the rear of the store and shortly thereafter apprehended Brown and his co-defendants, Petersen and O'Reilly. In the search of the area which followed, the police recovered a black wallet containing $65.00, which Anderson subsequently identified as his, and $100.00 in loose cash. A further search produced a check for $11.50 and an additional $157.00 in loose cash. During the search of O'Reilly, $360.00 was recovered from his pants pocket.

Although witnesses were unable to positively identify any of the defendants, various items of clothing recovered from the area in which the defendants were found were identified by witnesses as those worn by the men who robbed the store. Also recovered from the area were a shotgun and handgun identified by witnesses as those used during the robbery.

At the close of a three-day jury trial which commenced on November 24, 1980, Brown and his co-defendants were convicted as charged on all counts.*fn2 Brown was initially sentenced on all counts, but the trial court, on its own motion, vacated its sentence of January 15, 1981 and in an Amended Judgment and Commitment of May 21, 1981, sentenced Brown to prison for the following terms: robbery first degree (Count I), 15 years; grand larceny (Count II), 7 years, to be served consecutively to Count I; assault first degree (Count IV), 5 years, to be served consecutively to Counts I and II; assault first degree (Count V), 5 years, to be served concurrently with Count IV; assault first degree (Count VI), 5 years, to be served concurrently with Count IV; possession of an unlicensed firearm during the commission of a crime of violence (Count VIII), 5 years, to be served consecutively to Counts I, II and IV.*fn3

In all he was sentenced to 32 consecutive years in prison.

II.

On appeal Brown raises a number of issues. We find merit, however, in only those assertions challenging his convictions for grand larceny and first degree assault.*fn4

A. Grand Larceny

Brown contends that his conviction on Count II must fall for two reasons. First, he contends that Count II should have been merged into Count I, the first degree robbery charge, because both counts were based upon the same transaction, the robbery of Anderson, and because larceny is a lesser-included offense of the crime of robbery. Appellant's Brief at 5-6. Second, he asserts that, even if Counts I and II arguably were based upon separate transactions, there is no way of knowing from the Information and the instructions given the jury whether the jury's verdict in Count II was properly based on only the larceny of money from Woolworth. Appellant's Supplemental Brief at 1-4. We agree with Brown that his conviction on Count II must be reversed.

Count II charged that:

On or about the 23rd day of July, 1980, in the Virgin Islands of the United States, Judicial Division of St. Croix, KENNETH BROWN, ELIAS PETERSEN and ORVILLE O'REILLY, while aiding and abetting each other, did unlawfully take, steal and carry away United States currency belonging to WILLIAM ANDERSON and WOOLWORTH DEPARTMENT STORE, a corporation, said currency having a value in excess of one hundred dollars ($100.00), with intent to permanently deprive said owners thereof, in violation of Title 14 V.I.C., § 1083(1).

Information filed July 30, 1980, Appellant's Appendix at A-1.

The applicable statutory provisions on larceny are found at V.I. Code Ann. tit. 14, §§ 1081 and 1083 and provide as follows:

§ 1081. Larceny defined and classified

(a) Larceny is the unlawful taking, stealing, carrying, leading, or driving away the ...


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