S. Ct. Crim. No. 2012-0057

The defendant's conviction on three counts of carrying or using a dangerous weapon in violation 14 V.I.C. § 2251(a)(2)(A) is affirmed. Previously, the trial court's acquittal of the defendant on the grounds of inconsistent jury verdicts was reversed in People v. Powell, 56 V.I. 630, 631-33 (V.I. 2012). The defendant was sentenced on remand and, on this appeal, taking into account the totality of the evidence, defendant's contention that her trial counsel's failure to object to admission of certain proof and a stipulation for admission of several photographs amounted to ineffective assistance of counsel is rejected since she has not demonstrated a degree of prejudice that would render the proceedings unreliable. The evidence was sufficient to support convictions under 14 V.I.C. § 2251(a) for using or possessing a dangerous weapon during commission of a crime of violence - mayhem, first-degree assault, and third-degree assault - and a rational jury could have concluded that the force she used was excessive and therefore unlawful even if intended as self-defense. Counts are evaluated independently, as though they are separate indictments, and inconsistency of the verdicts cannot be the basis for finding insufficiency. Carrying or using a dangerous weapon during commission or attempted commission of a crime of violence is not an element of the crime, but rather is an element the jury needed to find in order to warrant an enhanced sentence. The record does not show that any balancing test was conducted prior to use of a prior assault conviction for impeachment, and where a prior conviction is for a crime similar to the one for which the defendant is presently on trial the need for careful balancing increases but here, considering the totality of the evidence and the outcome of the case, substantial rights were not affected as she does not appear to have suffered prejudice and the jury did not use the prior conviction evidence improperly against her as propensity evidence. Considering the other testimony in the record, it cannot be presumed that the probative value of several challenged items was substantially outweighed by the danger of unfair prejudice or presentation of cumulative evidence, nor was the trial court required to exclude the evidence on the basis that there was other testimony or alternative methods of proving the facts. It was also not reversible error to admit contested portions of the testimony of two officers since there is no indication that it was particularly prejudicial, and it may have shifted blame for the extent of the injury away from defendant. Although the court correctly entered judgment, this matter is remanded for resentencing because, although defendant used the bottle against two victims, §2251(a) is not an assault provision - rather, the statute punishes the act of possession with unlawful intent. Absent crimes of violence distinguishing separate counts of possession (and separate victims), the conviction for multiple counts of possession pertaining to the same weapon during the same event violates 14 V.I.C. § 104. The judgment of conviction is affirmed, and this case is remanded for resentencing in accordance with that statute.