In considering defendant's convictions for third degree assault in violation of title 14, section 297(2) and unlawful possession of a firearm in violation of title 14, section 2253(a) of the Virgin Islands Code, which were reversed in a December 18, 2008 Opinion ordering a new trial, it is held that since the defendant possessed advance notice of the fact that the People intended to obtain a conviction for third degree assault by proving that he had threatened the victim with a gun, the amendment to Count One of the information did not have the effect of charging the defendant with a new offense which he was not prepared to defend against at trial. Likewise, to the extent the Superior Court committed any constitutional error in its final jury instructions with respect to Count Two regarding unlawful possession of a firearm, the defendant would, at best, only be entitled to a sentence reduction as a remedy, rather than a judgment of acquittal, because the additional language only represented a sentence enhancement rather than an element of the underlying offense. In addition, defendant's admission that he did not possess a license to carry a firearm provided sufficient evidence for the jury to convict the defendant of that charge. Accordingly, the defendant is not entitled to an acquittal on either charge. The matter is remanded to the Superior Court for the new trial ordered in this Court's December 18, 2008 Opinion.
Supreme Court Of The Virgin Islands