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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN PEOPLE OF THE VIRGIN ISLANDS ) CASE NO ST 2021 CR 00124 ) Plaintiff ) vs ) ) ADALA AKIM DONASTORG ) ) Defendant ) ) Cite as 2022 VI Super 47U MEMORANDUM OPINION 111 THIS MATTER is before the Court on Defendant Adala Akim Donastorg s ( Donastorg ’ or Defendant ) Motion to Consolidate or Dismiss Multiplicitous Counts, filed October [5, 2021 The People of the Virgin Islands (the People") oppose this motion and Donastorg has replied ' FACTUAL BACKGROUND AND PROCEDURAL POSTURE 112 On the morning of April 26, 2021, when Donastorg was renting a room from Jose Petersen’s (“Petersen”) mother, Petersen alleges he got into a verbal clash with Donastorg which escalated into a physical altercation Ultimately, the People allege Donastorg obtained a meat cleaver with which he struck Petersen in the head and cut a piece from Petersen’s head 113 Donastorg was arrested on April 30, 2021 and is charged with eight (8) criminal counts (1) First Degree Assault Murder Domestic Violence, in violation of V I CODE ANN tit 14 § 295(1) and 16 V I C § 9l(b)(2); (2) Using a Dangerous Weapon During the Commission ofa First ' This matter is fully briefed The People filed their opposition on December 22 2021 Donastorg filed his reply on Degree Assault in violation of 14 V I C § 2251(a)(2)(B) (3) First Degree Assault Mayhem Domestic Violence in violation of 14 V I C 295(3) and 16 V I C 91(b)(2) (4) Using a Dangerous Weapon During the Commission ofa First Degree Assault in violation of 14 V I C 2251(a)(2)(B), (5) Third Degree Assault Domestic Violence in violation of 14 V I C 297(a)(2) and 16 V I C 91(b)(2), (6) Using a Dangerous Weapon During the Commission of a Third Degree Assault, in violation of 14 V I C 2251(a)(2)(B) (7) Mayhem in violation of 14 V I C l341(a)(l) and 16 V I C 91(b)(2)2 and (8) Using a Dangerous Weapon During the Commission of Mayhem, in violation of 14 V I C 2251(a)(2)(B) and 16 V I C 91(b)(2) 114 Defendant s motion is filed pursuant to Virgin Islands Rule of Criminal Procedure 12(b)(3)(B)(ii), requesting this Court order Counts Two Four Six, and Eight be either consolidated into a single charge or dismissed for being multiplicitous The People oppose Donastorg s motion arguing that the disputed counts should remain as charged, and noting that the Court may address any potentially multiplicitous charges at the sentencing stage of the proceedings Defendant replied claiming that the People’s argument that multiplicity can be resolved at sentencing is expressly belied by the Virgin Islands Rules of Criminal Procedure, and reiterating his previous argument pursuant to the rule of lenity For the reasons set forth herein, the Court will grant Defendant s motion LEGAL STANDARD 115 Rule 12(b)(3)(B)(ii) of Virgin Islands Rules of Criminal Procedure allows a party, before trial, to challenge a defect in the charging information, such as charging the same offense in more ’ Donastorg argues that count seven, mayhem, is inappropriately classified as a domestic violence charge and therefore than one count (multiplicity) Separately, section 104 of title 14 of the Virgin Islands Code also prohibits repeat punishments for a single act or omission that could be charged under several differing counts 3 116 Multiplicity occurs when an information charges a single crime in several different counts People v Colon 60 V I 149 158 (V I Super Ct 2014) (citing UnziedSIates v Kennedy 682 F 3d 244 254 55 (3d Cir 2012) UnitedSIates v WIIIIams 527 F 3d 1235 1241 (11th Cir 2008)) The Superior Court of the Virgin Islands has stated that when determining if an information includes multiplicitous charges, the court should consider whether “separate and distinct prohibited acts” have been committed 1d (citing United States v Planck 493 F 3d 501 503 (5th Cir 2007)) The test to “determine whether there are two offenses or only one is whether each provision requires proofof a fact which the other does not ’ Id (quoting Blockburger v United States, 284 U S 299, 304 ( 1932)) 17 Section 2251(a)(2)(B) of title 14 of the V 1 Code states Whoever, (2) with intent to use the same unlawfully against another, has, possesses, bears, transports, carries or has under his proximate control, a dagger, dirk, dangerous knife, razor, stiletto, or any other dangerous or deadly weapon shall (B) if he has previously been convicted ofa felony, or has, possesses, bears, tranSports, carries or has under his proximate control, any such weapon during the commission or attempted commission of a crime of violence (as defined in section 2253(d)(1)4 hereof) shall be fined $10,000 and imprisoned not more than fifteen (15) years, which penalty shall be in addition to the penalty provided for the commission of, or attempt to commit, the crime of violence ” (emphasis added) 3 14 V I C § 104 states that [a]n act or omission 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 4 Section 2253(d)(1) reads ‘ Crime of violence shall have the same definition as that contained in Title 23, section 451(g) ofthis Code ” Title 23, section 451(g) reads “Crime ofviolence means the crime of, or the attempt to commit, murder in any degree, voluntary manslaughter rape, arson, discharging or aiming firearms, mayhem, kidnapping, assault in the first degree, assault in the second degree, assault in the third degree, robbery, burglary, unlawful entry The Supreme Court of the Virgin Islands has found the elements required to sustain a conviction under § 2251(a)(2)(B) are (1) that the defendant possess a dangerous weapon (2) with the intent to unlawfully use the weapon against another person Nanton v People, 52 V I 466, 480 (VI 2009) The Superior Court of the Virgin Islands has also assessed the statutory makeup of § 2251 when determining potential multiplicity In People v Colon, the court determined that multiple counts charged pursuant to § 2251(a)(2)(B) required proofofthe same two elements, independent ofwhich crime of violence was alleged People v Colon 60 V I 149 161 (V I Super Ct 2014) The Colon court considered whether a specific “crime of violence” could also be an element of the crime charged under § 2251(a)(2)(B), finding the multiple counts asserted are not at all dependent upon which crime of violence is asserted Id In People v Prmgle (where Pringle was charged with eleven (1 l) criminal countss), the Superior Court utilized this interpretation, though performing its analysis on the nearly identical [4 V I C § 2253(a) 6 to find that ‘ the People could prove § 2253 was violated by either showing that there was gun and a third degree assault or that there was a gun and a kidnapping” People v Prmgle, 2021 VI Super 94U, 1] 24 More recently, in People 0fthe VIrgm Islands v Dolphin the Superior Court held that four counts charged under § 2253(a) were multiplicitous under the Prmgle reasoning, because only a single firearm was involved in the alleged incident and charging the defendant four times for the use of a single gun 5 The eleven (1 l) criminal charges against Pringle in the original charging Information were as follows (1) Kidnapping To Exact Money (2) Unlawful Possession ofa Firearm During the Commission ofa Kidnapping to Exact Money in violation of 14 V I C § 2253(a) (3) three (3) counts of Third Degree Assault (4) Unauthorized Possession of a Firearm During the Commission of a Third Degree Assault, in violation of 14 V I C § 2253(a), (5) Two (2) counts of Possession of a Dangerous Weapon During a Third Degree Assault, (6) First Degree Assault, (7) Possession of a Dangerous Weapon During a First Degree Assault, and (8) Conspiracy would be multiplicitous People ofthe Virgin Islands v Dolphin ST 2020 CR 00046 2022 WL 859929 at *4 (V I Super Ct Mar 22 2022) 7 1[8 To aid in the determination of whether to address potential multiplicitous charges before trial or at the sentencing stage, the Prmgle court stated such determination should be decided on a “case by case basis,” considering factors such as “judicial economy, risk of prejudice, the totality of the charges against the defendant, and the severity of those charges ” Prmgle, 2021 VI Super 94U at 1] 25 ANALYSIS A Counts Two, Four, Six, and Eight are multiplicitous 1|9 Donastorg argues that Counts Two, Four, Six, and Eight are multiplicitous charges because each count charges him with violating 14 V I C § 2251(a)(2)(B), i e , using a dangerous weapon during the commission of a crime of violence He argues the People improperly charged him because the four disputed counts under § 2251(a)(2)(B) each have identical statutory elements requiring proof of the same facts (1) a defendant possesses a dangerous weapon and (2) with the intent to unlawfully use said weapon against another person He claims that even though multiple different crimes of violence may have occurred, the legal elements required to prove Counts Two, Four, Six, and Eight remain identical The People do not directly address this portion of the 7 The Court will track the Colon, Pungle and Dolphin decisions with regard to the elements included in 21 § 2251 charge, such that it will not consider which particular crime of violence is associated with the weapon charge However the Court acknowledges that another recent Superior Court decision found that the charge for possession of a firearm under § 2253(a) during commission of different crimes of violence inherently include different legal elements, according to which “crime of violence ’ the weapon charge is associated with See People of the Virgin Islands v Hazel ST 2020 CR 00273 Order dated Aug 18 2021 at 111} 8 12 In that case the court stated that a charge for possession of a firearm during a first degree assault includes a different factual basis than a charge for possession ofa firearm under during commission ofa third degree assault Id at 1] 10 12 The court therefore, reserved decision on the multiplicity argument, they merely highlight the differences in the language used among Counts Two, Four, Six, and Eight, in footnotes three through six of their opposition, claiming that different factual’ requirements are inherent in each 8 1110 The Court agrees that if Donastorg were convicted of the four counts charging him with possession ofa deadly weapon during four different crimes ofviolence, he could only be sentenced on one such charge, pursuant to 14 V I C § 104 The People allege Donastorg utilized a single weapon, i e , a meat cleaver, during a single incident involving a single victim The People charge Donastorg with using this single weapon during several distinct crimes of violence, but the Court finds that the specific crime of violence charged has no bearing upon the elements which must be proven under § 2251(a)(2)(B) (1) possession ofa dangerous weapon (2) with intent to unlawfully use the weapon against another as found in the foregoing cases from the Superior Court Therefore, the Court finds that the People charged Donastorg with multiplicitous charges, because there are four counts charged under § 2251(a)(2)(B) for the use of a single weapon, during a single incident 3 In his reply, Donastorg states the People have waived any argument regarding this construction and interpretation of the elements of § 2251(a)(2)(B) citing Melendez v People 56 VI 244 252 53 (VI 2012) (which held the government waived the issue of standing to challenge a warrant when it failed to address the issue in the trial court) However, the Court does not find Melende v People establishes the precedent for waiver that Donastorg argues Although Melende does hold that a legal issue (in that case, the issue of standing) cannot be addressed for the first time on appeal, the Court notes that this matter has not gone to trial yet, and thus there remains significant opportunity B Consolidating Counts Two, Four, Six, and Eight is appropriate at the pretrial stage 1|11 Because the Court identifies multiplicitous charges the question now becomes whether it must consolidate the four multiplicitous charges at this stage of the proceedings prior to trial, or if the potential multiplicity is better addressed at the sentencing stage {[12 Assessing the instant matter under the factors articulated in the Prmgle case, the People argue that because the Information is only comprised of eight (8) counts, there is little risk of prejudice to the defendant, comparing it to the Colon case in which there were twenty five (25) counts pursuant to § 2251(a)(2)(B) alone Colon 60 VI at 166 Accordingly the People argue that because there are relatively fewer counts, dismissal or consolidation would not sufficiently affect judicial economy or prevent prejudice Ultimately, the People argue the best course of action is to leave the charges as they are and address any multiplicity at the sentencing stage In his reply, Donastorg leans on the rationale from the Prmgle case, Specifically highlighting that consolidation at the pretrial stage mitigates the risk ofjury prejudice and effectively conserves judicial resources by streamlining the issues that will be presented at trial and sentencing, while accurately reflecting the grave nature of the alleged crimes and the jury need not be confused by repetitive jury instructions Prmgle, 2021 VI Super 94U at 1| 26 1113 Though the People correctly note that the Colon court consolidated twenty five (25) charges pursuant to § 2251(a)(2)(B), significantly more than the four charged here the Dolphin court found it appropriate to consolidate four firearm charges under § 2253(a), even though only nine (9) total counts were charged, reasoning that those four charges could prejudice the jury against the defendant In this matter, the Court agrees with the Dolphin court that consolidating the four disputed charges would indeed reduce potential prejudice from the jury Consolidation of would save the Court and the parties from addressing, considering, and preparing jury instructions for four identical charges of possession of a dangerous weapon during the commission ofa violent crime, which would certainly result in much repetition during the course of a trial Reducing the total number of charges from eight to five (four charges of crimes of Violence and one charge of possession of a dangerous weapon) would significantly reduce the number ofcharges for the jury to consider and decrease the possibility of prejudice The Court therefore finds it prudent to consolidate the four disputed charges 9 1|l4 Even with consolidation, there is no risk that Donastorg would circumvent or otherwise avoid the filll complement of charges for his alleged criminal acts Donastorg is only charged with using a single weapon, the meat cleaver, against a single victim, so removing the repetitive charges of possession of such weapon during various different crimes of violence will not ultimately alter the crimes charged The four disputed charges do not each include additional wrongdoing by ‘ Donastorg, but each merely reference his (1) possession of the meat cleaver and (2) his intent to unlawfully use it against Petersen, thereby satisfying the two elements of § 2251(a)(2)(B) as interpreted by the Supreme Court ofthe Virgin Islands in Nanton v People Consolidation will not cause any of the charges to be removed or minimized, it will merely simplify the Information and reduce repetitive charges Therefore, consolidating the four disputed charges to a single charge will more accurately incapsulate the charges against Donastorg because the People only allege the use of a single weapon against single victim during the alleged incident 9 The Conn acknowledges that the Prmgle case also includes “judicial economy ’ as a factor to consider when deciding 1115 The Court finds that consolidation is appropriate at this stage, prior to trial, because leaving potential resolution for the sentencing stage could prejudice Donastorg in the eyes of the jury, and there is no risk that Donastorg will dodge accountability for the full scope of his alleged wrongdoing Accordingly, the Court will order the People to amend the Information to consolidate the four (4) disputed charges each charging Donastorg with violating 14 V I C § 2251(a)(2)(B) into a single count of possession of a deadly weapon during a crime of violence '0 CONCLUSION 1116 The Court finds that Counts Two, Four, Six, and Eight are multiplicitous and it is judicious fol6r the People to consolidate them into a single charge pursuant to § 2251(a)(2)(B) as doing so will minimize the chance of the jury being confused and reduce repetitive charges in the instructions Accordingly, the Court will grant the Defendant’s motion to consolidate multiplicitous charges and will order the People to amend the Information accordingly An order consistent herewith will immediately follow 4 ("—7 / DATED April 015/ 2022 /é 3/7 %Z zg/t/cg Kathleen Mackay ‘3' Judge of the Superior Court ATTEST of the Virgin Islands TAMARA CHARLES Clerk of theConfi— BY: fir LATOYA CAMACHO Court Clerk Supervisor 04 mg n93- '° The Court notes that Defendant makes a second argument for consolidation or dismissal of the repetitive charges,