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oS oe SUPERIOR COURT OF THE VIRGIN ISLANDS APPELLATE DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, ) ) CASE NO. SX-15-RV-006 Plaintiff / Respondent ) on Review, ) ON PETITION FOR REVIEW FROM ) THE MAGISTRATE DIVISION Vv. ) ) RE: SX-15-MV-116 ANDREW JOSEPH, Defendant / Petitioner on Review. i i a MEMORANDUM OPINION AND ORDER THIS MATTER is in the Appellate Division on petition for review from the Magistrate Division. Andrew Joseph, Defendant before the Magistrate Court and the Petitioner on this appeal, seeks review of his conviction after a bench trial for negligent driving. For the reasons set forth below, the judgment of the Magistrate Court will be affirmed. BACKGROUND Around 7:40 am on the morning of October 19, 2014, a collision occurred between Vasile Jacobs Freeman and Andrew Joseph at the intersection of Queen Mary Highway and Grove Place Road located just west of Plaza Extra West Supermarket on St. Croix. Freeman was travelling west on the highway. When she reached the intersection, she stopped to signal a right turn onto Grove Place Road. Queen Mary Highway runs east to west and intersects Grove Place Road, perpendicularly, which runs south to north. Joseph was also approaching the same intersection at the same time, driving south to north on Grove Place Road. He also intended to make a right turn, toward the east onto Queen Mary Highway. When Freeman and Joseph both turned right at the same time, their cars collided. Freeman’s car sustained damages to the front, rendering it not drivable. Joseph’s car sustained damages to the front left side. Memorandum Opinion and Order People v. Joseph, SX-15-RV-006 Virgin Islands Police Officer Cuthbert Cyril was dispatched to the scene and after an investigation concluded that Joseph was negligent by failing to yield the right-of-way to Freeman. He issued a citation, dated October 22, 2014, charging Joseph with one count of negligent driving, in violation of section 503 of title 20 of the Virgin Islands Code. Officer Cyril filed the citation with the Superior Court on January 13, 2015. Once filed, the Traffic Division docketed the citation as case number SX-15-MV-116 and assigned it to a Superior Court magistrate for further proceedings. On January 29, 2015, approximately two weeks after the citation was filed, the Magistrate Court held a bench trial. The People of the Virgin Islands appeared through an assistant attorney general. Joseph appeared and represented himself. The prosecutor called Freeman and Officer Cyril to give testimony. Joseph cross-examined both witnesses and later testified in his own defense. At the close of trial, the Magistrate Court took the matter under advisement and, in a Judgment and Sentence dated and entered May 8, 2015, found Joseph guilty of negligent driving. The Court sentenced him to pay a fine and also court costs of $75.00 apiece. Joseph filed a notice of appeal on May 27, 2015 along with an attached document titled “Andrew Joseph’s Statement of Accounts regarding the collision on October 19, 2014.” The Clerk’s Office construed the notice as a petition for review filed with the Appellate Division, docketed it as case number SX-15-RV-005,! and assigned it to a Superior Court judge. By letter dated June 1, 2015, the Clerk’s Office advised Joseph of the requirements for appeals from the Magistrate Division, specifically obtaining a transcript and filing a brief. Joseph filed a transcript request form on June 8, 2015 and the transcript was submitted on July 27, 2015. A month before the transcript was submitted, Joseph filed a letter, dated and docketed June 29, 2015, asking the Court to consider his notice as his brief on appeal. By order entered ' Beginning in January 2015, the Clerk of the Superior Court adopted a new internal procedure whereby petitions for review filed with the Appellate Division on appeal from the Magistrate Division are assigned a new case number designated with the code “RV” referring to “petitions for review.” Memorandum Opinion and Order People v. Joseph, SX-15-RV-006 August 14, 2015, the Court granted his request and gave the People fourteen days to file its responsive brief. The People did not file a brief or otherwise participate in this internal appeal. DISCUSSION On appeal, Joseph first argues that he was not allowed to give his full testimony so he reduced it to writing in a “statement of accounts” and attached it to his notice of appeal. Because Joseph’s statement does not address any testimony brought out during the bench trial (including his own), but instead attempts to provide additional information in narrative form about the accident, the statement cannot be considered on appeal. On review from the Magistrate Division, the Appellate Division is limited to the same record that the Magistrate Court heard. See, e.g., Ascencio v. Caribe Home Center, Inc., SX-12-SM-459, 2013 V.J. LEXIS 74, *5 (Super. Ct. App. Div. Oct. 23, 2013) (unpublished) (“New or additional evidence cannot be submitted to the Appellate Division judge.” (citing In re Estate of Small, 57 V.1. 416, 429 (2011)). An appellate court set only set aside a magistrate court’s findings when the “court’s factual determination is completely devoid of minimum evidentiary support or bears no rational relationship to the supportive evidentiary data.” Jd. (internal quotation marks, citation, and ellipsis omitted)). And, even if the appellate court did conclude that the magistrate court’s findings lacked support in the record, the appellate court cannot allow the parties to supplement their trial testimony on appeal. Accord, In re Estate of Small, 57 V.1. at 429 (“allowing a party to create or submit additional factual materials to affect disposition of the appeal to the Superior Court would undermine the integrity of the magistrate fact-finding process and would be unfair; it would deprive a magistrate of information needed for an informed decision in light of all of the evidence and would invite either inefficient or inadequate preparation for magistrate proceedings, or worse, strategic ‘sand bagging’ (since the opponent of the ‘new evidence’ is not given an opportunity to rebut the additional material in the evidentiary proceedings before the magistrate).”). Therefore, in its appellate capacity, this Court must reject Joseph’s first argument and the statement of Memorandum Opinion and Order People v. Joseph, SX-15-RV-006 accounts he submitted on review. In his second point, Joseph claims that “[t]he witnesses for the [PJeople lied under oath.” (Pet’r Notice of App. 1, filed May 27, 2015.) Specifically, Joseph disputes Officer Cyril’s testimony that the officer gave him a copy of the citation on October 22, 2014. At trial, Joseph testified that he never received a copy of the citation and only learned about the January 29, 2015 bench trial date through his insurance company because Freeman had filed a claim. On appeal, Joseph admits that he is “unable to prove [the officer’s] untruthfulness” but still objects to it. Jd. He also disputes Freeman’s testimony. Freeman testified that she had arrived at the intersection before Joseph, and that she saw him stop and pick up someone else before continuing on to the intersection. When he reached the intersection, Joseph turned his head toward the passenger, seemingly distracted by the passenger, before turning his vehicle to the right and hitting Freeman's car. Freeman further testified that at the scene Joseph told her that she had given him the right- of-way. But Freeman testified that she disputed his remark at the scene and rejected it again at trial. On cross-examination, Joseph explained that he had reached the intersection first, saw Freeman approach, saw her signal a right turn, but then saw her flash her headlights at him, which he construed as her signaling that he could turn right first. He explained that he did not immediately turn right, but instead drove forward first to check that the road was clear. Joseph testified that he always stops “about two to three feet from the stop line” before making a turn because of a prior collision in 2010 in which another car hit him while turning and while he was stopped at a stop sign. (Trial Tr. 45: 19-20, Jan. 29, 2015.) According to Joseph, once he started to turn right, Freeman collided into him. He testified that she told him at the scene that he took too long to turn. To the extent that Joseph asks this Court, in its appellate capacity, to evaluate the truthfulness or the credibility of any witness’s testimony, that request is rejected. “It is well established that, on appeal, the court must defer to the credibility decision made by the factfinder, whether it be the judge or the jury.” Memorandum Opinion and Order People v. Joseph, SX-15-RV-006 Moore v. Walters, 61 V.I. 502, 508 (2014). Here, the Magistrate Court, as the trier of fact, found that Ms. Freeman did have the right of way at the time of the accident and that it was the Defendant’s responsibility not to enter the main thoroughfare until it was safe to do so. The Court finds Ms. Freeman’s testimony to be more credible that she did not flash her lights at the Defendant to indicate to him that he could proceed. The Defendant did not yield the right of way to Ms. Freeman and thereby caused an accident. (Jgmt 3, entered May 8, 2015.) The Court clearly rejected Joseph’s version of what occurred on October 19, 2014, and found instead that Freeman did not signal for Joseph to go first. On review, this Court cannot reevaluate any witness’s testimony or give or more or less weight to any person’s version. That obligation belongs in the first instance to the trier of fact. Negligent driving in violation of section 503 of title 20 of the Virgin Islands Code requires finding beyond a reasonable doubt that a person “operate[d] a motor vehicle in a negligent manner over and along the public highways... . in such a manner as to endanger or be likely to endanger any person or property.” 20 V.LC. § 503. The elements, as other courts have held, are: “(1) operating a vehicle in a negligent manner, (2) over and along a public highway of this Territory, and (3) in such a manner as to endanger or be likely to endanger any person or property.” Gov’t of the V.I v. Smith, 45 V.1. 293, 298 (Terr. Ct. 2003). See also Poleon v. Gov't of the V.IL, 184 F. Supp. 2d 428, 433 (D.V.I. App. Div. 2002). Here, the testimony showed that Joseph was operating a car on a public highway when he turned right and collided with Freeman’s car and rendered it inoperable. While Joseph claimed at trial that Freeman had signaled to him that he could turn first, Freeman disputed his account. On appeal, courts view challenges to the evidence in the light most favorable to the prosecution. Rawlins v. People, 58 V.I. 261, 269 (2013) (“When reviewing a challenge to the sufficiency of the evidence supporting a conviction, we view all issues of credibility in the light most favorable to the People”). If credited, Freeman’s testimony showed that Joseph was distracted and looked away before he turned right. The Magistrate Court credited this testimony and, viewed in the light most favorable to the People, it showed that Joseph drove negligently. Memorandum Opinion and Order People v. Joseph, SX-15-RV-006 Joseph’s third point must also be rejected for the same reason that his first argument was rejected. Joseph states that he “plan[s] to provide a witness who was present at the time of the accident who saw Ms. Freeman yield her right of way to [him] . . . .” But, as noted above, the petitioner on review to the Appellate Division cannot present new witnesses or submit new evidence. See In re Estate of Small, 57 V.I. at 429; see also Super. Ct. R. 322.3(c). Before trial, the Magistrate Court asked Joseph if he had any witnesses and Joseph answered “(nJot presently.” (Trial Tr. 4:15.) When the Court inquired further, Joseph said that he did have someone who he wanted to call as a witness, but explained that he had not asked the person if he or she would be willing to testify. When the Court told Joseph that it was his responsibility to “do the subpoenaing or . . . to bring [his witnesses] to court,” Joseph said it would be a “hassle.” /d. at 5:12-13 & 6:5. On appeal, Joseph now wants to get the witness and have him or her corroborate his own version of what happened. That he cannot do and his request is rejected. Finally, Joseph’s last point is also rejected. In his forth point, Joseph questions Freeman’s testimony, specifically whether—if she could “lie about arriving on the intersection before [him]’—she could also “lie about yielding [the] right of way” to him. (Notice 1.) Again, Joseph challenges Freeman’s credibility. Deciding who to believe and who not to believe is for the factfinder, not for the appellate court on review. Accord Bekker v. People, ST-14-MV-504, 2015 V.I. LEXIS 82, *2-3 (V.I. Super. Ct. App. Div. July 7, 2015) (unpublished) (“this Court sits as an appellate court when it reviews decisions from the Magistrate [Court] and is not charged with re-assessing the credibility of witnesses. The Magistrate [Court], the finder of fact in the trial, was in the best position to assess the credibility of witnesses and resolve inconsistent testimony.”). CONCLUSION Having considered Joseph’s points of error, the Court rejects each and affirms the conviction. Accordingly it is hereby / ww Memorandum Opinion and Order People v. Joseph, SX-15-RV-006 ORDERED that the Judgment, entered May 8, 2015 in People of the Virgin Islands v. Andrew Joseph, case number SX-15-MV-116, is AFFIRMED. It is further ORDERED that a copy of this Order be served on all parties, FORTHWITH GC) MW tain Dated: January [J , 2016. DOUGLAS A. BRADY Judge of the Superior Court ATTEST: ESTRELLA Hi GEORGE Acting Cler the Court By Court Clef! or