UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed as amended march 3 1977.: February 16, 1977.
GOVERNMENT OF THE VIRGIN ISLANDS
RAMON PARRILLA, APPELLANT
ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF CHRISTIANSTED, ST. CROIX (Crim. No. 76-11).
Seitz, Chief Judge, Gibbons and Hunter, Circuit Judges.
GIBBONS, Circuit Judge.
Ramon Parrilla appeals from a sentence imposed after a jury verdict finding him guilty of carrying or using a dangerous weapon in violation of 14 V.I.C. § 2251(a)(2).*fn1 He asserts ten grounds for reversal, none of which justify relief.*fn2 Although we affirm the judgment below, Parrilla's contention that he was entitled to a jury instruction on a lesser included offense calls for discussion.
Parrilla was charged in a two count information with assault third degree*fn3 and carrying or using a dangerous weapon.*fn4 The information was the consequence of an incident at the Pueblo Supermarket in Christiansted, St. Croix, on January 15, 1976. On that date Parrilla was arrested and charged in the Municipal Court with assault third degree and brandishing. The information, filed on January 21, 1976, did not include a brandishing count.
Prior to his trial Parrilla moved to dismiss the 14 V.I.C. § 2251(a)(2) count on double jeopardy grounds. The court granted this motion, holding that under the test of Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932) that charge was a lesser included offense of assault third degree. The court reasoned that assault with a deadly weapon necessarily included the possession of that weapon. At the end of the trial the court charged that 14 V.I.C. § 2251(a)(2) was a lesser included offense, but declined a request for a similar instruction on brandishing.*fn5 At the end of the Court's charge the following occurred:
[The Court] At this time I ask counsel to come to sidebar for our last sidebar conference to determine whether there are any instructions that I should give which I failed to give or whether any instructions should be corrected
(whereupon the following occurred at sidebar out of the hearing of the Jury)
The Court: First of all, you asked for an instruction on brandishing a deadly weapon. I am rejecting it because it is not a lesser included offense. This offense has elements that are not found in the crime charged, and that element is that it has to be done before two or more persons. . . .
The jury returned a verdict of guilty of violation of 14 V.I.C. § 2251(a)(2). The guilty verdict on this lesser included offense involved a lesser penalty for Parrilla, since the maximum sentence on the assault charge was five years, while that on the possession of a deadly weapon charge was two. A verdict of guilty of brandishing a deadly weapon would have meant an even lighter sentence for defendant, since the maximum sentence is one year. Parrilla appeals from a two-year sentence.
The government concedes that the test for determining which verdicts a jury may return under Rule 31, Fed. R. Crim. P., and thus which should be included in the charge, is set forth in Sansone v. United States, 380 U.S. 343, 349-50, 13 L. Ed. 2d 882, 85 S. Ct. 1004 (1965).
". . . in a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifie[s] it . . . [is] entitled to an instruction which would permit a finding of guilt of the lesser offense." (Citation omitted). . . . But a lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. (Citation omitted). In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. (Citation omitted).
As this court explained in Government of the Virgin Islands v. Carmona, 422 F.2d 95, 100 (3d Cir. 1970):
First, the lesser included offense must be comprised solely of some but not all of the elements of the offense charged. Second, there must be a genuine conflict of evidence as to an element of the offense charged, which element is not shared by the lesser included offense.
Appellant argues that the trial evidence would clearly have supported a verdict of guilty on a charge of brandishing, for it was plain that appellant exhibited his knife in a threatening manner in the presence of two or more persons. We agree, but the fact that brandishing as defined by 14 V.I.C. § 621(1) was proved is not sufficient to make that crime a lesser included offense of assault third degree. The test, as set forth in Carmona, interpreting Sansone, requires a comparison of the statutory elements of the two offenses. Even a cursory comparison of 14 V.I.C. § 297(2) with 14 V.I.C. § 621(1) reveals that Judge Young was correct in concluding that the lesser offense contains an additional element not found in the former: that the conduct occur in the presence of two or more persons.
What gives us pause is the realization that 14 V.I.C. § 621(2) does not require the presence of two or more persons. Thus brandishing, as defined in the second subsection of § 621, may very well be a lesser included offense of assault third degree. And arguably the evidence supports a finding of guilt under that subsection. However, appellant never requested a § 621(2) charge. Appellant's request for charge sought an instruction that:
"Brandishing a deadly weapon around people in a threatening or angry fashion is a crime unless it is done in necessary self-defense." (11a)
Although the requested charge does not track the statute with precision, the references to "people" in the plural, and to a "threatening or angry fashion" clearly indicate a request for a § 621(1) charge. We can find no error in the failure of a trial judge to give a lesser included offense charge not requested by the defendant.
Defendant also requested an instruction on "Disturbing the Peace," 14 V.I.C. § 622(1).*fn6 However, that crime involves willful or malicious conduct. An assault in the third degree under the Virgin Islands Code must be intentional, but the offense does not contain this specification of willful or malicious conduct. Thus, an element of the § 622(1) violation is not present in the § 297(2) violation, such that under Virgin Islands law, Disturbing the Peace is not a lesser included offense of assault with a deadly weapon.*fn7 It was not error for the trial judge to refuse to give a § 622(1) instruction.
The judgment appealed from will be affirmed.
The judgment appealed from will be affirmed.