filed as amended march 3 1977.: February 16, 1977.
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.
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, ...