ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, DIVISION OF ST. CROIX.
Gibbons, Sloviter and Becker, Circuit Judges.
A six-count information charged appellant Leonardo Soto with armed robbery in violation of 14 V.I.C. § 1862(2) (Count I); three counts of assault with intent to commit robbery in violation of 14 V.I.C. § 295(3) (Counts II-IV); armed burglary in violation of 14 V.I.C. § 442(1) (Count V); and possession of a dangerous weapon during the commission of a crime of violence in violation of 14 V.I.C. § 2251(a)(2)(B) (Count VI). During the course of Soto's trial, the burglary count was dismissed. A jury found Soto guilty on the remaining five counts. On each of the first four counts Soto was sentenced to concurrent five-year prison terms; on the weapons possession count,*fn1 he was sentenced to two and one-half years imprisonment to be served without benefit of parole and concurrently with the sentences imposed on the other counts.
The evidence introduced at Soto's trial, viewed in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942), reveals the following facts which support the jury's verdict: At about 10:00 p.m. on March 31, 1982, a man, armed with a handgun, entered the Kentucky Fried Chicken restaurant on King Street, Frederiksted, St. Croix and, in the presence of two other employees of the restaurant, Fitzroy Brann and James Browne, forcibly took from the cashier, Elfreda Roberts, over $400.00. Five days later, Brann recognized the driver of a car as the robber, noted the license plate number of the car and reported it to the police. Soto, the owner of the car, was taken into custody. Brann, acting on his own initiative, went to the police station, saw Soto, and identified him to the police as the individual who had robbed Kentucky Fried Chicken the previous week. Prior to and at Soto's trial, both Browne and Brann identified Soto as the robber. A customer of the restaurant identified Soto as being outside the restaurant shortly before the robbery occurred.
On appeal Soto has raised, inter alia, issues of (1) the sufficiency of the evidence that Soto carried a "dangerous weapon" to support a first degree robbery conviction; (2) the validity of the convictions and sentences imposed on the first degree assault counts; and (3) the validity of the charge and conviction on the dangerous weapon offense.*fn2
Robbery in the First Degree
Count I charged Soto with violation of 14 V.I.C. § 1862(2) (Supp. 1982)*fn3 as follows:
On or about the 31st day of March, 1982, in the Virgin Islands of the United States, Judicial Division of St. Croix, LEONARDO SOTO, JR., did unlawfully and by means of fear, and by displaying and threatening the use of a handgun, take U.S. currency possessed by KENTUCKY FRIED CHICKEN restaurant, King Street, Frederiksted, and ELFREDA ROBERTS, the cashier from her immediate presence, and against her will, in violation of Title 14 V.I.C. § 1862(2).
The maximum prison sentence for first degree robbery is 20 years. For his conviction on Count I, Soto received five years.
Soto contends there was insufficient evidence to support his conviction on Count I in that the government did not produce at his trial the handgun he was charged with displaying, which it had never recovered. Soto contends, therefore, the government did not prove that the handgun was a "dangerous weapon" within the meaning of that term in 14 V.I.C. § 1862(2). However, there is nothing in 14 V.I.C. § 1862(2) which requires that a handgun treated by the holder and perceived by the victims as a dangerous weapon must be demonstrated by objective evidence to be mechanically capable of inflicting harm. In the absence of evidence to the contrary, a jury may infer from surrounding circumstances that a handgun so treated and displayed is a "dangerous weapon" within the meaning of the statute. See United States v. Gay, 623 F.2d 673, 676 (10th Cir.), cert. denied, 449 U.S. 957, 66 L. Ed. 2d 222, 101 S. Ct. 366 (1980); Wheeler v. United States, 317 F.2d 615, 618 (8th Cir. 1963); State v. Platt, 130 Ariz. 570, 637 P.2d 1073, 1077 (Ariz. App. 1981); State v. Vondenberg, 61 Ohio St. 2d 285, 401 N.E.2d 437, 439-40 (1980); State v. Thompson, 297 N.C. 285, 254 S.E.2d 526, 528 (1979); State v. Vance, 285 Or. 383, 591 P.2d 355, 358 (1979) (in banc); State v. Millet, 392 A.2d 521, 527-28 (Me. 1978); State v. Lee, 195 Neb. 348, 237 N.W.2d 880, 882 (1976).
At Soto's trial three witnesses testified that the robber held a gun, pointed it in a threatening manner at each of them and indicated he would use the gun if his demands were not promptly carried out. Browne testified that the robber, holding a gun, said to him, " 'Don't make a move,' that if I make the wrong move, I'm gone." Tr. 42-3. Roberts testified that the robber pointed his gun "straight at me," and said, " 'Miss, don't move. Just give me the money -- . . . I'm not going to hurt you, you know. Usually I'm a nice guy. I don't do these things, but I have a sick child, and I really need the money. '" Tr. 83. Brann testified, "Well, I saw him pointing the gun towards the three of us who was in the store at the time . . . . He said, 'Don't move, otherwise you're dead -- you're gone. '" Tr. 140. From this evidence the jury ...