Fleming v. Virgin Islands, 55 V.I. 1016

Fleming was convicted in the Virgin Islands Superior Court of third-degree assault and use of a dangerous weapon during a crime of violence, plus vehicle tampering, after a 2005 incident at a construction site on St. Thomas.
Joseph testified Fleming confronted him with a two-by-four and later struck him at a Jarvis stoplight, then Fleming threw a Heineken bottle breaking the back windshield.
No witness testified Fleming actually wielded the two-by-four during the Jarvis stoplight assault, and there was no medical testimony tying the wound to a two-by-four.
The jury convicted Fleming on all counts after the trial court denied a motion for judgment of acquittal as to Counts I and II and charged the jury.
On appeal Fleming challenged the sufficiency of the evidence for Count II (dangerous weapon) and argued the jury instructions were improper; the appellate court vacated Count II and affirmed Count I.
The court concluded there was insufficient evidence to prove Fleming used a dangerous weapon, and found no plain error in the jury instructions regarding Count I.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for dangerous weapon	Fleming	Fleming	Count II vacated; insufficient evidence
Jury instructions—sharp object language	Fleming	Fleming	Plain error not found; no reversal for Count I
Lesser included offense instruction	Fleming	Fleming	No plain error; simple assault instruction proper

Phipps v. Gov't of the V.I., 241 F. Supp. 2d 507 (D.V.I.2003) (definition of dangerous weapon under 2251(a)(2) in context of assault)
United States v. Miller, 527 F.3d 54 (3d Cir.2008) (plenary review of sufficiency of the evidence)
United States v. Taftsiou, 144 F.3d 287 (3d Cir.1998) (standard for evaluating sufficiency of evidence)
United States v. Gambone, 314 F.3d 163 (3d Cir.2003) (credibility and witness testimony considerations in sufficiency review)
United States v. Voigt, 89 F.3d 1050 (3d Cir.1996) (standard for assessing sufficiency on appeal)