Not guilty verdict in gun trial

After trial by judge alone last week, Jovin Omar Fuentes, 22, was found not guilty of possessing an imitation firearm with intent to commit an offence. 

In delivering his verdict, Justice Alexander Henderson said the Crown’s case was contained solely within the evidence of a single witness, the complainant Aaron Chisholm. 

Mr. Chisholm told the court he had known Fuentes for two or three years. On Sunday night, 9 October, 2011, the two men got into a physical and verbal confrontation outside the Everglo Bar in Bodden Town just before closing time. The incident led to a charge of common assault, to which Fuentes pleaded guilty before the firearm trial started. 

The evidence of Mr. Chisholm was that after the assault, Fuentes went to a nearby tree where there were some rocks and picked one up. As Fuentes was straightening up, Mr. Chisholm said he noticed a gun or what appeared to be a gun in the waistband of Fuentes’ pants. He said he ran into a bushy area, from which he saw Fuentes with a .38 revolver in his hand. He said Fuentes repeated two or three times, “Come out so I can put some lead in you.” No shots were fired and Fuentes went back to his truck and drove off. 

Mr. Chisholm told the court he had been out bar-hopping with three friends and they all travelled in the same vehicle. 

Justice Henderson said those friends would have been witnesses to whatever happened in the parking lot. The police took a statement from Mr. Chisholm the day after the incident, which the judge said was appropriate. 

He noted that the police appeared to have made some effort to get a statement from one of Mr. Chisholm’s friends, “although I am far from convinced they made an appropriate effort. They eventually retrieved a statement from him six months after the event.” Further, he noted, there was no evidence that any effort was made to get statements from the other two men in Mr. Chisholm’s group. 

The one friend who did give a statement did not see a gun nor did he hear the threats Mr. Chisholm reported. After the incident, the three friends picked up Mr. Chisholm and they drove home. On the way, Mr. Chisholm did not make any reference to having been threatened. 

In his verdict, Justice Henderson pointed out that it was only after questioning became more precise and pointed that this witness said Mr. Chisholm did make some mention of a gun, and by that time they were in North Side. 

The judge said the Crown had not provided any evidence to corroborate Mr. Chisholm’s credibility. 

“This is not a civil trial,” he pointed out. “I am not permitted to convict Mr. Fuentes because I think it is more probable than not that he was in possession of a firearm or an imitation of a firearm on the evening in question. I may convict him only if I am sure of his guilt.” 

The judge also pointed out that Fuentes had denied owning a gun or even ever firing one. [No gun was found at the scene or at the defendant’s premises, which is why the charge was laid as an imitation firearm.] He referred to evidence Mr. Chisholm gave in court but had not told police in his statement. He also noted the drinking that had taken place that Sunday. 

In assessing the Crown’s main witness, Justice Henderson said, “There was nothing about his demeanour which would cause me to disbelieve him or, indeed, anything specific in his cross-examination which would destroy my faith in his credibility, but that is not the test. I must be sure.” 

He said he found himself left with a doubt as to what had happened. “My obligation, as always, is to give the benefit of that doubt to the defendant. I find Mr. Fuentes not guilty,” he concluded. 

Defence attorney Lucy Organ told the court that Fuentes had been in custody since the incident and the maximum for common assault was one year. She said she was advised by Crown Counsel Kenneth Ferguson that Fuentes had pleaded guilty in Summary Court to an unrelated matter and was awaiting sentence there. 

Justice Henderson indicated that further custody was not needed as a sentence for the common assault, but he felt that Fuentes would benefit from a period of probation for two years. Conditions include that Fuentes is not to be found inside any establishment that sells alcohol. The judge said the probation officer could relax that requirement later on.