St. John businessman Robert Sells faces up to five years in jail after being convicted of aggravated assault and battery and the felony enhancement charge that he committed the assault because of the victims race in a one-and-a-half-day bench trial before V.I. Superior Court Judge Brenda Hollar on June 19 and 20.
Sells, 51, a caucasian male native of Michigan and father of four who has lived on St. John for 23 years and owns Close Reach Imports, faces up to five years in prison for an incident in which he bumped into a woman who owned a neighboring business.
Guilty of Two of Four Charges
Sells faced four counts: disturbance of the peace; a felony enhancement intimidation statute for that charge; aggravated assault and battery; and another felony intimidation charge for that count.
Sells was found not guilty of disturbing the peace of Esther Frett, 45, a native of Guyana who has lived on St. John since 1999. She owns House of Dolls, which was a neighboring business in Meadas Plaza at the time of the incident. Sells was also found not guilty of the accompanying felony charge of racial-bias for that crime.
Five Year Maximum Sentence
The charges originally filed against Sells consisted of the misdemeanors of disturbance of the peace and assault and battery. The felony intimidation enhancement charges were added to the misdemeanors in October 2005 which accused Sells of committing the crimes because of Fretts race.
Hollar, who made her decision after closing arguments on Tuesday afternoon, June 20, set bail at $25,000 and will sentence Sells on July 31.
Sells bumped into Frett in a walkway in front of Meadas Plaza on June 3, 2005, and was subsequently arrested via citizens arrest. Although each business owner related different accounts of that day, Hollar ruled Sells had adequate space to move around Frett, and therefore bumped into her intentionally.
The two, who operated neighboring businesses for about two years, didnt get along and often argued over parking and other matters, which they both admitted during the trial. Sells, however, never testified that Frett did anything to provoke him.
The prosecution presented a number of witnesses who testified they heard Sells repeatedly use racial epithets toward Frett.
Accused of Routine Abuse
Frett testified Sells routinely made disparaging and racist remarks to her, her daughter and employees at her craft and clothing store. Frett, who made four police reports about incidents with Sells between 2003 and 2005, testified the racial slurs were like hello to him something I had to live with day in and day out.
The abuse culminated on June 3, 2005, when Sells bumped into Frett in front of Meadas Plaza, according to the victim.
Frett was making change for a customer when she felt a push which made her lose her balance and send her stumbling, she said.
Frett testified she looked up to see Sells shoulder, and told him you hit me, in an attempt to get him to apologize or admit what he did.
Sells, confirmed in his testimony that several of Fretts allegations were true, admitting he mooned Frett and her daughter on one occasion by pulling down his pants and showing them his buttocks and discouraged people from going into her store on another occasion.
Sells steadfastly denied using any racial slurs.
Different Account of Events
On the day in question, Sells said he forgot his keys at home and went into Rhumb Lines, a restaurant located in Meadas Plaza, to find someone with keys. As he walked out of the side entrance to the restaurant, Frett put her hands on her hips and spread her legs wide trying to block his path, according to Sells.
Sells testified he tried to walk around Frett, but was not able to pass her and brushed her shoulder as he walked by.
After the contact, Frett ran after him, getting within a foot of him and yelling you hit me, you hit me, Sells said. At that point, according to Sells, he faced Frett, made an imaginary mirror in front of her face, asked her what she saw and called her a derogatory name.
Sells attorney, Treston Moore, accused Frett, who at the time was being evicted from the St. Johnian-owned commercial complex, of staging the incident.
Moore said Frett spoke to V.I. Police Department Chief Angelo Hill two days before the altercation, when Hill told her that he couldnt do anything to Sells unless there was a physical confrontation.
The prosecutor, V.I. Assistant Attorney General Brenda Scales, said because of Sells, Frett had been put through hell for the past two years, and accused Sells of lying.
Heated Cross Examination
In a heated cross-examination, Scales had Sells demonstrate how he mooned Frett and her daughter while remaining clothed.
If he would moon a mother and a daughter, what is he not capable of doing? questioned Scales in her closing argument. He seemed to be quite proud of it on the stand.
Moore argued the contact between Sells and Frett was incidental and it was motivated by a number of sources of contention between the two, including parking.
Before giving her ruling, Hollar made it clear that the two underlying charges disturbance of the peace (of Frett) and aggravated assault and battery must be proven in order for the accompanying felony enhancement charges of racial-bias to be considered.
In the face of verbal abuse, Frett continually tried to ignore Sells, turning up her gospel music and even telling her daughter and employees to leave him alone, according to Hollar.
Since Frett ignored him for two years in the manner of non-violent icons such as Martin Luther King, Jr. and Mahatma Gandhi the June 3, 2005, altercation, was not an attempt to provoke a fight, Hollar explained.
Disturbance of Peace Not Proven
Although Sells called Frett names, they were not fighting words, and are therefore protected, said the judge.
Since the disturbance of the peace charge was not proven, the enhancement felony racial-bias charge was also dismissed.
Sells bumped into Frett with enough force that she would have fallen, had Frett not caught her balance, the judge explained.
Intent to injure has been proven, said Hollar.
The contact was intentional and not incidental because there was ample room for Sells to step around Frett, explained Hollar. The allegation that Frett tried to block Sells path was not consistent with her character, said the judge.
Sells never testified Frett did anything to provoke his actions, yet there was a pattern for him to provoke her, said Hollar.
Aggravated Assault and Battery
After weighing the testimony and photographs of the area where the physical contact occurred, Hollar ruled the government proved Sells committed an assault and battery. The charge is considered aggravated because Sells is an adult male and Frett is a female.
Although there was bad blood between Sells and Frett over other matters, the fact that Sells also made racist remarks to Fretts daughter and employees, proved his actions had nothing to do with parking had nothing to do with anything except race, said Hollar.
Sells actions were motivated by race, the judge said. The constant description of her being black was foremost.
Hollar ruled Sells was guilty of the felony enhancement charge, asserting the aggravated assault and battery was done by reason of race.
Sells bail, which was originally set at $10,000, was increased to $25,000 and he must have a third party custodian and check in with the VIPD daily.
Sentencing will be on July 31 at 3 p.m.
The business owner spent a night in jail before being bailed out on Wednesday, June 21.
Facing Five Years in Jail
Sells, who would have faced a maximum sentence of one year from the misdemeanor charge, faces a maximum of five years imprisonment because of the felony charge, Scales explained.
This case may be historic, Assistant Attorney General Scales added.
The statue has been on the books for some time, but this may be the first time that a case involving this statute has been prosecuted, she said.
Defense attorney Moore expressed disappointment with Hollars verdict.
We are disappointed, Moore said after the trial. There are complex constitutional issues in this case, which we will address at the appropriate time.
Sells was not named as a suspect in the Federal Bureau of Investigations (FBI) report on the allegedly bias-motivated crimes that occurred across Love City last summer.
FBI Report Not Mentioned
Frett reported being abducted and assaulted near her waterfront East End home in late August 2005. The reported kidnapping was one of the incidents which the FBI investigated. Although Sells was not a suspect in the case, he was the victim of two arsons.
The U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives investigated the arsons and offered rewards for information, but have not released any information regarding the incendiary incidents.
Despite speculation the FBI report would be raised during the trial, it was not mentioned.
FBI officials have turned the report over to the U.S. Department of Justice, who have not commented on the status of the report.