People of the Virgin Islands v. Kevin Moran

• Court: Superior Court of The Virgin Islands
• Decided: April 5, 2023
• Docket: SX-2021-CR-112
• Status: Unpublished

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN lSIANDS

DIVISION OF ST CROIX

PEOPLE OF THE VIRGIN ISLANDS Case No 8X 21 CR 112

' Plaintiff I Charge(s) . v I Unlawful Sexual Contact First ' Degree 14 V I C § 1708(a)(l) (4) KEVIN MORAN Aggravated Assault and Battery 14VIC §298l5) Defendant Simple Assault and Battery 14 V l C § 299 (”(2) Selling or Serving Alcohol to Minors 14 V I C § 485(b)[l){2)

Cite as 2023 VI Super 14U

APPEARANCES

Pamela Lynn Colon, Esq , Attorney for Defendant Kevin Moran #2155 King Cross Street Suite 3 Christiansted Virgin Islands 00820

Patricia Pryor. Esq , People of the Virgin Islands Department of Justice #213 Estate La Reine Christiansted Virgin Islands 00820

Jomo Meade. Judge People of the Virgin Islands 2023 VI Super 14U v Kevin Moran 8x 21 CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUITTAL AND MOTION FOR A NEW TRIAL

MEMORANDUM OPINION DENYING MOTION FOR AQQQLTTAL AND MOTION FOR A NEW TRIAL

‘1! l inns MATTER is before the Court on DefemJant Kevin Moran s

{hereinafter Moran ) Motion for Judgment of Acquittal and Motion for a

New Trial The People have responded to the Motion for Judgment of

Acquittal and Moran has filed his reply to the People 3 response After his

conviction by a jury on July 22 2022 for Simple Assault and Battery

Moran filed the two motions recounted above asserting that his conviction

violates his constitutional right to due process The Court will address both

motions in this decision

Factual and Procedural Background

ii 2 Moran was charged in an original Criminal informationI dated April

16 2021 with Unlawful Sexual Contact First Degree (Count One)

Aggravated Assault and Battery (Count 1W0) Simple Assault and Battery

(Count Three) and Selling or Serving Alcohol to Minors [Count Four) The

case came to trial on July 18 2022 After discussions with the Parties the

Court Dismissed Count 1W0 Aggravated Assault and Battery because the

Virgin Islands Supreme Court has determined that the charging statute

I The Information was amended to reflect the changes which occurred as a result of the charges that were dismissed by the Court The case was submitted to the jury on a Fourth Amended Information

2 People of the Virgin Islands 2023 VI Super MU v Kevin Moran sx 21 CR 112 MEMORANDUM OPINION DENYING MOHON FOR ACQUI'I'I‘AL AND MOTION FOR A NEW TRIAL

14 V l C § 298(5) was unconstitutional Webster v People of the Virgin

Islands 60 VI 666 [V I 2014) At the end of the Peoples case Moran

moveLl for a judgment of acquittal pursuant to V! J? CrP Rule 29 The

Court granted the motion with respect to Count Four Sewing or Selling

Alcohol to Minors The remaining Counts of the Fourth Amended

Information Unlawful Sexual Contact First Degree and Simple Assault

and Battery were submitted to the jury On July 22 2022 the jury

returned a verdict acquitting Moran of the charge in Count One Unlawful

Sexual Contact First Degree and convicting him of the charge in Count

Two Simple Assault and Battery

1! 3 After his conviction Moran filed a Motion for Judgment of Acquittal

on the premise that that Title 14 V I C § 299 the statute under which he

was charged and convicted is vague and a Motion for a New Trial asserting

that the Court failed to properly instruct the jury on the statutory elements

of the crime

The Legal Standard

A. Judgment of Acquittal

(ll 4 [Tlhe void for vagueness doctrine requires that a penial statute

define the criminal offense with sufficient definiteness that ordinary people

can understand What conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement Kolender v Lawson,

3 People of the Virgin Islands 2023 VI Super 140 v Kevin Moran SX 2} CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUI’I'I‘AL AND MOTION FOR A NEW TRIAL

461 U S 352 357 [1983) The claim that a statute is unconstitutional for

vagueness is rooted in the Due Process Clauses ofthe Fifth and Fourteenth

Amendments Johnson 0 Unqu States 596 U s 591 595 (2015) The ' challenge to a statute for vagueness raises the issue of whether a criminal

statute which regulates peoples lives is sufficiently definite to give fair

notice of what conduct it proscribes or requires The requirement of

deflniteness also restrains arbitrary and discriminatory enforcement The

vagueness challenge to a statute may contend that the statute is vague on

its face or vague as applied A challenge that a statute is facially vague or

overbroad is permissible only where the statute reaches constitutionally

protected conduct such as first amendment rights Hoffinan Estates 0

Flipside Hoffman Estates 455 U S 489 505 (1982) However a facial

vagueness challenge to a statue which does not reach constitutionally

protected conduct may nevertheless be permissible if the challenge

demonstrates that the statue is impermissiny vague in all its

applications Id at 497 Otherwise a defendant who claims that a statute

is vague as applied must demonstrate that the statute as applied to the

defendant deprived the defendant of adequate notice of what conduct the

statute proscribed or that the defendant was subjected to arbitrary and

discriminatory enforcement United States v Powell, 423 U S 87 92

(1975) (holding that vagueness challenges which do not involve First

4 People of the Virgin Islands 2023 V] Super MU v Kevin Moran 8X 21 CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUI'I'I‘AL AND MOTION FOR A NEW TRIAL

Amendment freedoms must be examined in the light of the facts of the

case at hand) It follows that a defendant s challenge which alleges that a

statute is vague as Lpplied cannot be sustained on the claim melt the

statute is vague as it applies to some other Individual or some other

incident or circumstance Hojfman Estates at 494 Therefore Moran must .

show that the statute is vague as It applies to the facts and circumstances

of his case

8 Motion for a New Trial

‘11 5 A court may grant a new trial in the interest of justice V! R Cr P

Rule 33(0) The decision to grant or deny a motion for a new trial based on

a challenge to the jury instructions is within the discretion of the trial

court Burke 0 People of the VI 60 V1 257 264 (V 1 2013)(citing Phillips

0 People 51 VI 258 269 (V I 2009)) [Tlhe validity of a challenge to jury

instructions must be considered against the complete jury instructions

and the whole trial record Nanton 0 People of the Virgin Islands 52 V I

466 479 (V I 2009] [A] jury instruction will generally not be invalidated

unless It is shown that the instruction substantially and adversely

impacted the constitutional rights of the defendant and Impacted the

outcome of the trial fieeman 0 People of the VI 61 VI 537 544 [V I

2014) Therefore the Court must determine Whether there is an error in

the jury instructions which affects substantial rights stnee absence of such

5 People of the Virgin lslands 2023 VI Super 14U

$333??? MEMORANDUM OPINION DENYING MOTION FOR ACQUITTAL AND MOTION FOR A NEW TRIAL

effect will not constitute grounds for reversal Fame 0 People ofthe V I 62

V I 625 638 (V l 2015) [1]!" the instructions mislead the jury or leave the

jury to speculate as to the essential! point of law the error is sufficiently ‘

fundamental to warrant a new trial Nanton at 483 (citing Montgomery 0

Noga, 168 F 3d 1282 1294 [11m Cir 1999)) Even if there is error in the

instructions but the error did not contribute to the verdict the error is

harmless and would not have prejudiced the defendant Rodriguez 0

People of the Virgin Islands 71 VI 577 624 (V I 2019) Jury instructions

which may adversely impact on constitutional fights warranting a new

trial would include instructions which [1) improperly instruct the jury on

the presumption of innocence or the governments burden of proof Frett 0

People of the Virgin Islands 66 V1 399 419 (V I 2017) (2) mislead the

jury or are inadequate to guide the jury s deliberation Wallace 0 People of

the VI 71 VI 703 719 (V I 2019 (3) omit an essential element of the

crime Nanton at 479 (4) invade the task assigned solely to the jury as the

factfinder Hands 0 People of the VI 52 V1 381 405 (V I 2009)

DISCUSSION

I MOTION FOR JUDGMENT 0F ACQUITTAL

‘II 6 Before the Court determines whether Title 14 V] C § 299 is

unconstitutional the Court must decide whether Moran has standing to

bring the challenge McIntosh 0 People of the VI 57 V] 669 687 (V I

6 People of the Virgin Islands 2023 V1 Super 14U v Kevin Moran 8X 21 CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUl'lTAL AND MOTION FOR A NEW TRIAL

2012] To determine standing the Court must examine the Specific

allegations against Moran and determine whether the statute is vague as

aplplied to those allegations Id That is the Coth must first determine

whether Moi'an s conduct falls within the bounds of what Title 14 V I C §

299 clearly prohibits LeBlanc 0 People of the VI 56 V I 536 542

(V I 2012)

Section 299 ofTitle 14 of the Virgin Islands Code Provides as follows

Whoever commits (1) a simple assault or (2) an assault or battery unattended with circumstances of aggravation shall be fined not more than $250 or imprisoned not more than six months or both the imprisoned and fined

The language of Count No of the Fourth Amended Information

charging the criminal conduct alleged that

KEVIN MORAN did assault and batter K B a minor by grabbing her with his hands about her lower body and pushing her into a wall in violation of Title 14 V I C § 299 (a) and (b) (SIMPLE ASSAULT AND BATTERY)

‘1! 7 In his claim for relief. Moran does not present a sufficient factual

basis or legal authority to show that he has standing to challenge the

statute as unconstitutionally vague That is he fails to show that his

conduct as alleged does not fall within the bounds of what the statute

prohibits An assault is the attempt to commit a battery or the making of

7 People of the Virgin Islands 2023 VI Super MU v Kevin Moran SX 2] CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUI’I'I‘AL AND MOTION FOR A NEW TRIAL

a threatening gesture coupled with the ability and intent to commit a

battery Ambrose v People of the Virgin Islands 56 V1 99 (2012) VI

Code Ann Tit 14 § 291] A battery is the use of force against anoter

resulting in an offensive or harmful contact BLACKS LAW DICTIONARY

9TH Ed (2009) The crime of assault and battery is the unlawful use of

violence upon the person of another with the intent to cause injury

regardless of the means or degree of violence that is used V I Code Ann

Tit 14 § 292 Moran admits in his motion that he touched KB 111 in three

different places for 5 seconds He contends however that the touches do

not constitute offensive or harmful physical contact He further contends

that the touches do not constitute the measure of force or degree of harm

that the statute prohibits The evidence adduced at trial contradicts

Moran s contentions K B testified that upon grabbing her. Moran pushed

her against the wall and that she was severely distressed and traumatized

from this encounter with him

‘1! 8 It is objectively evident based on the commonly understood

meaning of these terms that grabbing K B and pushing her against a wall

implicates the use of some measure of force aggression or even violence

There Is no evidence that Moran engaged in this conduct for a lawful

reason He cannot now argue that his conduct does not fall within the

bounds of what the statute prohibits because the statute failed to specify

8 People of the Virgin Islands 2023 VI Super l4U v Kevin Moran 8X 21 CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUITTAL AND MOTION FOR A NEW TRIAL

the measure of force the degree of violence the length or oifensiveness of

the physical contact or the type and seriousness of injury that would

' constitute an assault and battery Duel process does not require a criminal

statute to provide an itemized list of actions with distinctly defined degrees

of conduct that it prohibits Freeman, 61 V I at 546 Since Moran took it

upon himself to touch K B without a lawful reason for doing so he

assumed the risk that the resulting physical contact violated the law it is

not unfair to require that one who deliberately goes perilously close to an

area of proscribed conduct shall take the risk and bear the penalties for

crossing the line Boyce Motor Lines Inc v United States 342 U S 337

340 [1952) This Court finds that Moran s conduct falls clearly within the

bounds of what Title 14 V I C § 299 proscribes Therefore he lacks

standing to challenge the statute as unconstitutionally vague

q[ 9 Even if Moran has standing to challenge the statute his vagueness

challenge would nevertheless fail As recounted above a criminal statute

is constitutionally vague if it fails to give people of ordinary intelligence fair

warning and notice of what conduct is prohibited or permits arbitrary and

discriminatory enforcement Beckles v United States 580 U S 256 262

(2017) Moran argues that the statute does not give him fair notice of the

conduct it prohibits because it does not adequately define certain key

terms such as force violence and battery which make up the

9 People of the Virgin Islands 2023 VI Super MU v Kevin Moran 8X 21 CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUI'ITAL AND MOTION FOR A NEW TRIAL

elements of the charge He further argues that the statute is vague because

the Court during the jury instructions conference had difficulty in

I formulating the jury instructions 'for that charge These claims are i

insufficient to support a vagueness challenge A constitutional challenge

to a statute for facial vagueness must show that the terminology the

statute uses is so vague that people of ordinary intelligence will have to

guess at its meaning City of Chi v Morales 527 U S 41 58 (1999) This

Court finds that the challenged statute is sufficiently clear or definite to

provide adequate and fair notice of what conduct is prohibited or required

‘1! 10 A statute is sufficiently definite for purposes of due process if its

meaning can be fairly ascertained by reference to judicial interpretations

the common law dictionaries treatises. or commonly accepted meaning

of words Associated Builders & Contractors 0 Dir Dept of Consumers

705 N W 2d 509 517 (Mich 2005) Therefore even if the statute does not

define certain term their meanings can be gathered from alternative

sources

‘1! 11 What renders a statute vague is not the possibility that it will

sometimes be difficult to determine whether the incriminating fact it

establishes has been proved but rather the indeterminacy of precisely

what that fact is United States v Williams 553 U S 285 306 (2008)

Moran does not present a sufficient basis for the Court to find that the

10 People of the Virgin Islands 2023 VI Super MU v Kevin Moran SK 2! CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUI'ITAL AND MOTION FOR A NEW TRIAL

terms of the statute which describe the criminal conduct are ambiguous

or that any of the terms relating to the elements of the offense are

I undefined I .

‘ll 12 The terms assault, battery force and other terms used to describe

the offending conduct are words of ordinary meaning which are defined by

various sources Includingjudtcial decisions dictionaries and the common

law People of ordinary intelligence can understand the meaning of these

terms by their common usage They are not terms which have ambiguous

or double meanings so as to make them indeterminable as to whether a

particular set of facts constitute the prohibited conduct Their plain and

ordinary meaning do not need further technical explanation In fact the

simple straightforward meaning ofthese terms makes it clear that ordinary

people can understand what conduct they are meant to prevent

‘1 13 Moreover Moran s assertion that the difficulty in framing jury

instructions indicates that the statute is vague is without merit “The

purpose ofjury instructions Is to inform the jury on the law and to provide

guidance and assistance in reaching its verdict Crowell v Ritz Carlton

Hotel 2013 U S Dist LEXIS 202683 *4 (D VI 2013) (citing Dembowski

v N J 1Yansit Rail Operations Inc 221 F Supp 2d 504 512 {D N J

2002)) Through the instructions the jury can appreciate the value and

effect of the evidence in the context of the law “The scope and wording of

11 People of the Virgin Islands 2023 VI Super l4U v Kevin Moran SX 21 CR 1 12 MEMORANDUM OPINION DENYING MOTION FOR ACQUITI‘AL AND MOTION FOR A NEW TRIAL

jury instructions are within the sound discretion of the trial judge so long

as the charge as a whole conveys to the jury a clear and correct

understanding of the apJJIicable law and the manner in which it is to the

applied to the facts as the jury finds them Id. (citing Poole 0 Ford Motor

Co 17 V I 354 357[D V I 1980)) A statute is not required to distinctly list

and describe with specificity the types of conduct which it prohibits in

order to provide adequate notice Freeman 61 V I at 546 Likewise the

Court finds that in instructing the jury it is not required to provide all

possible variations or connotations of the meaning of the terms or

language of the statute but only such meaning as related to the facts of

the case The Court applied the ordinary meaning of the terms and

language of the statute to formulate the jury instructions In this case the

jury was required to decide whether there was Intentional, unlawful,

offensive and or harmful physical contact with the person of the victim

The verdict indicates that it made its decision Morans objection to the

instructions particularly without showing that the instructions were

clearly erroneous or misled the jury does not make the statute

unconstitutionally vague The statute is sufficiently definite as long as the

general area of conduct against which the statute is directed is made

plain

1! MOTION FOR A NEW TRIAL

12 People of the Virgin Islands 2023 V1 Super 14U v Kevin Moran 8x 21 CR 112 MEMORANDUM OPINION DENYING MUl‘lON FOR ACQUI'ITAL AND MOTION FOR A NEW TRIAL

‘1! 14 Based on his Motion for a New Mal Moran assigns four claims of

error to the jury instructions First he claims that the Court improperly

instructed the jury on Abe definition of the terms battery and violenLe

in relation to Title 14 V I C § 299 [l] and (2) Second that the instructions

are legally incorrect because the terms. battery and violence were not

prOperly defined Third that the Court 3 instructions to the jury In relation

to Count Two of the Fourth Amended Information failed to set out the

elements of the offense Fourth the jury instructions were in contradiction

to the Court s ruling that the instructions should track the language of the

statute Moran does not clearly state how the claimed errors adversely

affected his constitutional rights or impacted the outcome of the trial

Freeman at 544 Neither does he show how the claimed errors affected the

fairness integrity or reputation of the judicial proceedings Monelle v

People of the VI 63 VI 757 763 [VI 2015)

‘1! 15 Moran s first and second claims of error have been addressed by the

Court 3 discussion recounted above The third and fourth claims of error

will be addressed below As to the third claim of error Moran s assertion

that the Court failed to instruct the jury on the elements of the offense is

erroneous As referenced above Title 14 V I C 299 (1) and (2) states as

follows

Whoever commits—

) '3 People of the Virgin Islands 2023 VI Super 14U v Kevin Moran 8X 21 CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUI’ITAL AND MOTION FOR A NEW TRIAL

(l) a simple assault or [2) an assault or battery unattended with circumstances of aggravation shall be fined not more than $250 or imprisoned not more than six m+nths or both the imprisoned and fined ‘

The Court 5 instruction to the jury on the elements of the crime states

the following

COUNT TWO SIMPLE ASSAULT AND BATTERY

W 16 The Defendant is charged in Court Two of the Fourth Amended

Information with the crime of Simple Assault and Battery in violation of

Title 14 Section 299(1) and (2] of the Virgin Islands Code

Under this provision of the Virgin Islands Code the offense of Simple Assault and Battery is committed when a person uses an unlawful violence upon the person of another with the intent to injure the other without circumstances of aggravation Before you may find the defendant guilty of Simple Assault and Battery you must find that the People have proven each of the following essential elements beyond a reasonable doubt I) That Defendant perpetrated an act of simple assault upon the person of Kara Barton or

2) That the Defendant committed an act of assault or battery upon the person of Kara Barton

3) That the act was unattended by circumstances of aggravation 4] That the offense took place on or about December 1 l 2020 in the judicial district of St Crolx U S Virgin Islands

14 People of the Virgin Islands 2023 VI Super l4U v Kevin Moran 8X 21 CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUITTAL AND MOTION FOR A NEW TRIAL

If you find that the People have failed to prove any element beyond a reasonable doubt you must find the Defendant not guilty If you decide that the People have proven each element beyond a reasonable doubt you i must find the Defendant guilty ‘ The Court 3 additional instructions to the jury included the following

definitions as related to Count TWO

AGGRAVATION Aggravauon means factors or circumstances which make the criminal conduct worse or more serious Source Gilbert 0 People of the Virgin Islands 52 VI 350 (VI 2009)

BATTERY DEFINED

Battery is the use of force against the person of another resulting In hamlful or offensive contact Source BLACKS LAW DICTIONARY 97“ Ed (2009) ASSAULT DEFINED An Assault is the attempt to commit a battery or the making of a threatening gesture showing in Itself an immediate intention coupled with an ability to commit a battery Source Ambrose u people of the Virgin Islands 56 VI 99 (2012) Mle 14 VI C 15‘ 291 (1921)

ASSAULT AND BATTERY DEFINED “Assault and Battery is the unlawful use of violence upon the person of another with the intent to cause injury regardless of the means or degree of violence that is used Source flue 14 V! C § 292 (1921)

FORCE DEFINED “Force is defined as the power violence or pressure directed against a person and includes physical restraint Source Rodriguez v People ofthe Virgin Islands 71 V I 577 628W I 2019)

15 People of the Virgin Islands 2023 V] Super MU v Kevin Moran SX 21 CR 112 MEMORANDUM OPINION DENYING MOTION FOR ACQUI’ITAL AND MOTION FOR A NEW TRIAL

VIOLENCE DEFINED Violence means the L‘se of physical force unlawfully exercised with ‘ the intent to harm Source BLACKS LAW DICTIONARY 97“ Ed. (2009)

‘1 17 As shown above the Court clearly outlined the elements of the

offense to the jury and explained the law that the jury should apply to facts

in order to determine whether the People 'met their burden The

instructions are designed to leave the jury with a clear understanding of

how the evidence applies to the law

‘I[ 18 Taken as a whole the Courts instructions defined the terms that

are relevant to the jurys understanding of the law and the facts as they

apply They were adequate to inform the jury of the elements of the crime

and how the evidence should apply to the law in the determination of the

verdict Morans claims of undefined legally Incorrect terms improper

instructions on the elements of the crime and failure to track the language

of the statute are all without merit Moran has not shown any error in the

instructions which would result in an adverse impact on his constitutional

rights or undermine the fairness integrity or reputation of the Court in

the criminal proceedings That is Moran has not shown any errors which

amount to (1) an omission of an essential element of the crime (2) an

instruction that misled or confused the jury in its deliberation [3) an

16 04/05/2023 04/05/2023