People of the Virgin Islands v. Kishon Herbert

Opinion

IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN

PEOPLE OF THE VIRGIN ISLANDS )

Plaintiff ; CASE NO ST 2023 CR 00260 vs )

) Cite as 2024 Super lSU KISHON HERBERT )

Defendant ;

l

MEMORANDUM OPINION AND ORDER 1]] Before the Court are Defendant Kishon Herbert s ( Herbert ) Motion to Dismiss Counts Two and Four of the Information filed on September 19, 2023, and the People of the Virgin Islands ( People ) October 27, 2023, Motion to Amend the Information Having considered the motions, the Court will grant the People 5 Motion to Amend Information and deny Herben 5 Motion to Dismiss Counts Two and Four of the Infonmtion as moot I BACKGROUND & PROCEDURAL HISTORY 1X2 011 April 25, 2023, while two women Sara Selato Molyneuax( Selato Molyneuax ) and Shanya Hanley (‘ Hanley ’) were leaving the Carnival Village and heading towards Emancipation Garden Herbert tried to engage them in conversation ' Selato Molyneuax and Hanley ignored Herbert and began speaking with another male, Travis Matthew ( ‘Matthew ), an apparent friend of Herbert Herbert became angry, claimed he was a millionaire, began acting aggressively, drew his firearm, and pointed it at the women Matthew intervened and de escalated the situation Selato Molyneuax and Hanley then made their way out of the vicinity of the Emancipation Garden Shonly after, Matthew caught up with Selato Molyneuax and Hanley and apologized for Herbert s

I The facts are as rcponed in the Information and Affidavn in Support of an Arrest Warrant for Kishon Herbert attached to the Probable Cause Fact Sheet

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action Late: that day a male with the Facebook handle Khemistry Khzimeh attempted to contact Hanley who recognized the male as the individual who pointed a firearm at her and her friend Selato Molyneuax 113 The next day April 26, 2023, Selato Molyneuax s father Tyrone Molyneuax, went to the Food Fair at Emancipation Garden to confront Herbert about the incident on the previous day involving his daughter and her friend Tyrone Molyneuax videotaped his interaction with Herbert VIPD reports that on the video, Herbert can be heard apologizing t0 Tylone Molyneuax and claiming that the incident did not happen as it was reported to him On that same day, at about 3 55 p m , Selato Molyneuax reported the April 25, 2023 assault at the Richard Callwood Command The Virgin Islands Police Department conducted a firearms registry check on Herbert, and it was discovered that Herbert has a permit to possess and carry a firearm in the U S Virgin Islands 114 On August 17, 2023 the People filed its Information, charging Herbert with five counts Third Degree Assault in violation of V I CODE ANN tit l4 § 297(a)(2) (Sata Selato Molyneuax) (Count One) Possession of a Firearm During the Commission of a Third Degree Assault in violation of V I CODE ANN tit 14 § 2253(a) (Count Two); Third Degree Assault in violation of V I CODE ANN tit 14 § 297(a)(2) (Count Three) (Shanya Hanley) Possession of a Firearm During the Commission of a Third Degree Assault, in violation of VI LODl: ANN tit 14 § 2253(a) (Count Four) (Shanya Hanley); and Reckless Endangerment in the First Degree. in violation of V I CODE ANN tit 14 § 625(a) (Count Fi\ e) 15 Herbert filed a Motion to Dismiss Counts Two and Four of the Information on September 19, 2023 Following the filing of the Motion to Dismiss, the People, on October 27, 2021, filed an Opposition to Herbert 5 Motion to Dismiss and a Motion to Amend Information Herben filed an

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Opposition to the Motion to Amend the Information on November 1 2023 The People 5 Amended Information seeks to amend Counts Two and Four from Possession of a Firearm During the Commission of a Third Degree Assault, in violation of V I CODE ANN tit 14 § 2253(a), to Carrying 0r Using a Dangerous Weapon During the Commission of a Crime of Violence Assault Third Degree in violation of V I CODE ANN tit 14 § 2251(a)(2)(B) The People claim that the amendments are in accord with Rule 3(d) as the amendments do not charge an additional offense nor prejudice a substantial right of Defendant On the other hand Herbert argues that the People are seeking to add a different offense, which Rule 3(d) prohibits Herbert further contends that the amendments should be denied as the People seek to amend the Information to deprive him of his absolute defense to the previous Section 2253(a) charges, as Herbert had a licensed firearm at the time of the alleged offense Thus, the key issue here is whether the People 5 amendments seek to add additional 01 different offenses such that Rule 3(d) 0f the Virgin Islands Rules of Criminal Procedure has been violated [1 LEGAL STANDARD T6 The Revised Organic Act of 1954 requires that a criminal defendant be informed of the nature and cause of the accusation against him Eh ea v People 54 V l 466, 478 (V I 2010) (citing Revised Organic Act of 1954 § 3 48 U S C § 1561) Generally for a felony offense the intormation is “a plain concise and definite written statement of the essential facts constituting the offense ’ VI R Crim P 3(b) For each count, the information must give the official or customary citation of the statute rule regulation, or other provision of law that the defendant is alleged to have violated Id Even though an information must allege more than just the essential elements of the offense so long as there is sufficient factual orientation to permit a defendant to

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prepare his defense and invoke double jeopardy} no greater speeificity than the statutory language is tequired PLOPIL 1 Whyte 62 V1 95 100 01 (V1 Super Ct 2015)(intemal citations omitted) Pleading detailed allegations in the information is unnecessary Id The criminal information should be construed as a whole using common sense to interpret the information to include logically and rationally implied facts Gonsalies v People 70 \I I 812 844 (V I 2019) W The determination of whether to prosecute a criminal case and what charges to bring generally rests in the prosecutor s discretion Brown v P(Oplc 74 V1 601, 611 (VI 2021) However, once charges have been filed, leave of the court is required for amendment of an information Virgin Islands Rule of Criminal Procedure 3(d) governs the procedures for amending an information Rule 3(d) allows the own to permit amendment of an information at any time before vetdict or finding unless an additional or different offense is charged or a substantial right of the defendant is prejudiced V I R Crim P 3(d) See also (Jonsa/ves v People 70 VI at 844 ( The amendment of an information is prohibited if the amendment 1) adds a new or different offense than what was charged or 2) would prejudice a substantial right of the defendant ); Elizee v People 54 V] at 478 ( While the Superior Court may permit an information to be amended at any time before the verdict, it may not do so if an additional or different offense is charged, or a substantial right of the defendant is prejudiced ) The additional or different prohibition is independent of any claim of prejudice Thus, a defendant is not required to show that the amendment will prejudice him, only that the amendment is an additional or different oftense People v Yam 00d, 58 V I at 70 The objective and fundamental purpose of the additional and different prong is to place a defendant on notice of the criminal conduct of which he is accused

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and to avoid prejudieing his defense by the last minute additions of substantive changes of which he is uninformed Demeksoni Meyus, 177 Fed Appx 247, 250 (3d Cir 2006)

III ANALYSIS & DISCUSSION (a) Additional or Different Offense 118 Whether the prosecution is seeking to charge an additional or different offense usually arises when the prosecution seeks to amend the information or other charging documents to bring nevi or altered charges that were not present in the original information Generally, an additional or different offense often describes a new charge that requires proof of elements beyond those required by the original charge Lcttsome v People 63 V1 980 1007 (App Div DC 2015) affirmed by Gm tof the Virgin Islands v Lettsomc, 680 Fed Appx 88 (3d Cir 2017) In other w01ds, an additional or different offense typically would tequile proofot an extra or different fact In most instances an amendment is not considered an additional or different offense if the new charge falls under any of the following categories it is a lesser included offense2 it merely specifies a different manner of committing the same crime initially charged,3 it is a related or cognate offense,4 seeks to correct an erroneous statutory citation} or cited most of the elements

2 AIChlba/d 1 People 70 V1 975 982 (V1 2019) ( a defendant is not deprived of his right to notice when the prosecution amends an infomation to add a lesser included offense since the elements of the lesser offense are necessarily contained in the greater ) 3 VHgIH Islands v Redford 671 F 2d 758, 765, (3d Cir 1982)(no new or different offense charged where the count contained all the elements necessary to charge both offenses); Simon 1 Govemmem Q] the Vngin Islands 929 F 3d 118, 134 (3d Cir 2019) (substitution of a charge of felony murder for premeditated murder does not constitute a different offense, however the addition of a robbery charge constitutes an additional or different offense because the information was not detailed enough to alert the defendant of the new charge) 4 Commonwealth 1 51716101! 2006 PA Super 83, P13, 897 A 2d 1218, 1222 (Pa Super 2006) (even where amendment vitiated planned defense, amendment permitted where the crimes specified in the original information involved the same basic elements and arose out of the same factual situation as the crime added by the amendment)

Peoplet Benjamin 2019 V l LEXIS 80 *2 2019 V1 SUPER 32U 2019 WL 3294891 (V1 Super Ct March 2019)

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but omitted an essential element of a charge 6 It is pertinent to note that amended offenses comprising some but not all of the elements of the offense charged initially ate not necessarily considered a different offense People v Yamood 58 V I 61, 71, (V I Super Ct Jan 16, 2013) (amending an information to include a crime, which is not a lesser included offense does not necessarily violate the rule prohibiting the amendment of an infomation to charge an additional or different offense); Walters v Government of the Virgin Islands, 172 F R D 165 (D V I App Div 1997) (noting that it is not necessarily true that amending an infonnation to include a crime which is not a lesser included offense will violate the rule ”) 119 Here, the People filed an Amended Information to remove Possession of a Firearm During the Commission of a Third Degree Assault in Counts Two and Count Four of the Information and replace these charges with Carrying or Using a Dangerous Weapon During the Commission of a Crime of Violence Assault Third Degree In determining whether the amended charges are considered additional or different, the Court must consider the Information as a whole, the differences between the count initially charged and the count under the proposed amendment, and whether the original Infomation provides adequate notice of the added charge Simon v Governmcm 0f the Virgin Islands 929 F 3d 118 134 (3d Cir 2019) 1110 The Court must look at the language of the statute under the oniginal count charged under 14 V I C § 225 3(a)7 and the statutory language of the proposed amended count under 14 V l C §

‘5 Lettsome 1 People 63 V I 980, 1007 (App Div DC 2015) affirmed by Gm ’t ofthc Virgin Islands t Lettsome, 680 Fed Appx 88, (3d Cir 2017) (permitting amendment where the information omitted an essential element from each of the six weapons charges and the defendant had ample notice of the crimes with which he was being charged) Title 14 V I C § 2253(a) provides Whoever, unless otherwise authorized by law, has, possesses bears transports or carries either, actually or constructively, openly or concealed any firearm, as defined in Title 23 section 4510) of this code, loaded or unloaded, may be arrested without a warrant, and shall be Sentenced to imprisonment of not less than ten years and shall be fined not less than $10,000 nor more than $15,000 or both the fine and imprisonment, except that if such person shall have been convicted of a felony in any state, territory, or federal court of the

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2251(a)(2)(B) 3 To obtain a conviction under Section 225 l (a)(2)(B) t“ 0 elements must be proven Firstly, it must be shown that the defendant was in posseSsion of a dangetous weapon Secondly it must be proven that the defendant intended to unlan fully use the weapon against another person Nantou v People 52 V I 466 480 81 (V I 2009) Under Section 2251(a)(2) a firearm is considered a dangerous weapon Connor v People, 59 V I 286, 294 295 (V I 20! 3) The determination of whethet the dangerous Vt eapon was used in a crime 01 violence undet subSection (B) is not an element of the crime but, instead serves as a sentence enhancer where the possessor of the dangerous weapon carries or has under his proximate control the weapon during the commission or attempted commission of a crime of violence Pom]! 1 People, 59 V I 444, 458 (VI 2013) MI The elements of the crime of unauthorized possession of a firearm require proof that ( I) defendant, (2) knowingly (4) possessed, (4) a firearm, (5) without lawful authorization DaVlb v People 69 V l 619, 663 (V I 2018) Section 2253(a) fitrther provides for circumstances under which the sentence for violating that section is enhanced Again, although not technically an element of the crime the application of the penalty enhancement in section 2253(a) that a firearm

United States, or if such firearm or an imitation thereof was had, possessed, borne, transported or carried by or under the proximate control of such person during the commission or attempted commission of a crime of violence as defined in subsection (d) hereof, then such person shall be fined $25,000 and imprisoned not less than fifteen (15) years nor more than twenty (20) years The foregoing applicable penalties provided for violation of this section shall be in addition to the penalty provided for the commission of or attempt to commit, the felony or crime of violence 8 Title 14 V I C § 2251(a)(2)(B) provides Whoever with intent to use the same unlawfully against another, has, possesses, bears transports carries or has under his proximate control, a dagger, dirk dangerous knife, razor, stiletto or any other dangerous or deadly weapon shall if he has previously been convicted of a felony, or has, possesses, bears transports, carries or has under his proximate control, any such weapon during the commission or attempted commission of a crime of violence (as defined in section 2253(d)(l) hereof) shall be fined $10,000 and imprisoned not more than fifteen (15) years, which penalty shall be in addition to the penalty provided for the commission of or attempt to commit, the crime of violence

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was possessed dun'ng the commission of a crime of violence must be alleged in the information and proved to a jury beyond a reasonable doubt [d at 664 5 Considening the elements and sentencing enhancer in both offenses, the only factor that essentially distinguishes Possession of a Firearm During the Commission of a Third Degree Assault and Carrying on Using a Dangerous Weapon During the Commission of a Crime of Violence Assault Thiad DegIee is ‘ without law ful authorization" element which is unique to unauthorized possession of a firearm In analyzing the m o statutes and reading the Information as a whole, the Court finds that the proposed amendments do not significantly alter the character of the initial Information in a way that would substantially burden or hamper Herbert s ability to properly raise a defense See e g , People v Elmo 2020 VI SUPER 6SU 8 2020 VI LEXIS 57 *5 (VI Super Ct June 2 2020) (the inclusion of the aiding and abetting statute did not add new or different charges but simply pr0\ides an alternate means by which Defendant may be held accountable for the same offenses already charged and does not constitute the charging of new or additional offenses beyond those that were included in the original inf01mation) 11l2 While Gaming or Using a Dangerous Weapon Duting the Commission of a Crime of Violence Assault Third Degree is not a lesset included offense of Possession of a Firearm During the Commission of a Third Degree Assault this does not foreclose the People 5 amendments to the Information Amending an information to include a CI ime that is not a lesser included offense does not automatically or ineluctably violate the additional or different oftense prong 0t Rule 3(d) The court must look at the specific statutes that formed the basis of the criminal charges in the context of existing facts at the time the original Information was filed to determine whether the amendment seeks to add an additional 01 different offense In Virgin Islands v Bedford, 671 F 2d

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758 765 (3d Cir 1982) the ( ourt of Appeals for the Third Circuit upheld the amendment of an information to include a charge of assault with a deadly weapon when the original information charged only assault with intent to rob The Bedford Court held that [b]ecause of the detailed and particular language used in Count Three [of the Information} it not only contained all the elements necessary to charge assault with intent to rob but also all the elements of assault with a deadly weapon If the govemment had proved all it had alleged, the crime shown would have constituted both an assault with intent to rob and assault with a deadly weapon ” Virgin Islands v Bedford, 67] F 2d at 765 The Appellate Court held that no additional or different offense was charged in the amended information $3 In this instance the People are not seeking to charge the Defendant with a more serious offense with additional elements Courts have permitted amendments charging a crime of similar gravity with different elements if the core elements of that crime are the same as those of the crime charged initially See e g Commonwealth \ Grekzs 4| 1 Pa Super 513, 601 A 2d 1284 (Pa Super 1992) (allowing amendment where the crime charged involved the same basic elements and factual situation) The core claim by the People is that Defendant pointed a firearm at Hanley and Selato Molyneuax Except for proving that the firearm was unlicensed, all of the elements and enhancing facts required to prove Carrying or Using a Dangerous Weapon During the Commission of a Crime of Violence Assault Third Degree would be the same elements and enhancing facts to prove Possession of a Firearm During the Commission of a Third Degree Assault The amendment would not add an element to the offense which is not present in the cuiTent offense Defendant would not be required to defend against any new element not present in the original offense Therefore, the amendments to Counts Two and Four of the Infonnation do not constitute

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an additional and diffetent offense AIChlbtl/d v People 70 V I 795 983 (V I 2019) (explaining that when comparing the elements 01 two crimes without consideling the facts of the case an offense is not deemed an additional or different it the offense in the amended information does not require an element beyond the offense in the original information) 1114 The People do not allege any new facts The prosecution is not adding a new set of facts vastly different flom that outlined in the original Information or Affidavit in Support of an Arrest Warrant that was used to support probable cause in the Magistrate Division The crimes alleged in the Amended Information arose out of the same factual predicate as the crimes in the original Information 9 Derrtckson 1 Meyeu 177 Fed Appx 247 250 (3d Cit 2006) (unpublished) ( “here the initial information charges an offense that involves the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information, the defendant is deemed to have been placed on notice regarding his alleged criminal conduct (intemal quotation marks and ellipses omitted) The Court therefore, finds that the People 3 amendments fall within Rule 3(d)

(b) Prejudice 1115 The People argue that Defendant will not be prejudiced by the amendment A defendant has a constitutional right to fair and adequate notice prim to the commencement of trial of the charges against which he must defend himself Arclubald v People 70 V] at 982 Rule 3(d)

9 See eg brate v Lowe 2015 Kan App Unpub LEYIS 49 *6 342 P 3d 2 (Kan App 2015) (unpublished opinion) (explaining that the State's amendment of a complaint to charge an alternative theory for committing the same aim: is permitted even if the new theory requires that the State prove different material elements and concluding that even though the amendment changed the elements the State had to prove the State did not charge a different crime ) Slate 1 Howard 2013 Wash App LEXIS 113 ‘6 7 (Wash Ct App Jan 22 2013) (holding that the court did not abuse its discretion by allowing the amendment as the amendment merely specified a different manner of committing the crime originally charged and the defendant should have been prepared to defend against the use of a firearm because the count of first degree robbery accused him of being armed with a deadly weapon )

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aims to ensure that the defendant is fully apprised of the charges and to avoid prejudice by prohibiting the last minute addition of alleged e1 iminal acts of which the defendant is uninformed People v Yamood 58 V I at 61 At all times, Defendant was tully apprised of the factual scenario that supports the charges in the amended complaint The probable cause affidavit clearly states that a firearm registry check was conducted on Mr K Herbert with positive results tor Herbert having a permit to possess and carry a firearm in the US Virgin Islands ’ See Gonsalves v People 70 V I at 812 (when considering the prejudice if any to the defendant for a claimed lack of notice of the charges sources in the information extrinsic to the specific count can be used to determine whether the defendant was sufficiently apprised of the offense charged ) 1116 From the inception of this case, Defendant was on notice that even though he had a license to carry a firearm he would be charged with using the firearm to commit a third degree assault The Defendant was made aware of his alleged criminal conduct as the crimes specified in both the original and amended Information involved the same basic elements and originated from the same factual situation Since Defendant was on notice of the charges in the Amended Information he cannot feign surprise It is only where the amended provision alleges a different set of events or the elements to the amended crime are materially different from the elements to the crime initially charged such that the defendant would be prejudiced by the ehange, that the amendment is not permitted Ptoplt v Elmes 2020 V1 SUPER 65U at 13 $117 It was no secret that the firearm Defendant used to commit the alleged criminal act is a licensed filearm This was clearly documented in the probable cause fact sheet It may have been merely an oversight by the People to initially charge the Defendant with Possession of a Firearm During the Commission of a Third Degree Assault rather than with Carrying or Using a Dangerous

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Weapon During the Commission of a Crime of Violence Assault Third Degree in the first instance Defendant claims that the amendment defeats his defense that he has a licensed firearm '0 The assault charges do not vanish because the Defendant had a licensed firearm Having a licensed firearm does not create an absolute immunity from prosecution for assault Indeed, Herbert can still prepare for and assert his defense that ‘it didn t happen like your heard which he purportedly told Mr Tyrone Molyneuax “ Hence, Defendant is not prejudiced $18 Timing is a crucial factor in determining prejudice Courts tend to differentiate between amendments made before and during the trial See Elzzee v People 54 V I at 48 This is not a case where the prosecutor is seeking to amend the information on the eve of trial or during or after the presentation of all evidence at trial Here, there has been no trial, verdict, or finding '2 The Motion to Amend the Information was brought before the Court with sufficient time for Herbert to prepare for trial The Court finds that Defendant has adequate time to prepare his defense IV CONCLUSION ‘ 19 For the reasons stated above the amendments proposed by the People do not constitute additional or different offenses within V I R Crim P 3(d) Because the Court will grant the Peoples Motion to Amend the Information the Court need not decide Defendant 5 Motion to Dismiss Counts T“0 and Four in the original Information as that motion is now moot Accordingly it is hereby

’ Cf. People I Buyamm, 20l9 VI LEXIS 80 at *4 (court permitting amendment and overruling Defendant s objection where the Defendant objected to replacing the “0rd ‘ rifle with the word ‘ weapon because the Magistrate Judge found probable cause to charge the Defendant with pointing a rifle and no rifle was found in defendant 5 possession) “ Affidaw it in Support of an Arrest Warrant at 1114 Moreover, any prejudice in preparation before the trial can be avoided by granting a continuance

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ORDERED that the People 5 Motion to Amend Information is GRANTED, and the Amended [nfonnation is deemed the Information in this matter, and it is further, ORDERED that Defendant KISHON HERBERT 8 Motion to Dismiss Counts Two and Four of the original Information is DENIED as moot; and it is further ORDERED that this Order be directed to all counsel of record

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DATED March 26 2024 gm)? 31 W W CAROL THOMAS COBS Judge of the Superior Count of the Virgin Islands

ATTEST Tamara Charles Clerk of e/Court

B / Mé/Mflf

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(4/ Latoy amacho Court Clerk Supervisor