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


PEOPLE OF THE VIRGIN ISLANDS                                )       CASE NO ST 2019 CR 00178

        Plaintiff                                           ;
                vs                                          )
                                                            )
MARCIANO RIVERA                                             )

        Defendant                                           ;
                                                            )

                                         Cite as 

                                     MEMORANDUM OPINION

        THIS MATTER is before the Court on the Motion to Admit V I R E 404(b) Evidence

filed by the People of the Virgin Islands (‘ People ’) l The motion came on for hearing via ZOOM

on August 16, 2022 Defendant Marciano Rivera (‘ Rivera’ or Defendant ’) appeared and was

represented by Carl Williams, Esq The People were represented by Assistant Attorney General

Anna Scott At the conclusion of the hearing, the Court took the matter under advisement For the

reasons set forth herein, the Court will deny the People s motion

                        BACKGROUND AND PROCEDURAL POSTURE

         The People have charged Defendant Marciano Rivera with sexual assaults upon a thirteen

(13) year old male identified as J D between June 27 2019 and July 15 2019 According to the

Affidavit that supports the Information, officers from the Criminal Investigation Bureau of the

Virgin Islands Police Department (“VIPD ’) made contact with JD on July 29, 2019, at the



I The motion was filed on July 20, 2022 The Defendant filed his opposition on August 1 1, 2022
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Schneider Regional Medical Center on St Thomas, U S Virgin Islands, following alleged sexual

assaults at the hands of an adult male, who allegedly forced J D to perform fellatio and submit to

anal penetration

        Rivera is charged in a twelve (12) count Information with two counts of Aggravated Rape

in the First Degree, two counts of Possession of a Dangerous Weapon During the Commission of

an Aggravated Rape, two counts of First Degree Assault, two counts of Possession of a Dangerous

Weapon During the Commission of a First Degree Assault, two counts First Degree Unlawful

Sexual Contact, and two counts of Child Abuse

        The People now move the Court, pursuant to Virgin Islands Rule of Evidence (‘ V I R E )

404(b), to admit testimony from unrelated sexual assault charges pending against Rivera in two

other matters 2 The People submitted the videotaped interviews of the victim and a witness from

the instant case and Victims and witnesses associated with the two other pending matters, all on

DVD V I R E 404(b) allows admission of certain otherwise prohibited evidence if it is offered

to prove preparation, plan, or identity, among other proper purposes The People argue that

statements taken for purposes of the unrelated pending sexual assault charges can and should be

admitted because they display a pattern of behavior which, the People allege Rivera follows in

each instance, thereby demonstrating identity Further, the People claim that the victims in the

instant case and the two other pending matters share many similar characteristics that contribute

to proof of Rivera’s identity




7 The two other ongomg matters from which the People wish to introduce testimony are docketed as People of the
Vngm Islands 1 Malczano Rn em, Case No ST 2019 CR 00165 and People 0ft/ze Vngm Islands v Marczano Ru 6) a,
Case No ST 2019 CR 00278
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                                                   FACTS

        The Court reviewed the videotaped statements proffered by the People and gleaned the

following pertinent information

        VIPD interviewed J D the victim in the instant matter, soon after he reported the assaults

in July 2019 At the time of the interview, J D was a heavyset thirteen (13) year old African

American or black Caribbean male Throughout the interview, J D was well spoken, poised, and

seemingly very intelligent J D told VIPD that a man, who J D knew as ‘ Head Honcho ’, sexually

assaulted him on five (5) occasions over the course of approximately two (2) weeks during the

summer of 201 9 J D told VIPD that during each incident, the man asked J D ’s neighbor                    also a

minor male and a witness in this matter, T N          to go get J D and bring him to a dark room inside

an unfinished apartment in J D ’s neighborhood J D told VIPD that on each occasion Head

Honcho would pull out a knife and make J D perform fellatio and submit to anal penetration After

each of the five incidents, J D said the man would threaten to kill J D as well as the other

neighborhood boys if J D ever told anyone what had happened J D told VIPD he would be able

to recognize the man if he saw a picture of the man, saw him in person, or even if he heard the

man’s voice 3

        In the second case pending against Rivera VIPD interviewed K C , a skinny eight (8) year

old black Caribbean male In his videotaped statement K C said a man who identified himself as

“Marci” sexually assaulted him a single time while K C was attending summer camp on St

Thomas, U S Virgin Islands, during the summer of 201 9 In his videotaped statement, K C stated




3 According to the Affidavit attached to the Information J D was shown a photo array and he identified the photo of
Marciano Rivera as his assailant
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that one of his friends at summer camp told him a man wanted to talk to K C by the bleachers

K C described being asked to perform fellatio, refusing, being told to pull down his pants, and

then being penetrated anally Thereafter, the man told K C not to tell anyone what had happened,

but K C said the man did not make any threats to him

        In the third case pending against Rivera, VIPD interviewed S S , who was, at the time of

the interview, a twenty one (21) year old, heavyset, black Caribbean male When asked about his

education S S told the interviewer he has a third grade level education At the time of the

interview, S S was incarcerated in the Bureau of Corrections( BOC )on St Thomas, U S Virgin

Islands In the videotaped statement, S S described being sexually assaulted every day for several

weeks by a man in BOC S S said the man who assaulted him was called Fat Boy by the other

inmates at BOC, but he did not know the man s real name S S said that every day, the man would

come and get him from his cell and take him back to the man s cell in what S S described as in

the back comer of BOC S S described the sexual assaults, stating that each occasion involved

S S performing fellatio on the man and then being subject to anal penetration by the man S S

said he was afraid for his life and believed the man would hurt or kill him if he did not do what the

man asked because S S said the man told him not to tell anyone what happened or he would hurt

S S Rivera has been identified as the person who perpetrated the sexual assaults upon S S

                                       LEGAL STANDARD

        In pertinent part V I R E 404(b) states

               (1) Prohibited Uses Evidence of any other crime, wrong, or act is not admissible
               to prove a person 8 character in order to show that on a particular occasion the
               person acted in accordance with the character
               (2) Permitted Uses This evidence may be admissible for another purpose, such as
               proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence
               of mistake or lack of accident
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Virgin Islands courts have not interpreted V I R E 404(b) since its adoption in 2017 nor its recent

amendment in June 2022 4 However Virgin Islands courts have interpreted Federal Rule of

Evidence (‘ F R E ) 404(b) the current version of which is identical to the current version of

V I R E 404(b) Interpreting the federal rule the Virgin Islands Supreme Court adopted a four

part test established by the United States Supreme Court in Huddleston v Umted States, to evaluate

whether evidence is properly admitted under Rule 404(b) Saldana x People 0fthe Vzrgm Islands,

 665 (VI 2020) (Citing Huddleston t Untied States 485 U S 681 691 92 (1988))

The test requires “(1) the evidence must be offered for a proper purpose, (2) the evidence must be

relevant under the standards of Rule 402, (3) its probative value must not be substantially

outweighed by its potential for unfair prejudice pursuant to Rule 403, and (4) where requested the

court must instruct the jury to consider the evidence only for its limited admissible purpose ’

Saldana 73 V I at 665 (citing Huddleston 485 U S at 691 92 Chmnery t People 55 V I 508

526 (V I 2011)‘ Untied States \ Kellogg 510 F 3d 188 199 n 10 (3d Cir 2007)) 5

                                                    ANALYSIS

         A Identity is relevant to this matter

         The V I R E 404(b) analysis adopted in Saldana v People ofthe Vzrgm Islands states ‘ the

evidence must be relevant under the standards of Rule 402                       Saldana, 73 V I at 665 (citing


4 The Court notes that V I R E 404(b) was recently amended, effective June 1 2022 See In 1e Amendments to the
Rules, Prom N0 2022 001 (VI March 16 2022) The amendments to the local rule are intended to mirror the 2020
amendments to the federal rule making V I R E 404(b) identical to the current F R E 404(b) The Court finds that
the recent changes to the rule do not materially alter the substance of the rule Indeed the Notes ofAdvisory Committee
on the 2020 amendments to the federal rule State the main purpose for the amendment is to “impose additional notice
requirements on the prosecution in a criminal case        [and make] clarifications to the text and headings” (citing F ED
R EVID 404 advisory committee's note) The Court relies upon the current version of the rule for resolution of the
instant motion, given the motion was filed on July 20, 2022, after the recent amendment went into effect

5 The Third Circuit has continued to utilize this four part test under the recently amended version of F R E 404(b)
See eg Umted States i Scaifo 41 F 4th 136 180 (3d Cir 2022)
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Huddleston 485 U S at 691 92 Chmnerjy 55 VI at 526 Kellogg 510 F 3d at 199 n 10) In

pertinent part V I R E 402 states irrelevant evidence is not admissible      V1 R EVID 402 Given

that identity of an assailant is a required element of any crime charged, the Court finds the evidence

purporting to prove identity is relevant to an element of the People’s burden Therefore, the

People 3 motion satisfies the relevancy standard

        B The evidence is not offered for a “proper purpose” under V I R E 404(b)

        The People argue the proffered evidence should be admitted for the purpose of proving

Rivera’s identity as J D ’s assailant in this matter The People claim that because J D did not

immediately report the sexual assaults and J D s identification of Rivera as his assailant did not

immediately follow the assaults, but rather occurred several weeks later, the additional evidence

of identity would be helpful to prove Rivera was the assailant The People argue there are sufficient

similarities among the actions taken by the perpetrator in the assaults against the victims in all

three cases as well as the physical appearance and status of the three victims to establish‘ identity ’

under V I R E 404(b) During the hearing, Rivera disagreed stating there is no issue of identity

in the instant matter, and that there is already evidence available for the People to prove his identity

given that J D identified Rivera from a photo array, and J D will likely testify regarding Rivera 3

identity at trial Further, Rivera argues the similarities the People attempt to use to prove “identity

do not satisfy the pertinent standard for establishing a       signature crime    or modus operandi

pursuant to V I R E 404(b)

        The Virgin Islands Supreme Court has said evidence is offered for a ‘ proper purpose ’ when

it is “probative of a material issue other than character ” Tyson v People ofthe Virgin Islands, 59

V I 391 423 (VI 2013) (quoting United States 1 Cross 308 F 3d 308 320 21 (3d Cir 2002))
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Many cases have held, when interpreting F R E 404(b)(2), that identity is a proper purpose

outside of propensity or character See e g , Tyson, 59 V I at 423 ; Davzs v People of the Vzrgzn

Islands 74 V I 475 485 (V I 2021)‘ People 0fthe Vzrgm Islands t Fenton 59 V I 163 172 (V I

Super Ct 2013) In defining‘ identity , the Third Circuit has stated that a ‘ Jury can rationally infer

from evidence that the defendant committed a prior crime in an unusual and distinctive manner

and evidence that a second similar crime was committed in the same unusual and distinctive

manner that the defendant committed the second crime                   Gov’t 0f Vzrgm Islands v Pmney, 

 (3d Cir 1992)

         The Third Circuit was presented with a similar series of sexual assaults and held that the

following similarities among the assaults do not reach a level of identification or uniqueness

required to ‘warrant the inference [the defendant] was the perpetrator in each incident’                         each

involved a minor of about the same age each allegedly occurred in the defendant's apartment; each

involved sexual intercourse; and each time, the defendant allegedly warned the victim not to tell

anyone     Pznney 

 17 (citing McCaimzck on E1 zdence § 190 at 559 (3rd ed 1984)

(“Much more is demanded than the mere repeated commission of crimes of the same class, such

as repeated muiders robberies or rapes The pattern and characteristics must be so unusual and

distinctive as to be like a signature ’) Similarly, the People in the instant matter argue that the

similarities in the instant case are as follows the Defendant lured his alleged male victims to

isolated locations", threatened them not to tell anyone and made them perform fellatio on him

and/or sodomized them The People argue that in all three cases, the Defendant chose victims who



6 Although the People claim there is a commonality of the sexual assault taking place in isolated areas cases the Court
finds that the Jail cell in the BOC can hardly be described as an isolated location While no one may have observed
the assaults in the jail cell, lack of witnesses does not define a location as isolated
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have similar body shapes and hair styles and that each of the Victims was intellectually inferior to

the Defendant, given that J D and K C were minors at the time of the assault and S S suffers from

mental health issues which make him ‘more childlike and vulnerable than most adults” The

People argue these qualities made the Victims easier to isolate and manipulate

        The Court is not persuaded that the common actions described by the People are indicative

that the same person committed the alleged assaults upon the three Victims; the activities

mentioned     luring, threatening, sodomizing, and forcing Victims not to disclose the interactions

are not a sufficiently distinctive and unique set of circumstances for the Court to admit the evidence

for the purpose of proving identity Additionally, upon reviewing the proffered evidence, the Court

does not agree that all actions that allegedly occurred in one case also occurred in the other two

cases For instance, according to J D , the perpetrator lured him to a remote location with the help

of another minor male held a knife to J D s neck to force him to subject himself to the assault;

forced J D to perform fellatio and sodomized him; and threatened J D with violence if he told

anyone what had happened However, victim K C stated that the perpetrator never threatened him

although KC states he was lured to what can be described as an isolated location (by the

bleachers), sodomized, and told not to tell anyone Further, S S said his assailant came and got

S S himself rather than having someone else lure S S to the BOC cell where the assault allegedly

occurred Therefore, the Court finds no distinctive commonalities or modus operandi among the

methods used during each assault that rises to the level contemplated by VIRE 404(b)

        Additionally the Court finds that two of the alleged victims         J D and S S      have the

similar physical characteristics of being heavyset but the thirdgictim K C, is significantly

thinner, younger and smaller than the other two victims On the other hand the Court agrees that
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J D and K C were minors and S S s cognitive disabilities may make him more vulnerable to

manipulation than an average twenty one (21) year old 7 However, J D was well spoken, poised,

and appeared seemingly intelligent for a thirteen (13) year old Additionally, the Court received

no information regarding Rivera s intellectual ability, and accordingly cannot rightly compare the

victims     intellects to Rivera’s Thus, there is insufficient evidence to show the supposed

intellectual inferiority described by the People Therefore, although each of the victims are African

American or Caribbean males with dark skin and black hair, who could theoretically be Viewed as

“intellectually inferior ’ to Rivera, the Court finds that these basic similarities are not indicative of

a distinctive or unusual pattern sufficient to prove identity under V I R E 404(b)(2)

          The Court finds the purported commonalities described by the People are not accurate But

even if they were the alleged pattern of assaults upon the three victims and the basic descriptions

of the victims are insufficient to prove the defendant operated in such a unusual or distinctive

manner so as to establish a signature crime Further, even if all three victims were heavyset black

Caribbean males such a factor would not be sufficient to establish identity under 404(b)(2)

Therefore, the Court finds the referenced commonalities were not probative of identity under the

established standard and accordingly do not qualify identity as a “proper purpose ’ for introducing

the evidence

          C The probative value of the evidence is substantially outweighed by its potential

             for unfair prejudice to the Defendant

          To be admitted under V l R E 404(b)(2), ‘ the evidence                 must not be substantially more

prejudicial than probative under Rule 403            Dams 74 V I at 485 (citing Chmnerjy 55 V I at 526)



7 Defendant Marciano Rivera was 18 years old at the time of the alleged assaults in all three cases
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Rule 403 states “[t]he court may exclude relevant evidence if its probative value is substantially

outweighed by a danger of one or more of the following unfair prejudice; confusing the issues;

misleading the Jury; undue delay; wasting time; or needlessly presenting cumulative evidence ’

V I R EVID 403 A prejudicial effect is not ‘ unfair’ simply because the evidence cuts against one

party, but rather, it must have an undue tendency to suggest decision on an improper basis

Tyson, 59 VI at 423 (citing FED R EVID 403 advisory committee's note) ‘Unfair prejudice is

measured by the degree to which a jury responds negatively to some aspect of the evidence

unrelated to its tendency to make a fact in issue more or less probable ’ Tyson, 59 VI at 423

(quoting Krepps 1 G01 1 0fthe V1 47 V I 662 674 (D V I App Div 2006)) In the context of

Rule 404(b) ‘ the concern is whether the value of using the evidence for one of the permissible

purposes is substantially outweighed by the possibility the jury will use the evidence as proof of

bad character’ Tyson, 59 V I at 423 (citing FED R EVID 404 advisory committee's note)

        The People argue that the details of the cases pending against Rivera offer essential

evidence of identity because I D only knew the perpetrator by his nickname, Head Honcho

However, Rivera counters that identity is not at issue here and argues that any probative value of

the proffered identity evidence is substantially outweighed by a danger of unfair prejudice to

Rivera because a jury could conclude Rivera is more likely to have committed the crimes in this

case based on allegations that he perpetrated other crimes Rivera argues that admission of this

evidence would mislead the jury, confuse the issues, and serve to unfairly prejudice the Defendant

        The Court agrees that the probative value of the evidence would be substantially

outweighed by a danger of unfair prejudice to Rivera if the Court were to admit evidence of the

other crimes Rivera allegedly committed against two additional victims See VI R EVID 403
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Even though identity is relevant to the instant matter and the People must prove identity at trial,

the Court 5 finding that the proffered evidence is not offered for a “proper purpose            under

404(b)(2) negates the probative value of the evidence The Court finds that without a “proper

purpose” for introducing the evidence, there is a very real danger that inclusion of the other sexual

assault allegations against Rivera could ‘appeal[] to the Jury s sympathies, arouse[] a sense of

horror, provoke[] its instinct to punish, or otherwise may cause a jury to base its decision on

something other than the established propositions in the case ’, which would make their admission

unfairly prejudicial under Rule 403 Celestzne 1 People of the Vzrgzn Islands, 73 V I 500, 507

(V I 2020) (quoting Carry 1 People 56 V I 345 358 (V I 2012)) The Court finds there is little

to no probative value in the proffered evidence for its intended purpose of proving identity, and

there are additional means by which the People can prove Rivera’s identity (e g , through J D ’s

testimony and J D ’3 prior identification of Rivera) Even if J D could not identify the perpetrator,

there is significant danger for unfair prejudice to the Defendant were the evidence introduced The

Court further finds that even if it provided a limiting instruction to the jury with respect to the

purpose of the proffered evidence, its probative value remains insignificant compared to the danger

of unfair prejudice that Rivera could suffer

        Accordingly, the Court finds the People have failed to show that the probative value of the

evidence offered overcomes the substantial likelihood of unfair prejudice and the Court will not

admit the evidence
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                                             CONCLUSION

       The Court finds that identity is relevant to the instant matter, but the proffered evidence is

not probative of identity Although there are some vague similarities between the Victims and

tactics used in the three cases, the Court finds the similarities do not prove identity under the

standards set forth within V I R E 404(b) and its supporting case law In addition, the probative

value of the proffered evidence is substantially outweighed by a danger of unfair prejudice to the

Rivera if the evidence of the other sexual assaults Rivera allegedly committed were admitted

during the trial of this matter Accordingly the Court will deny the People’s motion and the

evidence will not be admitted

       An order consistent herewith will immediately follow




DATED       September    [a     2022                        g g ?%2 ééiéé :
                                                                 Kathleen ackay
                                                              Judge of the Superior Court
ATTEST                                                           0f the Virgin Islands
TAMARA CHARLES
Clerk of the Court

BY        @
 «Rx LATOYA CAMACHO
       Court Clerk Supervisor Oq /Ob /&