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
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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
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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
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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