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
Pwple (me Vugm Islands vs [mm Hmbut
ST 2023 CR 00260
Memorandum Opinion & Order
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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
People of the Vzrgm Islands vs Kzshon Herbert
SI 2023 CR 00260
Memorandum Opinion & Order
Page 3 of 13
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
People of the Vlrgm Islands 1 9 Kishon Herbert
ST 2023 CR 00260
Memorandum Opinion & Order
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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
People of the V1: gm Islands vs KlShl)" Helix”
ST 2023 CR 00260
Memorandum Opinion & Order
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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)
People 0/ the Virgin Islands 15 Kishon Herbert
ST 2023 CR 00260
Memorandum Opinion & Order
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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
Pe oplc of the Virgin Islands vs Kishon Herbert
ST 2023 CR 00260
Memorandum Opinion & Order
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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
People of the Virgin Islands 15 Ktslzon Heiber!
SF 2023 CR 00260
Memorandum Opinion & Order
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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
People offhe Virgin Islands \3 Kishon Herbert
ST 2023 CR 00260
Memorandum Opinion & Order
Page 9 of 13
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
People of the Vugm Islands \ \ Kwhon Herbert
ST 2023 CR 00260
Memorandum Opinion & Order
Page 10 of 13
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 )
People ofthe Vugm Islands v.3 Kishon Herbal
ST 2023 CR 00260
Memorandum Opinion & Order
Page 11 of 13
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
People of the V1! gm Islands vs Kishon Herbert
ST 2023 CR 00260
Memorandum Opinion & Order
Page 12 of 13
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
People ofthe Virgin Islands vs Kishon Haber!
ST 2023 CR 00260
Memorandum Opinion & Order
Page 13 of 13
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
j
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
J
(4/ Latoy amacho
Court Clerk Supervisor