IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
PEOPLE OF THE VIRGIN ISLANDS
SX 2021 CR 132
Plaintiff,
vs
BRIAN HENDERSON CITE AS 2022 VI SUPER 33m
Defendant
Appearances
William A Appleton, Jr , Esq
Virgin Islands Department of Justice
St Croix, U S Virgin Islands
For Plamtsz
Yolan Brow Ross, Esq ‘
Office of the Territorial Public Defender
St Croix, U S Virgin Islands
For Defendant
MEMORANDUM OPINION AND ORDER
WILLOCKS Judge
1] 1 THIS MATTER came before the Court on Defendant Brian Henderson’s (hereinafter
“Defendant”) motion to dismiss, filed on July 7, 2021 In response, the People of the Virgin Islands
(hereinafter “People”) filed an opposition and Defendant filed a reply thereafter
BACKGROUND
{l 2 On May 10, 2021, the People filed a single count information against Defendant charging
him with having sexual relations with a detainee in violation of Title 14 V I C § 667(a) 2 The
' Yolan Brow Ross, Esq was the counsel of record at the time that the motion was filed, but she has since left the
Office of Territorial Public Defender and is currently sitting as a magistrate judge in the Superior Court of the Virgin
Islands No subsequent notice of appearance has been filed for Defendant
Title I4 V I C §667 provides
(a) Any person who, when being an employee working at a prison or detention facility, a contracton on
employee of a contractor at a prison or detention facility or a volunteer at a prison on detention facility
Henderson v People ofthe V I
SX 202! CR 132
Memorandum Opinion and Order 2022 VI SUPER Ella”
Page 2 of 9
information alleged that Defendant “did perpetrate an act of sexual intercourse with CF, an adult
female inmate of the Golden Grove Correctional Facility, by penetrating her vagina with his
penis ” (Information) According to the affidavit supporting probable cause for the arrest, police
officer Teaella Buckley stated (i) on March 19, 2020, Chief Inspector Anthony Hector was present
at the Wilbur H Francis Command Police Station to file a police report in reference to an inmate
being impregnated by a corrections officer; (ii) Chief Inspector Anthony Hector stated that he
interviewed inmate CF and CF admitted that, at some point while CF was on a weekend furlough
from January 24, 2020 through January 26, 2020, she had sex with corrections officer Brian
Henderson at her residence in Mon Bijou; and (iii) based on the DNA analysis, there is a “99 99%
certainty” that corrections officer Brian Henderson is the father of the aborted fetus
1[ 3 On July 7, 2021, Defendant filed this instant motion to dismiss on the ground that Title 14
V I C § 667(a) is unconstitutionally vague
engages in consensual sexual relations with a person who is in the custody of a detention facility, is
guilty of the crime of sexual relations with a detainee and shall be imprisoned not more than [0 years
This does not include any act done for a bona fide med cal purpose or an internal search conducted in
the lawful performance of an employee 5 duties
(b) For the purpose ofsubsection (a), sexual intercourse’ means
(1) Any act of physical union ofthe genitalia or anus of one person with the mouth anus or genitalia of
another person It occuts upon any penetration, however slight Ejaculation is not required or
(2) Any act of cunnilingus or fellatio regardless of whether penetration occurs, Ejaculation is not
required
(A) ‘Cunnilingus means any oral contact with the female genitalia
(B) Fellatio means any oral contact with the male genitalia
(c) For the pulpose of subsection (a), sexual penetration’ means
(I) The unlawful placement of an object, which inciudes any item device, instrument substance or part
of the body inside the anus or vagina of anothei person or
(2) The un awful placement of the genitalia on any sexual device inside the mouth of another person
Title 14 V I C §677
Hendetson v People of(he I I
SX 202l CR 132
Memorandum Opinion and Order 2022 VI SUPER E“
Page 3 of 9
STANDARD OF REVIEW
IN “The void for vagueness doctrine reflects the fundamental principle that, in order to
comply with the requirements of due process, a statute must give fair warning of the conduct that
it prohibits United States v Fontame 697 F 3d 221 226 57 VI 914 (3d Cir 2012) To satisfy
due process, a penal statute [must] define the criminal offense [1] with sufficient definiteness that
ordinary people can understand what conduct is prohibited and [2] in a manner that does not
encourage arbitrary and discriminatory enforcement ’ LeBlanc v People ofthe VI , 56 V I 536,
540 41 (V I 2012) (citation omitted) In Monelle v People ofthe V] the Virgin Islands Supreme
(.ourt explained
First, the Supreme Court of the Lnited States has emphasized that, when analyzing a
statute, ‘[o]bjections to vagueness under the Due Process Clause rest on the lack of notice
and hence may be overcome in any specific case where reasonable persons would know
that their conduct is at risk Maynard v (arterght 486 U S 356 361 108 S Ct 1853
100 L Ed 2d 372 (1988) Requirements under the Due Process Clause are satisfied if the
statute at issue affords a “[p]erson of ordinary intelligence a reasonable opportunity to
understand what conduct is prohibited Brathwazte v People 60 V I 419 434 (V I 2014)
Secondly, the void for vagueness doctrine focuses on the constraint imposed by a statute
upon power of the government in enforcement the law must not be so loosely worded as
to encourage arbitrary and discriminatory enforcement Kolender v Lawson, 461 [I S 352,
357 103 S Ct 1855
75 L Ed 2d 903 (1983)
Monelle 63 VI 757 765 66 (VI 2015)
In other words, if a reasonable person “would know that their conduct puts them at risk of
punishment under the statute” then a challenge for vagueness can be overcome Brathwazte, 60
V I at 434 Nevertheless, “[n]otwithstanding the two requirements under the void for vagueness
doctrine, in raising a challenge to a statute that does not involve First Amendment freedoms,
defendants must first establish standing by demonstrating that the statute is vague as applied to the
facts of the particular charge against them [and] [a] person whose conduct unequivocally falls
Henderson v People Qflhe V I
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within a statute may not successfully challenge the same statute for vagueness ” Monelle, 63 V I
at 766
DISCUSSION
1| 5 In his motion, Defendant argued that [t]his matter must be dismissed because V I Code
Ann Tit 14 § 667(a) is unconstitutionally vague as applied to the allegations herein and this matter
must be dismissed with prejudice Defendant made the following assertions in support of his
argument (i) "It is settled that, as a matter of due process, a criminal statute that 'fails to give a
person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the
statute,’ or is so indefinite that ‘it encourages arbitrary and erratic arrests and convictions,‘ is void
for vagueness ’3 (Motion 1 2), (ii) The Supreme Court has long held ' that a statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application violates the first essential due
process of law ’4 (Id , at 2) (iii) “VI Code Ann tit 14 § 667(a) is void for vagueness as it
failed to sufficiently apprise him whether his alleged conduct was prohibited as a matter of law ”
(Id ); (iv) “The phrase at the center of this constitutional challenge is person in custody of a
detention facility’” and “that the application of that phrase to the allegations herein did not provide
him with notice that the alleged conduct was unlawful ’ (Id , at 3)’ and (v) “The situs of the alleged
sexual relations was not Golden Grove, but “CF’”s residence” so “unlike in Whyte, while on
release “CF” was without all the trappings the court enumerated a person of ordinary intelligence
3 Defendant referenced Calcium v Franklin 439 U S 379 390 (1979) (quoting Ufllled Slates v Harm's, 347 U S
612 617 (1954) and Papachrtstou v Jacksonville 405 U S 156 162 (1972)) see also LeBlanc v People 56 V I
536 541 (V1 2012) (citations omitted)
" Defendant referenced UnitedSIates v Fontame, 2012 LEXIS 18202 ‘14 (3rd Cir (VI August 28 2012) quoting
ggrgv City ofColumbIa 378 U S 347 351 (1964)) see also People v Whyle 62 V1 95 104 (Sup Ct Jan 22
Henderson v People ofthe V I
SX2021CRI32 ml“
Memorandum OpIIIIOI‘I and Order 2022 VI SUPER
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would associate with a person in custody [and] [a]ccordingly, the statute fails to apprise a person
of ordinary intelligence that “CF” under these circumstances fell within the meaning of a person
in custody of a detention facility ”5 (Id , at 4 )
1] 6 In their opposition, the People argued that Defendant’s motion to dismiss should be denied
The People made the following assertions in support of their argument (i) “There are two types
of custody, physical and constructive ” (Opp 1); (ii) In Whyte, the court concluded that ‘ the statute
is not vague and cited one of the reasons as the fact that the incident took place in the correction
facility,” and “[t]herefore, the victim was in the physical control of the correction” facility ” (Id );
(iii) “Title 3 V I C § 375 clearly indicates that the Bureau of Corrections has general control over
an inmate [and] [u]ntil and unless the inmate is released from the custody and control of the BOC
BOC remains responsible for that inmate ”6 (Id ), and (iv) “While the Defendant engaged in sexual
intercourse with the inmate not at a correction facility but rather at the home of the inmate the
inmate was still in the constructive control of the BOC [because] [a]lth0ugh the inmate was out on
work release she was still under the custody and care of the BOC and therefore this Defendant
being a BOC employee was fully aware that his actions were in violation of the laws of the Virgin
Islands (Id at 2 )
T. 7 In his reply, Defendant argued that his motion to dismiss should be granted Defendant
made the following assertions in support of his argument (i) The People attempt to rephrase Mr
Henderson’s constitutional challenge as whether C F was in BOC’s custody to wit, “the
question before the Court is not whether C F was in custody, but whether V I Code Ann tit 14 §
5 Defendant referenced Whyle, 62 V I 95
6The People referenced State v S(eveson, 2015 Kan App Unpub Lexis 757; United Sides v Lamell,20121 S Dist
LEXIS 153424
Henderson v People ofthe V I
iliigzréngfifczipinion and Order 2022 v1 SUPER 33%
Page 6 of 9
667(a) properly notified Mr Henderson, under the facts alleged herein, that C F was in custody
of a detention facility at the time of the alleged criminal conduct ’ (Reply 1); (ii) ‘ In providing its
own definition of ‘ custody”, the People referenced cases from Kansas and Vermont, neither of
which are binding in the Territory ” (Id , at 2); and (iii) ‘Such an assumption [that no child is
responsible for himself/herself] cannot apply herein where the statute does not elucidate that
custody can exist when the trappings one would associate with criminal custody were not present ”
(1d)
A Whether Defendant has Standing to Raise a Vagueness Challenge Regarding Title
14 V I C §667(a)
‘8 On May 10 2021, the People sought to have Defendant arrested for having sexual relations
with a detainee in violation of Title 14 V I C § 667(a) and submitted police officer Teaclla
Buckley 5 affidavit to support probable cause for the arrest As noted above, the People alleged
that Defendant had sexual relations with inmate CF at CF’s residence in Mon Bijou at some point
during CF 5 weekend furlough from January 24 2020 through January 26 2020 7 Title 14 V I C
§ 667(a), on its face does not indicate whether “a person who is in the custody of a detention
facility” includes a person who is away on a temporary furlough and not physically in the custody
of a detention facility As such, the Court finds that Defendant by demonstrating that Title 14
V I C § 667(a) is vague as applied to the facts of the particular charge against him, has established
standing to challenge Title 14 V I C § 667(a) for vagueness
7 Under Title 5 V I C § 4508, “[t]he Director of Corrections shall promulgate regulations under which inmates, as
part of a program looking to their release from the custody of the Bureau, or their treatment may be granted temporary
gigging? from an institution to visit their famiiies or to be interviewed by prospective employers Title 5 V I C §
Henderson v People oflhe VI
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B Whether Title 14 V I C § 667(a), as Applied to Defendant, is Unconstitutional
under the “Void for Vagueness” Doctrine
1l 9 Defendant argued that the phrase “person in custody of a detention facility” in Title 14
V I C § 667(a) is unconstitutionally vague so that neither Defendant, nor any other person of
ordinary intelligence, could know that consensual sexual relations between him, a corrections
officer, and inmate CF at CF’s residence in Mon Bijou while CF was on a weekend furlough from
January 24, 2020 through January 26, 2020 were criminally prohibited The Court disagrees
1] 10 A plain reading of the language of Title 14 V I C § 667(a) as applied to the allegations in
this case establishes that it is illegal for an employee working at a prison or detention facility “to
engage[] in consensual sexual relations with a person who is in the custody of a detention facility ’
The statute does not define each and every term The Virgin Islands Supreme Court has instructed
that, ‘ [i]n ascertaining the plain meaning of the words in the statute, we apply any specific
definitions that are statutorily prescribed [and] [w]hen no statutory definition is provided, words
that have an accumulated legal meaning will be given that meaning, and other words will be given
their common, “dictionary,’ meaning ” szles v People ofthe V I , 66 V I 572, 590 (V I 2017)-
see Title 1 V I C § 42 (‘ Words and phrases shall be read with their context and shall be construed
according to the common and approved usage of the English language ”) In this instance,
Defendant is essentially only challenging the term custody’ to wit, Defendant argued that Title
14 V I C § 667(a) does not afford a person of ordinary intelligence a reasonable opportunity to
understand that CF, while away on a temporary furlough, is a person under the custody of the
detention facility Black 3 Law Dictionary define “custody” as “[t]he care and control of a thing
or person for inspection, preservation, or security ” BLACK'S LAW DICTIONARY (I 1th ed 2019)
see WEBSTER s 11 NEW COLLEGE DICTIONARY 285 (3d ed 2005) (defining custody to mean
8/19/2022
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Croix
People of the Virgin Islands v. Case Number: SX-2021-CR-00132
Brian A. Henderson, Sr. Charges: 14 V.I.C. 667(a) - Sexual Relations with
a Detainee as an Employee, Contractor, or
Volunteer at a Prison or Detention Facility
NOTICE of ENTRY
of
Memorandum Opinion and Order
To: William A. Appleton, Jr., Esq. H. Hannibal O’Bryan, Esq.
Please take notice that on August 19, 2022
a(n) Memorandum Opinion and Order
dated August 19, 2022 was/were entered
by the Clerk in the above-titled matter.
Dated: August 19, 2022 Tamara Charles
Clerk of the Court
By:
Iris Cintron
Court Clerk Supervisor