For Publication 
 
 
IN THE SUPREME COURT OF THE VIRGIN ISLANDS 
 
 
On Appeal from the Superior Court of the Virgin Islands 
Division of St. Croix 
Superior Court Judge: Hon. Robert A. Molloy 
 
Considered: July 11, 2017 
Filed: February 6, 2019 
 
Cite as:  2019 VI 4 
 
BEFORE: 
RHYS S. HODGE, Chief Justice; IVE ARLINGTON SWAN, Associate Justice; 
and JOMO MEADE, Designated Justice.1 
 
APPEARANCES: 
 
Martial A. Webster, Sr., Esq. 
Law Office of Martial A. Webster, Sr. 
St. Croix, U.S.V.I. 
Attorney for Appellant,  
 
Dionne G. Sinclair, Esq. 
Assistant Attorney General 
St. Thomas, U.S.V.I.  
Attorneys for Appellee. 
 
OPINION OF THE COURT 
 
SWAN, Associate Justice. 
                                                 
1 Associate Justice Maria M. Cabret is recused from this matter. By order of this Court entered June 28, 2017, the 
Honorable Jomo Meade, a judge of the Superior Court of the Virgin Islands, is designated to sit in her place pursuant 
to title 4, section 24(a) of the Virgin Islands Code. 
CHARLESWORTH GONSALVES, 
          Appellant/Defendant, 
) 
) 
) 
) 
) 
)  
S. Ct. Crim. No. 2016-0058 
Re: Super. Ct. Crim. No. 400/2013 (STX) 
 
 
v. 
 
 
PEOPLE OF THE VIRGIN ISLANDS, 
           Appellee/Plaintiff. 
) 
 
 
 
) 
 
Gonsalves v. People 
2019 VI 4 
S. Ct. Crim. No. 2016-0058 
Opinion of the Court 
Page 2 of 44 
¶1 
Appellant, Charlesworth Gonsalves, seeks reversal of his convictions in the Superior Court 
of the Virgin Islands (“Superior Court”) for Second Degree Aggravated Rape and Child Abuse.  
Gonsalves argues that there was insufficient evidence to sustain his convictions, that the trial court 
committed reversible error when it denied his motion for a mistrial, and that the trial court 
committed reversible error when it allowed the prosecution to amend the information after the 
close of presentation of evidence.  For the reasons elucidated below, we affirm the convictions. 
I. 
FACTS AND PROCEDURAL HISTORY 
¶2 
On September 9, 2013, a criminal case was filed against Gonsalves.  Subsequently, an 
amended information alleged that, on August 30, 2013, on St. Croix, U.S. Virgin Islands, 
Gonsalves committed two criminal acts for which he was ultimately tried and convicted; namely:  
Count One—“Second Degree Aggravated Rape” (14 V.I.C. § 1700a(a)) as an act of domestic 
violence (16 V.I.C. § 91(b)(6)) and Count Two—“Child Abuse” (14 V.I.C. § 505).2  The Superior 
                                                 
2 The initiating information was filed on September 24, 2013, and contained charges that were dismissed by the 
prosecution.  The charges read as follows: 
 
COUNT ONE 
The CHARLESWORTH GONSALVES, did perpetrate an act of sexual 
intercourse or sodomy with a person, namely, D.G., a minor, being under eighteen 
years old, but thirteen years or older, not the perpetrator’s spouse, to wit:  by 
sucking and inserting his tongue inside D.G.’s vagina; CHARLESWORTH 
GONSALVES and the minor D.G., having a familial relationship, father and 
daughter, an act of domestic violence, in violation of Title 14 V.I.C. § 1700a(a) 
and Title 16 V.I.C. § 91(b)(6), (AGGRAVATED RAPE SECOND 
DEGREE/DOMESTIC VIOLENCE). 
 
COUNT TWO 
That CHARLESWORTH GONSALVES, being over eighteen years of age, did 
engage in sexual contact with a person who is over thirteen but under sixteen years 
old, namely, D.G., a minor, not the perpetrator’s spouse, to wit: by sucking on 
D.G.’s vagina with his mouth; CHARLESWORTH GONSALVES and the 
minor D.G., having a familial relationship, father and daughter, an act of domestic 
violence, in violation of Title 14 V.I.C. § 1709 and Title 16 V.I.C. § 91(b)(5), 
(UNLAWFUL SEXUAL CONTACT SECOND DEGREE/DOMESTIC 
VIOLENCE). 
 
 
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Opinion of the Court 
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Court’s judgment and commitment (a single document) was entered on the trial court’s docket on 
September 15, 2016, and the notice of appeal was filed on October 3, 2016.   
¶3 
Prior to the trial’s commencement, on March 7, 2016, an in camera hearing was held, 
during which the People sought leave of court to amend the information.  The amendments to 
which Gonsalves objected were the addition of the words “and finger” to the “to wit:” clauses of 
the two counts of the amended information.  The original phraseology stated “to wit: by sucking 
and inserting his tongue inside D.G.’s vagina,” and the amended charges stated “to wit: by sucking 
and inserting his tongue and finger inside D.G.’s vagina.”  The basis for the objection was that the 
amendment would deprive Gonsalves of notice of the charges and “substantially affect[ed the] 
defense.”  In explicating the objection, defense counsel argued that the amendment “basically adds 
. . . another fact to the mental and emotional injury or physical injury portion . . . of the charge of 
child abuse.”  Because of this addition, Gonsalves asserted that he was belatedly given notice—
which made such notice inadequate—that he had to defend against an allegation of inserting his 
finger, in addition to his tongue, inside of D.G.’s vagina.   
¶4 
The jury was selected, and the trial commenced later that morning.  The jury was given 
preliminary instructions, but the statement of charges did not include the language regarding 
Gonsalves having inserted his finger into the victim’s vagina.  After the preliminary instructions 
were given, the trial court proceeded to consider the proposed amendment to the charges.  
Gonsalves reiterated his objection that the amendment violated his right to notice of the charges; 
therefore, the amendment was denied at that time.   
                                                 
Count three of the original information was dismissed prior to trial.  The “Amended Information,” which contained 
the entirety of the charges upon which Gonsalves was tried, was filed on March 14, 2016, after the beginning of 
Gonsalves’ trial.   
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¶5 
After counsels’ opening statements, Marsha Harrigan testified.  Harrigan was the mother 
of the victim, D.G., and since childhood, she had known Gonsalves.  The following line of 
questioning was pursued to establish the background relationship of Gonsalves, Harrigan, and 
D.G. and is noteworthy in that the examination presents a pivotal issue raised on appeal that 
Gonsalves asserts justified a mistrial: 
Prosecutor:  So, how do you know [Gonsalves]? 
Harrigan:  When I was a child he used to live in La Reine.  We was 
like neighbors. 
Prosecutor:  Okay.  So he was your neighbor growing up? 
Harrigan:  Well, he used to live in the back of our building in another 
building. 
Prosecutor:  All right. 
Harrigan:  And he also was my brother[’s] friend. 
Prosecutor:  Did you have a relationship with Mr. Gonsalves? 
Harrigan:  Yes. 
Prosecutor:  What type of relationship? 
Harrigan:  A intimate relationship. 
Prosecutor:  How old were you when-- 
Defense Counsel:  Objection to relevance. 
Court:  What’s the relevance of that, [prosecutor]? 
Prosecutor:  Well, this is background information as to her knowing 
this individual in developing that this individual is, in fact, the father 
of the young lady, Your Honor. 
Court:  [Defense Counsel?] 
Defense Counsel:  What her age has to do with it?  Ask her that 
question, but not how old she was. 
Court:  I am going to overrule the objection.  You may proceed. 
Prosecutor:  Can you answer the question, please? 
Witness:  Fourteen. 
Prosecutor:  You were 14-years old— 
Defense Counsel:  Objection.  Your Honor, I have a motion.  I have 
a motion for mistrial.   
 
At sidebar, the following colloquy ensued: 
 
Defense Counsel:  Your Honor, the Prosecution intentionally knew 
she was going to say 15—14 and he did that.  That’s grounds for 
mistrial.  He is trying to say that he had information about this 
woman when she was 14-years old and that’s ground for mistrial.  
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That’s bad act evidence prejudicing my client right away from the 
jump.   
Court:  How old was the Defendant when he first had a relationship 
with this individual?  Attorney Chancellor, please speak into the 
microphone? 
Prosecutor:   Oh, I believe he was older than her. 
Court:  How old? 
Prosecutor:  Probably in his twenties. 
Defense Counsel:  Your Honor, this jury is tainted.  I move for a 
mistrial. 
Prosecutor:  Your Honor, I don’t see—I am asking the question to 
develop background and to develop me case.  I don’t see that this 
has anything to do with anything except to say that— 
. . . . 
Court:  Attorney Chancellor, we are at sidebar, please use a lower 
voice. 
Prosecutor:  Except to say that she is the mother of [D.G.], that he is 
the father; that he has authority over her; that they had an intimate 
relationship.  We have to establish those things in this case, Your 
honor.  We have to.  How long she’s know him, the length of time 
she’s known him, those are all relevant.   
 
The prosecutor further explained her purpose for calling Harrigan as a witness, stating: 
Prosecutor:  Well, Your Honor, this is—one, Your Honor, we have 
to present a case.  We have to give the jury our story.  How D.G. 
came to be where she was at on that particular night.  What the 
relationship of this individual is to D.G.  What her—his authority 
is over D.G. 
 
The court denied the motion for a mistrial, but “sustain[ed] any objection as it relates to how old 
the Defendant was at the time he began a relationship with the witness.”   
¶6 
The prosecutor continued questioning Harrigan and established that D.G. was her daughter 
with Gonsalves.  Gonsalves had been an involved father seeing D.G. multiple times a week, even 
though Gonsalves did not reside with Harrigan and D.G.  D.G. was allowed to spend time at 
Gonsalves’ house as often as four or five nights a week.   
¶7 
The prosecution then focused on the night the crimes allegedly occurred.  Harrigan testified 
that D.G. needed to purchase new school uniforms, but Harrigan was scheduled to work and was 
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unavailable to assist D.G.  Therefore, Harrigan asked Gonsalves if he could take D.G. to buy a 
new skirt for her school uniform.  Gonsalves agreed and met D.G. at Harrigan’s workplace at 
approximately 11:50 p.m. on August 29, 2013.  After a few days, on about September 3, 2013, 
D.G. informed her mother about what had occurred that night after Gonsalves had picked her up.  
D.G. was crying and distraught when she explained to her mother what transpired between 
Gonsalves and her.  Ultimately, Harrigan called the Virgin Islands Department of Human Services 
(“Human Services”) to report what had occurred.  Human Services’ employees then contacted the 
Virgin Islands Police Department (“VIPD”), prompting police officers to meet with D.G. and 
Harrigan in order to complete a police report.  Subsequently, Harrigan took D.G. to a gynecologist 
because Human Services personnel instructed her to do so.  The trial court excluded all of D.G.’s 
statements made to the doctor during the exam because they did not qualify for admission under 
any hearsay exception.3   
¶8 
Harrigan explained that, prior to the alleged crimes, D.G. had been outgoing and happy, 
mature, and responsible; doing chores as she was instructed to do; and studious in school.  
However, after the night of the molestation, D.G. became withdrawn and angry, often times 
agitated, and generally sought solitude instead of the company of others.  After August 30, 2013, 
D.G. terminated her relationship with her father.  Her relationship with her half-siblings on her 
father’s side deteriorated to the level of being non-existent.   
                                                 
3 But see V.I.R.E. 803(4)(A)-(B) (“A statement that . . . is made for—and is reasonably pertinent to—medical diagnosis 
or treatment; and . . . describes medical history; past or present symptoms or sensations; their inception; or their general 
cause.”). 
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Opinion of the Court 
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¶9 
Because of what Harrigan learned from D.G., she eventually confronted Gonsalves.  When 
Harrigan asked Gonsalves about what D.G. had said he had done to D.G., Gonsalves remained 
silent and simply lowered his head.    
¶10 
On cross-examination, Defense Counsel elicited potential weaknesses in Harrigan’s 
testimony.  For example, Harrigan failed to ask Gonsalves whether what D.G. had said occurred 
was true.  Harrigan explained that her daughter was not a liar and would not lie about something 
of such importance.  Harrigan also omitted from her statement to police the facts that she contacted 
Human Services and the Women’s Coalition to obtain counseling for D.G.   
¶11 
The victim, D.G., then testified that her parents were Marsha Harrigan and Charlesworth 
Gonsalves and identified the defendant as her father.  D.G. was 16 at the time of the molestation.  
D.G. resided with her mother during her childhood but had significant contact with her father and 
described their relationship as “very close.”  D.G. testified that she had a close relationship with 
her father prior to the day she was molested, spending significant time with him, almost daily.  
However, after the molestation, D.G. no longer spoke to Gonsalves.  D.G. further stated that it 
“hurts a lot” to think of what happened because she was so close to her father.  Additionally, she 
testified that her siblings no longer converse with her since the molestation.   
¶12 
D.G. also testified concerning what occurred on the night of August 29, 2013, which 
continued into the early morning of August 30, 2013.  On August 29, 2013, Harrigan told D.G. 
that she needed supplies for school and to have her school uniforms altered and cleaned, and 
Gonsalves, her father, would pick her up at her mother’s place of employment to assist her in 
preparing what she needed in order to attend school.   
¶13 
In the late night of August 29, 2013, Gonsalves picked up D.G. at Harrigan’s workplace, 
and the two proceeded to his home.  When they arrived at Gonsalves’ home, D.G. watched 
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television in Gonsalves’ bedroom while he showered.  D.G. had planned to sleep in her father’s 
bed that night, as she had customarily done in the past.  When Gonsalves emerged from the 
bathroom, he was wearing underwear and had a towel covering part of his body.  He approached 
D.G., and they talked and watched T.V.  During the conversation, Gonsalves asked if D.G. had a 
boyfriend.  When she said she did, Gonsalves stated that he did not want anyone to take advantage 
of her.  Gonsalves then followed up his question by asking D.G. if she was still a virgin, to which 
she responded affirmatively.  The conversation continued, with Gonsalves repeating that he loved 
D.G. and wanted no one to take advantage of her.   
¶14 
While conversing, Gonsalves began touching D.G. and squeezing her breast.  When this 
occurred, D.G. became shocked and scared, explaining her fear “because that’s my dad.  I don’t 
know what he is capable of and he have authority over me.”  When questioned why she did not 
scream and ask her brother and cousin for help, D.G. explained that she had never thought her 
father would do something like that, and she was afraid.  Gonsalves continued touching D.G., 
parting her legs and touching her vagina.  D.G. attempted to keep her legs closed, but Gonsalves 
opened them anyway, explaining that he did not want anyone to take advantage of her and was 
“doing it to show [her] how it feels.”  Once Gonsalves opened D.G.’s legs and pulled down her 
pants and underwear, he proceeded to position himself and then inserted his tongue into D.G.’s 
vagina.  After approximately a minute, Gonsalves then used “his fingers to penetrate in [D.G.’s] 
vagina.”  After another minute or two, Gonsalves stopped and asked D.G. if she knew he loved 
her and explained that he only did what he did to show her how it feels.  At some point, Gonsalves 
told D.G., “you see it’s not hard because I don’t want you.”  Once the molestation ended, D.G. 
was scared and felt that her life would be ruined.  D.G. testified that she is “not the same anymore.”  
She becomes upset easily since the molestation, and she withdraws from others because she no 
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longer enjoys the company of other people and often awakes feeling depressed.  The destruction 
of her relationship with her father has also distressed her because they were very close before the 
molestation.   
¶15 
D.G. waited until Gonsalves fell asleep and then went to the living room to text her 
boyfriend because she needed to talk to another person.  She informed her boyfriend that someone 
had touched her inappropriately, but she failed to tell him it was Gonsalves, her father, because 
she was not prepared to discuss the molestation.  After three days and because of her boyfriend’s 
encouragement, D.G. told her mother what occurred.   
¶16 
Following Gonsalves’ arrest and while he was in pre-trial detention, a relative of D.G.’s 
half-sister approached her stating that D.G.’s half-sister wanted to speak to her, but when D.G. 
answered the phone, both her half-sister and Gonsalves were on the phone.  During this telephone 
call, Gonsalves apologized to D.G. for what he did to her.   
¶17 
The same half-sister began making overtures to D.G. to gain her trust and confidence in 
order to influence D.G. to make a written statement declaring that the events she reported to the 
police were all a dream.  These contacts and communications resulted in the half-sister transporting 
D.G. to meet with Yohanna Manning, an attorney, in order for D.G. to make a statement to the 
same effect—that the sexual molestation was a dream.  Upon arrival at the law office, Manning 
already had the statement prepared for D.G. to sign.  However, D.G. later testified that Manning 
“typed up the letter” after she told him it was a dream, but defense counsel’s cross-examination 
implied that Manning could have been taking notes instead.  D.G. explained that she made the 
statement to Manning because she believed Gonsalves was sorry for sexually molesting her.  D.G. 
contradicted much of the content of the statement prepared by Manning for her to sign.  For 
instance, the document stated that she had reviewed the probable cause affidavit of the arresting 
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officer, but she stated she did not review any documents in Manning’s law office.  D.G. was 17 
when she signed the document; however, her mother was not present.   
¶18 
D.G. further stated that she had witnessed her father “beat” her siblings and would listen 
when her father talked sternly because of how she had seen him “deal with the other children” so 
seriously.  D.G. also sought spiritual counseling from the chaplain in her national guard unit in 
order to cope with how she felt because of the sexual molestation committed upon her.   
¶19 
Jamal Brewster, D.G.’s boyfriend at the time of the molestation, testified next.  On the 
night of August 29, 2013, and into the early morning of August 30, 2013, Brewster was at his 
brother’s house with friends and family when he received a text from D.G. between 4:00 a.m. and 
5:00 a.m.  Brewster concluded that D.G. was sad because she was using a large number of 
“frowning faces” in her texts.  Brewster continued texting, and D.G. told him what was bothering 
her.  He advised D.G. to tell her mother what had happened.  Before the molestation, Brewster felt 
D.G. was an honest person who did not lie and loved her father very much and was excited to be 
readying herself to return to school.  After August 30, 2013, D.G. “hated everything,” “stopped 
loving herself,” “became antisocial,” and “didn’t care for anyone to be around her.”   
¶20 
Naomi Joseph, a supervisor of detectives and investigator with the VIPD with 30 years of 
experience, was the next person to testify.  On September 3, 2013, Officer Joseph was on duty and 
was dispatched to Human Services where a social worker had received information of a sexual 
assault.  At Human Services, Detective Joseph spoke with the social worker, D.G., and D.G.’s 
mother.  After asking some basic questions to develop an idea of what had occurred, Detective 
Joseph arranged for the victim and her mother to proceed to the police station to be interviewed, 
and their statements were recorded on video.  Detective Joseph directed another officer to retrieve 
the call log and text messages from D.G.’s phone at this time.  Detective Joseph later interviewed 
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Gonsalves, and his statement corroborated all of the events as described by D.G. except as to the 
sexual molestation, and in that regard he denied ever touching D.G.  Following the interviews with 
D.G., Gonsalves, and other witnesses, Detective Joseph arrested Gonsalves.   
¶21 
The prosecution then called Officer Stevens of the VIPD, who was dispatched to Human 
Services on September 3, 2013, after D.G. had made her report to a social worker.  When he 
arrived, the social worker directed him to two females in her office; the younger of the two 
appeared to be emotional, had been crying, and had red eyes.  The two women were D.G. and her 
mother, and after Officer Stevens listened to them describe what had occurred to D.G., he 
transferred the case to the specialized unit which had responsibility for sex crimes investigations.   
¶22 
After the prosecution rested its case, defense counsel moved for a judgment of acquittal.  
During counsel’s argument, the issue arose as to whether an amendment to the information, in 
order to reflect the evidence produced, was allowed.  The trial court then directed the parties’ 
counsel to address the issue the next day by filing with the court supplemental research.   
¶23 
Manning, Gonsalves’ prior counsel, testified next.  Manning represented Gonsalves from 
September 2013 until being relieved as counsel in 2014.  In November of that year, Manning was 
informed that D.G. wished to make a statement.  According to Manning, D.G. contacted him by 
telephone at his office, and they scheduled a meeting to discuss what D.G. wished to say in the 
statement.  D.G. did not attend the first scheduled meeting but did attend the rescheduled meeting 
later in November of 2014.  D.G. arrived at the meeting with her sister, but Attorney Manning met 
only with D.G.  The meeting lasted an hour, and Manning asserted that, during the meeting, he 
spoke with D.G. to first determine whether she was there voluntarily.  Manning further asserted 
that they reviewed documents in the case file, specifically the text and call exchanges of D.G.’s 
cellphone on the night of the molestation and the statements made to police by various witnesses.  
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Manning did not remember reviewing the probable cause fact sheet with D.G. at that meeting, or 
any other meeting.  Likewise, Manning remembered having his laptop at the meeting but could 
not remember if he “wrote down” any notes.  During the meeting, Manning prepared D.G.’s 
affidavit, but Manning could not remember if he read the contents of the affidavit to D.G. or if she 
ever read it.   
¶24 
D.G. was provided a printed copy of the affidavit and left the office with it, but the affidavit 
was not executed that day.  D.G. later contacted Manning, wishing to bring the affidavit in for 
notarization.  D.G. ultimately brought the affidavit to Manning’s office where it was signed and 
notarized.  Exhibit 1 was shown to Manning, and he identified it as the affidavit he prepared that 
had been executed by D.G.  Manning confirmed that D.G. provided the information in the affidavit 
and further confirmed that no parent was present when D.G. met with him and executed the 
affidavit.  Manning further confirmed that he did not consult D.G.’s identification documents to 
verify her age when she executed the affidavit.   
¶25 
Shanisha Gonsalves, D.G.’s half-sister, then testified.  Shanisha hired Manning to represent 
her father, Gonsalves.  Shanisha stated that D.G. requested Manning’s phone number, which she 
provided.  She and D.G. then attempted to meet with Manning one evening, but Manning was not 
in his law office.  She and D.G. then succeeded in meeting Manning at a later date.  At this meeting, 
Shanisha waited in the lobby while D.G. met with Manning.  Shanisha claimed that D.G. never 
discussed with her the reasons she wished to meet with Manning, and Shanisha did not know the 
reasons.   
¶26 
On cross-examination, Shanisha admitted that she was close with her father but did not feel 
she was closer to her father than D.G.  Upon Gonsalves’ arrest, Shanisha went to D.G.’s workplace 
and informed her of the arrest; at that time, D.G. began crying.  While D.G. told Shanisha she was 
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the cause of her father’s arrest, Shanisha asserted that D.G. never told her anything beyond that 
brief statement, and Shanisha never inquired of D.G. concerning this statement.  Shanisha admitted 
that, at the time she took D.G. to meet Manning, she wished that Gonsalves would be released 
from jail.   
¶27 
Deshaun Gonsalves, D.G.’s brother, who was home with D.G. and Gonsalves on the night 
of the molestation, testified next.  Deshaun was awake when D.G. arrived and did not see her again 
until the next morning.  Deshaun testified that D.G. did not appear to be out of the ordinary that 
morning, as Deshaun did not notice any visible signs of emotion.  The prosecution attempted to 
expose any weaknesses in this testimony on cross-examination asking questions that, if true, would 
have indicated Deshaun’s testimony was mendacious.   
¶28  
Another of D.G.’s brothers, Jade Gonsalves, testified.  He stated that D.G. would frequently 
come to her father’s home and spend the night when she was growing up.  Jade did not reside with 
Gonsalves at the time of the molestation.  Jade further testified that the morning following the 
molestation he spoke with D.G., and she was distraught and had a “swollen” face from crying.   
¶29 
D.G. was then recalled to the witness stand for the prosecution’s rebuttal presentation.  
D.G. did not recall much of what occurred prior to her meetings with Manning and did not add 
any new facts to what was already disclosed.  D.G. further testified that she had been to Unique 
Auto, a business establishment, to visit her father prior to his arrest.   
30 
At the beginning of the third day of trial, the Superior Court reconsidered the People’s 
motion to amend the information.  The court applied Rule 7(e) of the Federal Rules of Criminal 
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Procedure4 and concluded that there was no dispute “that the People are not intending to add an 
additional or different offense.”  Therefore, the trial court focused its inquiry on whether Gonsalves 
had adequate notice of the crime charged in the amended information such that he was not 
surprised by the amendment.  The court ruled that the information could not allege that Gonsalves 
used “intimidation” to perpetrate the crimes because “there was no [such] evidence provided in 
discovery.”  Gonsalves registered no objection to the admission of the words “and finger” to both 
counts.  The court concluded that Gonsalves had sufficient notice that the addition of the words 
“and finger” to the two counts was not prejudicial.  The court further ruled that the facts did not 
establish that Gonsalves used “force” to accomplish the crime.  However, the court also found that 
Gonasalves had ample notice that the prosecution would argue that he used his position of authority 
to perpetrate the sex act upon D.G.  The court denied the motion to amend “with regards to 
including language of force and intimidation.”   
¶31 
The court also ruled that, with regard to a sixteen-year-old victim, to charge Second Degree 
Aggravated Rape, there must be an aggravating factor in addition to the victim’s age.  After 
allowing this amendment, the court ruled that there was evidence that Gonsalves had sexual 
intercourse with D.G. who was 16 at the time and that he used his position of authority as her 
father to perpetrate the crime.  With regards to count two, child abuse, the court found it was 
alleged that Gonsalves had sexual intercourse with D.G. and the statute was not unconstitutionally 
                                                 
4 The previous version of Superior Court Rule 7 made the Federal Rules of Criminal Procedure applicable in the 
Superior Court.  Effective December 1, 2017, the Virgin Islands Rules of Criminal Procedure became operative and 
were subsequently amended on December 19, 2017.  S. Ct. Prom. Orders 2017-010 (Dec. 1 & 19, 2017).  Further, 
Promulgation Order 2017-0006 amended Superior Court Rules 1 and 7 and repealed rules 12, 27, 29, 31, 36, 38, 29, 
and 50.  Toussaint v. Stewart, 67 V.I. 931, 943 n.6 (V.I. 2017); M. Davis. v. People, S. Ct. Crim. No. 2015-0121, 2013 
WL 3695089, at *18 n.24 (V.I. July 27, 2018).   
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vague because a reasonable person would know that it was a violation of the statute to engage in 
sexual intercourse with a minor.   
¶32 
Following closing arguments, the court provided the jury with instructions.  With regard to 
count one, which charged a violation of section 1700a(a) of title 14 as an act of domestic violence 
under section 91(b)(6) of title 16, the court instructed that the following elements must be proven: 
1. That the defendant perpetrated an act of sexual intercourse or 
sodomy with D.G. 
2. That D.G. was under 18 years of age, but 13 years or older at the 
time of the sexual intercourse;  
3. That the Defendant used a position of authority over D.G. to 
accomplish the sexual act; 
4. That the events occurred on or about August 30, 2013, in the 
Judicial District of St. Croix, U.S. Virgin Islands, in the vicinity 
of Number 39B estate Grove Place, Frederiksted. 
 
With regards to the charge of child abuse, a violation of section 505 of title 14, the court instructed 
that the following elements had to be proven: 
1. The defendant engaged in intercourse with D.G.; or knowingly 
or recklessly cause D.G. to suffer mental or emotional injury; 
2. That D.G. was a child at the time the sexual conduct occurred; 
3. That the events occurred on or about August 30, 2013, in the 
Judicial District of St. Croix, U.S. Virgin Islands.   
 
Gonsalves failed to object to either instruction.  The trial court provided legal definitions of various 
words used in these elements and provided the standard general instructions given in a criminal 
trial.  The jury returned a verdict of guilty on both counts.  Sentencing was then held on September 
8, 2016.  The court denied Gonsalves’ renewed motions for judgment of acquittal and a new trial 
and proceeded to sentence Gonsalves.  The judgment and commitment was entered in the Superior 
Court on September 15, 2016, and Gonsalves filed his notice of appeal on October 3, 2016. 
 
 
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II. 
JURISDICTION 
¶33 
This Court has jurisdiction over all appeals arising from a “Final Order” of the Superior 
Court.  48 U.S.C. § 1613a(d); V.I. CODE ANN. tit. 4, § 32(a); Toussaint v. Stewart, 67 V.I. 931, 
939 (V.I. 2017).  “‘A [Final Order] is a judgment from a court which ends the litigation on the 
merits, leaving nothing else for the court to do except execute the judgment.’”  Toussaint, 67 V.I. 
at 939 (quoting Ramirez v. People, 56 V.I. 409, 416 (V.I. 2012) (citations omitted)).  The entry of 
a Final Order implicitly denies all pending motions, and all prior interlocutory orders merge with 
the Final Order.  Toussaint, 67 V.I. at 940 n.3 (citing Simpson v. Bd. of Dirs. of Sapphire Bay 
Condos. W., 61 V.I. 728, 731 (V.I. 2015); In re Estate of George, 59 V.I. 913, 919 (V.I. 2013)). 
¶34 
In a criminal case, the written judgment embodying the adjudication of guilt and sentence 
imposed based on that adjudication constitutes a Final Order for purposes of 4 V.I.C. § 32(a).  
Percival v. People, 62 V.I. 477, 483 (V.I. 2015).  Therefore, this Court obtained jurisdiction to 
hear this appeal timely filed on October 3, 2016, following the September 15, 2016 judgment and 
commitment entered by the Superior Court.  V.I.R. APP. P. 4(a), (5)(b)(1); see V.I.S.CT.R. 4(a), 
5(b)(1); Billu v. People, 57 V.I. 455, 461 n.3 (V.I. 2012) (noting that, where an amended rule 
utilized the same language as the rule in effect at the time the notice of appeal was filed, the 
amended rule is applied).   
III. 
STANDARD OF REVIEW 
¶35 
Gonsalves presents a plethora of issues for consideration.  First, he challenges the 
sufficiency of the evidence to sustain his convictions for Second Degree Aggravated Rape as an 
act of domestic violence in violation of 14 V.I.C. § 1700a(a) and 16 V.I.C. § 91(b)(6) and for Child 
Abuse in violation of 14 V.I.C. § 505.  A challenge to the sufficiency of the evidence is reviewed 
de novo, and this Court applies the same standard as the trial court.  Ramirez, 56 V.I. at 417; see 
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generally Elizee v. People, 54 V.I. 466, 482 (V.I. 2010) (“‘[A] reversal for evidentiary 
insufficiency is considered to be the equivalent of an acquittal.’” (quoting McMullen v. Tennis, 
562 F.3d 231, 237 (3d Cir. 2009)).  We “must not serve as the usurper of the jury’s role as judges 
of credibility and must also not engage in reweighing the evidence.”  Brathwaite v. People, 60 V.I. 
419, 432 (V.I. 2014) (citing Stanislas v. People, 55 V.I. 485, 494 (V.I. 2011); United States v. 
Walker, 657 F.3d 160, 171 (3d Cir. 2011)).  As such, this is a standard of review that is extremely 
deferential to the jury’s verdict and requires that we view the evidence in the light most favorable 
to the People, and reversal is “confined to cases where the failure of the prosecution is clear.”  
Mulley v. People, 51 V.I. 404, 409 (V.I. 2009) (quoting United States v. Carr, 25 F.3d 1194, 1202 
(3d Cir. 1996) and citing Latalladi v. People, 51 V.I. 137, 145 (V.I. 2009)).   
¶36 
It is unnecessary for the evidence to be consistent only with the conclusion of guilt because 
conflicts in evidence are credibility determinations exclusively within the province of the jury.  
Ambrose v. People, 56 V.I. 99, 106 (V.I. 2012) (quoting Latalladi, 51 V.I. at 145); Brito v. People, 
54 V.I. 433, 441-42 (V.I. 2010) (observing that “the jurors were free to disbelieve [the defendant’s] 
testimony” (citing Smith v. People, 51 V.I. 396, 401 (V.I. 2009)).5  So long as circumstantial 
evidence allows for a logical and rational inference based on common sense and every day 
experience, it will support a finding of guilt beyond a reasonable doubt as to the relevant element 
of the crime.  Galloway v. People, 57 V.I. 693, 700 (V.I. 2012) (citing Alfred v. People, 56 V.I. 
286, 293 (V.I. 2012); Codrington v. People, 57 V.I. 176, 199-200 (V.I. 2012)); e.g., McIntosh v. 
                                                 
5 Cf. Rivera v. People, 64 V.I. 540, 553-57 (V.I. 2016) (standard for credibility determination on appeal); Phillip v. 
People, 58 V.I. 569, 583-84 (V.I. 2013) (recognizing that “an appellate court may disregard a jury’s reliance on a 
witness’s testimony when that testimony is ‘inherently incredible or improbable.”” (quoting Williams v. Gov’t of the 
V.I., 51 V.I. 1053, 1086 (D.V.I. App. Div. 2009)); 29A AM. JUR. 2D Evidence § 1375 (2008) (“Testimony is deemed 
inherently incredible or improbable where it is ‘either so manifestly false that reasonable [people] ought not to believe 
it, or it must be shown to be false by object or things as to the existence and meaning of which reasonable [people] 
should not differ.”). 
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People, 57 V.I. 669, 680 (V.I. 2012).  However, a jury’s verdict cannot be founded upon suspicion, 
speculation, conjecture, or any overly attenuated piling of inferences upon inferences.  Ventura v. 
People, 64 V.I. 589, 601 (V.I. 2016) (quoting Todman v. People, 59 V.I. 675, 861 (V.I. 2013)).  
Therefore, we must affirm a conviction if the elements of the crime could have been found beyond 
a reasonable doubt by a rational trier of fact.  Charles v. People, 60 V.I. 823, 831-32 (V.I. 2014).   
¶37 
Second, Gonsalves also argues that the trial court committed error when it allowed the 
People to amend the information after it had rested its case.  This decision is reviewed for abuse 
of discretion unless the ruling involves application of a legal precept, which then requires this 
Court to exercise plenary review.  See Rawlins v. People, 61 V.I. 593, 607 (V.I. 2014).   
¶38 
Third, Gonsalves further asserts that the trial court abused its discretion when it failed to 
grant a mistrial after the prosecution elicited testimony from Harrigan that she and Gonsalves had 
started their relationship when she was only 14.  If a defendant has fairly presented the issue of 
prosecutorial misconduct by properly objecting to—or otherwise raising—the issue at the trial 
level, e.g., Francis v. People, 56 V.I. 370, 387 n.8 (V.I. 2012), we review for abuse of discretion.  
Connor v. People, 59 V.I. 286, 299 (V.I. 2013); e.g., Francis v. People, 59 V.I. 1075, 1077-79 
(V.I. 2013) (reviewing a properly raised claim of vouching under the two-factor prosecutorial 
misconduct abuse of discretion standard).  Reversal of a conviction is warranted if, in light of the 
entire proceeding: (1) the remarks or conduct of the prosecutor were legally improper and (2) the 
prosecutor’s actions so fundamentally undermined the trial as to make it unfair and a denial of due 
process.  Frett v. People, 66 V.I. 399, 409 (V.I. 2017); see Monelle v. People, 63 V.I. 757, 770 
(V.I. 2015) (“A claim of prosecutorial misconduct during trial requires a court to resolve two 
questions:  whether the prosecutor’s comments were in fact improper and, if so, whether the 
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remarks prejudiced the defendant’s right to a fair trial.”  (citing Brathwaite, 60 V.I. 426; DeSilvia 
v. People, 55 V.I. 859, 872 (V.I. 2011)).6 
¶39 
If the error is a constitutional error, we will affirm the conviction only if we find the error 
to be harmless beyond a reasonable doubt.  Frett, 66 V.I. at 409; Connor, 59 V.I. at 299; see 
Brathwaite, 60 V.I. at 425-26 (“We engage in a harmless error analysis when determining whether 
improper prosecutor comments necessitate a new trial.”).  If the error is a trial error, i.e., a non-
constitutional error in the proceeding, we affirm the conviction if it is highly probable that the error 
did not contribute to the conviction.  Frett, 66 V.I. at 409; Connor, 59 V.I. at 299. 
¶40 
Finally, Gonsalves argues that the trial court abused its discretion when it refused to grant 
a new trial7 based on asserted prosecutorial misconduct and evidentiary inconsistencies.  The 
decision of whether to grant or deny a motion for a new trial is reviewed for an abuse of discretion, 
unless the decision is based on a legal precept.  John v. People, 63 V.I. 629, 637 (V.I. 2015); 
Thomas v. People, 60 V.I. 688, 693-94 (V.I. 2014).  If the denial of a motion for a new trial is 
based on a legal precept, the denial is subject to plenary review.  Thomas, 60 V.I. at 694; see Elizee, 
54 V.I. at 474 (“We exercise plenary review over questions of law and statutory construction.”  
(citing Gilbert v. People, 52 V.I. 350, 354 (V.I. 2009)); Browne v. Gore, 54 V.I. 195, 202-03 (V.I. 
Super. Ct. 2011) (explaining that plenary means full, complete, entire, and with the power to 
                                                 
6 See also James v. People, 59 V.I. 866, 883 (V.I. 2013); Francis, 56 V.I. at 388; DeSilvia, 55 V.I. at 872; Farrington 
v. People, 55 V.I. 644, 656 (V.I. 2011).   
 
7 Under the Virgin Islands Rules of Criminal Procedure, it is Rule 33 that now governs motions for new trials.  Because 
this case was tried before the adoption of the Virgin Islands Rules of Criminal Procedure, we apply Federal Rule of 
Criminal Procedure 33 to this appeal.  See Toussaint, 67 V.I. at 941 n.5 (explaining that the rule in effect at the time 
of entry of the order appealed from is the rule applied on appeal).  We note that Rule 33 of the Virgin Islands Rules 
of Criminal Procedure and its federal counterpart, Rule 33 of the Federal Rules of Criminal Procedure, are identical.  
Compare V.I. SUPER. CT. R. 135 (“if required in the interest of justice”); FED. R. CRIM. P. 33 (“if the interest of justice 
so requires”), with V.I. R. CRIM. P. 33(a) (“if the interest of justice so requires”). 
 
 
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conduct plenary review goes the responsibility to fully and completely consider the issue—both 
legally and, when required, factually (quoting Huan v. United States, 620 F.3d 372, 388 (3d Cir. 
2010); BLACK’S LAW DICTIONARY 1273 (9th ed. 2009)).8   
IV. 
DISCUSSION 
A. Sufficiency of the Evidence 
1. Sufficiency of the Evidence:  Second Degree Aggravated Rape 
 
¶41 
Gonsalves challenges the sufficiency of the evidence to support his convictions.  Gonsalves 
was charged with a violation of subsection 1700a(a) of title 14 as an act of domestic violence 
pursuant to subsection 91(b)(6) of title 16.  This section provides, in relevant part, that: 
Whoever perpetrates an act of sexual intercourse or sodomy with a 
person who is under eighteen years but thirteen years or older, or by 
force, intimidation, or the perpetrator’s position of authority over the 
victim is used to accomplish the sexual act . . . . 
 
                                                 
8 A new trial must be granted when the verdict is against the interests of justice.  V.I. SUPER. CT. R. 135.  Gonsalves’ 
two arguments that a new trial was warranted focus on the amendment of the information and the factual 
inconsistencies in D.G.’s (and others’) testimony.  Finding no error in the trial court’s grant of leave to file the amended 
information, as explained below, Gonsalves’ argument for a new trial also fails for the same reason.   
With regard to asserted factual inconsistencies in D.G.’s testimony, we have established that inconsistencies in 
witness testimony constitute a factual issue for the jury to determine, and this Court will only reverse a conviction due 
to incredible testimony if the record establishes that it was physically impossible for the observations to have been 
made by the witness, what was testified to have occurred violates the laws of nature, or if the testimony is “incredibly 
dubious”—it is inherently improbable with a complete lack of corroborating evidence or is wholly uncorroborated 
and coerced.  Rivera, 64 V.I. at 554-55; see Phillip, 58 V.I. at 584 (“An appellate court may disregard the jury’s 
reliance on a witness’s testimony when that testimony is ‘inherently incredible or improbable.’” (quoting Williams v. 
Gov’t of the V.I., 51 V.I. 1053, 1086 (D.V.I. App. Div. 2009)); e.g., Penn, 67 V.I. at 893 (applying these factors in the 
civil context where sufficient evidence was challenged because the testimony was asserted to be incredible).  D.G.’s 
testimony was corroborated by multiple witnesses verifying that D.G. spent the night at Gonsalves’ apartment, sent 
text messages to her boyfriend, communicated her emotional disturbance, etc.  While there were inconsistencies, none 
of these rose to such a level as to make the testimony so lacking in credibility as to warrant reversal; rather, these were 
simply credibility determinations within the province of the jury.  Brito, 54 V.I. at 441-42 (citing Smith, 51 V.I. at 
401).  Moreover, Gonsalves admits, (App. Br., 27), the evidence is equipollent, RANDOM HOUSE WEBSTER’S COLLEGE 
DICTIONARY 445 (2d ed. 1999) (“equal in power, effect, etc.; equivalent”), and when evidence presents two plausible 
interpretations, this presents a factual determination within the exclusive province of the finder of fact.  See Nicholas 
v. People, 56 V.I. 718, 741-42 (V.I. 2012).  Because neither of the asserted grounds justify a new trial, the judgment 
is affirmed.   
 
 
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14 V.I.C. § 1700a(a).9  In order to prosecute a crime as an act of domestic violence, such facts 
must be alleged in the information.  16 V.I.C. § 99(f); Bernhardt v. Bernhardt, 51 V.I. 341, 349 
                                                 
9 The full text of section 1700a at the time Gonsalves committed the acts alleged in the information was as follows: 
 
(a) Whoever perpetrates an act of sexual intercourse or sodomy with a person who 
is under eighteen years but thirteen years or older and not the perpetrator’s 
spouse, or by force, intimidation, or the perpetrator’s position of authority over 
the victim is used to accomplish the sexual act, is guilty of aggravated rape in the 
second degree and shall be imprisoned for life or for any term in years, but not 
less than 10 years. ‘Position of authority’ shall include, but not be exclusive to the 
following: an employer, youth leader, scout leader, coach, teacher, counselor, 
school administrator, religious leader, doctor, nurse, psychologist, guardian ad 
litem, baby sitter, or substantially similar position, and a police officer or 
probation officer other than when the officer is exercising custodial control over 
a minor. 
  
(b) Whoever is convicted of a second or subsequent offense of aggravated rape in 
the second degree shall be punished by imprisonment for life or for any term of 
years, but not less than 20 years. Notwithstanding the provisions of title 5, 
chapters 313, 405 and 407 of this Code, or of any other law, imposition or 
execution of the twenty-year minimum period of incarceration shall not be 
suspended; nor shall probation, parole, or any other form of release be granted for 
the minimum period of incarceration prescribed in this section. 
  
(c) Whoever is convicted of attempted aggravated rape in the second degree shall 
be punished by imprisonment for not more than 25 years, but not less than 5 years. 
Notwithstanding the provisions of title 5, chapters 313, 405 and 407, or any other 
provision of law, imposition or execution of the five-year minimum period of 
incarceration shall not be suspended, nor shall probation, parole or any other form 
of release be granted for this minimum period of incarceration. 
  
(d) Whoever is convicted of an offense under this section shall receive a 
psychiatric evaluation and participate in psychosocial counseling. 
 
(e) Spousal consent shall be an affirmative defense in the event the persons are 
legally married pursuant to the provisions of title 16, chapter 1 of the Virgin 
Islands Code. 
 
14 V.I.C. § 1700a (emphasis added).  On October 15, 2013, subsection 1700a(a) was revised to remove the language 
emphasized above, “and not the perpetrator’s spouse,” from subsection (a) and adding subsection (e) creating the 
“Spousal Consent” affirmative defense.  Francis v. People, 63 V.I. at 734 n.1 (citing Act No. 7517 s. 1(a); Rawlins, 
61 V.I. at 603 n.5).  Because the acts under question occurred in August of 2013, prior to the repeal of this portion 
of subsection 1700a(a), the People were required to prove that Gonsalves was not D.G.’s husband, and we address 
this element.  Rawlins, 61 V.I. at 603 n.5.  Both D.G. and her mother testified that Gonsalves was D.G.’s father, and 
multiple of D.G.’s siblings testified that they were D.G.’s brother or sister and that Gonsalves was their father.  
Further, a marriage between a parent and his (or her) child is void.  16 V.I.C. § 1(a)(1) (“A marriage is prohibited 
and void . . . when it is between a man and his . . . daughter . . . .”); see also 16 V.I.C. § 1(a)(2) (declaring same as 
between “a woman and . . . her son”).  A rational jury could have readily concluded that Gonsalves and D.G. were 
not married at the time of the criminal acts.  See Francis, 63 V.I. at 737 n.3 (“Throughout the trial testimony, Francis 
 
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(V.I. 2009).  Guilt of Second Degree Aggravated Rape required proof beyond a reasonable doubt 
that: (1) the defendant;10 (2) knowingly, Duggins, 56 V.I. at 301 (citing 14 V.I.C. § 14; Rodriguez, 
423 F.2d at 12-14, nn.4-17); (3) used force, intimidation, or a position of authority, Gilbert, 52 
V.I. at 360;11 (4) to commit an act of sexual intercourse or sodomy; (5) upon a victim who is 16 
                                                 
was referred to as J.T.’s uncle, or even as the brother of J.T.’s mother, but never as J.T.’s spouse.  There is simply no 
evidence in the record that [the victim] had married his uncle.”); Rawlins, 61 V.I. at 604 (“[A] reasonable jury could 
have found beyond a reasonable doubt that [the victim] was not [the defendant’s] spouse at the time of the [criminal 
acts].”); see also Francis v. People, 57 V.I. 201, 211-12 (V.I. 2012) (“The testimony of one witness is sufficient to 
prove any fact.”).   
 
10 14 V.I.C. § 1700a(a) (“Whoever . . . .”); 1 V.I.C. § 41 (defining “whoever”); COMPACT AM. DICT., at 920 (“whoever” 
defined as a word indicating “whatever person or persons” or “who,”); BLACK’S LAW DICTIONARY 1324 (10th ed. 
2014) (defining “person” as “A human being.  —  Also termed natural person.” (emphasis in the original)); see Ubiles 
v. People, 66 V.I. 577, 592 V.I. 2017). 
 
11 In Gilbert, 52 V.I. at 361 n.8, we specifically reserved the question of whether an aggravating factor must be charged 
and proved with regard to a victim who was 16 years old.  There we held that the defendant’s use of force, intimidation, 
or his position of authority to engage in sexual intercourse or sodomy was a necessary element with regard to a 17-
year-old victim in order to prove a violation of subsection 1700a(a) of title 14.  The trial court ruled that the same 
aggravating factor must be proved for a 16-year-old victim as a 17-year-old victim.   
Section 1700 of title 14 provides that anyone who engages in sexual intercourse or sodomy with a victim 
under the age of 13 is guilty of “First Degree Aggravated Rape,” making the victim’s age alone the aggravating factor.  
14 V.I.C. § 1700(a)(1).  Section 1700 also provides that anyone who uses force, intimidation, or their position of 
authority over the victim to engage in sexual intercourse or sodomy with a person who is under 16 years of age, i.e., 
13, 14, and 15 year-olds, and residing in the same household as the defendant is guilty of First Degree Aggravated 
Rape, adding the aggravating factors of force, intimidation, or position of authority plus residing in the same household 
as the victim.  14 V.I.C. § 1700(a)(2).  Additionally, in Francis v. People, 63 V.I. at 725, we held that, for 13, 14, and 
15 year-old victims, the victim’s age alone is the only aggravating factor to be proved in cases of Second Degree 
Aggravated Rape under subsection 1700a(a).  Victims 16 or older but not yet 18, i.e., 16 and 17 year-olds, are protected 
by section 1702(a) with the aggravating factor of the defendant’s age being over 18 and more than 5 years older than 
the victim.  14 V.I.C. § 1702.  Similarly, with victims that are older than 13 but not yet 16, i.e., 14- and 15-year-olds, 
1703(a) prohibits anyone who is not yet 18 but older than 16, i.e., 17 year-olds, from having sexual intercourse, making 
the defendant’s age the aggravating factor.  14 V.I.C. § 1703(a).  Moreover, the change between First Degree 
Aggravated Rape in 1700(a)(2) and Second Degree Aggravated Rape in 1700a(a) is a logical reduction in aggravating 
factors from First Degree to Second Degree, eliminating proof of residing in the same household.  Likewise, Second 
Degree Rape requires proof that the victim was 16 or 17 and the defendant was 5 years, or more, older than the victim 
such that the only aggravating factor to be proved is that the defendant was more than four years older than the victim.  
14 V.I.C. § 1702(a).  It is logical that, for defendants ages 18-24, within the 5-year age gap, the legislature would 
require proof of an aggravating factor; otherwise, there would be no distinction between the crimes of Second Degree 
Aggravated Rape and Second Degree Rape with regard to 16 and 17 year-old victims, an illogical and absurd result.  
There is no discernable reason why, under 1700a(a), a conviction would not require proof of an aggravating factor for 
a 16-year-old victim just the same as when the victim is 17.  The other provisions of title 14 chapter 85 work to protect 
minors from sexual abuse and comprehensively provide for the circumstances under which various crimes are 
committed, and nothing in the scheme renders the holding in Gilbert absurd or superfluous as applied to a 16-year-
old victim.  See generally Francis v. People, 63 V.I. 735-36.  Given the overall statutory scheme and the holding in 
 
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years of age or older but younger than 18 years of age, 14 V.I.C. § 1700a(a); and (6) the existence 
of a familial relationship between the victim and the defendant.  16 V.I.C. § 91(c).12   
¶42 
Gonsalves was identified as the person at the defense’s table in the courtroom by at least 
one witness (element 1), and there was ample testimony proving beyond a reasonable doubt the 
attendant circumstance of D.G.’s age being under the age of 18 but 16 or older (element 5).13  A 
familial relationship exists if the defendant is any of the following: a spouse, former spouse, parent, 
child, any other person related by blood or marriage to the victim, a member of the victim’s 
household, a former member of the victim’s household, a person with whom the victim has a child 
in common, a person who is currently in a sexual or otherwise intimate relationship with the victim, 
or a person who has been in the past in a sexual or otherwise intimate relationship with the victim.  
16 V.I.C. § 91(c).  The evidence establishing the familial relationship domestic violence element 
(element 6), as charged, was obviously sufficient, as both D.G. and her mother testified that 
Gonsalves was D.G.’s father.  See Charles, 60 V.I. at 834 (“The uncorroborated testimony of the 
victim is sufficient to sustain the conviction.”  (citing Stevens v. People, 52 V.I. 294, 308 (V.I. 
2009)).   
                                                 
Gilbert, we agree with the Superior Court; there is no logical reason to distinguish a 16-year-old victim from a 17-
year-old victim under section 1700a(a).   
 
12 The full text of subsection 91(c) is as follows: 
 
‘Victim’ includes any person who has been subjected to domestic violence by a 
spouse, former spouse, parent, child, or any other person related by blood or 
marriage, a present or former household member, a person with whom the victim 
has a child in common, or a person who is, or has been, in a sexual or otherwise 
intimate relationship with the victim. 
 
16 V.I.C. § 91(c). 
 
13 See Brathwaite, 60 V.I. at 430 (“[Defendant] further implies that direct sworn testimony, which is uncontradicted, 
uncontroverted, and unimpeached, from an individual regarding the individual’s age, and the testimony of the 
individual’s mother, who was obviously present during the birthing process, are not sufficient evidence of age.  This 
argument is inconsistent with rational thought and well-established common law.”).   
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a. Sufficiency of the Evidence:  Second Degree Aggravated Rape—Element 
3—Aggravating Factor 
¶43 
Subsection 1700a(a) requires that, with regards to 16- and 17-year-old victims, the sexual 
intercourse or sodomy be accomplished “by force, intimidation, or [use of] the perpetrator’s 
position of authority over the victim.”  14 V.I.C. § 1700a(a); Gilbert, 52 V.I. at 362; see generally 
Francis v. People, 63 V.I. 724, 735-36 (V.I. 2015); Gilbert, 52 V.I. at 365 n.13 (“[T]he use of 
one’s position of authority to achieve such a goal would constitute a form of coercion.”).  Rather 
than providing a definition of “position of authority,” the Legislature of the Virgin Islands 
determined that the better practice was to provide a nonexclusive list that includes an employer, 
youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, 
nurse, psychologist, guardian ad litem, and baby sitter.  14 V.I.C. § 1700a(a).14  A police officer 
or corrections officer who is not the custodial guardian of a minor is also considered to be in a 
position of authority.  14 V.I.C. § 1700a(a). 
¶44 
Finally, those in “substantially similar position[s]” to the foregoing adumbration are in a 
position of authority.  Id.  Authority is “the right and power to enforce laws, exact obedience, 
command, determine, or judge.”  COMPACT AM. DICT., at 56 (emphasis added).  Therefore, a 
person in a “substantially similar position” is someone who has the right and power to exact 
obedience from or command the victim.  Cf. 14 V.I.C. § 293(a)(1) (providing that a parent 
exercising moderate force may restrain or “correct” a child).   
                                                 
14 See generally Rivera-Moreno v. Gov’t of the V.I., 61 V.I. 279, 294 n.5 (V.I. 2014) (holding that a listing of terms 
without language—such as “only”—indicating the list is exhaustive or exclusive should not be interpreted as such 
(citing Connor, 59 V.I. at 296 n.8)); BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 38 (2d photo. 
reprint. 1961) (Yale University Press 1921) (“Example, if not better than precept, may at least prove to be easier.”). 
 
 
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¶45 
Gonsalves, as D.G.’s father, clearly enjoyed a position of authority and had the right and 
power to exact obedience from D.G. and to command her.15  Additionally, the evidence clearly 
established that Gonsalves used his position of authority as D.G.’s father to perpetrate the sexual 
act.  D.G. testified that her father disciplined his children.  Moreover, Gonsalves told D.G. that his 
entire purpose for molesting her was to ensure that no one would take advantage of her because he 
loved her.  Furthermore, the molestation occurred late at night or in the early morning, in 
Gonsalves’ bedroom while D.G. was visiting Gonsalves.  Additionally, Gonsalves came out of the 
shower in his underwear and a towel while she was relaxing on his bed because that is where she 
slept when she visited her father.  E.g., Castor v. People, 57 V.I. 482, 492 (V.I. 2012) 
(“[Defendant] had access to [the minor victim], when she was vulnerable with the entire house 
asleep late at night only because of his position as her stepfather.”).  It is difficult to imagine a 
clearer example of a parent using his position of authority over his child to accomplish his purpose 
than a parent expressly telling his child he is going to molest her in order to “show her how boys 
take advantage of girls.”  The evidence was overwhelmingly sufficient for a jury to have found 
this element beyond a reasonable doubt.  E.g., Castor, 57 V.I. at 492 (“[T]he jury could rationally 
conclude that, absent the stepfather relationship, Castor would have lacked access to the child to 
perpetrate the sexual assaults.”); Charles, 60 V.I. at 833 n.4.   
 
 
                                                 
15 See 14 V.I.C. § 507 (“Nothing in this chapter shall be interpreted to prevent a parent, guardian, or person acting at 
the direction of a child’s parent or guardian, from using reasonable and moderate physical discipline to correct, restrain 
or discipline a child.”); 14 V.I.C. § 502(c) (“[I]t is the policy of the Government of the Virgin Islands to protect 
children from assault, abuse and neglect, and to encourage parents . . . to use methods of correction, restraint and 
discipline that are not dangerous to children.”); 14 V.I.C. § 293(a)(1).   
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b. Sufficiency of the Evidence:  Second Degree Aggravated Rape—Elements 
2 and 4—Knowingly Committed Sodomy or Sexual Intercourse (Actus 
Reus) 
¶46 
The actus reus of the crime defined in subsection 1700a(a) is that of perpetrating an act of 
sexual intercourse or sodomy.  14 V.I.C. § 1700a(a) (“Whoever perpetrates an act of sexual 
intercourse or sodomy . . .”).  Subsection (a) provides varying modes of conduct that establish this 
element, see Gov’t of the V.I. v. Clarke, 572 Fed. Appx. 138, 142 (3d Cir. 2014); therefore, if the 
prosecution proves that the defendant engaged in sexual intercourse, sodomy, or both, this element 
has been proved beyond a reasonable doubt.  See Ubiles v. People, 66 V.I. 572, 592 (V.I. 2017).   
¶47 
To perpetrate is “[t]o be guilty of or responsible for; commit.”  COMPACT AM. DICT., at 
618.  Sexual intercourse is “vaginal intercourse or any insertion, however slight, of a hand, finger, 
or object into the vagina, vulva, or labia.” 14 V.I.C. § 1699(e).16  Sodomy is “carnal knowledge of 
any person by mouth, . . . anus, . . . or insertion, however slight, of any object into the victim’s 
anus” as well as submission to any of these acts.  14 V.I.C. § 1699(f).  The statute specifically 
includes within this definition cunnilingus and fellatio.  Id.  Carnal knowledge is “sexual 
intercourse, esp. with an underage female.—Sometimes shortened to knowledge.”  BLACK’S L. 
DICT., at 256 (10th ed. 2014.)  Intercourse is “physical sexual contact, esp. involving penetration 
of the vagina by the penis.”  Id. at 827.  Sexual intercourse is “sexual union between two human 
beings, gen. involving physical union of the sexual organs.”  COMPACT AM. DICT., at 750.  Further, 
                                                 
16 For the sake of clarity, we note that, in 2013, “sexual intercourse” and “sodomy” had been defined in subsections 
1699(d) and (e).  However, in 2014, when then subsection 1699(c) was replaced with the current 1699(c) and a new 
1699(d) added, former subsections 1699(d) and (e) were re-designated as the present subsections 1699(e) and (f).  Jan. 
31, 2014, No. 7579, § 3(2), Sess. L. 2014, p. 2.  Therefore, it is appropriate for us to apply the definitions of “sexual 
intercourse” and “sodomy” in this matter.  We note that these definitions are limited in application to the crimes 
defined in Chapter 85, “Rape and Related Offenses,” in Title 14 of the Virgin Islands Code.  14 V.I.C. § 1699 (“As 
used in this chapter . . . .”); e.g., LeBlanc v. People, 56 V.I. 536, 543 n.6 (V.I. 2012) (holding same for 14 V.I.C. § 
1027(b)); McIntosh, 57 V.I. at 684 (holding that the language “As used in this chapter” under section 593 of title 19 
limits the applicability of that provision to that chapter).   
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even the slightest penetration by the forgoing methods “is sufficient to complete the crime.”  14 
V.I.C. § 1704.  An exception to the forgoing prohibitions is “insertion for medical treatment or 
examination.”  14 V.I.C. § 1699(e), (f).   
¶48 
Therefore, if a defendant penetrates—however slightly—a  victim’s vagina, vulva, or labia 
with his/her hand, finger, penis, or a foreign object, he/she has engaged in sexual intercourse.  
Further, when a defendant uses his or her sexual organs or a foreign object to penetrate the victim’s 
mouth or anus, the defendant has engaged in sodomy.  Therefore, when a defendant forces the 
victim to submit to cunnilingus or fellatio, the defendant has also engaged in sodomy.  D.G. 
testified that Gonsalves performed cunnilingus on her and inserted his finger into her vagina.  
Gonsalves’ insertion of his finger into D.G.’s vagina was sexual intercourse as defined in 
subsection 1699(e) of title 14.  Gonsalves’ performing of cunnilingus on D.G. was an act of 
sodomy within the definition provided in subsection 1699(f).  Furthermore, the record is devoid 
of even a suggestion that Gonsalves was somehow acting involuntarily.  Gonsalves was awake, 
conscious, and functional and able to concoct a devious, though ostensible, explanation for his 
dastardly conduct upon his daughter D.G. at the time, which obviously proved he was aware of 
what he was doing to her.  The testimony provided at trial was undeniably sufficient to establish 
Gonsalves’ knowing commission of sodomy or sexual intercourse.  The prosecution having 
presented sufficient evidence upon which a jury could have found each element of the crime 
beyond a reasonable doubt, Gonsalves’ conviction for Second Degree Aggravated Rape is affirmed 
2. Sufficiency of the Evidence: Child Abuse 
 
Any person who abuses a child, or who knowingly or recklessly 
causes a child to suffer physical, mental or emotional injury, or who 
knowingly or recklessly causes a child to be placed in a situation 
where it is reasonably foreseeable that a child may suffer physical, 
mental or emotional injury or be deprived of any of the basic 
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necessities of life, shall be punished by a fine of not less than $500, 
or by imprisonment of not more than 20 years, or both.   
 
14 V.I.C. § 505.  To prove the crime of “Child Abuse” in violation of section 505 of title 14, the 
prosecution must prove:  (1) the defendant,17 (2) knowingly or recklessly (mens rea), (3) engaged 
in “abuse” against (actus reus), (4) a child, 14 V.I.C. § 503(c) (“‘Child’ means any person under 
the age of eighteen (18) years.”).  14 V.I.C. § 505.  As discussed above, there was sufficient 
evidence establishing that Gonalves was the defendant and that D.G. was a minor.   
 Sufficiency of the Evidence:  Child Abuse—Element 2—Intent (Mens Rea) 
¶49 
A defendant must possess one of two states of mind when acting in order to violate section 
505; the defendant must either act with knowing intent or reckless intent.  15 V.I.C. § 505.  Persons 
act knowingly when they have “personal knowledge.”  1 V.I.C. § 41 (defining knowingly).  
However, to act knowingly “does not require any knowledge of the unlawfulness of an act or 
omission.”  Id.; Duggins v. People, 56 V.I. 295, 301 (V.I. 2012) (defining knowing as “having or 
showing awareness or understanding” (citing BLACK’S LAW DICTIONARY 950 (9th ed. 2009)); cf. 
People v. Clarke, 55 V.I. 473, 479 (V.I. 2011).  Gonsalves’ conduct was undeniably knowing, as 
he was conscious when he physically engaged in the sexual contact with D.G., and the record is 
devoid of any evidence suggesting that Gonsalves otherwise lacked an awareness of his actions.   
¶50 
Furthermore, the Model Penal Code provides a useful definition for crimes with a mens 
rea element of “reckless,” or that require a defendant to have acted “recklessly,” and provides that 
a person acts recklessly with respect to a material element of an offense  
                                                 
17 14 V.I.C. § 505 (“Any person who . . . .”); 1 V.I.C. § 41 (defining “person” and “whoever” to “respectively include 
corporations, companies, associations, joint stock companies, firms, partnerships, and societies, as well as 
individuals”); COMPACT AM. DICT., at 920 (“whoever” defined as a word indicating “whatever person or persons” or 
“who,”); BLACK’S L. DICT., at 1324 (defining “person” as “A human being.  —  Also termed natural person.” 
(emphasis in the original)); see Ubiles, 66 V.I. at 292. 
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when he consciously disregards a substantial and unjustifiable risk 
that the material element exists or will result from his conduct. The 
risk must be of such a nature and degree that, considering the nature 
and purpose of the actor's conduct and the circumstances known to 
him, its disregard involves a gross deviation from the standard of 
conduct that a law-abiding person would observe in the actor's 
situation.   
 
MODEL PENAL CODE § 2.02(2)(c) (emphasis added).  Having sexual relations with one’s child is 
unquestionably, at a minimum, conduct that is reckless as it relates to potentially causing mental 
or emotional harm to the minor victim.  See Francis, 63 V.I. at 740 (“[W]hen a man exposes his 
penis to a child, . . . his conduct is ‘so lewd or obscene that a normal person would unhesitatingly 
be irritated by it’” (quoting People v. McNair, 279 P.2d 800, 801 (Cal. Ct. App. 1955))). 
 Sufficiency of the Evidence:  Child Abuse—Element 3—Abuse (Actus Reus) 
¶51 
Section 505 provides four modes by which the criminal act of the crime of Child Abuse 
can be accomplished.  Brathwaite, 60 V.I. at 433 n.8.  A defendant violates section 505 of title 14, 
if the defendant:  (1) abuses a child; (2) causes a child to suffer physical, mental, or emotional 
injury; (3) places a child in a situation where it is reasonably foreseeable that a child may suffer 
physical, mental or emotional injury; or (4) places a child in a situation where it is a reasonably 
foreseeable possibility that the child may be deprived of any of the basic necessities of life.  14 
V.I.C. § 505.   
¶52 
At the time of the acts committed in the present case, “abuse,” the first mode of violating 
section 505, was defined as “the infliction of physical, mental or emotional injury upon a child, or 
maltreatment, sexual conduct or sexual contact with a child, or exploitation of a child . . . .”  14 
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V.I.C. § 503(a).18  Conduct is “the way one acts.”  COMPACT AM. DICT., at 182.  “Sexual” is an 
adjective “implying or symbolizing erotic desires or activity.”  Id. at 750.  “Erotic” is an adjective 
describing actions “concerning, or tending to arouse sexual desire.”  Id. at 288.  An emotional or 
mental injury is “psychological injury or harm which impairs the mental or emotional health or 
functioning of a child.”  14 V.I.C. § 503(d).   
¶53 
Gonsalves licked and inserted his tongue into D.G.’s vagina in addition to inserting his 
finger.  Furthermore, there is no modicum, scintilla, or iota of evidence that Gonsalves had any 
connection to either the medical profession or was employed as a medical professional.  The record 
is devoid of evidence indicating that this penetration was for a medical (or some other non-sexual) 
purpose, and Gonsalves’ stated purpose was “to show her how boys take advantage of girls.”  
Irrefutably, Gonsalves’ actions tended to arouse sexual desire and fell within the prohibition of 
section 505.  Gonsalves’ conduct was simply lascivious and immoral.  Therefore, there was 
sufficient evidence for the jury to have found beyond a reasonable doubt that Gonsalves abused 
D.G. within the meaning of section 503(a).  See Francis, 63 V.I. at 740 (“[S]exual motivation is 
proven when a man exposes his penis to a child, because his conduct is ‘so lewd or obscene that a 
normal person would unhesitatingly be irritated by it.’” (quoting McNair, 279 P.2d at 801); e.g., 
                                                 
18 Because the conduct under consideration here occurred prior to when the Legislature amended section 503 to add 
subsections (i) and (j), which provided the definitions for sexual conduct and sexual contact that were lacking, No. 
7579, §§ 1, 2, Sess. L. 2014, p.1 (Jan. 31, 2014), we must consider the plain meaning of the statute as written in 2013.  
Presently, sexual conduct and sexual contact are defined.  “Sexual conduct” is actual or simulated (1) sexual 
intercourse; (2) penetration of the vagina or rectum by hand, finger, or foreign object; or (3) sexual bestiality.  14 
V.I.C. § 503(h).  Sexual intercourse includes actual or simulated genital-genital contact, oral-genital contact, anal-
genital contact, or oral-anal contact.  14 V.I.C. § 503(h)(i)(1).  With regards to sexual conduct, if the penetration is for 
medical purposes in a recognized medical procedure, the conduct is excepted from the prohibition in section 505.  14 
V.I.C. § 503(h)(i)(2).  “Sexual contact” also has three modes of occurring.  First, the touching of another person with 
one’s genitals is sexual contact.  14 V.I.C. § 503(j).  Second, it is sexual contact when a defendant touches the genitals 
or anus of another person.  Id.  Finally, when a defendant, with the purpose of sexual desire or gratification, touches 
another person’s lips, groin, inner thighs, buttocks, or breast, whether clothed or naked, that is sexual contact.  Id.   
 
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Charles, 60 V.I. at 834 n.6 (“There was also testimony that Charles touched X.P. on the breast and 
buttocks.  Both instances are clear evidence of sexual contact as defined.”). 
¶54 
Additionally, the evidence was sufficient to support a finding that Gonsalves inflicted 
mental or emotional injury upon D.G. when he sucked, licked, and inserted his finger in D.G.’s 
vagina.  Being sexually abused by her father undeniably impaired D.G.’s mental and emotional 
functioning as established by the testimony of D.G. and several other witnesses stating that she 
had become withdrawn, isolated, unhappy, depressed, etc.  Ample testimony was presented that 
D.G. was not of this demeanor prior to the molestation.  Finally, D.G. specifically testified that she 
suffered emotionally because of what occurred.  Gonsalves’ conduct established two of the several 
modes of violating section 505, abuse and infliction of emotional harm.  See Francis, 63 V.I. at 
740.  As there was sufficient evidence to establish each of the elements of the crime of Child Abuse 
beyond a reasonable doubt, the conviction should be affirmed.19   
                                                 
19 Gonsalves collapses his void for vagueness argument with his sufficiency of the evidence argument relating to the 
proscribed conduct and, as such, has waived this argument.  See V.I. R. APP. P. 22(m); In re Smith, 54 V.I. at 524 
(“Issues raised in a notice of appeal which are not argued in the appellants brief are waived.”); Ward v. People, 58 
V.I. 277, 282 n.2 (V.I. 2013) (holding that perfunctory and unsupported arguments are deemed waived (citing former 
V.I. S. CT. R. 22(m)).  However, even if we were to entertain this argument, we would still affirm the conviction.  In 
LeBlanc v. People, 56 V.I. 536 (V.I. 2012), we held that section 505 was unconstitutional as applied because there 
was no apparent definition of what acts on the part of the defendant constituted “sexual conduct” or “sexual contact.”  
Therefore, it was unclear if the touching of genitals that are clothed fell within the proscribed conduct.  Id. at 544-45.  
In contrast, we held that sexual intercourse was plainly proscribed by section 505 in Brathwaite v. People, 60 V.I. 
419, 435 (V.I. 2014).  Gonsalves licked and inserted his tongue into D.G.’s vagina in addition to inserting his finger.  
This is clearly conduct tending to arouse sexual desire and falling within the prohibition of section 505 and adequate 
“to put a person of ordinary intelligence on notice that [a parent licking and inserting one’s tongue and finger into 
one’s own child’s vagina] constituted child abuse.”  See Brathwaite, 60 V.I. at 434; e.g., Rawlins, 61 V.I. 605-06; cf. 
In re Barrett, Civ. App. No. 91-519, 1995 WL 450466, at *12 (D.V.I. App. Div. Jan. 31, 1995) (unpublished) (“The 
conduct described in the record, attempting to drown a child in the sink, failure to provide food, and maintaining a 
dangerously unsanitary living environment, is hardly behavior that would fall at the margins.  Rather, such practices 
warrant a court’s concern that the parent could not protect the child’s safety.”). 
 
 
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B. Amended Information 
¶55 
Any time prior to the verdict, the information in a criminal matter can be amended unless 
either of two conditions exist.  FED. R. CRIM. P. 7(e).20  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.  Id.  A criminal information should be construed as 
a whole using common sense to interpret the information to include facts that are logically and 
rationally implied.  Charles, 60 V.I. at 837 (quoting United States v. Berger, 473 F.3d 1080, 1103 
(9th Cir. 2007); and citing United States v. King, 200 F.3d 1207, 1217 (9th Cir. 1999); United 
States v. Vidaure, 861 F.2d 1337, 1341 (5th Cir. 1988)); cf. post at 43-46 (Meade, D.J., dissenting 
in part).  A charge in an information generally provides sufficient notice to a defendant if the 
offense is alleged “in the very terms of the statute.”  United States v. Gooding, 25 U.S. (12 Wheat.) 
460, 474 (1827).  In determining whether a defendant had been put on 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.”  Charles, 60 V.I. at 837-38 (citing 
State v. Spigarolo, 556 A.2d 112, 125-26 (Conn. 1989); United States v. Staggs, 881 F.2d 1527, 
1531-32 (10th Cir. 1989)).21  While each charge “must be established by legal proof, the 
                                                 
20 At the time of the trial, Superior Court Rule 7 made the Federal Rules of Criminal Procedure applicable to criminal 
matters in the Superior Court.  V.I. SUPER. CT. R. 7 (“[T]he practice and procedure in the Superior Court shall be 
governed by the Rules of the Superior Court and, to the extant not inconsistent therewith . . . the Federal Rules of 
Criminal procedure. . . .” (as written prior to being amended)); e.g., Brito v, 54 V.I. at 440; see Webster, 66 V.I. at 518 
n.3 (explaining that we apply the rule in effect at the time of entry of the judgment); cf. V.I. R. CRIM. P. 3(d) (“Unless 
an additional or different offense is charged or a substantial right of the defendant is prejudiced, the court may permit 
an information to be amended at any time before the verdict or finding.”).   
 
21 To the extent notice is a concern in the present analysis, we note that “an information need not set forth the means 
by which the prosecution hopes to prove that the defendant committed the specified offense.”  Gov’t of the V.I. v. 
Commissiong, 706 F. Supp. 1172, 1181 (D.V.I. 1989) (quoting United States v. Haldeman, 559 F.2d 31, 124 (D.C. 
Cir. 1976) (en banc)).  Generally, an information provides sufficient notice if it “sets forth the offense in the words of 
the statute itself, as long as ‘those words of themselves fully, directly, and expressly, without any uncertainty or 
 
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sufficiency of the [charging document] in substance and form is a matter of law, upon which, if 
drawn in question, it is the duty of the court to give an opinion.  The general rule is, that no person 
shall be held to answer to a criminal charge, until the same is fully and plainly, substantially and 
formally described.”  Commonwealth v. Webster, 59 Mass. 295, 320 (Mass. 1850).  Similar to 
considerations of notice, 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.”  Charles, 60 
V.I. at 837-38 (citing Spigarolo, 556 A.2d at 125-26; Staggs, 882 F.2d at 1531-32).   
¶56 
Count One of the initiating information, which charged Second Degree Aggravated Rape, 
alleged as follows: 
That CHARLESWORTH GONSALVES, did perpetrate an act of 
sexual intercourse or sodomy with a person, namely, D.G., a minor, 
being under eighteen years old, but thirteen years or older, not the 
perpetrator’s spouse, to wit: by sucking and inserting his tongue 
inside D.G.’s vagina; CHARLESWORTH GONSALVES and the 
minor D.G. having a familial relationship, father and daughter, an 
act of domestic violence, in violation of Title 14 V.I.C. 1700a(a) and 
Title 16 V.I.C. 91(b)(6), (AGGRAVATED RAPE SECOND 
DEGREE/DOMESTIC VIOLENCE).   
 
The amended information provided as follows: 
That Charlesworth Gonsalves, did perpetrate an act of sexual 
intercourse or sodomy with a person, namely, D.G., a minor, being 
under eighteen years old, but thirteen years or older, not the 
perpetrator’s spouse, through use of his position of authority over 
                                                 
ambiguity, set forth all the element necessary to constitute the offense intended to be punished” and “must be 
accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, 
coming under the general description, with which he is charge.”  Id. (quoting Hamling v. United States, 418 U.S. 87, 
117-18 (1974)); see generally, e.g., Andersen v. United States, 170 U.S. 481, 497-500 (1898) (indictment challenged 
therein held sufficient and cases cited).  If a defendant is in need of more detail of the means encompassed in a 
particular count, a bill of particulars should be requested.  Commissiong, 706 F. Supp. at 1181; cf. post at 43-46 
(Meade, D.J., dissenting in part).   
 
 
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D.G., to wit: by sucking and inserting his tongue and finger[22] 
inside D.G.’s vagina; Charlesworth Gonsalves and the minor D.G. 
having a familial relationship, father and daughter, an act of 
domestic violence, in violation of Title 14 V.I.C. 1700a(a) and Title 
16 
V.I.C. 
91(b)(6), 
(AGGRAVATED 
RAPE 
SECOND 
DEGREE/DOMESTIC VIOLENCE).   
 
(J.A. at 31-32.) (emphasis added).  As discussed above, Second Degree Aggravated Rape required 
proof that (1) the defendant; (2) used force, intimidation, or a position of authority; (3) to 
knowingly (4) commit an act of sexual intercourse or sodomy; (5) upon a victim who is 16 years 
of age or older but younger than 18 years of age, 14 V.I.C. § 1700a(a); and (6) the existence of a 
familial relationship between the victim and the defendant, 16 V.I.C. § 91(c).  These essential 
elements of Second Degree Aggravated Rape were alleged in the information, stating that 
Charlesworth Gonsalves (element 1 “defendant”), the victim’s father (elements 2 “aggravating 
                                                 
22 Gonsalves waived his argument that allowing the amendment of the information to allow insertion of the words 
“and finger” into both counts was an abuse of discretion.  The following exchange demonstrates this waiver: 
 
THE COURT:  What about the third and fourth amendment with regards to 
adding, “and finger”? 
MR. WEBSTER:  I don’t have a big—I am being honest with you, I don’t have a 
huge objection to that because she testified to that.  And it’s just it doesn’t change 
anything and we did receive the affidavit and the affidavit does say that so I can’t 
say we are surprised by that, okay.  So I don’t have a strong argument against that, 
but I think with respect to the others, I do have a strong argument.  I really believe 
that he shouldn’t be allowed to amend the complaint with respect to that.   
 
. . . . 
 
THE COURT:  He is okay with the Information being amended to add [“and 
finger”]. 
 
However, even if we were to entertain this argument on appeal, we would still affirm.  Both the crimes of Second 
Degree Aggravated Rape and Child Abuse prohibit sexual conduct with a minor, which includes within the purview 
of its meaning the penetration of the vagina with one’s tongue or one’s finger, as discussed in the sufficiency of the 
evidence analysis above.  Therefore, whether the information alleged that the defendant only inserted his tongue into 
D.G.’s vagina or that he inserted his tongue and finger into D.G.’s vagina did not matter because both allegations are 
simply varying modes of committing the crime.  See Ramirez, 56 V.I.  at 426 (“[Section 1708(2) of title 14 of the 
Virgin Islands Code’s] only age requirement is that the victim be under thirteen years of age.  Therefore, whether J.R. 
was eleven, as confirmed by her birth certificate, or twelve, as listed in the information, is irrelevant because in both 
instances she was under thirteen years of age, thereby proving the age element of the crime in Count One.”).   
 
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circumstance” and element 6 “domestic violence”), perpetrated an act of sexual intercourse or 
sodomy (element 4 “actus reus”) upon a victim who was 13 years of age or older but less than 18 
years of age (element 5 “age of victim”).  Finally, as reflected in the discussion above, implicit in 
the actus reus is the mental intent of knowing (element 3).23  Indeed, the initiating information 
specifically stated that Gonsalves and D.G. “have[] a familial relationship, father and daughter, an 
act of domestic violence.”24   
¶57 
With regard to the language stating the position of authority in count one, the fact is that 
the familial relationship of father and daughter was clearly stated in this count of the information 
charging Second Degree Aggravated Rape.  Furthermore, there was no indication in the initiating 
information (or otherwise) that the People intended to pursue a theory of force or intimidation.  
Absent such language in the charge indicating the People intended to prove the use of force or 
intimidation, the identification of Gonsalves’ familial relationship with D.G. should have been 
enough for the rational defendant to deduce that his position of authority over D.G. would be the 
aggravating factor the People intended to pursue.  See Powe v. State, 597 So.2d 721, 728 (Ala. 
1991) (holding that one could “reasonably infer” that a father “held a position of authority and 
domination with regard to his daughter”); State v. Ethridge, 352 S.E.2d 673, 681 (N.D. 1987) 
(concluding that a parent is inherently in a position of authority over a minor child).   
                                                 
23 See Ambrose v. People, 56 V.I. 99, 105-06 (V.I. 2012) (“[I]t is not clear whether the Superior Court committed any 
constitutional error with respect to its addition of the ‘during the commission of a crime of violence’ language, given 
that (1) Count One of the information charged Ambrose with third degree assault and expressly references a gun; (2) 
the Superior Court expressly identified third degree assault as a crime of violence; and (3) all versions of the 
information prior to the state of trial contained the ‘during the commission of a crime of violence’ language.”  (citing 
People v. Blanks, No. E029005, 2002 WL 968851, at *6 (Cal. Ct. App. 2002) (unpublished)). 
 
24 While the Dissent notes the familial relationship language was included in the information to support the charge of 
domestic violence, it would still find a lack of notice to Gonsalves.   
 
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¶58 
It is quite difficult to understand how Gonsalves did not have notice that he would have to 
defend against the issue of his position of authority.25  Here, the original information clearly 
alleged—in the same count—that this was an act of domestic violence and asserted the requisite 
relationship of father-daughter between D.G. and Gonsalves.  The original information also 
specifically cited to subsection 1700a(a) as the provision pursuant to which Gonsalves was 
charged.  Additionally, the probable cause affidavit attached to the original information explicitly 
described the father-daughter relationship and indicated that Gonsalves’ motive for his conduct 
was “to show her how boys take advantage of girls and then removed her pajama pants and 
underwear and spread her legs and started to suck on her vagina with his mouth and stuck his 
tongue inside her vagina.”  This explicit language in the probable cause affidavit—which was 
attached to the information that initiated this prosecution—elucidated ample additional detail of 
Gonsalves’ sexual conduct, under the guise of providing fatherly advice, and is a compelling 
indication, providing notice to Gonsalves, that the prosecution was going to rely on Gonsalves’ 
position of authority to prove the case.  See, e.g., Woods v. State, 980 N.E.2d 439, 334 (Ind. Ct. 
App. 2012) (“Since the charging information and probable-cause affidavit are filed together, they 
should be viewed in tandem to determine if they satisfy the goal of putting the defendant on notice 
of the crimes with which [he] is charged . . . so that [he] can prepare an appropriate defense.”); 
Spagner v. State, 200 P.3d 793, 799 (Wyo. 2009) (“[T]he sufficiency of an information is 
determined ‘from a broad and enlightened standpoint of right reason rather than from a narrow 
                                                 
25 See Charles, 60 V.I. at 837 (“While the Information failed to specify a particular date or time period in which the 
acts were committed against A.C. in count twelve, . . . the details provided in the other counts in the Information 
alleged that Charles raped X.P. and A.C. while residing in the same household as them, on or about July 1999, 
December 1999, January 2004, and in May 2004.  Accordingly, Charles was fairly informed of the charges against 
him because counts five and twelve contained the element of child abuse and—when read in context—provided 
sufficient notice to Charles of the time period in which the acts were committed.”); cf. post at 43-46. 
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view of technicality and hairsplitting’, finding the supporting affidavit provided sufficient 
information so that the ‘defendant had not been misled to his prejudice’” (quoting Gonzalez v. 
State, 551 P.2d 929, 931 (Wyo. 1976); Robbins v. United States, 476 F.3d 26, 30 (10th Cir. 1973))).   
¶59  
Following Gonsalves’ argument—that his defense was prejudiced by the People having 
never put him on notice of which aggravating factor it would pursue—to its natural conclusion, 
this Court would have to accept that Gonsalves willfully embraced ignorance throughout the entire 
trial towards one of the two necessary factors against which he would have to defend.  To now ask 
this Court to overturn his conviction due to a purported deficiency that he was, or should have 
been, aware of from the beginning is nothing less than disingenuous.  See Robbins v. United States, 
476 F.2d 26, 340 (10th Cir. 1973) (“Imperfections of form that are not prejudicial are disregarded 
and common sense prevails over technicalities.”).  Moreover, Gonsalves has not identified any 
defense he would have pursued had the original information contained the specific language 
regarding Gonsalves’ using his position of authority as D.G.’s father to accomplish the act of 
sexual intercourse.26  Further, it is difficult to understand how Gonsalves might have changed his 
defense.  At trial, Gonsalves’ primary defense appears to have been D.G.’s affidavit stating that 
what occurred was a dream—in essence, a complete denial that anything happened.  See Gov’t of 
the V.I. v. Bedford, 671 F.2d 758, 766 (3d Cir. 1982).27  Under either version of count one, 
                                                 
26 Charles, 60 V.I. at 832 n.4 (“But because it is clear that Charles’s position of authority over X.P. was used to 
accomplish the rape, we need not resolve this issue here.  Indeed, at all times between 2003 and 2004, Charles—as 
step-father to X.P.—utilized his ‘position of authority’ over her to accomplish his sexual assaults including exploiting 
his authority as the minor’s step-parent to remove her from school to perpetrate the sexual acts involved in this case.”); 
Castor, 57 V.I. at 486 (discussing how a long-term, live-in boyfriend’s position of authority allowed him to accomplish 
the prohibited act); cf. post at 43-46 (Meade, D.J., dissenting in part).   
 
27 Gonsalves’ counsel explained as follows: 
 
THE COURT:  Wait, hold on.  Let me finish.  It appears to me that the defense in 
this case is that the incident did not occur.   
 
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Gonsalves had to defend against allegations that he was D.G.’s father and had engaged in sexual 
conduct, within the meaning of subsection 1700a(a) of title 14, with her.  Under the totality of the 
circumstances, Gonsalves had adequate notice of the charges, and the trial court did not abuse its 
discretion in allowing the challenged amendment.   
C. Mistrial 
¶60  
The prosecution’s solicitation of testimony from Harrigan, D.G.’s mother, that Harrigan 
and Gonsalves had begun an intimate relationship when she was only 14 years old was 
inappropriate, and the prosecutor’s actions were legally improper.  However, because it was an 
isolated question in response to which immediate curative actions were taken, it is highly unlikely 
that such error affected the trial outcome.  Therefore, the trial court did not abuse its discretion 
when it denied the request for a mistrial.  While prosecutors are permitted great leeway to allow 
vigorous advocacy, they may not venture into forbidden topics and are duty bound “to refrain from 
improper methods calculated to produce a wrongful conviction.”  James v. People, 59 V.I. 866, 
883 (V.I. 2013) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).  Therefore, the 
prosecution in a criminal case may argue the facts in evidence and reasonable/logical inferences 
that follow therefrom.  Castor, 57 V.I. at 494; James, 59 V.I. at 888.28  A prosecutor’s remarks are 
improper if they appeal to a jury’s emotions, passions, or prejudice(s), thus diverting the focus of 
the trial from the evidence presented and leading the jury to convict for reasons other than the 
properly presented evidence.  DeSilvia, 55 V.I. at 872; Castor, 57 V.I. at 495; Brathwaite, 60 V.I. 
                                                 
MR. WEBSTER:  Yes, the incident did not occur. 
THE COURT:  A complete denial of the allegations.   
MR. WEBSTER:  Of course. 
  
28 Indeed, the purpose of closing summation and arguments is to allow the parties to mold the facts as brought out 
through the trial process in the light most favorable to their respective positions.  James, 59 V.I. at 888.   
 
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at 426.  Arguments based on misstated evidence or evidence not in the record are prohibited, as 
are arguments that are designed to mislead the jury to draw unreasonable inferences or to shift the 
burden of proof to the defendant.  Castor, 57 V.I. at 495.   
¶61 
However, a prosecutor’s improper statements, either during summation or the trial, do not 
constitute per se reversible error.  Frett, 66 V.I. at 410.29  The touchstone and focus of any 
prosecutorial misconduct analysis is the fairness of the trial as a whole, e.g., Francis, 59 V.I. at 
1080, not the prosecutor’s culpability.  Frett, 66 V.I. at 410.30  The relationship of the improper 
statement to the entire trial proceeding must be considered, including, inter alia, the ameliorative 
effect of any specific curative instruction to the jury, the preliminary instructions given at the outset 
of the trial, the general charges to the jury at the end of the trial, and the strength of the evidence 
in light of the enumerated analytically factually distinct elements of the crime.  Mulley v, 51 V.I. 
at 414; Castor, 57 V.I. at 495-96.   
¶62 
The weight to be given any one item of evidence, and evidence in general, is determined 
by the quality of the testimony (or other evidence) rather than the number of exhibits or witnesses’ 
testimony establishing a fact.  Brathwaite, 60 V.I. at 432 (quoting Francis, 57 V.I. at 236).  
Evidence against a defendant is considered to be “overwhelming” when the testimony of the 
witnesses at trial establish that the defendant was in continuous view of those present.  Mulley, 51 
V.I. at 415-16.   
                                                 
29 See also Estick v. People, 62 V.I. 604, 617 (V.I. 2015); Francis, 59 V.I. at 1080; Mulley, 51 V.I. at 414; cf. 
Farrington v. People, 55 V.I. 644, 656 (V.I. 2011) (“Courts have held that it is improper for an attorney to vouch for 
the credibility of a witness.”  (citing United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999); United States v. 
Roberts, 618 F.2d 530, 533 (9th Cir. 1980)). 
 
30 See also DeSilvia, 55 V.I. at 873 (quoting United States v. Liburd, 607 F.3d 339, 344 (3d Cir. 2010)); Castor, 57 
V.I. at 495 (quoting Liburd, 607 F.3d at 344); Brathwaite, 60 V.I. at 426; Estick, 62 V.I. at 617. 
 
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¶63 
We also consider whether the statements were manifestly egregious, which requires 
considering whether the conduct or statement(s) were brief and isolated (rather than pervasive and 
emphatic) and whether the information contained in the improper statement(s) was otherwise 
properly before the jury.  DeSilvia, 55 V.I. at 873 n.14.31  A claim of prosecutorial misconduct that 
is not a constitutional error, i.e., a trial error, will not warrant reversal when the statements objected 
to are founded on evidence before the court, a curative instruction was given, and there was 
overwhelming evidence to support the conviction.  Farrington, 55 V.I. at 659; Castor, 57 V.I. at 
495-96.   
¶64 
Here, the age of the victim’s mother at the time she and Gonsalves began their relationship 
bore no evidentiary value in relation to a single element of the crimes charged.  D.G.’s age was 
relevant, and Gonsalves’ age was relevant at the charging stage to determine if he was within any 
age gap provision.  E.g., 14 V.I.C. §§ 1702(a), 1703(a).  However, nothing about Harrigan’s age 
at the time she began an intimate relationship with Gonsalves established an essential element of 
the crime.  Cf. V.I.R.E. 401(a) (stating that evidence is only relevant if “it has any tendency to 
make a fact more or less probable . . .” and “is of consequence in determining the action.”).  As 
such, this testimony was irrelevant.  See V.I.R.E. 402 (“Irrelevant evidence is not admissible.”).  
Moreover, it was unfairly prejudicial, “as it served no other purpose than ‘to lure the fact finder 
into declaring guilt on a ground different from proof specific to the offense charged.’”  Pickering 
v. People, 66 V.I. 276, 294 (V.I. 2017) (quoting Billu v, 57 V.I. at 465).   
                                                 
31 E.g., Connor, 59 V.I. at 300 (“Given the strong evidence of Connor’s guilt and the fact that the question was not 
answered, as well as the trial court’s prompt admonition to the jury to disregard the question, and the final instruction 
that the jury must not consider attorneys’ question as evidence, which we may presume the jury followed, it is highly 
probable that the prosecutor’s questions did not contribute to Connor’s guilty verdict.” (citations omitted)); see James, 
59 V.I. at 883; Francis, 56 V.I. at 389. 
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¶65 
However, when the prosecutor asked Harrigan’s age at the time she and Gonsalves began 
their intimate relationship, defense counsel immediately objected.  For reasons that are entirely 
unclear—and utterly inexplicable to this Court—the trial court overruled this objection.  The 
prosecutor then asked Harrigan the same question again, to which she responded that she was 14 
at the time.  Defense counsel immediately objected and moved for a mistrial.  Most of the 
discussion as to why this was objectionable and the proffered reasons for the prosecution’s 
soliciting the testimony occurred at side bar.  Further, there was no indication during the entire 
trial that Gonsalves was an adult at the time he and Harrigan began their relationship.  While the 
trial court should have sustained the initial objection and prohibited the prosecution from eliciting 
this testimony—a point that this Court cannot emphasize enough—the trial judge was correct 
when it reasoned that Harrigan’s age becomes a significantly more prejudicial fact if there is 
evidence that Gonsalves was an adult at the time.  Accordingly, although it is possible that jurors 
could have made assumptions that Gonsalves was an adult at the time, we presume the jury 
followed the instructions and decided the case solely on the evidence.  Monelle, 63 V.I. at 770; 
Galloway, 57 V.I. at 508.   
¶66 
Additionally, within the context of the trial, this one isolated comment could not have had 
a significant effect.  Once the improper testimony was elicited, the line of questioning was stopped 
before the more damaging testimony of Gonsalves’ age was disclosed.  The testimony was from 
the first witness in a trial that encompassed several days, and this fact was not the primary theme 
of the prosecution’s case, as it was in Pickering, 66 V.I. at 291-93. 
¶67 
Moreover, the evidence of guilt was overwhelming.  D.G. testified that she had gone to her 
father’s house and was watching television on his bed when he came out of the shower.  He then 
approached her.  D.G. was awake when it began and was not sick or under the influence of any 
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medication that would have clouded her senses and hampered her memory.  Furthermore, multiple 
aspects of her testimony were corroborated by other witness; for example, her boyfriend confirmed 
that she had communicated all the details of her being with her father and had demonstrated—
through the use of emoji’s in her text messages—she was upset.  While she at one time recanted 
her statement to the police, at trial she offered a plausible explanation as to why she had recanted 
her statement to the police.  This resulted in a credibility determination for the jury.  See Smith, 51 
V.I. at 401 (“To the extent that there were conflicts in the testimony, these conflicts presented 
credibility issues for the jurors to resolve.”); Cornelius v. Bank of Nova Scotia, 67 V.I. 806, 818 
(V.I. 2017) (“[A] finding of fact that adopts one view of the evidence is not clearly erroneous even 
if there are multiple conclusions that could be drawn from the same evidence.”).    
¶68 
While the general rule that the credibility of witnesses is not open to question on appeal 
holds true, courts of appeals are entitled to “disregard the jury’s reliance on a witness’s testimony 
when that testimony is ‘inherently incredible or improbable.’”  Phillip v. People, 58 V.I. 569, 583 
(V.I. 2013).  “Testimony is deemed inherently incredible or improbable where it is ‘either so 
manifestly false that reasonable [people] ought not to believe it, or it must be shown to be false by 
objects or things as to the existence and meaning of which reasonable [people] should not differ’” 
Id. at 584 (quoting Williams v. Gov’t of the V.I., 51 V.I. 1053, 1086 (D.V.I. App. Div. 2009) and 
29A AM. JUR. 2D Evidence § 1375 (2008)).  Rivera v. People outlines factors that are relevant to 
attacking the credibility of testimony on appeal.  60 V.I. at 554.  In this assessment, factors to be 
considered are: (1) whether it was physically impossible for the witness to have observed that to 
which she testified; (2) considering the laws of nature, whether it was impossible for the events to 
which the witness testified to have happened; and (3) whether the testimony is of incredible 
dubiousness.  Id. at 554-56.  To be “incredibly dubious,” testimony must be inherently improbable 
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with a complete lack of circumstantial evidence or be coerced, equivocal, and wholly 
uncorroborated.  Id. at 555.  Nothing about D.G.’s testimony undermines the credibility 
determination implicit in the jury’s verdict, and there was circumstantial evidence supporting 
D.G.’s testimony.  For example, D.G.’s boyfriend corroborated that he received the text messages 
from D.G. immediately after the molestation, and continuing for at least the twenty-four hours 
following.  Harrigan’s testimony corroborated the timeframe in which D.G. testified this all 
occurred.   
¶69 
Because the evidence was comprehensive and the improper testimony was extremely brief 
and not compounded by further damaging testimony and appropriate curative and general 
instructions were given, the testimony did not affect the outcome of the trial, and the conviction is 
affirmed.   
V. 
CONCLUSION 
¶70 
Because there was testimony that Gonsalves inserted his tongue into D.G.’s vagina, in 
addition to the other essential elements of the crimes of Child Abuse and Second Degree 
Aggravated Rape, there was sufficient evidence to support the convictions, and the judgment is 
affirmed.  As Gonsalves had adequate notice of the charges pending and there is no indication 
anywhere in the record even suggesting how exactly he would have defended this matter 
differently, the Superior Court did not abuse its discretion when it allowed the prosecution to 
amend the information after it rested its case.    Finally, because the evidence of guilt was 
overwhelming and the improper testimony insignificant in the context of the whole trial, it was 
not an abuse of discretion for the trial court to deny the motion for a mistrial.  
 
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Dated this 7th day of February, 2019. 
BY THE COURT: 
 
 
    /s/ Ive Arlington Swan 
 
 
 
 
 
 
 
IVE ARLINGTON SWAN 
 
 
 
 
 
 
 
Associate Justice 
ATTEST: 
VERONICA J. HANDY, ESQ. 
Clerk of the Court 
 
MEADE, Designated Justice, dissenting in part. 
¶1 
I disagree with the majority’s conclusion that Gonsalves’ substantial rights under the Sixth 
Amendment, including his right to be reasonably informed of the nature of the charges against 
him, were not prejudiced by the last-minute amendment of the information in this case. Therefore, 
I respectfully dissent, as I would conclude that the trial court abused its discretion under Rule 7(e) 
of the Federal Rules of Criminal Procedure, in violation of the Sixth Amendment, by allowing the 
prosecution to amend the information against Gonsalves to include the language “through use of 
his position of authority over D.G.” 
¶2 
First, in concluding that Gonsalves had sufficient notice that the prosecution intended to 
prove that he used his position of authority to perpetrate the sexual act, both the Superior Court 
and the majority rely heavily on the fact that the original information alleged that Gonsalves shared 
a familial relationship with the victim; that of father and daughter. In their view, this language is 
equivalent to an allegation that Gonsalves used his position of authority over the victim.1 I 
disagree. 
¶3 
The language in the original information seized upon by the majority—"GONSALVES 
and the minor D.G. having a familial relationship, father and daughter, an act of domestic 
violence”—is nothing more than the standard language utilized by the prosecution in any 
information to indicate that the underlying crime is also being charged as an act of domestic 
violence under 16 V.I.C. § 91. Yet the majority contends that this bare assertion of a familial 
relationship should also have put defendant on notice that the prosecution intended to prove that 
                                                 
1 The majority states that all elements of the charge of aggravated rape in the second degree were, in fact, included in 
the original complaint: “These essential elements were alleged in the information, stating that Charlesworth Gonsalves 
(element 1 ‘defendant’), the victim’s father (elements 2 ‘aggravating circumstance’ and element 6 ‘domestic violence’) 
. . . .” This effectively conflates this essential element of aggravated rape in the second degree—that the “perpetrator’s 
position of authority over the victim is used to accomplish the sexual act”—with the essential element of familial 
relationship required to prove a charge of domestic violence under Title 16.      
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Dissenting Opinion 
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Gonsalves utilized his position of authority over the victim to perpetrate the sexual act. And while 
it may generally be true that many, if not most, fathers do enjoy influence or authority over their 
children, the degree of that authority may vary drastically from case to case; ranging from nearly 
absolute to non-existent. Indeed, we have previously recognized that the existence of a familial 
relationship does not, by itself, automatically demonstrate either that the defendant enjoyed a 
position of authority, or that the defendant used that position of authority to perpetrate the sexual 
act. See Francis v. People, 63 V.I. 724, 734 (V.I. 2015) (“Unlike the factual context in Charles, it 
is not clear in this case that Francis—J.T.'s uncle with whom J.T. appeared to have only infrequent 
contact—utilized his ‘position of authority’ over J.T. to accomplish his sexual assaults. In fact, 
there is no evidence in the record that Francis used his relationship as J.T.'s uncle to force J.T. to 
do anything.”); cf. Charles v. People, 60 V.I. 823, 832 n.4 (V.I. 2014) (“[A]t all times between 
2003 and 2005, Charles—as step-father to X.P.—utilized his ‘position of authority’ over her to 
accomplish his sexual assaults, including exploiting his authority as the minor's step-parent to 
remove her from school to perpetrate the sexual acts involved in this case. Accordingly, X.P.'s 
testimony was sufficient to prove the elements required. . . .”). Thus, the mere assertion in the 
information that Gonsalves is D.G.’s father, while clearly sufficient to put Gonsalves on notice of 
the domestic violence charge, was insufficient to notify Gonsalves that the prosecution intended 
to prove that he accomplished the sexual act by utilizing his position of authority over D.G. 
Gonsalves had no way of knowing, based on the plain language of the information, that the 
prosecution intended to utilize the father-daughter relationship as anything more than proof of the 
relationship necessary to support a conviction for domestic violence. 
¶4 
Additionally, I disagree with the majority’s conclusion that the citation to 14 V.I.C. § 
1700a(a) in count one of the information, together with the statement in the attached probable 
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Dissenting Opinion 
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cause fact sheet that Gonsalves “told [D.G.] he was going to show her how boys take advantage 
of girls and then removed her pajama pants and underwear and spread her legs and started to suck 
on her vagina with his mouth and stuck his tongue inside her vagina,” was sufficient to put 
Gonsalves on notice that the people intended to charge him with using his position of authority to 
accomplish the sexual act. Section 1700a(a) of title 14 of the Virgin Islands Code provides in 
relevant part: “Whoever perpetrates an act of sexual intercourse or sodomy with a person who is 
under eighteen years but thirteen years or older, or by force, intimidation, or the perpetrator's 
position of authority over the victim is used to accomplish the sexual act, is guilty of aggravated 
rape in the second degree.” 14 V.I.C. § 1700a(a) (emphasis added). Thus, as this Court recognized 
in Gilbert v. People, 52 V.I. 350 (V.I. 2008), a literal reading of the statute provides that the People 
may prosecute a defendant for aggravated rape in the second degree by proving one of two alternate 
theories of the offense: either (1) that the defendant perpetrated the requisite act with a person who 
is under eighteen year but thirteen years or older—where the age of the victim alone would 
constitute the aggravating factor; or (2) that the defendant perpetrated the sexual act by force, 
intimidation , or the use of his position of authority over the victim—where the aggravating factor 
would be the use of force, intimidation, or authority. See id. at 356-61.  
¶5 
And although we held in Gilbert that, contrary to the plain language of the statute, with 
respect to a seventeen year old victim, the prosecution must prove both of these aggravating 
factors—age of the victim as well as use of force, intimidation, or authority—we expressly 
reserved the question of whether the age of a sixteen year old victim would itself constitute an 
aggravating factor sufficient to support a charge of aggravated rape in the second degree. See id. 
at 361 n.8. Only now, for the first time, does this Court hold that the reasoning underlying the 
Gilbert decision also applies to sixteen year old victims; in effect holding that the statute does not 
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Dissenting Opinion 
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mean what it says, and that as applied to sixteen year old victims the word “or”—emphasized in 
the above quoted statutory language— actually means “and.” Even the Superior Court only 
delivered its decision on this critical issue after the close of evidence in the case and after granting 
the prosecution’s motion to amend the information.  
¶6 
To be clear, I do not disagree with the Superior Court and the majority, that requiring proof 
of the additional aggravating factor—use of force intimidation or position of authority—is the 
correct decision under this Court’s reasoning in Gilbert. However, given the uncertainty in the law 
with respect to the essential elements of aggravated rape in the second degree of sixteen year old 
victims at all times during the pendency of this matter, I cannot conclude that the prosecution’s 
citation to 14 V.I.C. § 1700a in the original information was sufficient to put Gonsalves on notice 
that he was charged with using his position of authority to perpetrate sexual intercourse with D.G.  
Rather, I would hold that Gonsalves, relying upon his reasonable construction of the plain language 
of both the information and the charging statute, was properly notified only of the prosecution’s 
intent to prove its case based upon the sole aggravating factor of the victim’s age.2 Although, in 
appropriate circumstances, an information may charge a defendant under alternate theories of 
commission of a crime, a defendant is neither expected nor required to anticipate and refute 
alternative theories of criminality that were never charged.  
¶7 
In this respect, Gonsalves’ case is similar to Goodloe v. Parratt, 605 F.2d 1041, 1047 (10th  
Cir. 1979), in which the Tenth Circuit set aside the defendant’s conviction for fleeing arrest, 
                                                 
2 Indeed, the author of the majority opinion himself espoused this same, facially reasonable interpretation of the statute 
in his dissenting opinion in Gilbert, in which he concluded—noting the use of the disjunctive “or” in the statutory 
language—that “there is nothing in the language of the statute that explicitly refers to an aggravating factor” beyond 
the age of the victim, and that, under the plain language of the statute “[w]hoever perpetrates an act of sexual 
intercourse or sodomy… with a person who is under eighteen years but thirteen years or older… is guilty of aggravated 
rape in the second degree....” See Gilbert, 52 V.I. at 370-71, 379 (Swan, J., dissenting).  
 
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Dissenting Opinion 
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accepting his argument that it was the product of “[f]undamental unfairness, due to confusion as 
to the elements of the crime and lack of notice [‘of what underlying violation the State had sought 
to prove’].” Id. at 1047 n.15. In Goodloe, “[t]he State urged, as late as the conference on 
instructions, that the jury could find from its proof that the underlying violation was either failing 
to stop at a stop sign, speeding, careless driving or willful and reckless driving, even though the 
first three violations were never mentioned in a complaint, arrest warrant, or information.” Id. at 
1046. Thus, the court concluded that “because the State did not specify the element it sought to 
prove until the end of trial, [the defendant] had to prepare to meet, or without notice was unable to 
meet, proof of four possible statutory violations . . . .  [He] was not given fair and reasonable notice 
of the offense charged and the case against which he had to prepare a defense.” Id. at 1047.  
¶8 
Likewise, in this case the prosecution argued for the first time, in the middle of the trial, 
that the jury could find from the evidence that Gonsalves committed aggravated rape in the second 
degree either by the use of force, the use of intimidation, or the use of his position of authority, 
despite the fact that none of these aggravating factors were included or alleged in the information.    
¶9 
In turn, because Gonsalves was not properly notified of the prosecution’s intent to charge 
him with the additional aggravating factor—that he used his position of authority to accomplish 
the sexual act—he had no reason to know that the evidence cited by the majority—that he “told 
[D.G.] he was going to show her how boys take advantage of girls and then removed her pajama 
pants and underwear and spread her legs and started to suck on her vagina with his mouth and 
stuck his tongue inside her vagina”—was offered to prove the use of his authority rather than 
merely to prove that he perpetrated an act of sexual intercourse or sodomy with D.G. as charged 
in the information. As such, this case is analogous to Gov't of the V.I. v. Joseph, 765 F.2d 394 (3d 
Cir.1985) and similar cases, in that the last-minute amendment to the information required the 
Gonsalves v. People  
2019 VI 4 
Dissenting Opinion 
Page 6 of 6 
People to prove a new and different element of the offense that Gonsalves was unable to 
sufficiently defend against due to the timing of the amber.ndment. Likewise, as in Joseph, “[t]here 
can be no question that, by not permitting [Gonsalves] the opportunity to prepare an adequate 
defense, the variance [between the original information and the amended information] in this case 
prejudiced [Gonsalves’] ‘substantial rights.’” 765 F.2d at 398 n.6 (citing Government of the V.I. v. 
Aquino, 378 F.2d 540, 554 (1967)). 
¶10 
Accordingly, I would hold that the Superior Court abused its discretion by allowing the 
amendment under Rule 7(e) of the Federal Rules of Criminal Procedure, in violation of the Sixth 
Amendment, and would vacate Gonsalves’ conviction for aggravated rape in the second degree. 
 
 
 
 
 
 
 
 
 
 
 
/s/ Jomo Meade 
 
 
 
 
 
 
 
 
JOMO MEADE 
 
 
 
 
 
 
 
 
Designated Justice 
ATTEST:  
 
 
VERONICA J. HANDY, ESQ. 
Clerk of the Court