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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, SX-17-CR-257 Plaintiff, Vs. ZAYVON ACOY, Defendant. MEMORANDUM OPINION THIS MATTER comes before the Court on the People of the Virgin Islands’ (hereinafter “People”) Motion to Amend Information (hereinafter “Motion”) filed January 24, 2018. Defendant Zayvon Acoy (hereinafter “Acoy’). For the reasons stated below, the Motion will be denied. BACKGROUND For about a year, A. S., a 17-year-old minor female, was involved in a sexual relationship with Acoy—a 27 year old adult male from August 2016. A.S. alleges that when she first met Acoy, she told him that she was 16 years old. Acoy has resided with A.S. and her mother from since they met until August 21, 2017. On or about August 21, 2017, at approximately 3:15 p.m., in the vicinity of #47 Peter’s Rest, Christiansted, St. Croix, A. S. reported to Police Officer Melissa Vigilant (hereinafter “Officer Vigilant’”’) that she had been assaulted. On the same day, Officer Vigilant interviewed A. S. at the Governor Juan F. Luis Hospital and Medical Center. People of the V.I. vs. Zayvon Acoy SX-17-CR-257 MEMORANDUM OPINION A. S. alleges that on August 21, 2017 at approximately 2:30 p.m., she was at home with her then boyfriend Acoy. A.S. alleges that Acoy took her cell phone away and refused to return her cell phone. Acoy was upset and accused her of cheating on him. Acoy allegedly grabbed A.S. by her neck with his right hand and started to choke her. A.S. alleges that while Acoy was choking her, she was not able to breathe and struggled with Acoy to get him off her. Instead, she fell to the kitchen floor; and Acoy allegedly continued to squeeze her throat so hard that she thought that she would die. After Acoy released A.S.’s neck, he allegedly slapped the right side of her face and left her residence. A.S. alleges that she got off the floor and locked the front door. Shortly after Acoy left, he allegedly returned to A.S.’s residence and climbed through a bedroom window on the eastern side of the residence. A.S. was talking to the 911 Emergency Call Center Dispatch when Acoy allegedly grabbed her cell phone and threw it on the balcony. Acoy allegedly took her HP laptop valued at $220 and her CD burner valued at $257 and left the vicinity in a red Honda Civic bearing license plate number CEB-616. On August 22, 2017, Acoy was arrested, waived being advised of his rights, and provided a video statement to the Officer Vigilant. In a four count Information, the People charged Acoy with Count I, Aggravated Rape Second Degree/Domestic Violence, in violation of 14 V.LC. §1700a(a) and 16 V.I.C. §91(b)(6); Count II, Assault Second/ Domestic Violence, in violation of 14 V.LC. §296(3) and 16 V.I.C. §91(b)(1); Count III, Simple Assault and Battery/Domestic Violence, in violation of 16 V.I.C. §299(2) and 16 V.I.C. §91(b)(1) & (2); and Count IV, Petit Larceny, in violation of 14 V.I.C. §1084. The People move to amend the Information to amend Count I from Aggravated Rape in the Second Degree to Second Degree Rape. People of the VI, vs. Zayvon Acoy SX-17-CR-257 MEMORANDUM OPINION Page 3 of S STANDARD OF REVIEW “The Revised Organic Act of 1954 requires that a criminal defendant ‘be informed of the nature and cause of the accusation’ against him.”! Generally, for a felony offense the information is “a plain, concise, and definite written statement of the essential facts constituting the offense.” “For each count, the information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.” Virgin Islands Rule of Criminal Procedure 3(d) governs amending an Information.‘ Rule 3(d) “authorizes the court to permit amendment of an information at any time before verdict or finding, unless an additional or different offense is charged or a substantial right of the defendant is prejudiced.” DISCUSSION The People filed an Amended Information to remove aggravated rape in the second degree charged in Count I of the Information and replace it with rape in the in the second degree in Count I of the Amended Information. The Superior Court cannot grant the request to amend the Information if “an additional or different offense is charged or a substantial right of the defendant is prejudiced.”® Therefore, the salient question is whether the offense of aggravated 1 See Elizee v. People of the V.I., 54 V.I. 466, 478 (2010) (citing Revised Organic Act of 1954, § 3, 48 U.S.C. § 1561, reprinted in V.I. CODE ANN., Historical Documents, Organic Acts, and U.S. Constitution at 86 (1995) (preceding V.I. CODE ANN. tit. 1)). 2-V.1R. CRIM. P. 3(b). 3 Td. 4V.IR. CRIM. P. 3(d). 5 Id. See also Elizee, supra (While the Superior Court “may permit an information to be amended at any time before the verdict,” it may not do so if “an additional or different offense is charged or a substantial right of the defendant is prejudiced.”). 6 Id. People of the V.I. vs. Zayvon Acoy SX-17-CR-257 MEMORANDUM OPINION rape in the second degree, codified in Section 1700a(a) of the Virgin Islands Code charges a different offense from Title 14, Section 1702 (a) of the Virgin Islands Code, rape in the second degree. Second degree rape is a different offense from aggravated rape in the second degree. Title 14, Section 1700a(a) of the Virgin Islands Code (emphasis added), the aggravated rape statute, provides in pertinent 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, 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. Under the second degree rape statute, Title 14, Section 1702 (a) of the Virgin Islands Code (emphasis added) provides that® Any person over 18 years of age who perpetrates under circumstances not amounting to rape in the first degree, an act of sexual intercourse or sodomy with a person who is at least 16 years but less than 18 years of age, and the perpetrator is 5 years or older than the victim, is guilty of rape in the second degree and shall be imprisoned not more than 10 years. Upon enacting these statutes, “the Legislature clearly intended to punish older adults who have sexual relations with children under the age of sixteen more harshly than those who have consensual sex with sixteen and seventeen year-olds.” “[G]iven that sections 1700a(a) and 1702 were both enacted as part of the Child Protection Act of 2002 yet contain significantly divergent minimum and maximum sentences, a strong presumption exists that the 714 VLC. § 1700a(a). 814 V.LC. § 1702(a). 9 See Gilbert v. People of the V.I., 52 V.1. 350, 357, 360 (2009) (emphasis added) (The presence of the phrase “ageravated rape in the second degree” in section 1700a(a) indicates the Legislature's intent to impose a harsher penalty for a “rape in the second degree” that is somehow “made worse or more serious” due to the presence of an additional element not required to prove rape in the second degree pursuant to section 1702(a)) People of the V_I. vs. Zayvon Acoy SX-17-CR-257 MEMORANDUM OPINION Legislature intended section 1702 to serve some independent purpose and that every crime under section 1702 would not merely become subsumed into section 1700a.”'® Sections 1700a(a) and 1702 are different and independent statutes which require the People to prove different elements. Section 1700a(a) requires the People to prove more elements than Section 1702; and Section 1700a(a) imposes a harsher penalty. Since the Amended Information would charge Acoy with second degree rape, which is a different offense than aggravated rape in the second degree, amendment of the Information is impermissible under Virgin Islands Rule of Criminal Procedure 3(d)."! CONCLUSION Based on the foregoing analysis, the People’s Motion will be denied. Virgin Islands Rule of Criminal Procedure 3(d) does not authorize the court to permit amendment of an information when a different offense is charged.'* Sections 1700a(a) and 1702 are different and independent statutes which charge different offenses. An Order consistent with this Memorandum Opinion follows. DONE and so ORDERED this Day of February, 2018. ATTEST: Hob Al Estrella George / HAROLD W: L. WILLOCKS Administrative Judge of the Superior Court 10 See Gilbert, 52 VI. at 360. 11 VR. CRIM. P. 3(d). 121d.