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DIVISION OF ST CROIX PEOPLE OF THE VIRGIN ISLANDS SX 2022 CR 103 Plaintiff, vs CHARLES VANTERPOOL III CITE AS 2022 VI SUPER 73 Defendant Appearances William A Appleton, Jr , Esq Virgin Islands Department of Justice St Croix U S Virgin Islands For Plamtsz Ramiro Orozco, Esq Office of the Territorial Public Defender St Croix, U S Virgin Islands For Defendant MEMORANDUM OPINION AND ORDER WILLOCKS Judge 11 1 THIS MATTER came before the Court on Defendant Charles Vanterpool III s (hereinafter ‘ Defendant”) motion to dismiss, filed on June 28, 2022 BACKGROUND ' 2 On May 9, 2022, the People of the Virgin Islands (hereinafter “People”) filed a probable cause fact sheet made by police officer Isaiah Acosta (hereinafter ‘ Officer Acosta”) and an affidavit of police officer Isaiah Acosta (hereinafter “Officer Acosta”) According to the probable cause fact sheet (i) on Sunday, May 8, 2022, approximately 6 28 p m , Officer Acosta and his partner, while on mobile patrol, were dispatched to an auto collision (ii) upon arrival at the scene, Officer Acosta and his partner made contact with, inter alia, Defendant; (iii) Officer Acosta interviewed Defendant and other witnesses separately; (iv) Defendant and other witnesses indicated that Defendant’s vehicle struck another party’s vehicle and then struck the northern fence of Plot #21 Estate Profit in Frederiksted, (v) while interviewing Defendant, Officer Acosta noticed Defendant’s speech was slurred and detected a strong odor of an alcoholic beverage on his breath and person; (vi) Defendant agreed to take the three Standardized Field Sobriety tests consisting of the Horizontal Gaze and Nystagmus test, the one Leg Stand test and the Heel t0 Toe test, (vii) Officer Acosta explained the instructions ofeach test and Defendant proceeded with each test after he indicated that he understood the instructions; (viii) Defendant failed all three Standardized Field Sobriety tests; (ix) Officer Acosta handcuffed Defendant and advised him that he was under arrest for driving under the influence; (x) Defendant was transported to Wilbur H Francis Command Police Station where Defendant was offered a chemical test ofhis breath to determine the alcoholic content of his breath; (xi) at approximately 7 38 p m , Defendant accepted the offer of a chemical test and at approximately 7 55 p m , Defendant blew into the chemical test as instructed, and (xii) the results of the chemical test revealed that Defendant’s breath alcoholic content was 0 211% (Probable Cause Fact Sheet ) The probable cause fact sheet was corroborated by Officer Acosta’s affidavit 1f 3 On May 23, 2022, the People filed a complaint against Defendant for the events that allegedly took place on or about May 8, 2022 The complaint charged Defendant with the following counts Count I driving under the influence ofan intoxicating liquor, in violation ofTitle 20 V I C § 493(a)(1) and (b)(l) Count II driving with a blood alcohol content of 0 15 percent or more, in violation of Title 20 V I C § 493 (a)(2) and (b)(2); Count III operating a motor vehicle in a negligent manner, in violation of Title 20 V I C § 503; Count IV operating motor vehicles in reckless manner, in violation of Title 20 V I C § 492, and Count V operating a motor vehicle without an operator’s license, in violation of Title 20 V I C § 371(b) 1] 4 On June 28 2022 Defendant filed a motion to dismiss pursuant to Rule 12(b)(3)(B)(ii) of the Virgin Islands Rules of Criminal Procedure The deadline for the People to file an opposition has since passed1 and as of the date of this Memorandum Opinion and Order, the People has not filed an opposition in response STANDARD OF REVIEW 11 5 Rule l2(b)(3)(B) of the Virgin Islands Rules of Criminal Procedure allows a party to challenge the defect in the charging document, such as “charging the same offense in more than one count (multiplicity) V I R CRIM P 12(b)(3)(B)(ii) Multiplicity occurs when an information charges a single crime in several different counts ” People ofthe V1 v Colon, 60 V I 149, 158 (V I Super Ct 2014) Most cases involving the issue of multiplicity focus on whether a defendant has been punished in multiple ways for committing the same criminal act or offense in violation of Title 14 V I C § 1042 or the Double Jeopardy Clause of the Ffifth Amendment of the United States Constitution Id However, there are also cases involving the issue of multiplicity based on multiplicitous charges in an information or indictment, which raises other significant concerns Id , 60 V I at 158 59 “In particular, a multiplicitous charge may leave a prejudicial impression on a jury at the commencement of trial that a defendant is alleged to have committed ‘ According to the scheduling order entered on May 26 2022, ‘[a]l| pre trial motions shall be filed within thirty (30) days of arraignment, with oppositions due twelve (12) days thereafter, and any replies due within seven (7) days of any opposition ” (Scheduling Order) 2 Title 14 V l C § 104 provides that “[a]n act or omission which is made punishable in different ways by different provisions of this Code may be punished under any of such provisions, but in no case may it be punished under more than one” and [a]n acquittal or conviction and sentence under any one bars a prosecution for the same act or omission several crimes when as a matter of law, he or she is only being accused of committing one crime ” Id 60 VI at 159 fl6 When determining the appropriate remedy for multiplicitous charges in the information to wit, “whether it is proper to leave the charges in place and exercise the appropriate remedy should the need arise at sentencing or whether the Court should proactively dismiss or consolidate the charges” “[t]his decision should be made on a case by case basis, considering such factors as judicial economy, risk of prejudice, the totality of the charges against the defendant, and the Severity of those charges People ofthe I I v Prmgle 2021 VI LEXIS 74 1|25 (VI Super Ct Sept 22 2021) DISCUSSION ‘11 7 In his motion, Defendant argued that Count I driving under the influence of an intoxicating liquor in Violation ofTitle 20 V I C § 493 (a)(1) and (b)( l) and Count 111 operating a motor vehicle in a negligent manner, in violation of Title 20 V I C § 503, should both be dismissed Defendant made the following assertions in support of his argument (i) As to all the counts in the complaint,3 “all these acts occurred and arise [sic] from a singular event with a common nexus” and “[m]ultiplicity occurs when an information charges a single crime in several different counts ”4 (Motion 2) (ii) [B]y not dismissing CountI and Count III pursuant to [Rule 12(b)(3)(B)(ii)] and in violation of [Title] 14 V I C § 104 and the Fifth Sixth Eight[h] and Fourteenth Amendments to the United State Constitution” because it would “create a prejudicial impression on a jury at the commencement of trial that a defendant is alleged to have committed several crimes when, as a 3 In his motion, Defendant referenced an amended complaint However no amended complaint has been filed and the complaint filed on May 23, 2022 remains the operating charging document in this matter matter of law, he or she is only being accused of committing one crime, denying the Defendant the right to a fair pursuant to the Sixth and Fourteenth Amendment of the United States Constitution” and “create a danger that the Defendant may receive more than one sentence for a single offense, in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and pursuant to 14 V I C §104 and 14 V I C §295(12) 5 (Id ) (iii) A review of [Title] 20 V I C § 503 clearly states that ‘The offense of Operating a vehicle in a negligent manner shall be considered to be a lesser offense than, but included in, the offense of operating a vehicle in a reckless manner, and any person charged with operating a vehicle in a reckless manner may be convicted of the lesser offense of operating a vehicle in a negligent manner ’ (Id ), and (iv) ‘ The fact that all Counts alleged in the [] Complaint allege the same acts, on the same date, means that multiplicity has occurred ”6 (Id at 3) 1 Count I 1] 8 In his motion, Defendant did not indicate which other count charged the same offense as Count I Upon review of the complaint, the Court has determined that Defendant’s argument to dismiss Count I is due to the offense charged in Count II Count I alleged that Defendant “operate[d] a white 2010 Jeep Patriot, bearing license plate no TWP 536, within the Territory of the United States Virgin Islands while intoxicated, in violation of Title 20 V I C § 493(a)(1) and (b)(l)” and Count II alleged that Defendant while having 15 percent or more, by weight, of alcohol in his blood, operated a motor vehicle within the Territory of the United States Virgin 5 Defendant referenced United States v Hon! 6 F 3d 276 280 (5th Cir I993), citing United States v Lemons 941 F 2d 309 3 l 7 (5th Cir 1991) (per curiam)(quoting UnitedSIates v Swami 757 F 2d 1530 1537 (5th Cir ) cert denied 474 U S 825 106 S Ct 81 88 L Ed 2d 66 (I985) ° Defendant referenced United States v Buchanan, 485 F 3d at 278 & n 7, citing United States v Reedy, 304 F 3d Islands in violation of Title 20 V I C § 493 (a)(2) and (b)(2) 7 (Compl ) In this instance Defendant was charged for the same conduct ofdriving while intoxicated on May 8, 2022 in Count I and Count 11 Given that Count II similarly charges Defendant for driving while intoxicated by including the fact that Defendant had 15 percent or more, by weight, ofalcohol in his blood, while he operated a motor vehicle, Count I is multiplicitous and redundant As such, the Court will dismiss Count I 2 Count III 11 9 In his motion, Defendant implied that Count [II and Count IV charged the same offense and thus argued that Count III should be dismissed Count III alleged that Defendant ‘ operate[d] a white 2010 Jeep Patriot, bearing license plate n0 TWP 536, over and along a highway in the Territory ofthe Virgin Islands in a negligent manner by attempting to improperly overtake another vehicle and causing a collision, in violation of Title 20 V I C § 503 8 and Count IV alleged that 7 Title 20 V I C §493 provides in relevant part (a) ( I) It is unlawful for any person who is under the influence ofan intoxicating liquor or a controlled substance included in Schedule I II III, IV, or V of section 595 chapter 29 Title 19 Virgin Islands Code or under the combined influence ofan intoxicating liquor and such a controlled substance, to drive, operate or be in actual physical control of any motor vehicle within the Territory (2) It is unlawful for any person who has 0 08 percent or more by weight, of alcohol in his or her blood to drive, operate or be in actual physical control of, any motor vehicle within the Territory 0)) (1) Any person convicted of a first violation of subsection (a) hereof shall be guilty of a misdemeanor and shall be punished by imprisonment for not more than one year, or by a fine of not less than $500, or by both Provided however, if the person was involved in an accident violating subsection (a), the minimum fine shall not be less than $700 (2) Any person convicted of violating subsection (a) of this section, if there was at the time of testing 0 IS percent or higher by weight of alcohol in the person 5 blood or if at the time accompanied in the vehicle by a person under the age of l8 years shall be punished for a first offense by a fine of not less than $1 000 or more than $2,000 or by imprisonment of not more than one year or both Title 20 V I C § 493(a) and (b) 8 Title 20 V I C § 503 provides It shall be unlawful for any person to operate a motor vehicle in a negligent manner over and along the public 8/19/2022 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix People of the Virgin Islands v. Charles Vanterpool Case Number: SX-2022-CR-00103 Charges: 20 V.I.C. 493 (a)(1) - Driving Under The Influence 20 V.I.C. 493(b)(2) - Driving Under the Influence with BAC of 0.15% or higher or accompanied by minor in vehicle 20 V.I.C. 503 - Negligent Driving 20 V.I.C. 492 (RD) - Reckless Driving 20 V.I.C. 371 (b) - No License On Person NOTICE of ENTRY of Memorandum Opinion and Order To: William A. Appleton, Jr., Esq. Ramiro Orozco, Esq. Please take notice that on August 19, 2022 a(n) Memorandum Opinion and Order dated August 19, 2022 was/were entered by the Clerk in the above-titled matter. Dated: August 19, 2022 Tamara Charles Clerk of the Court By: Iris Cintron Court Clerk Supervisor