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DIVISION OF ST CROIX PEOPLE OF THE VIRGIN ISLANDS SX 2021 CR 132 Plaintiff, vs BRIAN HENDERSON CITE AS 2022 VI SUPER33m Defendant Appearances William A Appleton, Jr , Esq Virgin Islands Department of Justice St Croix, U S Virgin Islands For Plamtsz Yolan Brow Ross, Esq ‘ Office of the Territorial Public Defender St Croix, U S Virgin Islands For Defendant MEMORANDUM OPINION AND ORDER WILLOCKS Judge 1] 1 THIS MATTER came before the Court on Defendant Brian Henderson’s (hereinafter “Defendant”) motion to dismiss, filed on July 7, 2021 In response, the People ofthe Virgin Islands (hereinafter “People”) filed an opposition and Defendant filed a reply thereafter BACKGROUND {l 2 On May 10, 2021, the People filed a single count information against Defendant charging him with having sexual relations with a detainee in violation of Title 14 V I C § 667(a) 2 The ' Yolan Brow Ross, Esq was the counsel of record at the time that the motion was filed, but she has since left the Office of Territorial Public Defender and is currently sitting as a magistrate judge in the Superior Court of the Virgin Islands No subsequent notice of appearance has been filed for Defendant Title I4 V I C §667 provides (a) Any person who, when being an employee working at a prison or detention facility, a contracton on information alleged that Defendant “did perpetrate an act of sexual intercourse with CF, an adult female inmate of the Golden Grove Correctional Facility, by penetrating her vagina with his penis ” (Information) According to the affidavit supporting probable cause for the arrest, police officer Teaella Buckley stated (i) on March 19, 2020, Chief Inspector Anthony Hector was present at the Wilbur H Francis Command Police Station to file a police report in reference to an inmate being impregnated by a corrections officer; (ii) Chief Inspector Anthony Hector stated that he interviewed inmate CF and CF admitted that, at some point while CF was on a weekend furlough from January 24, 2020 through January 26, 2020, she had sex with corrections officer Brian Henderson at her residence in Mon Bijou; and (iii) based on the DNA analysis, there is a “99 99% certainty” that corrections officer Brian Henderson is the father of the aborted fetus 1[ 3 On July 7, 2021, Defendant filed this instant motion to dismiss on the ground that Title 14 V I C § 667(a) is unconstitutionally vague engages in consensual sexual relations with a person who is in the custody of a detention facility, is guilty of the crime of sexual relations with a detainee and shall be imprisoned not more than [0 years This does not include any act done for a bona fide med cal purpose or an internal search conducted in the lawful performance of an employee 5 duties (b) For the purpose ofsubsection (a), sexual intercourse’ means (1) Any act of physical union ofthe genitalia or anus of one person with the mouth anus or genitalia of another person It occuts upon any penetration, however slight Ejaculation is not required or (2) Any act of cunnilingus or fellatio regardless of whether penetration occurs, Ejaculation is not required (A) ‘Cunnilingus means any oral contact with the female genitalia (B) Fellatio means any oral contact with the male genitalia (c) For the pulpose of subsection (a), sexual penetration’ means (I) The unlawful placement of an object, which inciudes any item device, instrument substance or part of the body inside the anus or vagina of anothei person or (2) The un awful placement of the genitalia on any sexual device inside the mouth of another person Title 14 V I C §677 STANDARD OF REVIEW IN “The void for vagueness doctrine reflects the fundamental principle that, in order to comply with the requirements of due process, a statute must give fair warning of the conduct that it prohibits United States v Fontame 697 F 3d 221 226 57 VI 914 (3d Cir 2012) To satisfy due process, a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement ’ LeBlanc v People ofthe VI , 56 V I 536, 540 41 (V I 2012) (citation omitted) In Monelle v People ofthe V] the Virgin Islands Supreme (.ourt explained First, the Supreme Court of the Lnited States has emphasized that, when analyzing a statute, ‘[o]bjections to vagueness under the Due Process Clause rest on the lack of notice and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk Maynard v (arterght 486 U S 356 361 108 S Ct 1853 100 L Ed 2d 372 (1988) Requirements under the Due Process Clause are satisfied if the statute at issue affords a “[p]erson of ordinary intelligence a reasonable opportunity to understand what conduct is prohibited Brathwazte v People 60 V I 419 434 (V I 2014) Secondly, the void for vagueness doctrine focuses on the constraint imposed by a statute upon power of the government in enforcement the law must not be so loosely worded as to encourage arbitrary and discriminatory enforcement Kolender v Lawson, 461 [I S 352, 357 103 S Ct 1855 75 L Ed 2d 903 (1983) Monelle 63 VI 757 765 66 (VI 2015) In other words, if a reasonable person “would know that their conduct puts them at risk of punishment under the statute” then a challenge for vagueness can be overcome Brathwazte, 60 V I at 434 Nevertheless, “[n]otwithstanding the two requirements under the void for vagueness doctrine, in raising a challenge to a statute that does not involve First Amendment freedoms, defendants must first establish standing by demonstrating that the statute is vague as applied to the facts of the particular charge against them [and] [a] person whose conduct unequivocally falls within a statute may not successfully challenge the same statute for vagueness ” Monelle, 63 V I at 766 DISCUSSION 1| 5 In his motion, Defendant argued that [t]his matter must be dismissed because V I Code Ann Tit 14 § 667(a) is unconstitutionally vague as applied to the allegations herein and this matter must be dismissed with prejudice Defendant made the following assertions in support of his argument (i) "It is settled that, as a matter of due process, a criminal statute that 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,’ or is so indefinite that ‘it encourages arbitrary and erratic arrests and convictions,‘ is void for vagueness ’3 (Motion 1 2), (ii) The Supreme Court has long held ' that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential due process of law ’4 (Id , at 2) (iii) “VI Code Ann tit 14 § 667(a) is void for vagueness as it failed to sufficiently apprise him whether his alleged conduct was prohibited as a matter of law ” (Id ); (iv) “The phrase at the center of this constitutional challenge is person in custody of a detention facility’” and “that the application ofthat phrase to the allegations herein did not provide him with notice that the alleged conduct was unlawful ’ (Id , at 3)’ and (v) “The situs of the alleged sexual relations was not Golden Grove, but “CF’”s residence” so “unlike in Whyte, while on release “CF” was without all the trappings the court enumerated a person of ordinary intelligence 3 Defendant referenced Calcium v Franklin 439 U S 379 390 (1979) (quoting Ufllled Slates v Harm's, 347 U S 612 617 (1954) and Papachrtstou v Jacksonville 405 U S 156 162 (1972)) see also LeBlanc v People 56 V I 536 541 (V1 2012) (citations omitted) " Defendant referenced UnitedSIates v Fontame, 2012 LEXIS 18202 ‘14 (3rd Cir (VI August 28 2012) quoting ggrgv City ofColumbIa 378 U S 347 351 (1964)) see also People v Whyle 62 V1 95 104 (Sup Ct Jan 22 would associate with a person in custody [and] [a]ccordingly, the statute fails to apprise a person of ordinary intelligence that “CF” under these circumstances fell within the meaning of a person in custody of a detention facility ”5 (Id , at 4 ) 1] 6 In their opposition, the People argued that Defendant’s motion to dismiss should be denied The People made the following assertions in support of their argument (i) “There are two types ofcustody, physical and constructive ” (Opp 1); (ii) In Whyte, the court concluded that ‘ the statute is not vague and cited one of the reasons as the fact that the incident took place in the correction facility,” and “[t]herefore, the victim was in the physical control of the correction” facility ” (Id ); (iii) “Title 3 V I C § 375 clearly indicates that the Bureau of Corrections has general control over an inmate [and] [u]ntil and unless the inmate is released from the custody and control of the BOC BOC remains responsible for that inmate ”6 (Id ), and (iv) “While the Defendant engaged in sexual intercourse with the inmate not at a correction facility but rather at the home of the inmate the inmate was still in the constructive control of the BOC [because] [a]lth0ugh the inmate was out on work release she was still under the custody and care of the BOC and therefore this Defendant being a BOC employee was fully aware that his actions were in violation of the laws of the Virgin Islands (Id at 2 ) T. 7 In his reply, Defendant argued that his motion to dismiss should be granted Defendant made the following assertions in support of his argument (i) The People attempt to rephrase Mr Henderson’s constitutional challenge as whether C F was in BOC’s custody to wit, “the question before the Court is not whether C F was in custody, but whether V I Code Ann tit 14 § 5 Defendant referenced Whyle, 62 V I 95 6The People referenced State v S(eveson, 2015 Kan App Unpub Lexis 757; United Sides v Lamell,20121 S Dist 667(a) properly notified Mr Henderson, under the facts alleged herein, that C F was in custody of a detention facility at the time of the alleged criminal conduct ’ (Reply 1); (ii) ‘ In providing its own definition of ‘ custody”, the People referenced cases from Kansas and Vermont, neither of which are binding in the Territory ” (Id , at 2); and (iii) ‘Such an assumption [that no child is responsible for himself/herself] cannot apply herein where the statute does not elucidate that custody can exist when the trappings one would associate with criminal custody were not present ” (1d) A Whether Defendant has Standing to Raise a Vagueness Challenge Regarding Title 14 V I C §667(a) ‘ 8 On May 10 2021, the People sought to have Defendant arrested for having sexual relations with a detainee in violation of Title 14 V I C § 667(a) and submitted police officer Teaclla Buckley 5 affidavit to support probable cause for the arrest As noted above, the People alleged that Defendant had sexual relations with inmate CF at CF’s residence in Mon Bijou at some point during CF 5 weekend furlough from January 24 2020 through January 26 2020 7 Title 14 V I C § 667(a), on its face does not indicate whether “a person who is in the custody of a detention facility” includes a person who is away on a temporary furlough and not physically in the custody of a detention facility As such, the Court finds that Defendant by demonstrating that Title 14 V I C § 667(a) is vague as applied to the facts of the particular charge against him, has established standing to challenge Title 14 V I C § 667(a) for vagueness 7 Under Title 5 V I C § 4508, “[t]he Director of Corrections shall promulgate regulations under which inmates, as part of a program looking to their release from the custody ofthe Bureau, or their treatment may be granted temporary gigging? from an institution to visit their famiiies or to be interviewed by prospective employers Title 5 V I C § B Whether Title 14 V I C § 667(a), as Applied to Defendant, is Unconstitutional under the “Void for Vagueness” Doctrine 1l 9 Defendant argued that the phrase “person in custody of a detention facility” in Title 14 V I C § 667(a) is unconstitutionally vague so that neither Defendant, nor any other person of ordinary intelligence, could know that consensual sexual relations between him, a corrections officer, and inmate CF at CF’s residence in Mon Bijou while CF was on a weekend furlough from January 24, 2020 through January 26, 2020 were criminally prohibited The Court disagrees 1] 10 A plain reading of the language of Title 14 V I C § 667(a) as applied to the allegations in this case establishes that it is illegal for an employee working at a prison or detention facility “to engage[] in consensual sexual relations with a person who is in the custody ofa detention facility ’ The statute does not define each and every term The Virgin Islands Supreme Court has instructed that, ‘ [i]n ascertaining the plain meaning of the words in the statute, we apply any specific definitions that are statutorily prescribed [and] [w]hen no statutory definition is provided, words that have an accumulated legal meaning will be given that meaning, and other words will be given their common, “dictionary,’ meaning ” szles v People ofthe V I , 66 V I 572, 590 (V I 2017)- see Title 1 V I C § 42 (‘ Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the English language ”) In this instance, Defendant is essentially only challenging the term custody’ to wit, Defendant argued that Title 14 V I C § 667(a) does not afford a person of ordinary intelligence a reasonable opportunity to understand that CF, while away on a temporary furlough, is a person under the custody of the detention facility Black 3 Law Dictionary define “custody” as “[t]he care and control of a thing or person for inspection, preservation, or security ” BLACK'S LAW DICTIONARY (I 1th ed 2019) see WEBSTER s 11 NEW COLLEGE DICTIONARY 285 (3d ed 2005) (defining custody to mean 8/19/2022 IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS District of St. Croix People of the Virgin Islands v. Brian A. Henderson, Sr. Case Number: SX-2021-CR-00132 Charges: 14 V.I.C. 667(a) - Sexual Relations with a Detainee as an Employee, Contractor, or Volunteer at a Prison or Detention Facility NOTICE of ENTRY of Memorandum Opinion and Order To: William A. Appleton, Jr., Esq. H. Hannibal O’Bryan, Esq. Please take notice that on August 19, 2022 a(n) Memorandum Opinion and Order dated August 19, 2022 was/were entered by the Clerk in the above-titled matter. Dated: August 19, 2022 Tamara Charles Clerk of the Court By: Iris Cintron Court Clerk Supervisor