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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN PEOPLE OF THE VIRGIN ISLANDS ) Case No ST 2019 CR 00295 ) Plaintiff ) vs ) ) JULIAN FRETT ) ) Defendants ) ) Cite as 2022 VI Super 86U MEMORANDUM OPINION 111 THIS MATTER is before the Court on Motion to Dismiss Count One, filed by Defendant Julian Frett ( Frett or “Defendant ) on July 14, 2022 I The Defendant challenges two different counts of assault in the third degree as multiplicitous However, for the reasons set forth herein, the Court will deny Defendant’s motion BACKGROUND7 112 On the evening of December 13 2019, Detective Stephanie Gabriel (‘ Detective Gabriel ’) of the Virgin Islands Police Department (‘ VIPD ’) was dispatched to a reported disturbance, and thereafter traveled to Roy Lester Schneider Hospital where she made contact with Mwamini Frett (“Mwamini” 0r “victim”) Mwamini was in significant pain and unable to speak Detective Gabriel noticed contusions t0 Mwamini’s forehead and nose, and other bruising to various parts of her body Mwamini was treated for her injuries and Detective Gabriel interviewed her the following 1 The People filed an Opposition on September 2, 2022 7 The Court will refer to the Affidavit attached to the Information ( Affidavit ) written and signed by Detective Stephanie Gabriel on December 23 2019 to frame the factual background of this matter People ofthe V1;gm Islands 1 Julmn Frett ST 2019 CR 00295 Cite as 2022 VI Super 86U Memorandum Opinion Page 2 0f9 day Mwamini explained that she and her father (Frett) had gotten into an argument, during which he struck her with a stick on her forehead causing her to stumble and become dizzy Mwamini stated that Frett used the same stick to then smash her cell phone Mwamini said she threw the damaged cell phone at Frett, and he again struck her with the stick on her stomach and face Mwamini said she lost consciousness, and when she came to, she was gushing blood Mwamini wished to go back to her grandmother 3 house, so the two got into the car But Frett insisted Mwamini should go to the hospital, and after Frett drove past the grandmother s home, Mwamini Jumped out of the vehicle Mwamini said Frett then exited the vehicle and attempted to get her back into the car She said he was strangling her from behind with both hands Several individuals came to her rescue and called the police Mwamini stated that Frett had tried to kill her ${3 Based upon these facts, the People charged Frett with six (6) criminal counts (1) Third Degree Assault Domestic Violence in violation of V I CODE ANN tit 14 § 291(a)(2) and V I CODE ANN tit 16 § 91(b)(1)(2) (2) Destruction of Property Domestic Violence in violation of 14 V I C § 1266 and 16 V I C § 91(b)(9)' (3) Third Degree Assault Domestic Violence in violation of 14 V I C 297(a)(4) and 16 V I C § 91(b)(1)(2)“ (4) Using a Dangerous Weapon During a Third Degree Assault in violation of 14 V I C § 2251(a)(2)(B) (5) Second Degree Assault Domestic Violence in violation of 14 V I C § 296(3) and 16 V I C § 91(b)(1)(2) and (6) Disturbance of the Peace Domestic Violence in violation of 14 V I C § 622(a) and 16 V I C § 91(b)(11) 114 Defendant now files a motion pursuant to Virgin Islands Rule of Criminal Procedure ( V I R Crim P ) 12(b)(3)(B)(ii), asking the Court to find that Counts One and Three are multiplicitous because they are charged under the same statutory provision and involve a single incident, and thus requesting the Court dismiss Count One The People oppose Frett s motion, arguing that the People 0fthe Vugm Islands v Julzan Flett ST 2019 CR 00295 Cite as 2022 VI Super 86U Memorandum Opinion disputed counts should remain as charged, that the Information charges Frett under two separate statutory subsections, the prejudice to Defendant is minimal, and noting that the Court may address any potentially multiplicitous counts at the sentencing stage LEGAL STANDARD 115 The Virgin Islands Rules of Criminal Procedure provide for a party before trial, to challenge a defect in the charging information, 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 VI v Colon, 60 V I 149 158 (VI Super Ct 2014) The Superior Court of the Virgin Islands has stated that when determining if an information includes multiplicitous charges, the court should consider whether “separate and distinct prohibited acts have been committed Id (citing Umted States v Planck, 493 F 3d 501 503 (5th Cir 2007)) The test to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not ’ Id (quoting Blockburger v United States 284 U S 299 304 (1932)) 116 Most cases involving the issue ofmultiplicitous charges focus on whether a defendant has been sentenced more than once for committing the same criminal act or offense, which violates 14 V I C § 1043 or the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution ”4 Id Multiplicity of criminal charges in an information also raises concerns “a 3 Title 14 V I C § 104 provides An 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 An acquittal or conviction and sentence under anyone bars a prosecution for the same act or omission under any other 4 The Fifth Amendment to the United States Constitution applies to the United States Virgin Islands pursuant to Section 3 of the Revised Organic Act of the Virgin Islands of 1954 See Revised Organic Act of the Virgin Islands People 0fthe Vngm Islands v Julmn Frett ST 2019 CR 00295 Cite as 2022 VI Super 86U Memorandum Opinion multiplicitous charge may leave a prejudicial impression on a jury at the commencement of trial that a defendant is alleged to have committed several crimes when, as a matter of law, he or she is only being accused of committing one crime Id at 158 59 117 If charges are indeed determined to be multiplicitous, “the question then becomes 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 People 0fthe VI v Przngle 2021 VI SUPER 94U at 1] 25 In People 0fthe Vlrgzn Islands 1 Prmgle the court stated such 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 ” Id DISCUSSION 118 Defendant argues that Count One should be dismissed for being multiplicitous to Count Three He further argues that Counts One and Three both charge the use of a wooden stick upon Mwamini in violation of 14 V I C § 297(a)(4) and 16 V I C § 91(b)(1)(2) He contends that the counts both arise from the same set of facts and circumstances, in a single incident, against a single victim, and using a single weapon Frett claims he is charged twice for the same continuous act of striking Mwamini with a wooden stick Under the Blockburger test, Frett claims that both counts look to the same act and the same statutory provision with identical elements needed to prove each charge Accordingly, Frett claims the counts are multiplicitous and Count One must be dismissed 1954 as amended, § 3, 48 U S C § 1561, reprinted in V I Code Ann Historical Documents Organic Acts and U S Constitution at 86 88 (1995) (preceding V I Code Ann tit l) People ofthe Virgin Islands v Julzan F) ett ST 2019 CR 00295 Cite as 2022 VI Super 86U Memorandum Opinion 119 In response, the People note that Counts One and Three are not actually charged under identical statutory provisions, noting that Count One is charged under 14 V I C § 297(a)(2)5 while Count Three is charged under 14 V I C § 297(a)(4) Accordingly the People claim different statutory elements are required to prove each count The People further argue that the prejudice to the defendant is minimal, since there are only six (6) counts charged, and the Defendant is only seeking to dismiss or consolidate a single count The People note that ‘ prosecutors enjoy a great deal of discretion in charging a defendant, ’ citing People 0ft/ze V] v Saldana, 2017 V I LEXIS 30, at *2 (VI Super Ct Feb 10, 2017), and therefore arguing the charges as stated in the Information should remain as charged The People contend that the Court can address whether charges are multiplicitous at the sentencing stage and elect to consolidate or dismiss them at that time 1110 The Court finds the People charged Frett with assault in the third degree under two distinct theories, such that the Information is not multiplicitous In the Information, Counts One and Three read as follows 0 Count One ‘ On or about December 13, 2019, in St Thomas, Virgin Islands, Julian H Frett, assaulted his daughter with a deadly weapon, a wooden stick, to wit he struck his daughter, Mwamini Frett, in the forehead with a wooden stick, causing her to become dazed, and this act was committed during an act of domestic violence, in violation ofV 1 Code Ann tit 14 § 297(a)(2) V I Code Ann tit 16 § 91(b)(1)(2) 0 Count Three ‘ On or about December 13, 2019, in St Thomas, Virgin Islands, Julian H Frett, assaulted his daughter, Mwamini Frett, and inflicted serious bodily injury upon her person, to wit he struck her again with a wooden stick to her face and stomach causing her nose to bleed profusely, and this act was committed during an act of domestic violence, in violation of V 1 Code Ann tit 14 § 297(a)(4); V I Code Ann tit 16 § 91(b)(1)(2) 5 In their motion the People mistakenly quote the language of § 297(a)(3), assaults another with premeditated design and by use of means calculated to inflict great bodily hann, though they cite the correct provision § 297(a)(2) “assaults another with a deadly weapon ” People ofthe V11gm Islands 1 Julian Fiett ST 2019 CR 00295 Cite as 2022 VI Super 86U Memorandum Opinion Page 6 0f 9 Title 14 V I C § 297(a)(2), defines assault in the third degree as “under circumstances not amounting to an assault in the first or second degree assau1t[ing] another with a deadly weapon,” while 14 V I C § 297(a)(4), defines assault in the third degree as ‘under circumstances not amounting to an assault in the first or second degree assau1t[ing] another and inflict[ing] serious bodily injury upon the person assaulted ’ 1111 In reviewing these charges for multiplicity, the Court must consider the elements of each charge and determine whether each provision requires proof of a fact which the other does not Colon, 60 V I at 161 When determining the elements required to define assault in the third degree pursuant to 14 V I C § 297(a), the Virgin Islands Supreme Court has held “the language ‘under circumstances not amounting to an assault in the first or second degree does not establish an additional, substantive element of the offense, but rather constitutes a condition precedent to the Superior Court's application of the sentencing range prescribed in § 297 Davzs v People of the VI 69 V1619 632 (V I 2018) 1112 Assault is defined as either ‘(1) attempt[ing] to commit a battery or (2) mak[ing] a threatening gesture showing in itself an immediate intention coupled with an ability to commit a battery ” 14 V I C § 291 Accordingly, The Virgin Islands Supreme Court has definitively broken down the elemental makeup of each definition of third degree assault, as defined in 14 V I C § 297(a) D01 IS 69 VI at 657 60 The elements ofThird Degree Assault, subsection 297(a)(1) (4), are (1) the defendant; (2) under circumstances wherein the gestures made could be immediately performed; (3) made gestures; (4) those gestures communicated an immediate ability and specific intent to use unlawful violence against another; and (5) such actions (a) were taken with the specific intent to commit a felony, (b) were taken with the use of a deadly weapon, (c) were taken with a premeditated design and by use ofmeans calculated to inflict great bodily injury, or (d) inflicted great bodily injury upon the victim People ofthe Vtrgm Islands 1 Julian Fletl ST 2019 CR 00295 Cite as 2022 VI Super 86U Memorandum Opinion Page 7 of9 Id at 658 59 (citing 14 V I C § 297(a)(1 4)‘ 14 V I C § 291(2)) Therefore with respect to 14 V I C § 297(a)(2), the elements are that “a defendant [committed] an ‘assault,’ and the People are required to prove the additional element that the assault was with a deadly weapon ”’ 6 Cascen v People 0fthe Vzrgm Islands 60 V I 392 407 (V I 2014) (quoting thpps v People 54 VI 543 550 (VI 2011)) As for 14 V I C § 297(a)(4) the elements are (1) assau1t[ing] another and (2) ‘inflict[ing] serious bodily injury upon the person assaulted 7 Umted States v Saldana, 719 Fed App x 120 125 (3d Cir 2017) (citing 14 V I C § 297(a)(4)) see also Nanton v People 52 VI 466 499 (V I 2009) (Hodge C J concurring) ( [A]ssau1t in the third degree under [14 V I C § 297(a)(4)] requires only that the People prove that the defendant ‘inflict[ed] serious bodily injury upon the person assaulted ) 1113 Virgin Islands courts as well as the Third Circuit have repeatedly noted distinctions among the four definitions of assault in the third degree articulated within 14 V I C § 297(a), effectively acknowledging the independent nature of each definition See Saldana, 719 Fed App’x at 125 (noting that the ‘ Virgin Islands Code provides four definitions of assault in the third degree ’); see also Nanton, 52 V I at 499 500 (Hodge, C J , concurring) (differentiating between various definitions of assault in the third degree, noting that rather than charging defendants under 14 V I C § 297(a)(2) [t]he People could have charged [defendants] with assault in the third degree [14 V I C § 297(a)(4)] for instance which requires only that the People prove that the defendant ‘inflict[ed] serious bodily injury upon the person assaulted ’ Instead the People elected to charge [defendants] with assault using a deadly weapon and specified that such weapon was a knife 6 The Count notes that the determination of whether a wooden stick constitutes a deadly weapon will be a necessary inquiry, but the Court need not make such determination at this stage of the proceedings 7 The Court notes that the determination of whether Mwamini s injuries constitute serious bodily injury will also be a necessary inquiry but not for the instant motion People ofthe V17gm Islands v Julzan F1 ett ST 2019 CR 00295 Cite as 2022 VI Super 86U Memorandum Opinion Therefore the People must prove the specific facts relevant to that charge ’) ‘Subsections [(a)(l) (a)(4)] of section 297 provide for aggravating factors that make the conduct involved the crime of Third Degree Assault Dams, 69 V I at 658 1114 Those cases make clear that the elements required to prove Counts One and Three are not identical Therefore, the Court finds consolidation or dismissal inappropriate at this stage of the proceedings It is clear that Counts One and Three require proof of differing elements in order to satisfy the statutory requirements, i e , proving the assault was done‘ with a deadly weapon ’ versus ‘ inflict[ing] serious bodily injury Both statutory provisions require proof of a fact which the other does not, so the counts are not multiplicitous’ The elements of each charge are clearly distinct, and the Court finds no error or multiplicity with the People charging a defendant under multiple theories of assault in the third degree 1115 In their opposition, the People argue the potential prejudice to the Defendant is limited since consolidation or dismissal would only yield the removal of a single charge, and the jury would only receive instructions regarding a single additional charge The Court finds that any number of additional counts, even one, can serve to prejudice the Defendant in the eyes of a jury But since the Court finds that the charges are not multiplicitous it need not address whether one additional count does not rise to the level of prejudice People ofthe V1)gm Islands v Julian Fiett ST 2019 CR 00295 Cite as 2022 VI Super 86U Memorandum Opinion Page 9 0f 9 CONCLUSION 1116 The Court finds the elements composing Counts One and Three are distinct and require proof of different facts, such that consolidation at this stage of the proceedings is not necessary nor warranted The Court finds it acceptable for the People to charge the Defendant for assault in the third degree under multiple theories of the crime There will be another opportunity to determine whether consolidation or dismissal is appropriate at the sentencing stage of the proceedings, should the need arise The Court will deny Defendant’s motion to dismiss Count One An order consistent herewith will immediately follow DATED October /£ 2022 é ?jé/ 2%é4&3 , Kathleen Mac ay Judge of the Superior Court ATTEST of the Virgin Islands TAMARA CHARLES Clerk of theCmfl‘ BY 4;“ LATOYA CAMACHO Court Clerk Supervisor IO / IQ. /_9'_L&