Day v. Gov't of the Virgin Islands, D.C. Crim. App. No. 1997-0063
| Decision Date | 07 October 2015 |
| Docket Number | Super. Ct. Crim. No. 524/1996,D.C. Crim. App. No. 1997-0063 |
| Parties | EDWARD EDLOW DAY IV a/k/a EDLOW DAY, Appellant, v. GOVERNMENT OF THE VIRGIN ISLANDS, Appellee. |
| Court | U.S. District Court — Virgin Islands |
Attorneys:
Daniel L. Cevallos, Esq.
Maureen Cormier, Esq.
Tiffany V. Monrose, Esq.
St. Thomas, USVI
For the Appellee.
MEMORANDUM OPINIONEdward Edlow Day IV a/k/a Edlow Day ("Day") challenges his conviction in the Superior Court of the Virgin Islands for aggravated assault. For the reasons stated below, the Court will vacate Day's conviction and remand the case to the Superior Court for imposition of a conviction and sentence for the lesser-included offense of simple assault and battery.
This matter arises out of a Superior Court bench trial where the appellant, an adult male, was convicted of aggravated assault and battery stemming from an altercation with an adult female employee of the Virgin Islands Department of Human Services ("DHS").
On September 18, 1996, Edward Day V, ("Edward Jr.") was a minor child. (Trial Tr. vol. 3, 21, February 27, 1997.) The appellant, Edward Day IV ("Appellant" or "Day") is Edward Jr.'s father. (Id. at 114.) When the incident underlying this action occurred, Edward Jr. was enrolled in the half-day session at Knud Hansen Headstart Day Care Center on St. Thomas ("Headstart"). The half-day session ended at 11:30 a.m. (Id. at 21.)
Headstart's Social Service Aide, Elise M. Moore ("Moore") testified that, on at least one occasion prior to the incident atissue, Edward Jr. had been picked up late. (Id. at 26-27.) Moore testified that Appellant had been informed that when a parent does not pick up their child on time, Headstart's policy was for the teacher to inform the administrative office, then to attempt to contact the parent. (Trial Tr. at 22-25, 83, 91.) If the teacher could not reach the parent, then the administrative office would attempt to reach the parent. If the administrative office could not contact the parent, Headstart employees would take the child to the Zone A police station on St. Thomas and/or file a complaint of neglect. (Id. at 23.)
Social Service Aide, Sherlynn Clause ("Clause") testified that she had informed Day about the late parent policy prior to the September 18, 1996, incident at issue. (Id. at 83-84.) On that prior occasion, Day responded to Clause by becoming "loud and angry," and telling Clause that, "he will do as he want to do" and that he would be intentionally late to pick up Edward Jr. (Id. at 84.)
On September 18, 1996, Day did not pick up his son from Headstart at 11:30 a.m. (Id. at 178.) After the program ended, Day called Headstart and spoke to Ms. Moore several times. (Id. at 186.) Day demanded that Edward Jr. be brought to Day's home. (Id. at 23-25.) Moore responded that Headstart's only option was to bring Edward Jr. to the police station. Day told her that, "[theHeadstart employee] better bring my child home," (Id. at 24.)
Moore called the Assistant Commissioner of DHS, Catherine Mills ("Mills"), who advised her to contact lone Kitnurse ("Kitnurse"), who was the DHS District Manager for the Office of Intake and Emergency Services. (Id.) Kitnurse met Moore at Headstart, and at approximately 3:55 p.m., Clause, Moore and Kitnurse drove Edward Jr. to the Zone A Norre Gade police station on St. Thomas.3 (Id. at 29, 85, 103, 104.)
While the three DHS workers were walking Edward Jr. from the parking lot into the police station, Day arrived at the scene, exited his vehicle, and charged towards the three women while asking, "[w] ho is Ms. Moore?" (Id. at 30-31, 86, 107, 194, 283, 297.) Kitnurse stood between Moore, Edward Jr., and the oncoming Day. (Id. at 86, 107-108.) Kitnurse testified that she raised her arm in a posture to defend Moore. (Id. at 96, 107.)
Day shoved Kitnurse against the wall. (Id. at 86-88.) He then attempted to reach his son. (Id.) Kitnurse maneuvered her body to block Day from the child and a struggle for Edward Jr. ensued. (Id.at 88.) Kitnurse physically held Day by the shirt. (Id. at 108, 144, 146, 182.) Day repeatedly said (Id. at 109.) Clause ran into the police station to get help. Police officers emerged. They separated Day and Kitnurse and took possession of Edward Jr. (Id. at 109, 200.) The child was returned to his father the following day. (Id. at 207.)
As a result of the altercation, Kitnurse complained that she was hit in the stomach; suffered lacerations to her right arm; experienced back pain; and later experienced emotional trauma. (Id. at 110-111.) On the evening of the incident, she was treated at the emergency room. (Id. at 111.) Kitnurse later received physical therapy. (Id.)
Moore and Kitnurse filed a police incident report. Because Day is an adult male, and the victim is an adult female, Day was charged with one count of aggravated assault and battery for the altercation with Kitnurse, in violation of V.I. CODE ANN. tit. 14, § 298(5).
On February 27, 1997, the Superior Court4 held a one-day bench trial.5 Day was represented by a Territorial Public Defender. Kitnurse, Moore, and Clause identified Day as the man who attacked them.6 After criticizing Day, the trial judge found him guilty of aggravated assault, in violation of 14 V.I.C. § 298(5). (Id. at 288-305.) On April 10, 1997, the Superior Court sentenced Day to a six month term of incarceration, a fine of $500.00, court costs of twenty-five dollars and restitution for Kitnurse's medical expenses. (App. vol. 1 at 2, 14.) On April 14, 1997 Appellant's timely pro se notice of appeal followed.7 (Id. at 2, 19.)
This Court has jurisdiction over appeals of final judgments or orders that were entered before January 29, 2007. See Revised Organic Act of 1954 23A, 48 U.S.C. § 1613(a); Act of Oct. 29, 2004, No. 6687, sec. 6, § 2, 2004 V.I. Legis. 6687 (2004); see also Gabriel Joseph v. People of V.I., No. 2005-13, 2008 WL 5663569, at *5 (D.V.I. App. Div. 2008).8
Appellant's brief raises three issues: (1) whether the aggravated assault statute violates the Equal Protection Clause; (2) whether there was insufficient evidence to sustain a conviction for aggravated assault and battery because Day was lawfully trying to retrieve his child from the custody of others; and (3) whether Appellant was selectively prosecuted because similarly situated females were not prosecuted for aggravated assault.9
The standard of review for questions of law is plenary. See, e.g., United States v. Thomas, 456 F. App'x 85, 87 (3d Cir. 2011).
When reviewing a sufficiency of the evidence claim, we apply a deferential standard of review. United States v. Moyer, 674 F.3d 192, 206 (3d Cir. 2012). We will review the evidence in the light most favorable to the government and will affirm if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See id. When determining the sufficiency of the evidence, the government is given the benefit of all reasonable inferences that can be drawn from the evidence. Id.
A defendant challenging the sufficiency of the evidence bears a heavy burden. United States v. Dragn, 359 F. App'x 332, 334 (3d Cir. 2009). He must prove that, even when the evidence, both direct and circumstantial, is viewed in the light most favorable to the verdict, and even when the government is given the benefit of all inferences which can be drawn from it, no rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009). In making this determination,circumstantial evidence is considered to be just as probative as direct evidence. See United States v. Young, 532 F. App'x 259, 263 (3d Cir. 2013). A finding of guilt may be based solely on circumstantial evidence. United States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008). This is particularly so when proving the element of intent. United States v. Lawrence, 349 F.3d 109, 120 (3d Cir. 2003) ().
Day argues that the aggravated assault statute is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. He claims that the use of gender as an element of "enhancement" cannot be justified as required under the Constitution.
Title 14 of the Virgin Islands Code, Section 298(5) states, in pertinent part that:
Whoever commits an assault and battery . . . being an adult male, upon the person of a female or child, or being an adult female, upon the person of a child . . .shall be fined not more than $500 or imprisoned not more than 1 year, or both[.]
V.I. CODE ANN., tit. 14, § 298(5) ("Section 298(5)).
Section 298(5), by its terms, escalates simple assault and battery to an aggravated assault and battery where the assault andbattery is perpetrated by an adult male against an adult female. V.I. CODE ANN., tit. 14, § 298(5); Simmonds v. Virgin Islands, 55 V.I. 1069, 2011 WL 3290200, at *2 (D.V.I. App. Div. July 29, 2011). "The statute does not, however, graduate simple assault to aggravated assault when an adult male perpetrates the offense against another adult male or if an adult female perpetrates the offense against another adult female." Simmonds,...
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