Government of Virgin Islands v. Bellot , 473 F. App'x 123 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-3475
GOVERNMENT OF THE VIRGIN ISLANDS
v.
PETER BELLOT,
Appellant
On Appeal from the District Court
of the Virgin Islands – Appellate Division
(D. C. No. 3-03-cr-00130-001)
District Judge: Honorable Raymond L. Finch
District Judge: Honorable Thomas K. Moore
Superior Court: Honorable Edgar D. Ross
Submitted under Third Circuit L.A.R. 34.1(a)
on December 8, 2011
Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges
(Opinion filed: March 30, 2012 )
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OPINION
ROTH, Circuit Judge:
Peter Bellot appeals the order of the Appellate Division of the District Court of the
Virgin Islands affirming his judgment of conviction in the Virgin Islands Superior Court 1
for aggravated rape and unlawful sexual contact in the first degree. For the following
reasons, we will affirm the order of the District Court.
I. Background
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
For several years, Bellot lived and worked as a mechanic at Alester Canonier’s
auto body garage. During this period he became acquainted with Canonier’s three young
children. Beginning around November 2001 and lasting until May 2002, Bellot touched
A.C., Canonier’s nine year old daughter, three times. On the first two occasions Bellot
placed his hand on A.C.’s thigh, which made her feel uncomfortable. The third incident
occurred in May when A.C. was doing homework in the office of her father’s garage.
While alone in the office with A.C., Bellot “pulled across” her panties and inserted his
fingers into her vagina. This caused A.C. to bleed, and she yelled in pain. Upon hearing
A.C. scream, Canonier investigated and asked her what happened. A.C. responded
1
At the time of Bellot’s convictions the Superior Court was known as the
Territorial Court of the Virgin Islands. For ease of reference, we identify the tribunal
with its current name.
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“nothing.” Approximately two months later, A.C., while asleep with her brother in the
backseat of her mother’s car, suddenly exclaimed “No. Stop. You’re hurting me.” After
A.C.’s mother awoke her and asked what was wrong, A.C. informed her about Bellot’s
sexual assault. A.C. was then taken to the hospital, and a medical examination
subsequently revealed that she had no hymen. When questioned about the incident by
hospital staff, A.C. indicated that Bellot touched her “a few months ago.” Later, she
clarified her previous statement and declared that the incident occurred “2 months ago.”
After a jury trial, Bellot was found guilty of one count of aggravated rape in the
first degree and one count of unlawful sexual contact in the first degree. He filed a
motion for judgment of acquittal, which the Superior Court denied. Bellot appealed, and
the Appellate Division of the District Court of the Virgin Islands upheld his conviction.
Bellot appeals the District Court’s decision.
II. Discussion
We have jurisdiction pursuant to 48 U.S.C. § 1613a(c), and, in our review, use
“the same standard of review applied by the first appellate tribunal.” Tyler v. Armstrong,
365 F.3d 204, 208 (3d Cir. 2004).
A. Sufficiency of the Evidence
We exercise plenary review, United States v. Bornman, 559 F.3d 150, 152 (3d Cir.
2009), and “apply a particularly deferential standard of review when deciding whether a
jury verdict rests on legally sufficient evidence.” United States v. Dent, 149 F.3d 180,
187 (3d Cir. 1998). “In exercising that review, we must interpret the evidence in the light
most favorable to the government as the verdict winner, and do not weigh evidence or
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determine the credibility of witnesses in making our determination.” United States v.
Miller, 527 F.3d 54, 60 (3d Cir. 2008) (internal quotations marks and citations omitted).
A defendant may be convicted for unlawful sexual contact in the first degree, 14
V.I.C. § 1708, when he (1) engages in sexual contact (2) with an individual under the age
of thirteen (3) that was not his spouse. “Sexual contact” is defined as “the intentional
touching of a person's intimate parts, whether directly or through clothing, to arouse or to
gratify the sexual desires of any person. The term ‘intimate parts‘ means the primary
genital area, groin, inner thighs, buttocks, or breasts of a person.” 14 V.I.C. § 1699(c).
To convict a defendant of aggravated rape, 14 V.I.C. § 1700, the government must prove
that he (1) engaged in sexual intercourse (2) with an individual under the age of thirteen
(3) that was not his spouse. “Sexual intercourse” is defined as “vaginal intercourse or
any insertion, however slight, of a hand, finger or object into the vagina, vulva, or labia,
excluding such insertion for medical treatment or examination.” 14 V.I.C. § 1699(d).
Bellot does not dispute that A.C. was under the age of 13, that she was not his
spouse, and that he engaged in sexual contact and intercourse with her by inserting his
finger into her vagina. Rather, he contends that there was insufficient evidence to support
his conviction because the government failed to prove that the assault occurred between
April 27, 2002 and July 15, 2002, the dates alleged in the Information. This argument is
without merit. Upon her arrival at the hospital in July 2002, A.C. informed the triage
nurses that the sexual assault occurred “a few months ago.” Later, during her physical
examination, A.C. specified that the assault occurred “two months ago.” Although A.C.
could not recall at trial the specific date of the assault, these two statements provide
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sufficient evidence for the jury to conclude that Bellot sexually assaulted A.C. in May
2002. See United States v. Cothran, 286 F.3d 173, 176 (3d Cir. 2002).
B. Batson Challenge
Bellot also contends that the government improperly utilized its peremptory
challenges to exclude two potential jurors from Dominica, the island where Bellot was
born. We have held that a defendant forfeits his claim under Batson v. Kentucky, 476
U.S. 79 (1986) if he fails to object during jury selection to the prosecutor’s use of
peremptory challenges. Gov’t of the Virgin Islands v. Forte, 806 F.2d 73, 75-76 (3d Cir.
1986); see Lewis v. Horn, 581 F.3d 92, 101-02 (3d Cir. 2009). According to the record,
Bellot only raised a Batson objection during his sentencing hearing, long after
empanelment of the jury and dismissal of the venire. There is no transcript of any Batson
challenge during the jury voir dire. To the extent that Batson may have been discussed
during voir dire, there is no record of it. We, therefore, review for plain error. Forte, 806
F.2d at 76.
The record of any use by the government of peremptory challenges here does not
indicate plain error. There is no evidence that Bellot’s substantial rights were affected or
that the fundamental fairness of his trial was compromised. See Forte, 806 F.2d at 76.
Although none of the jurors shared the same ethnicity as Bellot, the jury was composed
of individuals from several Caribbean islands. Nothing during voir dire suggested any
possibility of any ethnic bias among the jurors. Moreover, the Superior Court extensively
questioned the venire members on any preconceived prejudices that could have adversely
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affected Bellot’s right to a fair trial. None of them indicated that they could not be fair or
impartial for any reason.
We, therefore, conclude that any purported dismissal of jurors by the government
did not result in plain error.
C. Jury Instructions
On August 11, 2002, Virgin Islands Police Department Detective Aaron Krigger
interviewed Canonier regarding his interactions with Bellot. During the course of their
conversation, Canonier informed Detective Krigger that Bellot was in Canonier’s garage
only once in 2002, and A.C. was not present. At trial, however, Canonier contradicted
his August 2002 statement and explained that Ballot was in the garage almost every day
throughout 2002. Although the Superior Court admitted Canonier’s August 2002
statement into evidence, it denied Bellot’s request to instruct the jury that the statement
constituted substantive evidence. Instead, the court informed the jury that the statement
could only be used for impeachment purposes, not for the truth of its contents. Bellot
contends that this instruction limiting the August 2002 statement to impeachment
evidence constituted reversible error.
Federal law provides that “[t]he rules governing the practice and procedure of the”
Superior Court shall be “governed by local law.” 48 U.S.C. § 1611(c). According to
Virgin Islands Code, 14 V.I.C. § 19, evidence of an inconsistent prior statement may be
admitted as substantive evidence if the witness was given an opportunity at trial to
explain the statement. See Virgin Islands v. Donastorg, No. ST-10-CR-F109, 2010 WL
3063765, at * 7 (V.I. Super. Ct. Aug. 4, 2010). Here, Canonier’s trial testimony was
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arguably inconsistent with his August 2002 statement, and he was afforded an
opportunity during trial to explain the alleged inconsistency. Thus, we conclude that the
Superior Court erred when it failed to instruct the jury that it could consider Canonier’s
August 2002 statement as substantive evidence.
To determine whether the Superior Court’s error entitled Bellot to a new trial, we
review for harmless error. United States v. Saybolt, 577 F.3d 195, 206 (3d Cir. 2009).
“The test for harmless error is whether it is highly probable that the error did not
contribute to the judgment.” United States v. Vosburgh, 602 F.3d 512, 540 (3d Cir. 2010)
(internal quotations omitted).
After review of the record, it is clear that the Superior Court’s failure to instruct
the jury that it could consider Canonier’s August 2002 statement as substantive evidence
was harmless error. Moreover, although the court instructed the jury that it could only
consider inconsistent statements for impeachment purposes, its instructions never directly
referred to the August 2002 statement. Bellot was also permitted to refer to the statement
as substantive evidence during closing argument. Finally, the evidence of Bellot’s guilt
was overwhelming.
III. Conclusion
For the foregoing reasons, we will affirm the order of the District Court affirming
the judgment of conviction.
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