For Publication

IN THE SUPREME COURT OF THE VIRGIN ISLANDS

DEVINDRA JAGLAL ) S Ct Crim No 2022 0033Appellant/Defendant ) Re Super Cl Crim No ST 2020 CR

) 00338 (SI 1)

)V )

PEOPLE OF THE VIRGIN ISLANDS, ;

Appellee/Plaintiff )

)

On Appeal from the Superior Court ofthe Virgin IslandsDivision of St Thomas & St John

Superior Court Judge Hon Renee Gumbs Carty

Argued May 9 2023Filed August 16 2024

Cite as 2024 V I 28

BEFORE RHYS S HODGE Chief Justice, MARIA CABRET Associate Justice and

IVE ARLINGTON SWAN Associate Justice

APPEARANCES

David J Cattie, Esq

The Cattie Law FirmSt Thomas U S V I

Attorneyfor Appellanl

Tracy Myers, EsqAssistant Attorney GeneralSt Thomas U S V |

Attorneyflv Appellee

Jaglalv People 2024 v1 28S Ct Crim No 2022 0033Opinion of the CourtPage 2 of 22

OPINION OF THE COURT

SWAN, Associate Justice

fill Appellant Devindra Jaglal (“Jaglal”) challenges his convictions for second degree

assault domestic violence and simple assault domestic violence For the reasons elucidated

below, we affirm Jagial’s simple assault conviction, but we reverse his second degree assault

conviction and remand the matter to the Superior Court with instructions to grant him a new

trial on that charge

I FACTS AND PROCEDURAL HISTORY

1|2 On November 13, 2020, Jaglal traveled to St Thomas, U S Virgin Islands with his

former girlfriend, Rocio Ramirez Garcia (“Garcia”) Upon arrival the couple drove to their

accommodations at Sapphire Beach Resort (“hotel”) and were housed in room 206

113 On November 15, 2020, following an aquatic excursion in the morning and lunch in the

afiernoon on Coki Point Beach, Jaglal and Garcia returned to their hotel room to prepare for

night time, social activities However, once in room 206, Jaglal and Garcia argued over Jaglal’s

alleged need to use Garcia’s phone Jaglal claimed that his phone’s battery was losing power

and Garcia’s phone was the only one with sufficient energy to initiate a call for a taxi Garcia

asserted that Jaglal wanted her to contact one of her friends to have the acquittance join them

on vacation Regardless of the cause of their conflict, a violent altercation ensued between

Jaglal and Garcia which reportedly included Jaglal choking Garcia, repeatedly threatening to

kill her, and shoving her to dislodge her from his person To combat Jaglal’s overt hostility,

Garcia screamed repeatedly during the incident for Jaglal to spare her life

Jaglal v People 2024 V | 28S Ct Crim No 2022 0033Opinion of the CourtPage 3 of22

1|4 Unsurprisingly, spectators and other hotel guests heard Garcia’s screams and contacted

the police One group of concerned citizens called 9ll to aid Garcia This group included

Bradley Thomas and Davion Samples, both of whom resided in the hotel room (205) adjacent

to Jaglal and Garcia’s hotel room (206) and obviously heard Garcia 5 screams Moreover,

Thomas and Samples also encountered Jaglal when he peered over the common partition

separating the balconies of their respective hotel rooms The two men agreed that Jaglal

appeared anxious and prodded them to ascertain what sounds they had heard emanating from

his hotel room After a brief exchange, the two men told Jaglal that they had summoned the

police, and Jaglal returned inside room 206

115 Subsequently following a briefconversation with Thomas and Samples to confirm the

situation, Virgin Islands Police Department (“VIPD”) officers Khalil Tatum (“Tatum”) and

Cindy Claudio (“Claudio”) knocked on the door to room 206 Jaglal opened the door and Tatum

asked him to step outside the room while Claudio talked with Garcia inside the room Jaglal

complied Tatum testified that, as they waited for Claudio and Garcia to exit the room, Jaglal

constantly stated that he did not call the police and that the police’s presence was unnecessary

Approximately 20 minutes afier she entered, Claudio exited room 206 with Garcia and

indicated to Tatum that Jaglal should be arrested for domestic violence Tatum placed Jaglal in

custody and other officers took Garcia to the emergency room at Schneider Regional Hospital

where she was treated for her injuries Garcia’s injuries amounted to contusions on her neck

and arm with no broken bones or lacerations and no harm to her six week old, unborn child

1|6 On May 24, 2022, Jaglal’s two day trial commenced The People charged Jaglal in a

three count infomation with false imprisonment aggravated by domestic violence, violating

Jaglal v People 2024 V I 28S Ct Crim No 2022 0033Opinion of the CourtPage 4 of 22

14 V I C § IOSI [6 V I C § 91(b)(l)(2) I second degree assault aggravated by domestic

violence violating 14 V I C § 296(3) ‘ l6 V [C §9l(b)(l)(2) and simple assault aggravated

by domestic violence violating 14 V I C §§ 292 299(2) 4 16 V IC § 9l(b)(l)(2)

f7 On May 26, 2022, the jury convicted Jaglal of second degree assault (count two), and

simple assault (count three) On June 30, 2022, the court sentenced Jaglal to seven years

incarceration on the second degree assault charge and six months incarceration imposed on the

simple assault charge The penalty for the simple assault conviction was to be served

concurrently with the seven year sentence imposed for second degree assault On July I, 2022,

Jaglal perfected the instant appeal

11 JURISDICTION

1] 8 “The Supreme Court [has] jurisdiction over all appeals arising from final judgments,

final decrees, and final orders ofthe Superior Court ” 4 V I C § 32(a) “An order that disposes

of all claims submitted to the Superior Court is considered final for the purposes of appeal ”

Jungv Ruzz 59 V I l050 l057 (V I 2013) (citing Matthew v Herman 56 V l 674 677 (V I

' “Whoever without lawful authority confines or imprisons another person within this Territory against his will,or confines or inveigles or kidnaps another person, with intent to cause him to be confined or imprisoned in thisTerritory against his will, or to cause him to be sent out of this Territory against his will, and whoever willfullyand knowingly sells, or in any manner transfers, for any term, the services or labor of any other person who hasbeen unlawfully seized, taken, inveigled or kidnapped from this Territory to any other state, territory or country,is guilty of kidnapping and shall be imprisoned for not less than one and not more than 20 years This action

shall not apply in any case when a parent abducts his own child ” [4 V l C § 10512 As used in this chapter, unless the context clearly indicates otherwise, (b) Domestic violence” means theoccurrence of any of the following acts, attempts or threats against a person who may be protected under thischapter pursuant to subsection (c) of this section (I) Assault, (2) Battery 16 V l C § 9l(b)(l)(2)

3 ‘Whoever willfully—(l) mingles any poison with any food, drink or medicine, with intent that the same shallbe taken by any human being, to his injury or (2) poisons any spring, well, or reservoir ofwater, or(3) strangle or attempts to strangle any person in an act of domestic violence, or (4) places or throws, or causesto be placed or thrown, upon the person of another, any vitriol, corrosive acid, pepper, hot water, or chemical ofany nature with intent to injure the flesh or disfigure the body or clothes of such person shall be imprisoned

not more than 10 years and if the conviction results from an act ofdomestic violence the person shall be finedno less than $1,000 and shall successfully complete certified mandatory Batter[y] Intervention Program ” l4v I C §2964 Whoever commits—( l) a simple assault; or (2) an assault or battery unattended with circumstances ofaggravation shall be fined not more than $250 or imprisoned not more than six months, or both the imprisoned

and fined 14 V I C §299

Jaglal v People 2024 V1 28S Ct Crim No 2022 0033Opinion ofthe CourtPage 5 or 22

2012)) Here, the Superior Court’s June 30, 2022 judgment disposed of all claims submitted

for adjudication Further, it is well established that in a criminal case, the written judgment

embodying the adjudication of guilt and the sentence imposed based on that adjudication

constitutes a final judgment for purposes of 4 V I C § 32(3) Wzllzams v People, 58 V I 341,

345 (V I 2013) (citing cases) Therefore the June 30, 2022 judgment is final, and we exercise

jurisdiction over Jaglal’s appeal

Ill STANDARD OF REVIEW

119 We review the trial court’s factual findings for clear error and exercise plenary review

over its legal determinations Thomas v People, 63 VI 595 602 03 (VI 2015) (citing

Simmonds v People, 53 V | 549, 555 (V I 2010)) Furthermore, we also exercise plenary

review overjury instructions Prince v People, 57 V I 399, 405 (V I 2012) Nonetheless, a

party advancing a claim of deficient jury instructions “has a particularly high burden

Ajury instruction will generally not be invalidated unless it is shown that the instruction

substantially and adversely impacted the constitutional rights of the defendant and impacted

the outcome of the trial [Critically, if a party] timely objected to a final jury instruction,

we review the objection for abuse of discretion However [it] no objection [was] made[,]

we review a[n allegedly deficient] jury instruction for plain error” Id (citations omitted)

Finally, we review the Superior Court’s evidentiary decisions for abuse of discretion Tyson v

People 59V] 391 400 (VI 2013)

IV DISCUSSION

A The Superior Court Plainly Erred When It Lowered the People’s Burden of

Proof by Relying on Imperfect Synonyms in the Jury Instructions to Substitute

for the Omitted Mens Rea 0f “Willfully”

Jaglalv People 2024 VI 28S Ct Crim No 2022 0033Opinion of the CourtPage 6 of 22

110 On appeal, Jaglal posits three central issues First, he alleges that the Superior Court

erred when it omitted the mens rea of willfully” for second degree assault from the crime’s

statutory elements that were conveyed to the jury in the final instructions Second, he contends

that the trial court erred when it permitted Garcia to testify about a telephone call she received

from Jaglal’s mother who attempted to persuade Garcia to drop the charges against Jaglal,

although the court had no evidence that Jaglal compelled his mother to call Garcia Third, Jaglal

argues that the trial court erred when it considered the call from Jaglal’s mother at Jaglal’s

sentencing, although the court received no evidence that Jaglal compelled his mother to call

Garcia

‘1 l Critically, Jaglal admits that he failed to raise issues one and three before the Superior

Court (Appellant’s Br 2 3) Accordingly, those issues are either waived (issue three) or will

be reviewed only for plain error (issue one) It is axiomatic that issues in an appellant s brief,

which were not raised at trial are waived unless the issues affect the appellant’s substantial

rights See szles v People 66 V I 572 583 (V l 2017) ( [A] party only needs to raise an

issue in time for the Superior Court to address it and take whatever action is necessary in the

first instance in order to fairly present the issue and preserve it for appeal ”) (citations omitted),

V | R APP P 22(m) (“Issues that were (1) not raised or objected to before the Superior Court,

(2) raised or objected to but not briefed, or (3) are only adverted to in a perfunctory manner or

unsupported by argument and citation to legal authority, are deemed waived for purposes of

appeal, except that the Supreme Court, at its option, may notice an error not presented that

affects substantial rights ”)

1H2 If the appellant s substantial rights are not implicated, we only review for plain error

because the appellant failed to object to the issue at trial Woodrup v People, 63 V l 696, 720

(V l 2015) See UmtedStates v Montague 67 F 4th 520 527 (2d Cir 2023) ( When a party

Jaglalv People 2024 v1 23S Ct Crim No 2022 0033Opinion 0fthe CourtPage 7 of22

‘failed to raise th[e] statutory challenge below we ‘review the district court's interpretation

for plain error ”’) (citations omitted), UmtedStates v Rose, 538 F 3d 175, 178 (3rd Cir 2008)

Under plain error review, (I) there must be an error, (2) that is plain, (3) which affects a

defendant 5 substantial rights, and (4) that seriously affects the fairness, integrity, or public

reputation ofjudicial proceedings Wallace v People, 71 VI 703, 711 (V1 2019) (citations

omitted) See Johnson v United States, 520 U S 46], 466 (1997) (same); Henderson v Untied

States 568 U S 266 268 (2013) (same) Davzsv UnitedStates 140$ Ct 1060 1061 (2020)

(same)

1113 Moreover, because we find that the Superior Court’s admission of improper testimony

concerning the call Jag1al’s mother made to Garcia to persuade Garcia to dismiss the case

against Jaglal was harmless error we affirm Jaglal’s conviction for simple assault Woodrup v

People 63 V1 696 720 (V1 2015) (holding that inadvertent admission of evidence is

analyzed for harmless error), UnztedStates v Harbin, 250 F 3d 532, 544 (7th Cir 2001) (‘ Trial

errors generally occur during the presentation of the case to the jury, and are amenable to

harmless error analysis because they may be quantitatively assessed in the context of the

evidence as a whole, to determine the effect on the trial No presumption of prejudice

attaches for such errors, and they do not require reversal if they are harmless beyond a

reasonable doubt ”) (citations omitted), Fontame v People, 56 V 1 571, 591 n 13 (V I 2012)

(“Admission of evidence that should have been excluded constitutes a trial error ”) (citations

omitted) Tuggle v Netherland 79 F 3d 1386 1391 (4th Cir 1996) (explaining that improperly

admitted evidence is subject to harmless error analysis), Bledsoe v Nelson, 432 F 2d 923, 924

(9th Cir 1970) (finding that the improper admission of defendant’s incriminating statements

at trial was harmless error because of the ample evidence in the trial record of defendant’s

guilt) Feela v Israel 727 F 2d 151 157 (7th Cir 1984) (finding that a prosecutor s improper

Jaglali People 2024 V l 28S Ct Crim No 2022 0033Opinion of the CourtPage 8 of 22

comments during closing arguments amounted to harmless error because of the strong case

against the defendant) Brown v Senkowskz 175 Fed Appx 430 432 (2nd Cir 2006) (finding

that the improper admission of a line up identification was harmless error where the record

contained sufficient evidence of defendant’s guilt)

1] l 4 Undoubtedly, the Superior Court omitted the mens rea of“willfully”5 for second degree

assault from the crime’s elements when it charged the jury at the close ofthe trial’s evidentiary

stage J A 700 02 The relevant portion ofthejury charge reads

In Count 2 ofthe information defendant Jaglal is charged with assault in the second degreeThis charge is based on his alleged violation ofTitle 14 VIC Section 296(3), and the relevantportion of that charge is as follows Whoever willfully strangles 0r attempt[s] t0 strangleany person i[s] an act of domestic violence In order to sustain its burden of proof for thecrime of assault in the second degree, domestic violence, as set forth in Count 2 of the

information against the defendant, the People of the Virgin islands must prove beyond areasonable doubt that, on or about November IS, 2020, in St Thomas, Virgin Islands, the

defendant Devindra Jaglal strangled or attempted to strangle Rocio Ramirez, a person withwhom he had an intimate relationship

J A 700 01

1|15 The Superior Court’s omission of the mens rea from its jury charge was error

Normally, we would reverse the case on that ground because such errors contravene Jaglal 5

rights and subvert constitutional protections as they obviate the People’s burden to prove every

element ofa charged crime See Bank South Leasing Inc v Williams, 778 F 2d 704, 707 (I 1th

Cir 1985) (“Because ofthese deficientjury instructions, we therefore reverse the district court's

decision in favor of Bank South in this particular appeal and remand the case for a new trial ”)

(citations omitted)

5 The Virgin Islands Legislature has defined willfully” in the Virgin Islands Code willfull” 0r willfully”,when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to

commit the act, or make the omission referred to l V l C § 4|

Jag/al v People 2024 VI 28S Ct Crim No 2022 0033Opinion of the CourtPage 9 0f 22

1|] 6 However, we will not reverse the Superior Court in this matter because of its omission

of the term “willfully” from the second degree assault jury charge Rather, we reverse the

Superior Court because it only provided a partial, deficient substitute for the concept of

“willfully’ when it defined strangulation, which ultimately lowered the People 5 burden of

proof, but did not obliterate it Specifically, although the Superior Court omitted willfulness

from the elements of second degree assault when it charged the jury and that omission would

ordinarily be reversible error the error in this case was limited because the Court properly

appraised the jury concerning synonyms to willfulness when it instructed the jury on the

elements needed to convict Jaglal of strangulation Obviously, a court is not required to simply

repeat the verbatim language of a statute in its jury instructions (although it is unquestionably

the preferred practice to do so), since the goal ofjury instructions is to adequately apprise the

jury on how to apply the law See State v Kalama 9|] P 2d 735 747 (Haw 1996) Here

although not delineated in the incriminating acts that the People had to prove for Jaglal to be

guilty of second degree assault the Superior Court did instruct the jury on mens rea when it

defined the word “strangling which it stated meant “intentionally, knowingly, or recklessly

impeding the normal breathing or circulation of the blood of a person by applying pressure to

the throat or neck See Prince v People 57 V I 399 409 (V I 2012) (explaining that jury

instructions are reviewed in their entirety on appeal), United States v Fret 995 F 3d 56] , 565

(6th Cir 2021) (same) UnitedStates v GorIs 876 F 3d 40 48 (I st Cir 2017) (same)

1117 Critically, the mens rea for strangulation (recklessness)" fails to precisely encompass

the mens rea for second degree assault (willfulness) 7 Nonetheless, the strangulation definition

partially advised the jury ofthe mens rea for second degree assault Consequently, the Court’s

6 ‘ Recklessness is conduct characterized by the conscious disregard of or indifference to a known or obviousrisk of harm to another that is unreasonable under the circumstances and is substantially greater than negligentconduct (citations omitted) Happen 1 Phil Phlmmel 887 F 3d 744 759 (6th Cir 2018)

7 See supra note 5

Jaglal v People 2024 V] 28S Ct Crim No 2022 0033Opinion of the CourtPage l0 of 22

omission ofthe term “willfully” from the second degree assaultjury charge and its reliance on

the imperfect synonyms in the strangulation definition to function as a substitute for “willfully”

not only lowered the People’s burden ofproofbut may have also enabled thejury to find Jaglal

guilty ofreckless second degree assault (an uncodified crime) rather than willful second degree

assault (a statutory crime) Unequivocally, both actions subvert justice and violated Jaglal’s

constitutional rights Therefore, although the Superior Court erred when it omitted “willfully”

from thejury charge on second degree assault, the basis for our reversal is the Superior Court’s

reliance on the imperfect synonyms in the strangulation definition to function as a substitute

for the omitted mens rea of “willfully ” lrrefutably, this error unconstitutionally lowered the

People’s burden of proof Accordingly, we reverse

1118 It is axiomatic that “[d]ue process ‘require[s] criminal convictions to rest upon ajury

determination that the defendant is guilty of every element of the crime with which he is

charged, beyond a reasonable doubt ’ Therefore, an instruction that relieves the state of the

burden of proving mens rea beyond a reasonable doubt contradicts the presumption of

innocence and invades the function of the jury, thereby violating due process As the

Seventh Circuit noted, ‘every federal court to consider the question since the [United States

Supreme] Court decided In re Wmsth has agreed that a conviction procured without any

jury instruction on an essential element of the offense is constitutionally invalid ’” Keatmg v

Hood I91 F 3d 1053 1061 (9th Cir 1999) (citations omitted)

1H9 Moreover we noted in Nanton v People 52 V l 466 478 (V I 2009) that [t]he Due

Process Ciause protects the accused against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with which he is charged [Similarly,]

the Sixth Amendment right to a speedy and public trial ‘indisputably entitle[s] a criminal

defendant to ajury determination that he is guilty of every element ofthe crime with which he

Jaglalv People 2024 v1 28S Ct Crim No 2022 0033Opinion of the CourtPage 1 I of 22

is charged, beyond a reasonable doubt ’ [Therefore], ‘[a] defendant's due process rights are

unquestionably implicated when his purported conviction rests on anything less than a finding

of guilt as to all the elements of the crime ’” (citations omitted) Consequently, “jury

instructions that relieve the prosecution of its burden of proving every element of an offense

beyond a reasonable doubt ‘subvert the presumption of innocence accorded to accused persons

and also invade the truth finding task assigned solely tojuries in criminal cases Therefore,

whether requested or not, thejury is to be instructed on each and every essential element of the

offense charged, and failure to do so constitutes [reversible] error ” Id at 478 79 Long v

United States Nos C 2 00 1007 and CR 2 96 068(1) 2001 WL 1678784 at *1 (S D Ohio

Nov 13, 2001) (unpublished) (“In order for petitioner to prevail on his claim of deficientjury

instructions, the record must reflect a fundamental defect in the proceedings that resulted in a

complete miscarriage of justice or an egregious error that violated due process ), Tenzer v

Wmstead No 07 4782 2009 WL 455134 at *3 (E D Penn Feb 24 2009) (unpublished)

(“[L]ega1|y deficient jury instructions may only serve as the basis for [appellate] relief when

the ‘ailing instruction by itself so infected the entire trial that the resulting conviction violates

due process ”’) (citations omitted); Betker v City ofMilwaukee, 22 F Supp 3d 915, 921 (E D

Wis 2014) (“[The] goal is to determine whether the instructions accurately and clearly

informed the jury of the law [The court] will grant the motion only if the instructions

misstated the law or did not convey the relevant legal principles and one or both of these

failings prejudiced the movant Jury instructions are not abstract treatises Their purpose is

to state the law applicable to the case at bar in order to assist the jury in reaching a verdict

Instructions should not leave out anything essential but beyond that, should be as concise as

possible A court has substantial discretion with respect to the precise wording of

instructions so long as the final result completely and correctly states the law ) (citations

Jaglalv People 2024 V1 28S Ct Crim No 2022 0033Opinion ofthe C0urtPage 12 of 22

omitted) United States v Hodge, 211 F 3d 74, 77 (3rd Cir 2000) ( when a defendant is

accused of robbery under Virgin Islands law, the element of specific intent must be recited in

thejury charge”) (citations omitted)

1|20 Finally although completely deficient jury instructions totally alleviate the People’s

burden to prove all elements alleviate the People of its burden to prove all elements ofa charged

crime beyond a reasonable doubt, partially deficientjury instructions merely lower the People’s

burden of proof Regardless, jury instructions that lower the People’s burden of proof are as

unconstitutional as those that absolve it See Cool v United States 409 U S 100, 104 (1972)

(finding that ajury instruction that lowers the level of proof necessary for the State to carry its

burden “is plainly inconsistent with the constitutionally rooted presumption of innocence ”)

(citations omitted) Manson v Hapomk No 05 CV 3412 (BMC) 2007 WL 2077895 at *4

(E D N Y July 18 2007) (unpublished) ( [As determined by the United States Supreme Court

in In re Wmsth, 397 U S 358 (1970),] ajury instruction violates [the due process requirement

that the prosecution must prove all elements of a charged crime] when it resolves an element

of the crime, alleviating thejury's role as fact finder and lowering the prosecution's burden of

proof ”) (citations omitted), Gibson v Ortiz, 387 F 3d 812 (9th Cir 2004), overruled In part by

Byrd v Lewzs 566 F 3d 855 866 (9th Cir 2009) (holding that deficient jury instructions

allowed the defendant to be convicted of a lower standard of proof than reasonable doubt),

Hernandezv McDowell N0 CV 16 09578 VBF (JDE) 2017 WL 11635995 at *8 (C D Cal

Nov 17, 2017) (unpublished) (“Jury instructions violate the due process clause of the

Fourteenth Amendment to the United States Constitution if there is a ‘reasonable likelihood’

the jury understood the instructions as lowering the burden of proof for conviction below the

reasonable doubt standard ”) (citations omitted), FIscher v New Hampshire Adult Parole Bd ,

No 15 cv 130 PB 2016 WL 5376225 at *8 (D N H Sept 2 2016) (unpublished) ( [.1]ury

Jaglal v People 2024 V l 28S Ct Crim No 2022 0033Opinion of the CourtPage 13 of 22

instructions can violate a criminal defendant's right to due process if they ( l) shift the burden

of proof from the prosecution to the defendant or (2) lower the prosecution's burden of

proof to something less than beyond a reasonable doubt ”) (citations omitted) )

'2] Here, although the Superior Court included the mens rea terms when it recited the

second degree assault statute immediately before listing the acts the People had to prove to

find Jaglal guilty of second degree assault, the court omitted the concept of mens rea when it

itemized the incriminating acts for the jury immediately thereafter

122 As the quoted language8 from its jury charge demonstrates the Superior Court’s jury

instructions omitted the term “willfully” from the elements for the crime of second degree

assault Nonetheless, afier itemizing the incriminating acts that the People had to prove for

Jaglal to be guilty ofsecond degree assault, the court defined strangulation “Strangling means

intentionally, knowingly or recklessly impeding the normal breathing or circulation of the

blood ofa person by applying pressure to the throat or neck, regardless ofwhether that conduct

results in any visible injury, or whether there's any intent to kill or continuously injure the

victim ”J A 701

1123 In the strangulation definition, the Superior Court enumerated pivotal mens rea terms,

which Jaglal had to display to be culpable of the crime Specifically, the court noted that

8 Although already stated previously in the opinion, we restate the exact language from the Superior Court’sjurycharge here for completeness [n Coun12 of the information, defendant Jaglal is charged with assault in thesecond degree This charge is based on his alleged violation ofTitle 14 VIC Section 296(3), and the relevantportion of that charge is as follows Whoever willfully strangles 0r attempt[s] to strangle any person i[s] an actofdomestic violence In order to sustain its burden of proof for the crime of assault in the second degree,domestic violence, as set forth in Count 2 of the Information against the defendant the People of the VirginIslands must prove beyond a reasonable doubt that, on or about November 15, 2020, in St Thomas, Virgin

Islands, the defendant Devindra Jaglal strangled or attempted to strangle Rocio Ramirez, 3 person with whom he

had an intimate relationship ’J A 700 0]

Jaglal v People 2024 V l 28S Ct Crim No 2022 0033Opinion of the CourtPage l4 of 22

strangulation occurs when an offender intentionally,9 knowingly,‘0 or recklessly restricts a

victim s breathing lmportantly, the mens rea synonyms in the strangulation definition are

imperfect because they include “recklessly,” which is not a synonym for “willfully ” See In re

Stewart, 948 F 3d 509, 528 (I st Cir 2020) (“[W]illfulness requires a showing of intent to injure

or at least of intent to do an act which the [defendant] is substantially certain will lead to the

injury in question ”) (citations omitted), Moon v Trotwood Madison City Schools, 9 N E 3d

54], 547 (Ohio Ct App 20l4) (“The terms ‘willful,’ ‘wanton,’ and ‘reckless’ are sometimes

described as being on a continuum, ie , willful conduct is more culpable than wanton, and

wanton conduct is more culpable than reckless ‘Reckless conduct’ is characterized by the

conscious disregard of or indifference to a known or obvious risk of harm to another that is

unreasonable under the circumstances and is substantially greater than negligent conduct ”)

(citations omitted) Charron v Morris 288 F Supp 3d 8l0 8l6 (W D Mich 2017)( Standard

for establishing that [a] debt is nondischargeable as one for debtor's ‘willful and malicious

injury’ is stringent , [with] debts arising from reckless conduct and negligence [falling

outside] this dischargeability exception ”) (citations omitted), United States v Saunders, 436

FSupp 3d 595 597 (E DN Y 2020) (explaining that willful disregard does not include

recklessness because conscious disregard of risk is less culpable than a practical certainty that

harm will materialize); Griffin, 524 F 3d at 77 (2008) (finding that the trial court corrected its

error when it informed the jury that the criminal intent of “willfully” could not be satisfied by

reckless conduct) Therefore, because “recklessly ’ is not synonymous with “willfully” and

because jury instructions must be construed in their entirety, we find that the Superior Court

9 Intentional is defined as done with the aim of carrying out the act ” BLACK’S LAW DICTIONARY 678 (10th ed

‘200]l(?1)owingly is defined as in such a manner as the actor engaged in prohibited conduct with the knowledgethat the social harm that the law was designed to prevent was practically certain to result ’ BLACK’S LAW

DICTIONARY 731 (l0th ed 2010)

Jaglal v People 2024 V l 28S Ct Crim No 2022 0033Opinion of the CourtPage 15 of 22

impermissiny lowered the People’s burden ofproofwhen it relied on the imperfect synonyms

in the strangulation definition to function as a substitute for the omitted second degree assault

mens rea of “willfully ” Regrettably, the inclusion of “recklessly” in the strangulation

definition compromised its sufficiency to substitute for “willfully” and may have enabled the

jury to find Jaglal guilty of reckless second degree assault rather than willful second degree

assault, which is statutorily required by 14 V l C § 296(3) As stated above, jury instructions

that lower the People’s burden of proof are as unconstitutional as those that completely

obliterate the People’s burden Therefore, because the Superior Court relied on the imperfect

synonyms in the strangulation definition to function as a substitute for the omitted mens rea of

“willfully,” we hold that the Superior Court unmistakably erred when it unconstitutionally

lowered the People’s burden of proof which, thereby, violated Jaglal’s due process rights See

Nanton, 52 V I at 481 (“[W]e conclude that when ajury considers the elements of the crime,

the jury is required to be guided by the specific final jury instructions on the elements of the

crime, and not guided by reference to or reliance upon the elements of the crime being

mentioned in a different context elsewhere in the trial record ”)

124 However, to reverse, we must also examine whether the Superior Court’s error in

relying on the imperfect synonyms in the strangulation definition to function as a substitute for

“willfully” caused Jaglal prejudice We conclude that it did See United States v Fast Horse

747 F3d 1040 1044 (8th Cir 2014) ( [W]here a defendant has been denied his Sixth

Amendment right to ajury determination of an important element ofthe crime, the integrity of

the judicial proceeding is jeopardized ’ ‘[B]ecause it is unclear whether a properly

instructed jury would have found [defendant] guilty,’ failing to correct the district court's error

would ‘result in a miscarriage ofjustice ”) (citations omitted)

Jaglal v People 2024 V l 28

S Ct Crim No 2022 0033Opinion of the CourtPage 16 of 22

125 To reiterate the standard under which the constitutionality of the jury instructions is

assessed is harmless error [T]he harmless error] test requires that the government prove

‘beyond a reasonable doubt that the error complained of did not contribute to the verdict

obtained l/mted States v Kahn 58 F 4th 1308 I318 (l0th Cir 2023) (citations omitted)

126 Under the harmless error test for constitutional errors, Jaglal’s conviction is

unconstitutional To prevail the People must show beyond a reasonable doubt that the error

complained ofdid not contribute to the verdict To do that the court assesses whether the guilty

verdict obtained at trial was surely unattributable to the alleged error Kahn, 58 F 4th at [320

1'27 Here the court’s reliance on the imperfect synonyms in the strangulation definition to

function as a substitute for “willfully” could have certainly contributed to thejury’s conclusion

that Jaglal was guilty of second degree assault based solely on the jury’s misunderstanding of

the applicable mens rea needed to find Jaglal guilty ofthe crime Without considering whether

Jaglal possessed the applicable statutory intent to assault Garcia, thejury’s determination could

have rested solely upon the erroneous conclusion that Jaglal acted recklessly rather than

willfully when he assaulted Garcia This result blatantly ignores the elements delineated in the

second degree assault statute, l4 V I C § IOSI, which clearly states that a suspect must have

acted “willfully” when he engaged in the acts that constituted the assault See C00], 409 U S

at 104 (“A jury instruction that “reduce[s] the level of proof necessary for the [prosecution] to

carry its burden is plainly inconsistent with the constitutionally rooted presumption of

innocence ”) (citations omitted)

128 In Cool, the United States Supreme Court held that a trial court’sjury instruction on

accomplice testimony lowered the prosecution’s burden ofproof Id The Supreme Court noted

that the trial court’s instruction erroneously forced the defendant to prove his innocence beyond

a reasonable doubt The Court reasoned that the jury instruction unconstitutionally lowered the

Jaglal 1 People 2024 V I 28S Ct Crim No 2022 0033Opinion of the CourtPage 17 of 22

prosecution’s burden of proof because it forced jurors to assess accomplice testimony at the

reasonable doubt standard, which is higher than the normal preponderance of the evidence

standard Although the circumstances are different, we concur with the Court in Cool and

conclude that the Superior Court’s reliance on the imperfect synonyms in the strangulation

definition to function as a substitute for the omitted mens rea of “willfully ’ from second degree

assault jury charge lowered the People’s burden of proof and undeniably prejudiced Jaglal

because he was apparently convicted of a crime without a finding from the jury that the

prosecution had proven all the crime’s elements beyond a reasonable doubt Such a travesty

maligns ourjurisprudence and subverts the function and importance ofthe Due Process Clause

of the Fourteenth Amendment See United States v Gaudm 515 U S 506 511 (I995) ( The

Constitution gives a criminal defendant the right to demand that a jury find him guilty of all

the elements of the crime with which he is charged, one of the elements in the present case is

materiality; respondent therefore had a right to have the jury decide materiality ”), see also

Sullivan v Louzszana, 508 U S 275, 277 78 (I993) (“The prosecution bears the burden of

proving all elements of the offense charged, and must persuade the factfinder beyond a

reasonable doubt’ of the facts necessary to establish each of those elements”) (citations

omitted), Carella v Calzfiarma 491 U S 263 265 (I989) ( The Due Process Clause of the

Fourteenth Amendment denies States the power to deprive the accused of liberty unless the

prosecution proves beyond a reasonable doubt every element of the charged offense Jury

instructions relieving States of this burden violate a defendant's due process rights ” (citations

omitted)

1[29 Accordingly, under the harmless error test, the Superior Court’s reliance on the

imperfect synonyms in the strangulation definition to function as a substitute for the omitted

mens rea of “willfully” amounted to reversible error because the error may have contributed to

Jaglal v People 2024 V l 28S Ct Crim No 2022 0033Opinion of the CourtPage 18 of 22

Jaglal’s guilty verdict which obviously prejudiced him and undermined his constitutional

rights Moreover, the trial record lacks sufficient evidence on whether Jaglal’s intended to

commit second degree assault against Garcia to allow a reasonable jury to find that, absent the

error, he had the requisite mindset to commit the crime Umted States v Freeman, 70 F 4th

1265 l28l (|0th Cir 2023) ( [I]f it is clear beyond a reasonable doubt that a rational jury

would [not] have” rendered the same verdict “absent the error,” then the error did contribute

to the verdict, and, therefore, the error is [not] harmless ) (citations omitted) Consequently,

because the Superior Court’s reliance on the imperfect synonyms in the strangulation definition

to function as a substitute for the omitted mens rea 0f“willfully” in this case was not harmless

and the error prejudiced Jaglal at trial, we reverse Jagial’s conviction for second degree assault

and remand to the Superior Court with instructions to grant him a new trial on that charge

B The Superior Court’s Improper Admission of Prejudicial Testimony Amounted

to Harmless Error

{I30 In his papers, Jaglal also asserts that the Superior Court abused its discretion when it

allowed Garcia to testify about telephone calls she received from Jaglal’s mother, who

attempted to persuade Garcia to dismiss the case against Jaglal We begin the analysis with a

brief review of the pertinent Rules of Evidence

£31 in the Virgin Islands, relevant evidence is admissible if it has the tendency to make a

fact more or less probable than it would be without the evidence and the fact is pivotal to

determining the issue in question V I EVID R 40] However, even relevantevidence may be

inadmissible if the court finds that the value of the evidence is substantially outweighed by

other considerations including unfair prejudice to either party, confusing the jury, misleading

the jury, undue delay in executing trial matters, wasting the court 5 time or needlessly

presenting cumulative evidence V I EVID R 403

Jaglal v People 2024 VI 28

S Ct Crim No 2022 0033Opinion of the CourtPage 19 of 22

1|32 Here, the Superior Court allowed Garica to testify about calls she received from Jaglal’s

mother, who attempted to persuade her to dismiss the case against Jaglal J A 266 71

However, the court made no inquiry about whether Jaglal asked his mother to contact Garcia

or whether Jaglal asked his mother to persuade Garcia to dismiss the case against him

Moreover, Garcia testified that she had lived with Jaglal for three months before they travelled

to St Thomas Garcia also testified that she told hospital staffthat she might be pregnant Given

the brevity of their relationship as well as other considerations including the fact that Garcia

lived in Jaglal’s house that Garcia was an immigrant who had only been in the United States

for eight years before she met Jaglal, that Garcia was an online student with considerable free

time because she was unemployed, and that Garcia thought she was pregnant, it is foreseeable

that Garcia may have independently developed a relationship with Jaglal’s mother who could

potentially facilitate Garcia’s understanding of and adaptation to the United States J A 126

28, I87 92, 285 87 Without some indication that Jaglal attempted to use his mother to

impermissiny influence or manipulate Garcia, there was no foundation to admit Garcia’s

testimony regarding the phone calls Jaglal’s mother made to her Essentially, while the calls

would be admissibie evidence if there was an indication that Jaglal asked or paid his mother to

persuade Garcia to terminate the charges against him, admission ofthe calls into trial evidence

was highly prejudicial to Jaglal because the negative impression was clear that he illegally

attempted to influence Garcia and, likewise, the trial by asking or paying his mother to convince

Garcia to dismiss the charges However, as already stated, the trial record lacks any evidence

Jaglal asked or paid his mother to contact Garcia Moreover, the Superior Court failed to inquire

whether Jaglal 5 mother frequently called Garcia or ifGarcia and Jaglal’s mother were friendly

toward each other Had the Superior Court made any of these inquires, it may have learned

whether Garcia and Jaglal’s mother were friends and if Jaglal’s mother was sufficiently

Jaglal v People 2024 V1 28S Ct Crim No 2022 0033Opinion of the CourtPage 20 of 22

comfortable with Garcia to ask her to terminate the charges against Jaglal without Jaglal 5

knowledge Yet, the Court did not ask Jaglal if he compelled his mother to contact Garcia nor

did the Court ask Garcia about the nature ofher relationship with Jaglal’s mother Accordingly,

because the Superior Court failed to identify a connection between Jaglal and the telephone

calls his mother made to Garcia to persuade her to dismiss the case against him, we find that

the Superior Court abused its discretion when it allowed Garcia to testify about the calls she

received from Jaglal’s mother, which unfairly prejudiced Jaglal

1133 However, to reverse Jaglal’s simple assault conviction, we must next determine whether

the improper admission ofthe telephone calls from .1aglal’s mother to Garcia into trial evidence

was prejudicial or harmless to the integrity ofthe entire proceeding See Green v United States,

262 F 3d 715 718 (8th Cir 2001) ( Indeed with respect to other types of errors that are

amenable to harmless error analysis, the Supreme Court [of the United States] has remarked

that the prej udicial effect oftrial errors may be assessed in the context ofthe rest ofthe evidence

presented at trial ”) (citations omitted) Accordingly, because of the copious evidence in the

trial record that Jaglal attempted to batter or assault" Garica, we hold that the Superior Court’s

error of improperly admitting the calls from Jaglal’s mother to Garcia into trial evidence is

harmless

1134 Specifically Garcia testified that Jaglal repeatedly choked her, kicked her, and

threatened to kill her over the course ofthe entire incident Additionally, when shown many of

the People’s exhibits, Garcia confirmed that they depicted her bruises on different parts of her

body several days afier Jaglal had caused them .1 A 133 42 148 64

Assault and battery are defined as [w]hoevcr uses any unlawful violence upon the person 01' another withSting ££££er him whatever be the means or the degree 01 violence used commits an assault and battery ” 14

August 16, 2024

/s/ Reisha Cornerio