S. Ct. Crim. No. 2012-0072

No reversible error is found upon review of convictions on two counts of unlawful sexual contact in the second degree based upon testimony given by the minor victim about two incidents at a high school gymnasium some 30 minutes apart, corroborated in part by another minor who heard the victim's shouts for the defendant to stop his conduct. Under 14 V.I.C. § 1709 the offense of unlawful sexual contact in the second degree occurs when a person over 18 years of age engages in sexual contact with a person not the perpetrator's spouse who is over 13 but under 16 years of age. There is no merit to the argument that the people failed to prove that the defendant was over 18 years old when the incidents occurred because no birth certificate or similar documentation was offered, since age - like any other element of an offense - may be established entirely by circumstantial evidence, and here testimony by defendant and co-workers concerning his long professional association with them was sufficient. While the prosecutor made improper remarks during closing arguments, vouching for the victim by suggesting that a teenage boy would not lie about being sexually molested by another male, improper remarks by the prosecution during closing arguments are not per se grounds for a new trial and here the Superior Court sustained a defense objection immediately and promptly issued a curative instruction. Considering the brief and isolated statement - a single sentence - which the Superior Court immediately struck from the record in its entirety and remedied by providing both an immediate curative instruction, followed by a general instruction regarding counsel's arguments immediately prior to deliberations, the prosecutor's comments were not so egregious as to constitute a denial of due process. The evidence against this defendant, while not necessarily overwhelming, was sufficiently strong to dispel the notion that the jury convicted him simply because of the prosecutor's fleeting comment. The Superior Court's curative actions, when combined with the strength of the People's case, render the error harmless. The July 16, 2012 Judgment and Commitment is affirmed.