                                                 NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                      _____________

                         No. 13-4401
                        _____________

          GOVERNMENT OF THE VIRGIN ISLANDS

                               v.

                    LAUGHTON CLARKE,
                                  Appellant
                      _____________

 APPEAL FROM THE APPELLATE DIVISION OF THE DISTRICT
            COURT OF THE VIRGIN ISLANDS
           (D.C. Crim. App. No. 04-cr-00085-001)
          District Judge: Honorable Curtis V. Gomez
          District Judge: Honorable Raymond Finch
                        _____________

           Submitted Under Third Circuit LAR 34.1(a)
                        May 16, 2014
                       ______________

Before: RENDELL, FUENTES, and GREENAWAY JR., Circuit Judges.

                     (Filed: July 10, 2014)
                       ______________

                          OPINION
                       ______________
FUENTES, Circuit Judge:

       A jury convicted Laughton Clarke of rape, first degree unlawful sexual contact,

first degree assault, child abuse, and incest. The Superior Court of the Virgin Islands

sentenced Clarke to twenty-five years’ incarceration. He appealed his conviction to the

Appellate Division of the District Court of the Virgin Islands, which affirmed the

Superior Court. Clarke now appeals the Superior Court’s denial of his motion to suppress

DNA evidence and his conviction for second degree aggravated rape. For the reasons set

forth below, we will affirm the Appellate Division.

                                             I.

       In August 2002, Clarke lived with his sixteen year old daughter, Shermaine

Clarke. Sometime during the early part of that month, Clarke attacked Shermaine while

they were watching television in Shermaine’s room. Clarke laid on top of Shermaine and

removed his clothes. He then had sexual intercourse with her while she screamed and

struggled.

       On August 30, 2002, Clarke entered Shermaine’s room and had sexual intercourse

with her a second time. Once again, Shermaine screamed and struggled to get away, to no

avail. Later that day, Shermaine called a friend’s uncle, Alfonso Rogers. Shermaine told

Rogers that she had just been raped by her father, and asked him to retrieve her from her

home. Rogers told Shermaine that he was unable to get her but that he would call the

police instead. Rogers called 911 and reported the rape. He also informed the dispatcher

that Clarke possessed a gun.



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       Four police officers responded to the report, arriving at the Clarke residence in

pairs. Shermaine met the police officers outside the home. Clarke, at this time, was

standing halfway behind a partially open door, in view of the officers, watching the

interaction between Shermaine and the officers. Shermaine identified Clarke as her father

and informed the officers that Clarke had “just had sex with her.” App’x 65. The officers

ordered Clarke to exit the home and subsequently arrested him. Following the arrest,

Clarke and Shermaine were taken to Roy Schneider Hospital. There, a doctor collected

samples of Clarke’s blood and vaginal swabs from Shermaine for DNA analysis.

Comparison of the samples confirmed that Clarke had had sex with Shermaine.

       Clarke was charged with fourteen counts of rape, unlawful sexual contact, incest,

child abuse, and assault under various Virgin Islands statutes. Relevant to this appeal,

Clarke was charged with five counts of aggravated second degree rape under 14 V.I.C. §

1700a(a). That statute provides in relevant part:

              Whoever perpetrates an act of sexual intercourse or sodomy
              with a person who is under eighteen years but thirteen years
              or older and not the perpetrator’s spouse, or by force,
              intimidation, or the perpetrator’s position of authority over
              the victim is used to accomplish the sexual act is guilty of
              aggravated rape in the second degree . . . .

14 V.I.C. § 1700a(a).

       Before trial, Clarke moved to suppress the DNA evidence collected, arguing that it

was acquired as a result of an unlawful arrest. The Superior Court1 denied the motion.



1
  When this case was decided, the trial court was called the Territorial Court of the Virgin
Islands. As of October 29, 2004, the trial court’s name was changed to Superior Court of
                                                    3
Subsequently, Clarke was convicted of all charges by a jury. Clarke was sentenced to

twenty-five years’ imprisonment for second degree aggravated rape with multiple shorter

sentences running concurrently.

       On appeal to the Appellate Division, Clarke argued, among other things, that: (1)

his initial arrest was in violation of his Fourth Amendment rights and the DNA evidence

was the result of an unlawful search that should have been suppressed; and (2) § 1700a(a)

was unconstitutionally vague and overbroad. The Appellate Division affirmed the

Superior Court on both issues.2

                                             II.

       Clarke raises two issues in his instant appeal. First, he claims that there was no

probable cause to justify his arrest, so that the DNA evidence collected shortly thereafter

should have been suppressed as inadmissible fruit of the poisonous tree. Second, Clarke

contends that § 1700a(a) is unconstitutionally vague and overbroad and should be struck

down. We address these issues in turn.3




the Virgin Islands. Pichardo v. Virgin Islands Comm’r of Labor, 613 F.3d 87, 90 n.1 (3d
Cir. 2010).
2
  Clarke also argued that some of his convictions violated the double jeopardy clause of
the Constitution, and that the evidence presented at trial was insufficient to establish
paternity for his conviction of incest. The Appellate Division held the Superior Court
erred on both grounds, vacating the incest convictions and remanding the case for
resentencing on the multipicitous charges. These holdings are not at issue here.
3
 The Appellate Division’s decision is final and this court has jurisdiction pursuant to 28
U.S.C. § 1291 and 48 U.S.C. § 1613a(c). Subsequent to Clarke’s appeal of the Superior
Court’s judgment, the Supreme Court of the Virgin Islands assumed appellate jurisdiction
over cases heard by the Superior Court. 5 V.I.C. § 32. However, this court retains
                                                   4
                                             A.

       We first address Clarke’s argument that the Superior Court erred in failing to

suppress his DNA because the police arrested him without probable cause.4 “[A]

warrantless arrest by a law officer is reasonable under the Fourth Amendment where

there is probable cause to believe that a criminal offense has been or is being committed.”

Devenpeck v. Alford, 543 U.S. 146, 152 (2004). To determine “whether probable cause

existed for an arrest, we must take a ‘totality-of-the-circumstances approach.’” Reedy v.

Evanson, 615 F.3d 197, 211 (3d Cir. 2010) (quoting Illinois v. Gates, 462 U.S. 213, 230

(1983)). Under this approach, we examine whether “the facts and circumstances within

[the officers’] knowledge . . . were sufficient to warrant a prudent man in believing that

[the suspect] had committed or was committing an offense.” Kossler v. Crisanti, 564 F.3d

181, 194 (3d Cir. 2009) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)) (alterations in

original). “[U]ncertainty and apprehension” or mere suspicion of criminal conduct is

insufficient to establish probable cause without objective, supporting evidence. United

States v. Myers, 308 F.3d 251, 261 (3d Cir. 2002). However, “[probable cause] does not

‘require the same type of specific evidence . . . as would be needed to support a

conviction.’” Reedy, 615 F.3d at 211(quoting Adams v. Williams, 407 U.S. 143, 149

(1972)). Where a defendant is arrested without probable cause, the fruit of that arrest

appellate jurisdiction for appeals filed prior to the creation of the Supreme Court of the
Virgin Islands. 48 U.S.C. § 1613a(d).
4
  “We review the denial of a suppression motion for clear error as to the underlying facts,
and exercise[] plenary review as to the legality of the denial in the light of properly found
facts.” United States v. Leveto, 540 F.3d 200, 211 n.9 (3d Cir. 2007).

                                                  5
must be suppressed at trial. United States v. Dupree, 617 F.3d 724, 730 n.5 (3d Cir.

2010).5

       We have no trouble in concluding that the arresting officers had probable cause to

seize Clarke. The arresting officers responded to a 911 call reporting an alleged rape by a

perpetrator in possession of a firearm. This call itself goes a long way towards

establishing probable cause. See United States v. Johnson, 592 F.3d 442, 451 (3d Cir.

2010). Moreover, when the officers arrived at the Clarke residence, Shermaine informed

them that she had been raped by Clarke, whom she then identified to the officers. A

victim’s accusation and identification of her own father as her attacker is sufficiently

reliable identification to constitute probable cause. See Sharrar v. Felsing, 128 F.3d 810,

818 (3d Cir. 1997) (“When a police officer has received a reliable identification by a

victim of his or her attacker, the police have probable cause to arrest.”), abrogated on

other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007).

       While it is not entirely clear from his briefs, Clarke may be arguing that his arrest

was also improper because it was carried out without a warrant. See Appellant’s Br. at

11. Because Clarke did not raise this issue in the lower courts we review for plain error.

United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010).

       While a warrantless arrest inside an individual’s home is “presumptively

unreasonable,” United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006), an arrest

warrant is not required when the defendant is apprehended in a public place. United

5
  The taking of DNA samples following a lawful arrest constitutes a lawful search.
Maryland v. King, 133 S. Ct. 1958, 1980 (2013). Accordingly, if the arrest was lawful, so
too was the collection of Clarke’s DNA.
                                                 6
States v. Burton, 288 F.3d 91, 98 (3d Cir. 2002). It is settled law that a defendant standing

on the threshold of his dwelling is in a “public” place for Fourth Amendment purposes.

United States v. Santana, 427 U.S. 38, 42 (1976). Here, the record suggests that Clarke

was arrested in the doorway of his home while “peeping out” at the officers. App’x 65.

Therefore, it was not plain error for the Superior Court to conclude that Clarke was not

entitled to the increased Fourth Amendment protection afforded to individuals in their

homes, and that no search warrant was required to effectuate his arrest.6

       Because the officers had probable cause to arrest Clarke, and because it was not

plain error to conclude that the arresting officers did not need a warrant to arrest Clarke,

the DNA evidence obtained shortly after Clarke’s arrest was admissible. Accordingly, the

Appellate Division properly affirmed the trial court’s denial of Clarke’s motion to

suppress the DNA evidence.

                                             B.

       Clarke next claims that § 1700a(a) is unconstitutionally overbroad because it

penalizes consensual and benign sexual relationships between co-workers, and that it is

unconstitutionally vague because it prohibits “two mutually exclusive acts,” i.e. statutory

rape and sexual acts perpetrated by force, intimidation, or by position of authority.




6
  In the alternative, it would not have been plain error for the Superior Court to conclude
the arresting officers were faced with an exigent circumstance justifying a warrantless
arrest. See Myers, 308 F.3d at 265 (holding that 911 call reporting domestic dispute and
child telling officer that a man with a gun was inside fighting with her mom constituted
exigent circumstances that justified warrantless entry into home).

                                                  7
Appellant’s Br. at 14. Clarke did not raise these arguments at trial, so we review for plain

error. Vosburgh, 602 F.3d at 531.

       The overbreadth doctrine aims to prevent the “chilling” of speech, and to that end

departs from the traditional rules of standing. Serv. Emps. Int’l Union, Local 3 v.

Municipality of Mt. Lebanon, 446 F.3d 419, 422-23 (3d Cir. 2006). If a defendant’s

conduct is not constitutionally protected itself, he may still facially challenge a statute if

it has the potential to cause others “to refrain from constitutionally protected speech or

expression.” McCauley v. Univ. of the Virgin Islands, 618 F.3d 232, 238 (3d Cir. 2010).

“Resort to this doctrine is ‘strong medicine that is not to be casually employed.’” United

States v. Stevens, 533 F.3d 218, 247 (2008) (quoting Los Angeles Police Dep’t v. United

Reporting Publ’g Corp., 528 U.S. 32, 39 (1999)). For this reason, “a statute’s overbreadth

[must] be substantial, not only in an absolute sense, but also relative to the statute’s

plainly legitimate sweep.” Stevens, 533 F.3d at 247 (quoting New York v. Ferber, 458

U.S. 747, 772 (1982)).

       Clarke purports to bring a facial overbreadth challenge, but he does not argue that

§ 1700a(a) implicates any First Amendment rights. Clarke’s argument fails on this front.

See United States v. Tykarsky, 446 F.3d 458, 473 (3d Cir. 2006). In any event, § 1700a(a)

is not overbroad. Despite Clarke’s protestations to the contrary, it does not prohibit

consensual sex between co-workers simply because one is in a position of authority.

Rather, the statute prohibits sexual acts between co-workers only when a “position of

authority over the victim is used to accomplish the sexual act.” 14 V.I.C. § 1700a(a)

(emphasis added). Section 1700a(a) clearly does not criminalize “a substantial amount of

                                                   8
constitutionally protected conduct.” Gibson v. Mayor of Wilmington, 355 F.3d 215, 226

(3d Cir. 2004).

       Clarke also claims § 1700a(a) is void for vagueness. The Constitution’s due

process guarantee requires criminal statutes to be written with a certain level of

specificity. City of Chicago v. Morales, 527 U.S. 41, 56 (1999). A criminal law may be

unconstitutionally vague for one of two reasons. United States v. Fullmer, 584 F.3d 132,

152 (3d Cir. 2009). First, if it “fail[s] to ‘give [a] person of ordinary intelligence a

reasonable opportunity to know what is prohibited.’” CMR D.N. Corp. v. City of

Philadelphia, 703 F.3d 612, 631 (3d Cir. 2013) (second alteration in original). Second, if

it provides inexplicit standards that “authorize[] or even encourage[] arbitrary and

discriminatory enforcement.” Stevens, 533 F.3d at 249.

       The fact that § 1700a(a) defines rape as a sexual act taking place under one of a

series of circumstances does not render the statute unconstitutionally vague.

Criminalizing conduct by listing offense elements in the alternative is a common

statutory device. See Descamps v. United States, 133 S. Ct. 2276, 2281 (2013)

(discussing the use of “divisible statutes” in the context of the Armed Career Criminal

Act). The plain language of § 1700a(a) clearly criminalizes sexual intercourse when

either: (1) the victim is between the ages of 13 and 18; or (2) the victim is any age if the

sexual act is accomplished by: (a) force; (b) intimidation; or (c) the perpetrator’s use of

their position of authority. 14 V.I.C. § 1700a(a). This is a clear and unambiguous

prohibition of specific conduct that provides constitutionally sufficient notice to the

public and constitutionally sufficient guidance for law enforcement and the judiciary. Cf.

                                                   9
Tykarsky, 446 F.3d at 465 (holding that 18 U.S.C. § 2422(b), which prohibited “using the

mail or any facility or means of interstate or foreign commerce, or within the special

maritime and territorial jurisdiction of the United States, [to] knowingly persuade[],

induce[], entice[], or coerce[] any individual who has not attained the age of 18 years, to

engage in prostitution or any sexual activity,” is not impermissibly vague).

       Section 1700a(a)’s provisions do not reach constitutionally protected rights and

the statute provides clear and unambiguous notice of the conduct it does prohibit. It was

not error, let alone plain error, for the Appellate Division to hold that § 1700a(a) is

neither unconstitutionally vague or overbroad.

                                             III.

       For the reasons set forth above, we will affirm the judgment of the Appellate

Division.




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