                                                 NOT PRECEDENTIAL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

                                              4
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



                                              5
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

                                              6
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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