DISSENTING OPINION
SWAN, J.,dissenting.
I dissent from the majority, and would affirm the jury’s verdict convicting Gregory Gilbert (“Appellant”) of “Aggravated rape in the second degree,” pursuant to title 14, section 1700a(a) of the Virgin Islands Code.
I conclude that because of the pertinent statutory language in the crimes of aggravated rape in the second degree and rape in the second degree, together with the facts in this case, the People of the Virgin Islands (“Appellee”) could have charged Appellant with either “Aggravated rape in the second degree,” pursuant to title 14, section 1700a(a), or “Rape in the second degree,” pursuant to title 14, section 1702(a). Appellee’s election to charge Appellant with the crime in section 1700a(a), which carries a more severe penalty than the crime in section 1702(a), and which requires Appellee to meet a less arduous burden of proof for a conviction than the burden of proof for the crime in section 1702(a), does not violate any cognizable constitutional or other legal right of Appellant. Additionally, neither section 1700a(a) nor section 1702(a) has been repealed or has been adjudicated unconstitutional. Importantly, Appellee has a right to exercise its prosecutorial discretion in charging a defendant, as long as the defendant’s constitutional or other legal rights are not violated by the exercise of Appellee’s prosecutorial discretion. Therefore, I perceive no cogent reason to reverse the jury’s verdict. The reasons for my dissent are elucidated below.
I. FACTS AND PROCEDURAL HISTORY
In June 2005, a seventeen year-old female minor, L.M.1, commenced classes in massage therapy with Appellant, a twenty-nine year-old massage therapy instructor. During the period of instructions, Appellant informed L.M. that she needed extra lessons in massage therapy; *367therefore, Appellant invited L.M. to return to his home on a Friday for additional lessons. On the night of Friday, June 24, 2005, L.M. went to Appellant’s home for the purpose of receiving the additional lessons that Appellant suggested.
Shortly after L.M. arrived at Appellant’s home, L.M. practiced her massage techniques upon Appellant as he sat in a massage chair. After L.M. had completed her practice exercises, Appellant pushed L.M. against a massage table and utilized his weight to restrain and subdue L.M. Appellant proceeded immediately to remove all of L.M.’s clothing. While Appellant was removing L.M.’s clothing, he commented about her lips and her body. Even though L.M. said “no” to Appellant’s sexual advances and overtures as she continued to physically resist Appellant’s actions, Appellant proceeded to perform oral sex upon L.M., after he had forced her onto the massage table. Eventually, Appellant inserted his finger into L.M.’s vagina and subsequently inserted his penis into her vagina. After Appellant ejaculated on her legs, L.M. was able to retrieve her clothes and her belongings. She proceeded to the entrance door of Appellant’s apartment and eventually unlocked it. As she attempted to exit the apartment, Appellant hugged L.M. and told her that she was his girlfriend; therefore, nothing wrong had occurred. Appellant instructed L.M. not to inform anyone about the incident, and he reminded L.M. that the neighbors were unaware of anything occurring between them.
Upon leaving Appellant’s residence, L.M. drove directly to her boyfriend’s (“G.R.”) house. After L.M. informed G.R. that Appellant had raped her, G.R. advised her to go to the hospital. Thereafter, G.R. drove L.M. to the hospital in his truck. After they arrived at the hospital, L.M. called her mother. Because of her emotionally traumatized state, L.M. was unable to speak to her mother; therefore, she gave the phone to G.R., who informed L.M.’s mother that L.M. had been raped. Subsequently, L.M.’s parents arrived at the hospital where they met L.M. and G.R. at the emergency room.
Utilizing a rape kit, the emergency room’s medical staff examined L.M. and extracted body specimen from her. A male and a female police officer arrived at the hospital; they interviewed and photographed L.M. After completion of her medical examination, L.M. was discharged from the hospital. Subsequently, L.M. terminated her massage therapy classes with Appellant, because he raped her.
*368The police officers arrested Appellant. When the officers interrogated Appellant about the rape, Appellant admitted that he had sex with L.M. However, Appellant asserted that the sexual intercourse was consensual, because he was under the distinct impression that L.M. was his girlfriend.
Appellee charged Appellant in a four-count Superseding Information with three counts of “Aggravated rape in the second degree,” in violation of title 14, section 1700a(a), as well as one count of “Unlawful sexual contact in the first degree,” in violation of title 14, section 1708(1) of the Virgin Islands Code. On November 16, 2007, after a four-day jury trial, Appellant was convicted of one count of “Aggravated rape in the second degree,” pursuant to title 14, section 1700a(a), but was acquitted of all other charges. On April 28, 2008, the trial court entered a final judgment, sentencing Appellant to twenty (20) years imprisonment. This appeal ensued.
II. ISSUE2
The issue is whether, under the factual circumstances of this case and without violating Appellant’s constitutional and other legal rights, the Virgin Islands Code allows Appellee to lawfully charge Appellant with the crime of “Aggravated rape in the second degree,” pursuant to title 14, section 1700a(a), instead of charging him with the crime of “Rape in the second degree,” pursuant to title 14, section 1702(a), which imposes a substantially less severe penalty than “Aggravated rape in the second degree.
III. JURISDICTION
Title 4, section 32(a) of the Virgin Islands Code vests in this Court “... jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court. . .” On April 28, 2008, the trial court *369entered a final judgment against Appellant. However, on April 11, 2008, prior to the trial court’s April 28, 2008 judgment, Appellant filed a notice of appeal. Generally, “[a] notice of appeal filed after the announcement of a decision, sentence, or order — but before entry of the judgment or order — is treated as filed on the date of and after the entry of judgment.” V.I. S. Ct. R. 5(b). Therefore, Appellant’s Notice of Appeal was filed timely.
IV. STANDARD OF REVIEW
Appellant questions the legislative intent of section 1700a(a) which defines “Aggravated rape in the second degree.” Appellant asserts that Appellee should not be afforded an opportunity to charge him with the more serious of two crimes codified in two individual statutes which charge similarly related crimes. (See Appellant’s Br. at 15.) Therefore, my review of statutory construction and conclusions of law is plenary. United States v. Walker, 473 F.3d 71, 75 (3d Cir. 2007).
IV. DISCUSSION
Appellant importunes this Court to reverse his conviction. In support of his request, Appellant asserts that “[t]he construction given to section 1700a(a) by the [cjourt and the prosecution would render section 1702 superfluous or a nullity, or allow the prosecution to charge an offense with more severe penalty, while proving a lesser statutory offense.” (Appellant’s Br. at 19). I disagree.
The first consideration in interpreting a statute is determining whether a legislative body has employed a language in the statute that is plain and unambiguous. United States v. Cooper, 396 F.3d 308, 310 (3d Cir. 2005) (citing Valansi v. Ashcroft, 278 F.3d 203, 209 (3d Cir. 2002)); Marshak v. Treadwell, 240 F.3d 184, 192 (3d Cir. 2001)). Therefore, “we begin interpreting a statute by examining the literal and plain language of the statute.” Burlington Northern and Santa Fe Ry. Co. v. United States, 129 S. Ct. 1870, 1879, 173 L. Ed. 2d 812 (2009); Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S. Ct. 1023, 157 L. Ed. 2d 1024 (2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S. Ct. 1942, 147 L. Ed. 2d 1 (2000); United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S. Ct. 1026, 103 L. Ed. 2d 290 (1989); and Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 61 L. Ed. 442 (1917); Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 339 (3d Cir. 2009); Cooper, 396 F.3d at 310 (“Where the *370language of the statute is clear ... the text of the statute is the end of the matter.”) (citing Steele v. Blackman, 236 F.3d 130, 133 (3d Cir. 2001) (“ ‘when the statute’s language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms.’ ”)).
First, section 1700a(a) expressly states the following:
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 and shall be imprisoned for life or for any term in years, but not less than 10 years.
(Emphasis supplied). Next, section 1702(a) states the following:
Any person over 18 years of age who perpetrates under circumstances not amounting to rape in the first degree, an act of sexual intercourse or sodomy with a person not the perpetrator’s spouse who is at least 16 years but less than 18 years of age, and the perpetrator is 5 years or older than the victim, is guilty of rape in the second degree and shall be imprisoned no more than 10 years.
Based on the plain and unambiguous language in section 1700a(a), the Virgin Islands Legislature (“Legislature”) imposed a more severe penalty for the crime in section 1700a(a) than for the crime in section 1702(a). The reason for the disparity in penalty between the two crimes of rape is that section 1700a(a) addresses aggravated rape and section 1702(a) does not. Significantly, section 1700a is titled “Aggravated rape in the second degree,” whereas section 1702 is simply titled “Rape in the second degree.” Indisputably, by enacting both sections 1700a and 1702(a), the Legislature endeavored to make a discemable distinction between rape in the second degree involving aggravated circumstances, and rape in the second degree. According to the Merriam-Webster Dictionary of Law, the word, “aggravated” connotes the act, “to make more serious, more severe, or worse.” Merriam-Webster’s Dictionary of Law, 20 (Collector’s ed. 2005). Undeniably, the word, “aggravated,” in the title to section 1700a explicitly makes this section the more serious crime than the crime in section 1702(a), even though the crimes in both sections are a form of second degree rape.
*371The following must be considered in further distinguishing both statutes. Regardless of a perpetrator’s age, one can violate section 1700a(a), but only a perpetrator over eighteen years of age can violate section 1702(a). A sixteen, seventeen, eighteen, nineteen, or twenty year-old cannot be convicted of violating section 1702(a), because of the element that the victim must be at least sixteen years old, but less than eighteen years of age, and that the perpetrator must be five years or older than the victim. However, the same sixteen, seventeen, eighteen, nineteen, or twenty year-old perpetrator can be convicted of violating section 1700a(a). Moreover, section 1702(a) embodies additional, distinct elements that are absent in section 1700a(a). Section 1702(a) requires that (1) “[a]ny person over 18 year of age who perpetrates under circumstances not amounting to rape in the first degree”; (2)] “an act of sexual intercourse or sodomy with a person not the perpetrator’s spouse” (3) “who is at least 16 years but less than 18 years of age, and” (4) “the perpetrator is 5 years or older than the victim” (5) “is guilty of rape in the second degree . . . .”14 V.I.C. 1702(a).
The elements of the crime in section 1700a(a) require that (1) “[w]hoever perpetrates an act of sexual intercourse or sodomy”; (2) “with a person who is under eighteen years but thirteen years or older”; (3) “and not the perpetrator’s spouse”; (4) “is guilty of aggravated rape in the second degree ....” 14 V.I.C. 1700a(a). The difference in age between the perpetrator and the victim is not an element of the crime in section 1700a(a), which is “Aggravated rape in the second degree.” Importantly, the difference in age between the perpetrator of the crime and the victim is a pivotal element of the crime in section 1702(a), which is “Rape in the second degree.” Therefore, the elements of each crime are distinct from one another. The fact that there can exist circumstances in which elements in both crimes may overlap with each other, allowing Appellee the option of charging either crime, does not generate any ambiguity between the statutory language of both crimes. More succinctly, the fact that there can exist factual circumstances which allow Appellee to charge a perpetrator with either crime does not make Appellee’s election of charging one crime instead of the other a violation of a perpetrator’s constitutional or other legal rights.
*372 A. The Legislature Intended Separate Penalties for Different Degrees of Rape Upon Minors Which Coalesces with the Age of the Victim
Appellant asserts that the Legislature could not have intended a wide disparity between the penalties in sections 1700a(a) and 1702(a). (See Appellant’s Br. at 15.) I summarily reject Appellant’s meritless argument, because the Legislature was obviously cognizant of the Territory’s rape statutes when it promulgated both sections 1700a and 1702(a). This contention is buttressed by the structure of the two provisions addressing aggravated rape under the Child Protection Act of 2002, which includes sections 1700(a), and 1700a(a). Furthermore, the Child Protection Act of 2002 also encompasses 1702(a). See id. at § 2, 2002 V.I. Sess. Law 3-5. There are discemable different circumstances that would require the prosecutor to charge a perpetrator with “Aggravated rape in the second degree” in section 1700a(a) and to charge a perpetrator with “Rape in the second degree” in section 1702(a); therefore, the Legislature needed to enact both sections. However, in some instances, there could be circumstances of a crime of rape which could be prosecuted under both sections 1700a(a) and 1702(a), allowing the appellee to make an election of which of the two crimes to charge. To reiterate a crucial point on prosecutorial discretion that is expounded upon in Section E of this Dissenting Opinion, Appellee’s election of which of the two crimes to charge does not make illegal the election of the crime charged. There is nothing inartfully crafted about the provisions of sections 1700a(a) and 1702(a). The provision of both sections amply inform Appellant of the elements of each crime, and the conduct that is criminal under both sections.
B. The Age of the Victim is the Aggravating Circumstances in the Rape Statutes
The most cursory examination of Virgin Islands rape statute reveals that the age of the victim is a paramount consideration in determining the severity of the punishment to be imposed for committing each crime. First, section 1700, “Aggravated rape in the first degree,” is enacted to protect a class of minors who are under the age of thirteen. See 14 V.I.C. § 1700. Second, section 1700a, “Aggravated rape in the second degree,” is promulgated to protect a class of minors between the ages of thirteen and under eighteen years. Third, section 1702(a), “Rape in the second *373degree,” is designed to protect older minors who are between the ages of sixteen but less than eighteen years of age, from a perpetrator who is five years or older than the victim and is not the victim’s spouse.
The unavoidable conclusion is that the Legislature intended to impose the severest of penalties for rape committed upon minor victims based on their age. Consider the explicit statutory language for title 14, sections 1700, 1700a(a), and 1702(a). First:
Whoever perpetrates an act of sexual intercourse or sodomy with a person not the perpetrator’s spouse: (1) Who is under the age of thirteen, or (2) who is under sixteen years of age residing in the same household as the perpetrator, and 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 first degree and shall be imprisoned for life or for any term of years, but not less than 15 years.
14 V.I.C. § 1700(a). (Emphasis added). Second:
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 and shall be imprisoned for fife or for any term in years, but not less than 10 years. “Position of authority” shall include, but not be exclusive to the following: an employer, youth leader, scout leader, coach, teacher, counselor, school administrator, religious leader, doctor, nurse, psychologist, guardian ad litem, baby sitter, or substantially similar position, and a police officer or probation officer other than when the officer is exercising custodial control over a minor.
14 V.I.C. § 1700a(a). (Emphasis added). Third:
Any person over 18 years of age who perpetrates under circumstances not amounting to rape in the first degree, an act of sexual intercourse or sodomy with a person not the perpetrator’s spouse who is at least 16 years but less than 18 years of age, and the perpetrator is 5 years or older than the victim, is guilty of rape in the second degree and shall be imprisoned no more than 10 years.
*37414V.I.C. § 1702(a).
Further support for the above-mentioned assertions is manifested in the intent and purpose of the Child Protection Act of 2002. Undeniably, the Legislature was preoccupied with protecting the children of this Territory from rape and sexual assault, as reflected in the language of the Child Protection Act of 2002. By enacting this statute, the Legislature expressed the following goals and intentions concerning aggravated rape:
... WHEREAS, sexual assault is one of the most serious and fastest growing violence in the United States and Virgin Islands and
WHEREAS, national statistics and research by the Women’s Coalition of St. Croix have disclosed that one out of every three girls and one out of every five boys, will be a victim of some form of sexual assault before reaching eighteen years of age', and
WHEREAS, in 85% of reported cases the abuser is someone the child knows, often a relative or a family friend; and
WHEREAS, one in five rape victims is under the age of twelve', and...
WHEREAS, because many of these sexual attacks go unreported and unrecognized, sexual assault, especially against children, poses a serious threat to the health, safety and welfare of our children', and
WHEREAS, inasmuch as the protection and preservation of the health, safety and well being of the children are our highest priorities, it is crucial that immediate action is taken to deter the incidence of rape ...
Child Protection Act of2002, No. 6497,2002 VI. Sess. Law 2. (Emphasis supplied). Likewise, the Legislature places a high priority on protecting the welfare of children under the age of eighteen years, which is unquestionably manifested in the imposition of severe penalties for rape or aggravated rape of young minors.
Appellant argues that “[t]he [Superseding Ijnformation failed to charge any aggravating factors or circumstances and merely charged that Appellant had sex with L.M., who was 17 years of age and not his spouse.” (Appellant’s Br. at 14.) However, Appellant’s assertion is frivolous and disingenuous, because the fact that L.M. was seventeen *375years old is the precise element that makes the crimes aggravated. The aggravating circumstance is the tender age of the victim who is a minor. The age of the victim is one of the differences between sections 1700a and 1702(a). L.M.’s age falls within the age category that constitutes an element of the crime that makes the act of rape an aggravated act under 1700a. Although the elements of the crime in sections 1700a and 1702(a) overlap in terms of the ages of the victims, all of the elements of both crimes are not the same.
Additionally, during several sessions of the 24th Legislature at which the Child Protection Act of 2002 was discussed, some senators expressly stated on innumerable occasions that the purpose of Bill Number 24-0013, the Child Protection Act of 2002, was to amend title 14, Chapter 85, section 1700 to augment the penalties for aggravated rape under section 1700. Child Protection Act of 2001: Hearing on Bill Number 24-0013 Before the Legislature, 24th Legislature of the Virgin Islands of the United States, May 10, 2001, 17 - 18 Part III, 39 Part IV; Nov. 14, 2001, 5, 21, 27 (2001); and January 31, 2002, 70 (2002).
Buttressing its intent to augment the penalties for aggravated rape, the Legislature declared the precise purpose of Act. No. 6497 of the Virgin Islands Session Laws and stated the following:
To enact the Child Protection Act of 2202, amending title 14, chapter 85, section 1700 et seq. to increase the penalties for aggravated rape .. .
Child Protection Act of2002, No. 6497, 2002 V.I. Sess. Law 2. (Emphasis supplied). While the foregoing statement specifically mentions its intent to increase penalties for aggravated rape, the Legislature made no mention, and did not disturb nor likewise augment the penalties for “Rape in the second degree,” under section 1702(a). When the Legislature made the following amendments to section 1702, it retained some of the former statutory language, particularly the penalties. The amendment to section 1702 stated the following:
Title 14, section 1702 is amended by deleting the existing language and inserting in lieu thereof the following language: ‘(a) Any person over 18 years of age who perpetrates under circumstances not amounting to rape in the first degree, an act of sexual intercourse or sodomy with a person not the perpetrator’s spouse who is at least 16 years but *376less than 18 years of age, and the perpetrator is 5 years or older than the victim, is guilty of rape in the second degree and shall be imprisoned not more than 10 years.
(b) Whoever is convicted of any offense under this section shall receive a psychiatric evaluation and participate in psychosocial counseling.
Id. at § 2(3), 2002 V.I. Sess. Laws 5.
Under the former section 1700, the Legislature enacted a single statutory scheme for aggravated rape. See id. at § 2(1), 2002 V.I. Sess. Laws 3. On February 20, 2002, the Legislature bifurcated the former section 1700 into two statutory provisions by amending the language in section 1700 and adding a new section 1700a. Id. at 3-4. The amended, revised section 1700, pertaining to aggravated rape in the first degree, augmented the penalty to a term of imprisonment “for life or for any term of years, but not less than 15 years.” Id. at 3; 14 V.I.C. § 1700(a). The newly added section 1700a, pertaining to aggravated rape in the second degree, established a term of imprisonment “for a life or for any term in years, but not less than 10 years.” Id. at 4; 14 V.I.C. 1700a(a).
C. The Legislative History of Section 1700a(a) Supports its Sentencing Structure
At the legislative hearing on the Child Protection Act of 2002, Sandra Hodge (“Hodge”), a senior family therapist and social worker at the Family Resource Center expressed the following:
Aggravated rape in the second . . . Section 1700[a]. We believe the penalty should be not less than ten years and up to imprisonment for life...
Child Protection Act of2002: Hearing on Bill Number 24-0013, Nov. 14, 2001 at 21. Hodge concluded her statements by stating, “[w]e encourage our senators to carefully consider this bill 24-0013 and keep the needs of our children and the larger community in mind.” Id. at 24. Subsequently, Dr. Iris Kern (“Dr. Kern”), the executive director of a program called Safety Zone also stated the following:
The issue of mandatory minimum incarceration is not a popular one. History, however, has proven that without such minimum, far too *377many perpetrators receive sentences so lenient as to discourage victims from reporting.
Id. at 27. Irrefutably, these concerns and issues are espoused in the penalty language in section 1700a. Thus, I cannot find any indication that the Legislature erroneously embedded a mandatory minimum sentence in section 1700a. As I have demonstrated, in addressing the matter of rape in the second degree, which encompasses the crimes of aggravated rape in the second degree and rape in the second degree, the Legislature contemplatively regarded section 1702(a), “Rape in the second degree,” to be a less serious offense than section 1700a, “Aggravated rape in the second degree.” Therefore, the assertion that there is a significant disparity between sections 1700a(a) and 1702(a) is precisely what the Legislature intended. Similarly, in addressing the crime of rape, the Legislature purposefully and adroitly crafted section 1700a with the intent of imposing a more severe penalty for its violation than a penalty for a violation of section 1702(a).
Appellant takes umbrage because Appellee elected to charge him with the more severe of the two crimes enacted by the Legislature. Appellant is reminded that if he takes exception to Appellee’s prosecutorial discretion on which of the two crimes to charge, it is for the Legislature, and not the courts, to amend the statutes to eliminate Appellee’s prosecutorial discretion.
D. Appellant’s Conviction for Aggravated Rape in the Second Degree was Proper
I concluded that the Legislature’s intention of protecting children is manifested in the language of section 1700a(a) and that Appellee was well within its discretion to prosecute Appellant under section 1700a(a). Therefore, I will now address the elements of section 1700a(a) to explicate why the jury properly convicted Appellant of aggravated rape in the second degree.
Appellant asserts that the trial court erroneously instructed the jury on Count Two of the Superseding Information. (Appellant’s Br. at 17.) Essentially, Count Two of the Superseding Information States the following:
[Appellant], did perpetrate an act of sexual intercourse with a person who is under eighteen (18) years, but thirteen years or older, and not *378his spouse, namely, L.M., who was seventeen (17) years old at the time, by inserting his penis into L.M.’s vagina, in violation of Title 14 V.I.C. § 1700(a), (AGGRAVATED RAPE IN THE SECOND DEGREE).3
(Superseding Information, J.A. at 17.) At trial, the court specifically instructed the jury as follows:
Count Two: In Count Two of the Information, [Appellant] is charged with [aggravated [r]ape in the [s]econd [d]egree, a violation of Title 14 V.I.C. Section 1700a(a). Under the laws of the Virgin Islands, whoever perpetrates an act of sexual intercourse with a person who is under 18 years, but 13 yea[r]s older and not the perpetrator’s spouse is guilty of the crime of [aggravated [r]ape in the [s]econd [d]egree.
Before you may find [Appellant] guilty of [aggravated [r]ape in the [s]econd degree, you must find that the People have proven each of the following essential elements beyond a reasonable doubt:
1. That [Appellant] did perpetrate an act of sexual intercourse with L.M. by inserting his penis into L.M.’s vagina;
2. That L.M. was under the age of 18, but 13 years or older;
3. That [Appellant] is not the spouse of L.M.; and
4. That the offense took place on the Islands of St. Croix on or about June 25, 2005.
If you decide that the People have proved each element beyond a reasonable doubt, then you must find [Appellant] guilty. Otherwise, you must find [Appellant] not guilty.
(Trial Tr., Vol. Ill, 53, Nov. 15, 2007.)
Appellant asserts that “[t]he [c]ourt improperly instructed the jury that the government only need prove the above four elements without proving any aggravating factor whatsoever.” (Appellant’s Br. at 17.) However, *379Appellant’s argument is incomprehensible. The trial court recited the elements of the crime embedded in the statutory language of section 1700a(a). Even though section 1700a is titled “Aggravated rape in the second degree,” there is nothing in the language of the statute that explicitly refers to an aggravating factor. Therefore, a separate aggravating factor is not an element of “Aggravated rape in the second degree.” Moreover, the Legislature eschewed any such inclusion in the statute. Essentially, the statute simply defines the elements that constitute “Aggravated rape in the second degree.” Accordingly, all that Appellee was required to prove were the aforementioned elements in the statutory language, because those are the elements that comprise the crime in section 1700a(a).
E. The Government may Exercise its Prosecutorial Discretion Concerning what Statutory Provision it Could use to Charge a Defendant
Appellant asserts that “Appellant should have . . . been charged with a violation of section 1702 rather than [aggravated [r]ape second under section 1700a(a). Otherwise, [s]ection 1702 is of no meaning.” (Appellant’s Br. at 15.) I find no legal infirmity where the Legislature allows Appellee an option to choose which crimes it may elect to charge a defendant. Noting that the penalty disparity between section 1700a(a) and 1702(a) is immense, Appellant also argues that Appellee’s option to prosecute Appellant under the more severe section 1700a(a) would result in “absurd consequences and injustice.” (Appellant’s Br. at 15.) Appellant’s contention is specious.
Additionally, as illustrated below, ample case law precedent concludes that Appellant advances an unprecedented farcical argument. The United States Supreme Court (“the Supreme Court”) has long recognized that “when an act violates more than one criminal statute, the [government may prosecute under either so longer as it does not discriminate against any class of defendants.” United States v. Batchelder, 442 U.S. 114, 123, 24, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979). “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by the statute, the decision... [on] what charge to file or bring ... rests entirely on his discretion.” United States v. Moore, 543 F.3d 891, 899 (7th Cir. 2008) (citing United States v. Armstrong, 517 U.S. 456, 464 (1996) (internal quotations omitted)). Therefore, the fact that Appellant *380could have been charged under another statute with a less severe penalty is irrelevant, as long as he is lawfully charged under a properly promulgated statute which has no constitutional infirmities.
It is noteworthy that “[t]he discretion a prosecutor exercises when he decides what, if any, charges to bring against a criminal suspect... is an integral feature of the criminal justice system, and is appropriate, so long as it is not based upon improper factors.” United States v. F.S.J., 265 F.3d 764, 769 (9th Cir. 2001) (citing United States v. LaBonte, 520 U.S. 751, 762, 117 S. Ct. 1673, 137 L. Ed. 2d 1001 (1997) (internal quotations omitted)); United States v. Navarro-Vargas, 408 F.3d 1184, 1213 (9th Cir. 2005). Here, Appellant does not argue, nor is there an issue of whether Appellant selected the statute with a harsher penalty as a result of discrimination or any other improper factors. The United States Court of Appeals for the Ninth Circuit has emphasized that courts must give “extreme deference” to prosecutorial charging decisions. F.S.J., supra at 769.
V. CONCLUSION
Undeniably, the design and structure of sections 1700, 1700a(a), and 1702(a) were established to protect minors under the age of eighteen years old. The sentencing disparity between section 1700a(a) and section 1702(a) is completely irrelevant to one another. While section 1702(a) is titled “Rape in the second degree,” section 1700a(a), a more serious crime, is titled “Aggravated rape in the second degree.”
Although the age discrepancy in sections 1700a(a) and 1702(a) slightly overlaps, Appellee may exercise its prosecutorial discretion and choose which of the above-mentioned statutes and crimes it prefers to use in charging Appellant. To prosecute Appellant, Appellee selected the crime in section 1700a(a), a more serious crime than the crime in section 1702(a), and which requires a lesser burden than the crime in section 1702(a). Moreover, I conclude that the trial court properly instructed the jury on the elements of the crime of “Aggravated rape in the second degree.” Therefore, I find no plausible reason to reverse the jury’s verdict. I would affirm the jury verdict and the trial court’s judgment.
The victim’s identity has been censored, because she was a minor at the time of the incident.
In Appellant’s brief, the first two out of three issues state the following: (1) whether Appellant was unconstitutionally convicted because of failure of proof beyond a reasonable doubt; (2) whether Appellant was improperly convicted of Aggravated Rape [in the] Second [Degree] where the evidence did not support the charge; and (3) whether the trial court erroneously instructed the jury on the essential elements of [“Aggravated rape in the second degree[.”] (Appellant’s Br. at 7.) However, my dissent from the majority is premised on the statutory interpretation and sentencing variation between title 14, section 1700a(a), “Aggravated rape in the second degree,” and title 14, section 1702(a), “Rape in the second degree.”
Appellee erroneously refers to aggravated rape in the second degree as Title 14 V.I.C. § 1700(a). However, the correct code is section 1700a(a).