APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX D.C. Crim. No. 78-00034
Before Rosenn, Maris and Hunter, Circuit Judges.
Rafael Greenidge appeals from his judgment of conviction. He was found guilty on all three Counts of an Information. Of importance here, Count III charged him with assault on a companion of a rape victim with intent to commit rape on the victim, in violation of V.I.Code Ann. tit. 14, § 295(3) (1964). We affirm the convictions on Counts I and II. As to Count III, we believe that the Information and the jury instruction misinterpreted the applicable statute, and therefore, we reverse.
The facts are sharply contested. On appeal from jury verdicts of guilty, however, we must view the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942). The Government presented evidence from which a jury could believe that around midnight on February 12, 1978 Susan Deltufo, Joe Lekarzyk and Gene Tepe were walking beside a road in the direction of Fredericksted. Greenidge and two other occupants pulled along side them in a pickup truck. Greenidge allegedly jumped out of the truck, put a gun in Lekarzyk's side, and told Lekarzyk to "scat." The testimony discloses that Greenidge then grabbed Deltufo around the neck and forced her into the truck. Deltufo was driven some distance and was raped.
Greenidge was arraigned on March 15, 1978 on a three Count Information, the Counts charging Kidnapping (I), Rape (II), and Assault with Intent to Commit Rape (III). The jury found him guilty on all three Counts. He received the maximum sentence: twenty years imprisonment on Count I, twenty years on Count II, and fifteen years on Count III, the sentences to be served consecutively.
A number of issues have been raised on appeal.*fn1 We focus, however, on Greenidge's contention that his conviction on Count III should be reversed. The Information charged: "On or about the 11th day of February, 1978, in the Virgin Islands of the United States, . . . Rafael Greenidge, while being aided and abetted by two (2) unnamed minor individuals, did, with the intent to commit rape, assault one Joseph Lekarzyk, in violation of Title 14 V.I.C., § 295(3)." In his charge to the jury, the district court judge explained Count III of the Information as follows:
When I first saw that information I thought from the reading of it that it was an assault with intent to commit rape on Joseph Lekarzyk. It would seem that way when you read it but it does not mean that at all. It means that the defendant is charged with having assaulted Joseph while intending to commit rape on someone else and in this case upon Suzanne Deltufo.
Now, again, as I explained, not rape of the person assaulted but rape of someone who was either in the company of the person assaulted or was in the person's protection or was associated with the person assaulted to the point where the defendant thought he had to assault the person in order to accomplish the rape.
App. for Appellant at 44a, 45a-46a.
Section 295(3) of V.I.Code Ann. tit. 14 (1964), Assault in the First Degree, provides: "Whoever . . . with intent to commit rape . . . assaults another shall be imprisoned not more than 15 years." Greenidge contends that the Information and the jury charge reflect an improper interpretation of the statute. His argument is that a necessary element of the crime of assault with intent to commit rape is that the assault have been committed on the same person whom the defendant intended to rape. Here, Greenidge was charged with assaulting Lekarzyk with intent to rape Deltufo.*fn2
The only case we have uncovered which has directly ruled on this issue is United States v. Duhart, 496 F.2d 941 (9th Cir.), Cert. denied, 419 U.S. 967, 95 S. Ct. 230, 42 L. Ed. 2d 182 (1974). There, the defendant, then a prison inmate, took four women hostage. He ordered all four women to undress, striking two when they refused. He had forcible intercourse with only one. He was later convicted for, Inter alia, assault on the other three women with intent to commit rape. The Government did not prove that he intended to rape any of the women other than the one he actually raped. The Ninth Circuit found that the instruction permitting the jury to convict for assault with intent to commit rape "whether the assault be upon the person of the female intended to ...