ON APPEAL FROM THE DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN
Gibbons, Sloviter and Becker, Circuit Judges.
The Government of the Virgin Islands appeals from an order of the District Court of the Virgin Islands granting a post-verdict motion pursuant to Fed. R. Crim. P. 29(b). The jury found defendant Ralston Greene guilty of unlawful entry, and the district court held that there was insufficient evidence of intent to sustain a guilty verdict on that charge. We reverse.*fn1
Mr. Greene, a Virgin Islands police officer, was charged in an information with burglary and grand larceny at the home of Carol Crossman on November 24, 1981. On that date, according to her testimony, Mrs. Crossman left her home about noon, closing but not locking the door. When she returned at approximately 1:30 p.m. she saw a police car in the front yard. The front door was closed. Greene, in uniform, opened the door from the inside and told her he had avoided a possible robbery by three Rastafarians who had been in the yard, but had fled at his approach. Greene did not have his gun drawn or his nightstick in his hand. After a superficial search while Greene was on the premises, Mrs. Crossman did not notice anything missing. After Greene left, she discovered that two rings and two watches were missing. One of the two watches was later found in the bathroom. Greene took no report from her, made no notes, and did not interview her.
Officer Edwin Palermo, an investigating officer, read into the record Greene's answers to questions during an investigation of his conduct. Greene's answers indicated that while on patrol he drove down the dirt road on which the Crossman home was located to see if any apartments were available there. Hearing dogs barking, he turned into the Crossman driveway and saw two figures running away. After informing the police radio dispatcher that he was going to investigate the situation, he left the police car and entered the open door of the house. Soon thereafter Mrs. Crossman arrived. Greene asked her to check if anything had been taken. Since she indicated that nothing appeared to be missing, Greene did not file an incident report. His statement did not indicate why the door of the Crossman house was closed when Mrs. Crossman arrived.
Officer Palermo and a number of other prosecution witnesses testified that Greene failed to follow normal police procedures with respect to the November 24, 1981 incident; (1) he left the police car without notifying the dispatcher, (2) he entered an open house without requesting assistance, and (3) he failed to file a report on the incident. The defense called five police officers, some of whom raised a fact issue over whether Greene had notified the dispatcher that he was leaving the car. These witnesses all confirmed, however, that with respect to an incident such as Greene described they would have notified the dispatcher, requested assistance, and filed a report.
Greene testified that he had in fact notified the dispatcher when he left the car, that the door to the Crossman house was open when he arrived, and that he had mentioned to Mrs. Crossman there were two figures fleeing the premises, not three.
The court denied Greene's Rule 29(b) motion and submitted both the burglary and grand larceny charges to the jury. Unlawful entry, V.I. Code Ann. tit. 14, § 445 (1964), is a lesser included offense in the burglary count. It requires proof of entry of a building with intent to commit an offense therein. The jury acquitted Greene of burglary and grand larceny but found him guilty of unlawful entry.
The trial court granted Greene's post-verdict motion for a judgment of acquittal, reasoning that there was insufficient evidence to sustain a finding of entry with intent to commit an offense.
The propriety of a post-verdict judgment of acquittal is determined by whether the evidence, when viewed in the light most favorable to the government, supports the verdict. See, e.g., United States v. Dixon, 658 F.2d 181, 188 (3d Cir. 1981); cf. Government of the Virgin Islands v. Gereau, 502 F.2d 914, 930 (3d Cir. 1974). Our consideration of that question is plenary. In this case evidence of Greene's intention in entering the building is circumstantial. The circumstances which the jury could have found, pointing to entry with intent to commit an offense, include (1) his failure to notify the dispatcher when he left the police car, (2) his failure to request assistance when entering the Crossman house, (3) his failure to take a statement from Mrs. Crossman and to file a report, (4) inconsistencies in his statements about the number of persons he saw fleeing from the Crossman yard, (5) the fact that when he entered the house he closed ...