On Appeal from the District Court of the Virgin Islands Division of St. Croix (D.C. Crim. No. 82-00078)
Appellant Leslie A. Joseph was charged by information in the District Court of the Virgin Islands with the crime of rape in the first degree. V.I. Code Ann. tit. 14, § 1701 (1964),*fn1 but was convicted by a jury of the crime of rape in the third degree, V.I. Code Ann. tit. 14, § 1703 (Supp. 1984).*fn2 Joseph contends that his conviction of an offense not charged in the information must be overturned. The government counters that the conviction was proper because third degree rape is a lesser included offense of first degree rape. We conclude that under the governing test of Government of the Virgin Islands v. Bedford, 671 F.2d 758 (3d Cir. 1982), third degree rape is not an offense included in first degree rape because it requires proof of an element not required to prove first degree rape -- that the victim was over fourteen but under sixteen years of age. Appellant's conviction of third degree rape thus reflects a variance between the information and verdict in violation of his right to be informed of the charge against him in advance of trial set forth in the sixth amendment to the United States Constitution and the Virgin Islands Bill of Rights, 48 U.S.C. § 1561 (1982). We hold that the variance between the information and the verdict constituted plain error requiring reversal of the conviction despite appellant's failure to object in the district court. Accordingly, we will reverse the judgment of the district court and remand with a direction to enter a judgment of acquittal.
On June 4, 1982, the United States Attorney charged appellant Joseph with perpetrating an act of sexual intercourse with June Hassan, a female not his wife, by forcibly overcoming her resistance in violation of V.I. Code Ann. tit. 14, § 1701(2). The case proceeded to trial, and at the close of all the evidence*fn3 the district court instructed the jury in the crimes of rape in the first degree and rape in the third degree, V.I. Code Ann. tit. 14, § 1703. Appellant's counsel did not object. The jury returned a verdict of guilty of rape in the third degree. Appellant then moved for judgment of acquittal on the ground, inter alia, that rape in the third degree is not a lesser included offense of rape in the first degree. The district court denied the motion and sentenced appellant to the maximum term of one-year imprisonment (consecutive to an unrelated term of incarceration). Joseph appeals.
"[A] defendant may be found guilty of an offense necessarily included in the offense charged. . . ." Fed. R. Crim. P. 31(c); see also Government of the Virgin Islands v. Aquino, 378 F.2d 540, 554 (3d Cir. 1967). For the third degree rape to be deemed an included offense of first degree rape, the third degree rape must necessarily be perpetrated in order that first degree rape be perpetrated. See id. ("the lesser offense must be such that it impossible to commit the greater offense without having first committed it"). Whether an offense is necessarily included in a greater offense is determined by the test announced in Government of the Virgin Islands v. Bedford, 671 F.2d 758 (3d Cir. 1982):
We adhere to the traditionally accepted test, derived from Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), for determining whether a particular crime is a lesser included offense of another crime. A lesser included offense of another crime. a lesser included offense is one that does not require proof of any additional element beyond those required by the greater offense. See also Brown v. Ohio, 432 U.S. 161, 64-69, 97 S. Ct. 2221, 2224-27, 53 L. Ed. 2d 187 (1977). The elements of the offense are compared in the abstract, without looking tot he facts of the particular case. United States v. Lampley, 573 F.2d 783, 789-90 (3d Cir. 1977); Government of the Virgin Islands v. Smith, 558 F.2d 691, 695-96 (3d Cir. 1977).
Id. at 765 (emphasis in original).
A conviction for third degree rape, defined in § 1703, requires that the jury find the alleged victim to be under sixteen years of age but over fourteen years of age. First degree rape, defined in § 1701, does not have an age element. Under the Bedford test, therefore, third degree rape is clearly not a lesser included offense of first degree rape.*fn4 There was thus a variance between the information, which charged first degree rape, and the jury's verdict of guilty of rape in the third degree. We turn now to consideration of the consequences of such a variance.
An accused in a criminal case has "the right . . . to be informed of the nature and cause of the accusation" against him. U.S. Const. amend. VI; Virgin Islands Bill of Rights, 48 U.S.C. § 1561 (1982). A variance between the information and the verdict violates this fundamental right, and a verdict ...