On Appeal from the District Court of the Virgin Islands (St. Croix) D.C. Crim No. 84-00049-01
BEFORE: ADAMS, GARTH, and BECKER, Circuit Judges
Emmanuel Joseph was convicted on both counts of a two count information charging him with rape in the first degree in violation of V.I. Code Ann. tit. 14 § 1701(1)-(2)*fn1 He now appeals, arguing: (1) that Count I of the information lacked the specificity necessary to enable Joseph to prepare an adequate alibi defense because it failed to aver the date on which the alleged crime occurred: (2) that there was insufficient evidence to sustain Joseph's conviction on Count I; and (3) that comments made during the government's closing argument occasioned prejudice to Joseph sufficient to require reversal of the jury's verdict.
We hold that the record evidence was insufficient to support a judgment of conviction on Count I.*fn2 We further hold that although the prosecutor's remarks during summation were unfortunate, they did not constitute reversible error. We therefore reverse the judgment of conviction on Count I only and remand this case to the district court so that Joseph may be resentenced on Count II in accordance with our holding.
Emmanuel Joseph was charged by information with having raped Taisha Joseph, his eight-year-old step-daughter, on several occasions. Specifically, the first court of the information charged that "in and about May or June, 1983," Joseph raped Taisha Joseph in violation of V.I. Code Ann. tit. 14 § 1701(1) and (2). The second count charged that Joseph committed a similar criminal act involving Taisha on or about October 23, 1983.*fn3
The case was tried to a tried to a jury. Taisha Joseph testified that her birthday fell on June 24. Transcript at 44. Testimony, concerning the alleged rape on October 23, 1983 (Count II), was then elicited from Taisha. Transcript at 46-53. In order to prove the May-June 1983 offense charged in Count I, the government thereafter proceeded to ask Taisha a series of questions at to whether Joseph had ever "troubled" her prior to October 1983. The government sought to establish that Joseph raped Taisha sometime i May or June of 1983 by keying to the date of Taisha's June 24 birthday. Taisha's answers as to the time that the alleged rape took place.
At the close of the government's evidence,*fn4 Joseph moved for a judgment of acquittal of both counts. This motion was denied. At the close of all evidence, the motion was again renewed and again denied. The jury thereafter returned a guilty verdict on both counts. Post trial, Joseph moved for a judgment of acquittal or, in the alternative, for a new trial. By order dated August 9, 1984, the district court denied this motion, and on August 22, 1984, Joseph was sentenced to a twelve year term of imprisonment, which did not apportion the sentence between Counts I and II.
We turn first to the question of whether the evidence was sufficient to sustain Joseph's conviction on Count I of the information. On review of the denial of a motion for a judgment of acquittal brought on the basis of the insufficiency of the evidence to support a conviction, this court must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the government, to uphold the jury decision. See Glasser v. United States, 315 U.S. 60, 80 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Riccobene, 709 F.2d 214, 222 (3d Cir. 1983). The reviewing court thus considers the evidence as a whole, taken in the light most favorable to the government, together with all legitimate inferences to be drawn therefrom, to determine whether a rational trier of fact could have found guilt beyond a reasonable doubt. Should the conclusion be reached that a reasonable doubt must exist in the mind of a reasonable juror, acquittal must be granted. See, e.g., Curley v. United States, 81 U.S. App. D.C. 389, 160 F.2d 229, 232-33 (D.C. Cir. 1946), cert. denied, 331 U.S. 837, 91 L. Ed. 1850, 67 S. Ct. 1511 (1947).
In the present case, Taisha Joseph testified as to the sexual advances allegedly made by Joseph. She testified as follows:
"Q [by ASSISTANT UNITED STATES ATTORNEY CAPDEVILLE] Now do you remember telling Jackie [Taisha's mother] what happened when you went into the bedroom?
"And could you tell us what happened when you were put on the bed, Taisha?
"Did Dove [Joseph] do anything to you?
"Did Dove [Joseph] get on the bed at all, Taisha?
"ATTORNEY BRYANT [Joseph's attorney]: Your Honor, leading is one thing, but this is actually putting words in this little girl's mouth. She said she couldn't remember three times.
"THE COURT: Sustained -- sustained, Mr. Bryant.
"ATTORNEY BRYANT: Thank you, Your Honor.
"THE COURT: Taisha, now just before this gentleman asked you some questions you promised that you would tell the truth even if it hurts to tell the truth; didn't you?
"All right; now you take that microphone, and you hold it right up to your mouth like this, and you tell us what happened, and the sooner you tell us what happened, the sooner all of this will be over and you can go home. Okay?
"You just tell us the truth. Now you go ahead and tell us; okay?
"He put his pee pee inside of my --
"THE COURT: What did you just say?
"THE WITNESS: He -- I said -- he put his pee pee inside of mine.
"Q Now, Taisha, did it hurt?
"Q And did you say anything?