UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
October 17, 1985
GOVERNMENT OF THE VIRGIN ISLANDS, APPELLEE
ERNESTO VENTURA, APPELLANT
On Appeal for the District Court of the Virgin Islands, D.C. Crim. No. 84-00050.
Before: ADAMS, GARTH, BECKER, Circuit Judges
Opinion OF THE COURT
BECKER, Circuit Judge.
In Government of the Virgin Islands v. Berry, 604 F.2d 221 (3d Cir. 1979), this court construed the Virgin Islands statute that punishes those who commit kidnapping for ransom, extortion, or robbery with a mandatory sentence of life imprisonment. Because the crime of kidnapping carries such severe penalties, the court held that statutes proscribing asportation incident to other crimes should be narrowly construed. We therefore stated that, in the absence of legislative intent to the contrary, asportation or detention incident to another crime does not constitute kidnapping unless it has certain indicia of severity and of discreteness from the other offense. The Berry panel formulated a four-factor test for determining whether a kidnapping has occurred, focusing on the duration of the asportation, how much danger it imposed on the victim, whether it occurred at a different time than the other offense, and whether it was inherent in the other offense.
Since our decision in Berry, the Virgin Islands legislature enacted V.I. Code Ann. tit. 14, § 1052(b), which specifically proscribes abduction with the intent to commit rape and defines such abduction as kidnapping. Rape was not a predicate offense under the predecessor statute. This appeal by Ernesto Ventura, from his conviction in the District Court of the Virgin Islands on charges of rape, requires us to determine whether he was properly convicted of kidnapping with intent to commit rape, notwithstanding the brevity in both time and distance of the asportation of his victim. In making this determination, we must decide whether § 1052(b), which carries with it a mandatory minimum penalty of fifteen years, is to be construed according to the Berry test or is subject to a less demanding analysis.
For the reasons that follow, we conclude that a modified Berry analysis applied to § 1052(b). Our study of the relevant legislative history leads us to conclude that the timing of the asportation is an integral part of the rape, are irrelevant to prosecutions under the statute, but that the duration and danger requirements are applicable though they need not be stringently applied. Because we decide that the evidence against appellant satisfies this standard, we affirm the kidnapping conviction.
The evidence adduced at trial establishes the following facts. On May 21, 1984, Mary Lou Rivera, a fourteen-year-old girl with an I.Q. of 63, went after school to the house of appellant, Ernesto Ventura, to meet her mother, who was coming to baby-sit for appellant's wife, Jovita. Mary Lou stayed inside the Ventura house with Jovita until her mother arrived, and then went outside to play with her two younger sisters. The girls played near the houses of two neighbors of the Venturas, Justina Vega (known as "Justo") and Claudino Martinez. The houses are widely spaced: Martinez's house is eighty-eight feet north of Justo's and two hundred fifty-one feet northeast of the Venturas'. Between Justo's house and Claudino's house, is an open fireplace where Justo does his cooking; this area is referred to as "Justo's kitchen." The area around the houses is overgrown with brush and trees.
Mary Lou and her sisters were playing in Justo's kitchen when one of the younger girls fell and hurt her knee. While her sisters were tending the injury and Mary Lou was left alone at the kitchen, appellant arrived carrying a rifle on his shoulder. He grabbed Mary Lou by her right ear, whispered that he wanted to have sexual intercourse with her, and pulled her through the bushes into Claudino's house. There he raped and sodomized her and threatened to kill her if she told anyone what had happened.
By a five-count information filed June 12, 1984, the Government of the Virgin Islands charged appellant with kidnapping with intent to commit rape, V.I. Code Ann. tit. 14, § 1052(b), two counts of rape in the first degree, V.I. Code Ann. tit. 14, § 1701(2) and (3), assault with intent to commit rape, V.I. Code Ann. tit. 14, § 295(3), and sodomy, V.I. Code Ann. 14, § 2061(1). On August 8, 1984, a jury returned a verdict of guilty on all counts. After denying appellant's motion for new trial, the district court sentenced appellant to concurrent sentences of eighteen years on each count. Appellant appeals his conviction for kidnapping with intent to rape under V.I. Code Ann. tit. 14, § 1052(b), which carries a mandatory minimum sentence of fifteen years and forbids the granting of parole until one-half of the sentence imposed has been served. He does not appeal his conviction on any of the other counts.
In Berry, we considered a conviction under the aggravated kidnapping statute, V.I. Code Ann. tit. 14, § 1052 (1978) (Now V.I. Code Ann. Tit. 14, § 1052(a), which proscribes kidnapping for ransom, extortion or robbery.*fn1 The appellants, Berry and Brignoni, were convicted of robbery in the third degree, as well as of kidnapping. Besides robbing their victim, Morales, of his clothes and money, the appellants had driven him to a beach, where they forced him at gunpoint to strip and take a swim before abandoning him there.*fn2 One the robbery count, they each received sentences of ten years; the kidnapping conviction, however, carried a mandatory life sentence.
Although Morales' brief trip to the beach and confinement there fell within the literal meaning of the kidnapping statute, this court refused to end its inquiry there. Noting that § 1052, like many aggravated kidnapping statutes, carries a mandatory sentence of life imprisonment, we looked to legislative intent to determine whether every act that comes within the literal language of the statute constitutes kidnapping. Invoking the rule of statutory interpretation that requires that all laws receive a sensible construction,*fn3 we followed the modern approach to kidnapping statutes, which limits their scope.*fn4 In doing so, we recognized that the "principal danger of overzealous enforcement of kidnapping statutes is that persons who have committed such substantive crimes as robbery or assault -- which inherently involve the temporary detention or seizure of the victim -- will suffer the far greater penalties prescribed by the kidnapping statutes." 604 F.2d at 226.
After reviewing the tests used by various states to determine whether a kidnapping has taken place,*fn5 we set forth what we believed to be the four factors central to each of these approaches. Those factors are:
(1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense.
604 F.2d at 227. We held that in the absence of any legislative history to the contrary, the question whether a kidnapping has occurred under § 1052 must be determined in light of these four considerations. Id. Applying our analysis to the situation in Berry, we concluded that no kidnapping, separable and distinct from the robbery, had occurred.*fn6 We therefore reversed the appellants' conviction for kidnapping.
The appellant argues that dragging Mary Lou from Justo's kitchen to Claudino's house does not constitute kidnapping under the Berry standard. Specifically, he contends that neither the distance he dragged Mary Lou, nor the amount of time he detained her, was sufficient to constitute a separate crime of kidnapping, and that his detaining and moving Mary Lou was merely incidental to the crime of rape.
In 1983, the Virgin Islands legislature amended V.I. Code § 1052, denoting the existing provision as § 1052(a) and adding a new subsection (b), which provides:
Whoever abducts, takes or carries away any person by force or threat with the intent to commit rape is guilty of kidnapping and shall be imprisoned for not less that 15 years and shall not be eligible for parole until he has served at least one-half of sentence imposed.
V.I. Code Ann. tit. 14, 1052(b). The government argues that the new provision makes analysis of the second and third factors of the Berry test -- whether the asportation occurred during the commission of another offense, and whether asportation is an inherent part of the separate offense -- unnecessary when the asportation is incidental to a rape. According to the government, only the first and fourth factors -- duration and danger -- re relevant to § 1052(b) and those factors are satisfied here. Appellant contends that the new enactment is subject to the Berry holding: he argues that § 1052(b) is to be applied according to the same rule of construction employed in interpreting § 1052(a).
Our analysis of § 1052(b)'s legislative history, its explicit provisions, and its place among the other criminal laws of the Virgin Islands leads us to accept the government's argument. The legislative history provided to us by the Office of the Legislative Counsel of the Legislature of the Virgin Islands reveals that § 1052(b) was adopted in order to increase the severity of the punishment for rapists who carry off their victims: the legislature wished to ensure that the asportation would be prosecuted as a separate crime of kidnapping. As we read the history, the legislature was not concerned, as was the Berry court, about the risk of overzealous application of the kidnapping charge to impose a sentence substantially greater than that attached to the underlying crime. On the contrary, the legislature directed that a separate kidnapping charge be brought against certain rapists in order to increase the penalty imposed upon them.*fn7 This express legislative intent to increase rapists' sentences contrasts sharply with the absence of such an expression of legislative purpose behind § 1052(a), which was analyzed in Berry.
Before the adoption of § 1052(b), a rapist's asportation of his victim, no matter how far, was an aspect of the overall offense (the rape). By passing § 1052(b), the legislature intended to assure that asportation incident to rape would be punished as the separate crime of kidnapping. Section 1052(b) was itself, therefore, a resolution of the second and third factors of the Berry test in the case of asportation incident to rape. By creating a crime of kidnapping with intent to commit rape, the legislature rendered immaterial an inquiry into whether the asportation occurred during the commission of the rape or whether the asportation that occurred was inherent in the rape. The legislature has thus determined that the separateness of the asportation and rape is irrelevant.
Further evidence of the inapplicability of the full Berry test is supplied by the sentencing provisions of § 1052(b). As mentioned above, many kidnapping statutes (including § 1052(a), which was at issue in Berry) carry mandatory life sentences. The Berry Court emphasized that the severity of the sentence dictated caution in the application of the kidnapping statute. See 604 F.2d at 228 ("It is beyond dispute that with respect to a statute containing a mandatory life imprisonment term, the statutory language must be narrowly construed.") Section 1052(b), by contrast, carries a mandatory minimum of 15 years. The inclusion of the lesser sentence in 1052(b) supports the argument that the stringent Berry test does not apply in full force.
Section 1052(b)'s place among the other criminal laws of the Virgin Islands supports our conclusion. The legislature's adoption of a specific provision dealing with abduction incident to rape, distinct from the general aggravated kidnapping statute, § 1052(a), indicates that the legislature did not view the determination of the criminality of asportation incident to rape as identical to the question whether the asportation would have constituted a kidnapping under the more general provision.*fn8 To apply the Berry factor here would effectively override the will of the Virgin Islands legislature.
Although the second and third steps in the Berry test are therefore not applicable under § 1052(b), we believe that the Berry rationale is still relevant. Because there was no mention of Berry in the legislative history of 1052(b), it cannot be said that the legislators sought to repudiate Berry. Moreover, the fifteen-year minimum sentence, although not so severe as the mandatory lifetime sentence carried by § 1052(a), may be far more severe than the sentence for first degree rape.*fn9 Therefore the Berry concern for avoiding a sentence disproportionately larger than the underlying crime would appear to apply to § 1052(b) analysis. We believe that the jurisprudence that counsels caution in construing aggravated kidnapping statutes is still on point. In the absence of a legislative intention to nullify the Berry analysis for the purpose of construing § 1052(b) we will not do so, for we cannot assume that any asportation incident to rape, however slight, constitutes kidnapping with intent to commit rape.*fn10 We therefore hold that the first and fourth factors of the Berry test -- duration of detention and danger to the victim over and above the danger posed by the separate offenses -- are applicable to § 1052(b).*fn11
Applying the first and fourth prongs of the Berry analysis to the facts of this case, we conclude that appellant's asportation of Mary Lou was sufficient to justify the kidnapping conviction. Turning first to the duration of the asportation, we note that it took at least a few minutes for appellant to drag Mary Lou through the bushes to Claudino's house. It is true that the duration of appellant's act of dragging Mary Lou through the bushes was not as long as the duration of Morales' ride to the beach in Berry. There we found that "this is in sharp contrast to the traditional kidnapping case, in which the victim is held for a substantial period," 604 F.2d at 228. However, it is significant in this regard that appellant transported his victim from the outdoors to the interior of Claudino's house, thus, taking her from one environment to another.*fn12 Moreover, the short duration of the ride in Berry was not the only reason for our holding that it was not a kidnapping, for we also found no indication that the brief ride created any appreciable risk of injury to Morales. Where, as here, the element of significant danger independent of the underlying offense (the fourth Berry factor) indicates that a kidnapping has occurred, the short duration of the asportation will not prevent us from applying § 1052(b).
By dragging his victim through the bushes by the ear while carrying a gun the appellant created a significant danger to Mary Lou independent of the danger inherent in the rape. Had appellant not raped Mary Lou, he would nonetheless have committed a criminal offense by thus brutally pulling her away from the place where she was playing. Being dragged through the bushes would appear to be particularly terrifying to one like Mary Lou, who was most likely bewildered by what was happening to her, and the danger of psychological harm cannot be discounted.*fn13 This rish of harm adds support to our conclusion that the fourth Berry factor is satisfied, i.e., that the asportation created a significant danger to the victim independent of that posed by the separate offenses of rape and sodomy.
We also note that appellant's asportation of his victim fits within the language of § 1052(b), narrowly construed. By any interpretation of the words, no matter how narrow, appellant "abducted" his victim: he seized her by the ear and pulled her to another place. It could equally well be said that appellant "took or carried away" his victim. Thus, unlike the forced swim in Berry, which could have been considered a kidnapping only under an expansive reading of the statutory language, appellant's dragging of Mary Lou to Caludino's house is a kidnapping within the ordinary meaning of the language of § 1052(b).
Because appellant's kidnapping conviction passes the requisites of § 1052(b), as informed by the modified Berry analysis, the judgment of conviction for kidnapping with intent to commit rape will be affirmed.