On Appeal for the District Court of the Virgin Islands, D.C. Crim. No. 84-00050.
Before: ADAMS, GARTH, BECKER, Circuit Judges
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 ...