ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS, D.C. Criminal No. 86-00036
Before: SEITZ, HIGGINBOTHAM and ROSENN, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This is an appeal by the Virgin Islands Government from the district court's order vacating a jury conviction and its judgment acquitting defendant Eithel*fn1 Alment of kidnapping with intent to rape.*fn2 We are presented with the issue whether defendant's actions of grabbing his victim by the neck,*fn3 forcibly removing her from a lighted interior office to an outdoor corridor, dragging her down a set of stairs, and eventually carrying her into an area of bushes, see Joint Appendix ("Jt. App.") at 21-24, approximately seventy feet from the initial assault, constitute kidnapping within the meaning of V.I. Code Ann. tit. 14, § 1052(b) (Supp. 1986).*fn4 In accordance with the two-pronged analysis articulated in Government of the Virgin Islands v. Ventura, 775 F.2d 92 (3d Cir. 1985), We conclude that the defendant's actions constitute a violation of § 1052(b). Because we decide that the Government satisfied its burden of proof, we will reverse the district court's judgment of acquittal and remand to the district court with instructions to reinstate the jury's verdict on the kidnapping charge.
The evidence viewed in the light most favorable to the Government establishes the following facts. In the early morning hours of March 1, 1986, Jane Doe,*fn5 a twenty-two-year old security guard, was working alone at Elena Christian Junior High School in St. Croix, Virgin Islands. At approximately 5:15 a.m., the defendant, Eithel Alment, approached Doe in an outside corridor, sat down next to her, and offered her bread and cheese. She declined his offer and went into her lighted interior office. Alment followed Doe inside and refused to leave notwithstanding her several requests for him to do so. Alment thwarted her attempt to call the police by grabbing the phone out of her hand and hanging it up. Doe then left her office. After Alment followed her out, Doe ran back in, locking one of two office doors. Although the record is unclear, Alment somehow re-entered the office through the second door as Doe tried to lock it. A struggle ensued and she struck Alment with a club. He seized the club, grabbed her by the neck and dragged her into the outdoor corridor and down a number of steps while simultaneously choking her. Doe struck her head against the railing as a result of her intense resistance.
After dragging Doe about thirty-one feet, Alment threw her onto the ground and told her that he wanted to have sexual intercourse with her. He then proceeded to life her skirt and tear the crotch of her underwear. The greater Doe struggled, the harder Alment choked her. He then inserted his finger into her vagina. While holding Doe to the ground, Alment attempted to pull down his pants. Abandoning that effort, defendant lifted her over his shoulder and carried her approximately forty feet further into an area of bushes. When he threw her to the ground, she pushed him off, ran to her office and phoned the police. An emergency room doctor at the local hospital examined Doe later that day and noted that, in addition to her reddened vaginal area, she was bruised and appeared to have been choked.
Doe testified that the asportation lasted almost an hour. See Jt. App. at 59.*fn6 The responding police officer observed that Doe was bruised and scratched and that there was sand and grass in her hair. He also found one of Doe's shoes outside as well as a sack containing bread and cheese. He was unable, however, to locate the assailant at that time. About six weeks later, Doe saw her assailant near a St. Croix grocery store. Accompanied by a police officer, she identified the defendant and he was placed under arrest.
A jury trial commenced on June 23, 1986. At the close of the Government's case, Judge Christian, on his own motion, dismissed the rape count*fn7 but reserved ruling on defendant's motion to acquit on the kidnapping count pursuant to Fed. R. Crim. P. 29. Following the jury verdict, defendant renewed his Rule 29 motion. At a hearing, Judge Christian granted defendant's motion on two grounds. First, Judge Christian concluded that the evidence supporting defendant's identification as Doe's assailant was insufficient and, second, defendant's conduct did not constitute a separate crime of kidnapping.*fn8 This appeal followed.
In Government of the Virgin Islands v. Ventura, 775 F.2d 92 (3d Cir. 1985), we announced a two-pronged test to determine what constitutes a violation of § 1052(b). There, we determined that both the duration of the asportation and any significant danger to the victim independent of the rape must be considered.*fn9 775 F.2d at 98. The facts of Ventura are strikingly similar to those in the case before us. There, the defendant was convicted of two counts of first degree rape, assault with intent to commit rape, sodomy, and kidnapping with intent to commit rape. He appealed the kidnapping conviction. The trial evidence established that the victim, a fourteen-year-old girl with an I.Q. of 63, was playing in a neighbor's house when the defendant arrived carrying a rifle on his shoulder. He grabbed the young girl by her right ear, whispered that he wanted to have sexual intercourse with her, and pulled her through the bushes into another neighbor's house, a distance of approximately eighty-eight feet. Id. at 94. There the defendant raped and sodomized her and threatened to kill her if she told anyone what had happened.
Applying the first and fourth prongs of the Berry analysis, this Court concluded that defendant's asportation of his victim was sufficient to justify the kidnapping conviction. Id. at 98. Turning first to the duration, we noted that it took a few minutes for appellant to drag the young girl through the bushes to the neighbor's house. Id. The short duration of the asportation, however, did not prevent us from applying the fourth prong of the Berry test. We found it significant that defendant transported his victim from the outdoors to the interior of the neighbor's house, thus changing the victim's environment. Id. We further determined that:
By dragging his victim through the bushes by the ear while carrying a gun the appellant created a significant danger to [the victim] independent of the danger inherent in the rape. Had appellant not raped [the young girl] he would nonetheless have committed a criminal offense by thus brutally pulling her away from the place where she was playing.
Id. Moreover, we noted that defendant's asportation of the child fit within the narrowly construed language of § 1052(b). "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." Id. at 99. Concluding that the ...