Government of Virgin Islands v. Brown

• Decision Date: 20 July 1982
• Docket Number: No. 81-1266,81-1266
• Citation: 685 F.2d 834
• Parties: GOVERNMENT OF VIRGIN ISLANDS, v. Kenneth BROWN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 834

685 F.2d 834

GOVERNMENT OF VIRGIN ISLANDS, v. Kenneth BROWN, Appellant.

No. 81-1266.

United States Court of Appeals Third Circuit.

Argued April 27, 1982.

Decided July 20, 1982.

R. Lolita d'Jones, Asst. Federal Defender (argued), Christiansted, St. Croix, V. I., for appellant.

Ismael A. Meyers, U. S. Atty., Eric B. Marcy, Sp. Asst. U. S. Atty., Douglas L. Capdeville, Asst. U. S. Atty. (argued), Christiansted, St. Croix, V. I., for appellee.

Before GARTH, ROSENN and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

The appellant, Kenneth Brown, was convicted and sentenced for first degree robbery, grand larceny, first degree assault and possession of an unlicensed firearm during the commission of a crime of violence. From our review of the record Brown's appeal raises only two significant issues. First, whether Brown was properly convicted of grand larceny; and second, whether there was sufficient evidence to support his convictions for first degree assault. Because we find the district court's instructions to the jury on the grand larceny count (Count II) were deficient, we reverse Brown's conviction for grand larceny and remand Count II for a new trial. Further, because we find the evidence does not support his convictions for first degree assault (Counts IV, V and VI), we vacate the judgments and sentences for first degree assault and remand Counts IV, V and VI to the district court to enter judgments of conviction for third degree assault and to resentence Brown appropriately. On all other counts, we affirm.

I.

Brown and his co-defendants, Orville O'Reilly and Elias Petersen, were arrested July 23, 1980 for the armed robbery of the F. W. Woolworth Store located in the Sunny Isle Shopping Center of St. Croix, Virgin Islands. In an Information filed July 30, 1980, all three men were charged as follows: robbery in the first degree, in violation of V.I.Code Ann. tit. 14, § 1862(2) (Count I); grand larceny, in violation of V.I.Code Ann. tit. 14, § 1083(1) (Count II); assault in the first degree, in violation of V.I.Code Ann. tit. 14, § 295(3) (Counts III, IV, V, VI and VII); possession of an unlicensed firearm during the commission of a crime of violence, in violation of V.I.Code Ann. tit. 14, §§ 2253(a) and 2254 (Count VIII); possession of an unlicensed firearm, in violation of V.I.Code Ann. tit. 14, § 2253(a) (Count IX).

The evidence adduced at trial showed that on July 23, 1980 at approximately 12:45 p. m., three men entered and robbed at gunpoint the F. W. Woolworth Store in the Sunny Isle Shopping Center of St. Croix, Virgin Islands. Wielding a sawed-off shotgun and a handgun, the men ordered the employees and customers in the store to lie face down on the floor while they foraged through the store's cash registers and safe. According to William Anderson, Associate Manager of the store, approximately $375.00 in cash and a check made out to F. W. Woolworth were taken from three of the cash registers. Anderson was also forced to hand over his own wallet, which he estimated contained approximately $63.00. ¹

Several employees and customers were physically assaulted during the robbery. Anderson and another employee, Yvonne Joseph, were both kicked. Two customers, Blondelle Roberts and Erva Benjamin, were variously pushed, kicked and struck. Anderson, however, was the only person in the store who had personal property taken.

Immediately following the robbery, three men were observed fleeing from the Woolworth store. Police officers pursued the men into the bush and fields to the rear of the store and shortly thereafter apprehended Brown and his co-defendants, Petersen and O'Reilly. In the search of the area which followed, the police recovered a black wallet containing $65.00, which Anderson subsequently identified as his, and $100.00 in loose cash. A further search produced a check for $11.50 and an additional $157.00 in loose cash. During the search of O'Reilly, $360.00 was recovered from his pants pocket.

Although witnesses were unable to positively identify any of the defendants, various items of clothing recovered from the area in which the defendants were found were identified by witnesses as those worn by the men who robbed the store. Also recovered from the area were a shotgun and handgun identified by witnesses as those used during the robbery.

At the close of a three-day jury trial which commenced on November 24, 1980, Brown and his co-defendants were convicted as charged on all counts. ² Brown was initially sentenced on all counts, but the trial court, on its own motion, vacated its sentence of January 15, 1981 and in an Amended Judgment and Commitment of May 21, 1981, sentenced Brown to prison for the following terms: robbery first degree (Count I), 15 years; grand larceny (Count II), 7 years, to be served consecutively to Count I; assault first degree (Count IV), 5 years, to be served consecutively to Counts I and II; assault first degree (Count V), 5 years, to be served concurrently with Count IV; assault first degree (Count VI), 5 years, to be served concurrently with Count IV; possession of an unlicensed firearm during the commission of a crime of violence (Count VIII), 5 years, to be served consecutively to Counts I, II and IV. ³

In all he was sentenced to 32 consecutive years in prison.

II.

On appeal Brown raises a number of issues. We find merit, however, in only those assertions challenging his convictions for grand larceny and first degree assault. ⁴

A. Grand Larceny

Brown contends that his conviction on Count II must fall for two reasons. First, he contends that Count II should have been merged into Count I, the first degree robbery charge, because both counts were based upon the same transaction, the robbery of Anderson, and because larceny is a lesser-included offense of the crime of robbery. Appellant's Brief at 5-6. Second, he asserts that, even if Counts I and II arguably were based upon separate transactions, there is no way of knowing from the Information and the instructions given the jury whether the jury's verdict in Count II was properly based on only the larceny of money from Woolworth. Appellant's Supplemental Brief at 1-4. We agree with Brown that his conviction on Count II must be reversed.

Count II charged that:

On or about the 23rd day of July, 1980, in the Virgin Islands of the United States, Judicial Division of St. Croix, KENNETH BROWN, ELIAS PETERSEN and ORVILLE O'REILLY, while aiding and abetting each other, did unlawfully take, steal and carry away United States currency belonging to WILLIAM ANDERSON and WOOLWORTH DEPARTMENT STORE, a corporation, said currency having a value in excess of one hundred dollars ($100.00), with intent to permanently deprive said owners thereof, in violation of Title 14 V.I.C., § 1083(1).

Information filed July 30, 1980, Appellant's Appendix at A-1.

The applicable statutory provisions on larceny are found at V.I.Code Ann. tit. 14, §§ 1081 and 1083 and provide as follows:

§ 1081. Larceny defined and classified

(a) Larceny is the unlawful taking, stealing, carrying, leading, or driving away the personal property of another.

§ 1083. Grand larceny

Whoever takes property-

(1) which is of $100 or more in value; or

(2) from the person of another-commits grand larceny and shall be imprisoned for not more than 10 years.

The trial court instructed the jury on Count II as follows:

In count two of the Information the defendants are charged with commission of the crime of Grand Larceny as defined in Virgin Islands Code Section 1083.

Our code makes it a crime for any person, who, with intent to do the same, unlawfully takes, steals or carries away the personal property of another.

Before you may convict a defendant of the crime of Grand Larceny, you must find each of the essential elements of the crime beyond a reasonable doubt:

(1) Defendant unlawfully took, stole or carried away the victim's property.

(2) Defendant had the specific intent to so take the property.

(3) Defendant had the specific intent to permanently deprive the owner of the property.

(4) The property was worth $100.00 or more.

(5) That the event occurred in the Judicial Division of St. Croix on or about the 23rd day of July, 1980.

Grand Larceny also requires proof of specific intent, as I have defined those terms to you. The Government must prove beyond a reasonable doubt that when a defendant unlawfully took, stole, or carried away the personal property of another, the taking was intended.

Supplemental Trial Transcript at 38-39.

The trial court's instructions sufficiently delineate for the jury the statutory elements necessary for conviction for grand larceny. However, a mere recitation of statutory elements is legally insufficient in this case because it is unclear from the Information as drawn and the trial court's instructions whether Count II is based upon the larceny of currency belonging to Anderson, Woolworth or both. The factual resolution of this issue was essential for proper conviction on Count II.

Count II ambiguously states that currency in excess of $100.00 "belonging to WILLIAM ANDERSON and WOOLWORTH DEPARTMENT STORE " was stolen by the defendants (emphasis added). It further states that the defendants unlawfully took the currency "with intent to permanently deprive said owners thereof..." (emphasis added). But Brown's conviction on Count II can stand only if based solely on the larceny of Woolworth's currency. The unlawful taking of Anderson's currency was encompassed in the first degree robbery charge of Count I and its inclusion in Count II would render Count II vulnerable to dismissal under the common law "merger of lesser-included offenses" doctrine, which is now expressed as a constitutional prohibition against placing a defendant in jeopardy twice for the same offense. ⁵ See United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980); Illinois v....