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.
2

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 codefendants, 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.
9

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
10

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
11 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).
12

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

13

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

14
15 Larceny is the unlawful taking, stealing, carrying, leading, or driving away the
(a)
personal property of another.
1083. Grand larceny
16
Whoever takes property17
18

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

19

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

20

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

21 count two of the Information the defendants are charged with commission of the
In
crime of Grand Larceny as defined in Virgin Islands Code Section 1083.
22 code makes it a crime for any person, who, with intent to do the same,
Our
unlawfully takes, steals or carries away the personal property of another.
23
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.
24
(2) Defendant had the specific intent to so take the property.
25
(3) Defendant had the specific intent to permanently deprive the owner of the
26

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

27 That the event occurred in the Judicial Division of St. Croix on or about the 23rd
(5)
day of July, 1980.
28
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.
29

Supplemental Trial Transcript at 38-39.

30

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.

31

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. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d
228 (1979). See also 1 Wharton's Criminal Law, 54 (14th ed. 1978) at 280
and 300.

32

Larceny and the more serious crime of robbery both involve the unlawful
taking of property belonging to another. Brown correctly asserts, and the
Government concedes, that larceny, involving no element of force or fear,
requires proof of less than all the facts necessary to prove the offense of
robbery and thus is necessarily a lesser-included offense of the crime of
robbery. See Government of Virgin Islands v. Jarvis, 653 F.2d 762, 765 (3d Cir.

1981); United States v. Belt, 516 F.2d 873, 875 (8th Cir. 1975), cert. denied,
423 U.S. 1056, 96 S.Ct. 790, 46 L.Ed.2d 646 (1976); Walker v. United States,
418 F.2d 1116, 1120 (D.C.Cir.1969). See also Sansone v. United States, 380
U.S. 343, 349, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965); 8A Moore's
Federal Practice 31.03(2) (1980). Therefore, in keeping with the
constitutional prohibition against double jeopardy, any larceny conviction
stemming from the taking of Anderson's money would necessarily have to
merge into Count I, the first degree robbery charge.
33

In this case if proper instructions had been given to the jury, any potential
merger problem with Counts I and II would have been eliminated. Brown's
contention that Count II should have been merged into Count I ignores the fact
that Count II also embraced the grand larceny charge growing out of the
defendants' unlawful taking of Woolworth's currency. However unclear the
Information may have been about whether Count II included the taking of
Anderson's money, had the jury been properly instructed that it could find the
defendants guilty of grand larceny only if its finding rested on the taking of
$100.00 in value from Woolworth, the possible merger of Counts I and II
would not be at issue.

34

The government contends that there is not only no merger problem, but also
that there is ample evidence available in the record for adequately
differentiating the property taken in Count I from that taken in Count II.
Furthermore, it asserts that the jury could properly convict Brown on Counts I
and II because the two counts alleged two separate and distinct transactions: the
robbery of Anderson, during which his wallet containing $65.00 was taken, and
the grand larceny of currency belonging to Woolworth, which was valued in
excess of $100.00 and was in the custody of Anderson. Government's
Supplemental Brief at 6-7. The government argues that there is sufficient
evidence in the record to satisfy the statutory prerequisites for conviction on
both the first degree robbery and grand larceny counts. Testimony from
witnesses, including Anderson and the Virgin Islands police, established that
Anderson's wallet containing $65.00 and at least $375.00 in currency from the
Woolworth cash registers were taken during the robbery.

35

Our concern, however, is not with the sufficiency of the evidence, but with the
ambiguity of the Information and the trial court's failure to clarify for the jury
the ambiguity specifically inherent in Count II. Regardless of the evidence in
the record documenting what was taken from Woolworth and what was taken
from Anderson, the jury should have been instructed that Count II must rest on
a finding that property worth more than $100.00 was taken from Woolworth
alone. The evidence in the record cannot cure this deficiency in the jury

instructions.
36

The government argues, however, that in view of the evidence, Count II can be
interpreted to mean "the larceny of U. S. currency belonging to Woolworth and
in the custody of William Anderson...." Government's Supplemental Brief at 6.
This is a strained interpretation which is not compelled by a literal reading of
Count II. We could safely assume that the jury's verdict reflected such an
interpretation only if the charge to the jury had addressed the need for an
additional finding on whose currency was taken. Instead we are left to speculate
that the jury, despite not having been instructed to do so by the court,
differentiated Anderson's currency from that of Woolworth and predicated its
conviction in Count II on the larceny of only Woolworth's money. When a
defendant's conviction and subsequent loss of liberty are at issue such
speculation is impermissible.

37

The omission of an essential element of an offense in the charge to the jury

ordinarily constitutes plain error, even in the absence of objection. United
States v. Small, 472 F.2d 818, 819 (3d Cir. 1972); Byrd v. United States, 342
F.2d 939, 942 (D.C.Cir.1965). See also, Devitt and Blackmar, 1 FEDERAL
JURY PRACTICE AND INSTRUCTIONS 13.04 (3d ed. 1977) at 348.
Similarly, where, as here, counsel has made timely objection as required by
Rule 30,6 (Supplemental Trial Transcript at 5-8), it is reversible error for the
trial court to omit instructions on essential fact findings. The trial court's failure
to instruct the jury on both the essential statutory elements and the essential
factual findings necessary for conviction precludes a determination that
Brown's conviction on Count II was properly based on the larceny of
Woolworth's currency only. Because of this infirmity we reverse Brown's grand
larceny conviction and remand Count II for a new trial.7

B. First Degree Assault

38

Brown and his co-defendants were convicted on Counts IV, V and VI for first
degree assault on Blondelle Roberts, Yvonne Joseph and Erva Benjamin.8
Brown argues that the assault charges should have been merged into the
robbery charge and that the trial court erred in failing to dismiss, vacate or enter
judgments of acquittal on those counts. We agree that the first degree assault
convictions must be vacated but for a different reason.

39

The statutory provision which the defendants were charged with violating,
V.I.Code Ann. tit. 14, 295(3), defines first degree assault in part as follows:

40

295. Assault in the first degree

40

295. Assault in the first degree

41

Whoever-

42

(3) with intent to commit rape, sodomy, mayhem, robbery or larceny, assaults
another-shall be imprisoned not more than 15 years.

43

In its charge to the jury the trial court gave instructions on first degree assault
and the lesser-included offenses of third-degree assault and simple assault. The
jury instructions specifically provided that:

44 defendants are charged in counts three through seven with having committed
The
the crime of Assault in the First Degree.
45
(B)efore
you may find a defendant guilty of the crime of Assault in the First Degree,
you must find each of the following essential elements of the crime to have been
proven beyond a reasonable doubt:
46

(A) The defendant acted willfully;

47

(B) The defendant threatened to cause bodily harm to another;

48

(C) The defendant had the then apparent ability to cause or did, in fact, cause
bodily harm;

49

(D) The defendant's conduct resulted in the other person being put in fear of
immediate bodily harm;

50

(E) The defendant had the specific intent to commit robbery; and

51

(F) The act occurred on or about the 23rd day of July, 1980, in the Judicial
Division of St. Croix.

52

The Government bears the burden of proving each of these elements separately
as to each of the counts numbered three through seven.

53

Assault in the First Degree also requires proof of specific intent, as I have
defined those terms to you. The Government must prove beyond a reasonable
doubt that when the defendant committed an assault he had the specific intent
to commit robbery.

54

If you find beyond a reasonable doubt that all of the elements of the crime of
Assault in the First Degree have been proved except that when the defendant
committed an assault he did not have the specific intent to commit robbery,
then you may find the defendant guilty of a separate but lesser offense of
Assault in the Third Degree.

55

If you find beyond a reasonable doubt that all of the elements of the crime of
Assault in the First Degree have been proved except that when the defendant
committed an assault he did not have the specific intent to commit robbery and
he did not utilize a weapon, then you may find the defendant guilty of the
separate but lesser offense of Simple Assault.

56

Supplemental Transcript at 39-42.

57

We conclude that the trial court's instructions on the first degree assault counts
are not in keeping with the teachings of this court in Government of Virgin
Islands v. Greenidge, 600 F.2d 437 (3d Cir. 1979). Brown and his codefendants were charged with assault on Roberts, Y. Joseph, and Benjamin,
"with intent to commit the crime of robbery," in violation of V.I.Code Ann. tit.
14, 295(3). In Greenidge, the defendant was convicted for assault on a
companion of a rape victim with intent to commit rape (on the victim) in
violation of V.I.Code Ann. tit. 14, 295(3). In reversing his conviction, this
court upheld the defendant's assertion "that a necessary element of the crime of
assault with intent to commit rape is that the assault have been committed on
the same person whom the victim intended to rape." Id. at 439 (emphasis
added).

58

In keeping with Greenidge, Brown's convictions for first degree assault on

Roberts, Y. Joseph and Benjamin, with intent to commit robbery can be
sustained only if the evidence showed beyond a reasonable doubt that the
defendants not only assaulted their victims but intended to commit robbery on
each of them specifically. The jury should have been instructed that in addition
to the other essential elements, the government had to prove beyond a
reasonable doubt that the defendants intended to rob the particular victim on
whom the assault was perpetrated. Instead, the trial court instructed the jury
that for first degree assault it must merely find that the defendants "had the
specific intent to commit robbery," without noting that the intent to rob, in order
to meet the specificity of Greenidge, had to be directed towards the victim of
the assault.

59

In our review of the record we found ample evidence supporting Brown's

conviction for the first degree robbery of Anderson. But we found little
evidence from which a jury could conclude, beyond a reasonable doubt, that the
defendants intended to rob either Roberts, Y. Joseph or Benjamin. Testimony
from each of the assault victims clearly established that they were physically
assaulted, but there is no indication from any of them that they believed they
personally were about to be robbed or that the defendants made any efforts to
do so. See Trial Transcript at 30-37, 42-46, 153-156.
60

Our finding that there is insufficient evidence to support Brown's convictions

for first degree assault, however, does not require the dismissal of Counts IV, V
and VI. The jury was instructed that if the evidence did not support convictions
for first degree assault, it might convict the defendants for the lesser-included
offense of third degree assault or simple assault. We believe the evidence
supports Brown's conviction for third degree assault.

61

The Virgin Islands Code provides that conviction for third degree assault is
warranted when "(a person), under circumstances not amounting to an assault in
the first or second degree ... assaults another person with intent to commit a
felony." V.I.Code Ann. tit. 14, 297(1). When the defendants assaulted
Roberts, Y. Joseph and Benjamin, "with the specific intent of committing a
robbery," they fell within the proscription of 297(1), which requires no
element of identification. See, Government of Virgin Islands v. Greenidge at
440. Under Government of Virgin Islands v. Josiah, 641 F.2d 1103 (3d Cir.
1981), Brown's conviction for third degree assault, in violation of V.I.Code
Ann. tit. 14, 297(1), is appropriate and permissible even if his conviction for
first degree assault under V.I.Code Ann. tit. 14, 295(3) cannot be sustained.
In Josiah, this court said:

62

A Jury's finding of guilt on all elements of the greater offense is necessarily a

finding of guilt on all elements of the lesser offense, since a lesser-included
offense consists of some of the elements of the greater offense and does not
require the proof of any element not present in the greater offense. See United
States v. Swiderski, 548 F.2d 445, 452 (2d Cir. 1977). A trial court therefore
has authority to enter a judgment of conviction on a lesser-included offense
when it finds that an element exclusive to the greater offense is not supported
by evidence sufficient to sustain the jury's finding of guilt on the greater
offense. See United States v. Ciongoli, 358 F.2d 439, 441 (3d Cir. 1966)
(insufficient evidence supporting aggravating circumstances).

63

When the evidence is insufficient to support the greater offense, but sufficient

to support a conviction on the lesser-included offense, an appellate court may

vacate the sentence and remand for entry of judgment of conviction and
resentencing under the lesser-included offense. See United States v. LaMartina,
584 F.2d 764, 767 (6th Cir. 1978) (per curiam), cert. denied, 440 U.S. 928, 99
S.Ct. 1263, 59 L.Ed.2d 483 (1979); Austin v. United States, 382 F.2d 129, 142
(D.C.Cir.1967); 28 U.S.C. 2106 (1976).
64

Id. at 1108. See also 8A Moore's Federal Practice, 31.03(5) (1980).

65

In view of the above, we vacate Brown's convictions and sentences for first
degree assault, in violation of V.I.Code Ann. tit. 14, 295(3), and remand
Counts IV, V and VI to the district court to enter judgments of conviction for
the lesser-included offense of third-degree assault, in violation of V.I.Code
Ann. tit. 14, 297(1), and to re-sentence him appropriately.

III.
66

For the reasons stated we will reverse Brown's conviction for grand larceny, in
violation of V.I.Code Ann. tit. 14, 1083(1), and remand Count II to the
district court for a new trial. We will vacate the judgments and sentences for
first-degree assault, in violation of V.I.Code Ann. tit. 14, 295(3), and remand
Counts IV, V and VI to the district court for entry of judgments of conviction
for the lesser-included offense of third degree assault, in violation of V.I.Code
Ann. tit. 14, 297(1), and re-sentencing appropriately. On all other counts, we
will affirm.

Anderson's wallet was in fact recovered by the Virgin Islands police containing
$65.00. See text infra

Petersen's conviction is on appeal before this court at No. 81-1824

In the Amended Judgment and Commitment the trial court dismissed three
counts against Brown: Count III, charging first degree assault on William
Anderson, was merged into Count I; Count VII, charging first degree assault on
Grace Joseph, an employee of Woolworth, was merged into Counts IV, V and
VI; and Count IX, charging possession of an unlicensed firearm, was merged
into Count VIII

Brown also asserts: (1) that the prosecution failed to establish a prima facie
case against him; (2) that he was convicted without due process of law because
the jury returned a guilty verdict despite the prosecution's failure to establish

Brown's guilt beyond a reasonable doubt; (3) that the prosecution in

deliberately overcharging Brown and improperly directing leading questions at
prosecution witnesses was guilty of misconduct; (4) that the trial court should
have dismissed, vacated or entered judgments of acquittal on the weapons
count because it merged into the first degree robbery charge; and (5) that the
trial court's instructions to the jury on circumstantial evidence, specific intent
and flight after a crime constituted reversible error. After carefully reviewing
the record, we find no merit in any of these assertions
5

Count I 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 United States currency from the immediate person and
presence of WILLIAM ANDERSON, by means of force or fear by displaying
or threatening to use a dangerous weapon, to-wit: A gun, in violation of Title 14
V.I.C., 1862(2).
The statutory definitions of robbery and robbery in the first degree are at
V.I.Code Ann. tit. 14, 1861 and 1862 and provide in part as follows:
1861. Robbery defined
Robbery is the unlawful taking of personal property in the possession of
another, from his person or immediate presence and against his will, by means
of force of fear.
1862. Robbery in the first degree
A person is guilty of robbery in the first degree when, in the course of the
commission of the crime or of immediate flight therefrom, he or another
perpetrator of the crime:
(2) Displays, uses or threatens the use of a dangerous weapon.

Rule 30 of the Federal Rules of Criminal Procedure provides in pertinent part

that: "No party may assign as error any portion of the charge or omission
therefrom unless he objects thereto before the jury retires to consider its verdict,
stating distinctly the matter to which he objects and the grounds of his
objection."

Counsel on each side have made substantial efforts to clarify an ambiguity

which could have been easily avoided by more careful draftsmanship. Had

Count II of the Information been drawn with reference to only the larceny of
Woolworth's currency, rather than that of Anderson and Woolworth, there
would have been no problem of ambiguity. Such specificity would have
precluded a possible merger problem and made it unnecessary for the court to
give special instructions to the jury to unravel factual issues caused by the
present Count II. If the United States Attorney wanted to cover all possible
factual situations he should have had the following separate counts in the
Information: a count for robbery of Anderson; a count for robbery of
Woolworth; a count for larceny of Anderson; and a count for larceny of
Woolworth
8

Counts III and VII, charging first degree assault on William Anderson and
Grace Joseph were dismissed. See supra n.2