                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-28-2006

Govt of VI v. Joyce
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4937




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http://digitalcommons.law.villanova.edu/thirdcircuit_2006/13


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                                                               NOT PRECEDENTIAL


                        IN THE UNITED STATES COURT
                                 OF APPEALS
                            FOR THE THIRD CIRCUIT


                                    NO. 05-4937


                    GOVERNMENT OF THE VIRGIN ISLANDS

                                          v.

                                  ELWIN JOYCE,
                                          Appellant


                           On Appeal From the District Court
              of the Virgin Islands, Division of St. Thomas and St. John
                         (D.C. Crim. Action No. 03-cr-00057-1)
              Trial Judge: Hon. Raymond L. Finch, Chief District Judge
                  Trial Judge: Hon. Thomas K. Moore, District Judge
                   Trial Judge: Darryl D. Donohue, Territorial Judge


                              Argued: December 5, 2006

           BEFORE: McKEE, BARRY and STAPLETON, Circuit Judges

                        (Opinion Filed: December 28, 2006)


Andrew L. Capdeville (Argued)
Nisky Center - Suite 201
P.O. Box 6576
Charlotte Amalie, St. Thomas
USVI 00804

     Attorney for Appellant
Kerry E. Drue
Attorney General
Elliott M. Davis
Solicitor General
Matthew Phelan (Argued)
Assistant Attorney General
Office of the Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade, GERS Building, 2nd Floor
Charlotte Amalie, St. Thomas
USVI 00802

       Attorneys for Appellee


                                OPINION OF THE COURT



STAPLETON, Circuit Judge:

       Elwin Joyce appeals his conviction for first-degree rape under V.I. Code tit. 14, §

1701(2). We have jurisdiction under 48 U.S.C. § 1613a(c) and we will affirm.

                                             I

       Joyce is a family friend of Carlene Ritter Thomas. Thomas is the mother of

Rhatonda Saddler, the victim in this case. Saddler was 17 years old at the time of the

alleged rape. At trial, Saddler testified that, on April 30, 1998, she went with Joyce and

his family to a show at a stadium in St. Thomas. During the show, Joyce told Saddler that

he wanted to talk to her. Joyce and Saddler went to Joyce's jeep and both got into the

back seat. At that point, Joyce physically forced Saddler to lie down and to have sexual

intercourse with him, although Saddler did not consent and tried to push Joyce off of her.

                                             2
Joyce also touched Saddler's breast and vagina without her consent. Joyce said to Saddler

at one point that she belonged to him, and that he was a jealous man and would kill her.

After she put her clothes on, Joyce gave Saddler $20 and she returned to the stadium

alone. Although Saddler told Joyce's wife immediately that she had been raped, she did

not tell her mother until May 4, 1998. Ms Saddler was examined by a doctor the

following day, and by a second physician a day after that.

       Joyce was subsequently charged with one count of first degree rape under V.I.

Code tit. 14, § 1701(2), and two counts of unlawful sexual contact under V.I. Code tit. 14,

§ 1708(1). Section 1701(2) provides that “[w]hoever perpetrates an act of sexual

intercourse or sodomy with a person . . . (2) when the person's resistance is forcibly

overcome . . . is guilty of rape in the first degree and shall be imprisoned not less than 10

years nor more than 30 years.” Section 1708(1) provides that “[a] person who engages in

sexual contact with a person not the perpetrator's spouse— . . . (1) when force or coercion

is used to accomplish the sexual contact; . . . is guilty of unlawful sexual contact and shall

be imprisoned not more than 15 years.”

       Joyce had a trial in the Territorial Court from January 25 to January 28, 1999, at

which he testified. During his testimony, Joyce admitted that he had sexual intercourse

with Saddler, but testified that he did not use force and that Saddler consented.

       After the closing arguments, the Territorial Court instructed the jury as follows on

the first-degree rape charge.

       “[T]he government charges, in Count I of the Information that, on or about

                                              3
       April 30th, 1998, in St. Thomas United States Virgin Islands, Elwin Joyce
       did perpetrate an act of sexual intercourse with a person, to wit . . .
       Rhatonda Saddler, when her resistance was forcibly overcome by pushing
       her down onto the back seat of his automobile and putting his penis into her
       vagina, in violation of 14 Virgin Islands Code 1701(2).
               “The elements which the Government must prove beyond a
       reasonable doubt on the charge of rape in the first degree as charged in
       Count I are as follows. One, on or about April 30th, 1998; two, in St.
       Thomas United States Virgin Islands; three, the defendant, Elwin Joyce,
       four, at a time when Rhatonda Saddler’s resistance was forcibly overcome;
       five, did perpetrate an act of sexual intercourse with Rhatonda Saddler; six,
       without Rhatonda Saddler’s consent, by defendant pushing Rhatonda
       Saddler onto the back seat of his automobile and putting his penis into her
       vagina, in violation of 14 VI Code 1701(2).
        ...
               “Now, in determining the defendant’s intention, the law assumes that
       every person intends the natural consequences of his voluntary acts.
       Therefore, the general intent required to be proved as an element of rape in
       the first degree is inferred from the defendant’s voluntary commission of
       the act forbidden by law and it is not necessary to establish that defendant
       knew that his act was a violation of law.”

(emphasis added).

       After charging the jury on the remaining counts, the court went on to discuss

Joyce’s assertion that Saddler consented. It stated as follows:

              “The defendant has invoked a defense of consent. Consent is an
       absolute defense to the crimes of rape in the first degree and unlawful
       sexual contact in the first degree. If after considering all of the evidence
       you have a reasonable doubt as to whether the alleged victim consented to
       having sexual intercourse with the defendant, you must find the defendant
       not guilty of rape in the first degree in Count I.”

       After deliberating, the jury found Joyce guilty as charged on all three counts.

Joyce appealed to the Appellate Division of the Virgin Islands, arguing that the Territorial

Court had given the jury improper instructions regarding intent. The Appellate Division


                                             4
affirmed, and Joyce appeals to this court.1

                                              II

       On appeal, Joyce challenges the following part of the Territorial Court’s

instruction on first degree rape:

       “[I]n determining the defendant’s intention, the law assumes that every
       person intends the natural consequences of his voluntary acts. Therefore,
       the general intent required to be proved as an element of rape in the first
       degree is inferred from the defendant’s voluntary commission of the act
       forbidden by law and it is not necessary to establish that defendant knew
       that his act was a violation of law.”

       Joyce argues that the offense with which he is charged is such that “if [he]

reasonably believed that he had been involved in an act of consensual sexual

intercourse—as he testified—he would not have had the mens rea necessary to constitute

the crime of rape as charged,” and that the instruction given effectively shifted the burden

of proof on this mens rea element to him, in violation of the principles set forth in

Sandstrom v. Montana, 442 U.S. 510 (1979) and United States v. Garrett, 574 F.2d 778

(3d Cir.1978).

                                              A



   1
    This court reviews the determination of the Territorial Court using the same standard
of review applied by the Appellate Division. Tyler v. Armstrong, 365 F.3d 204, 208 (3d
Cir. 2004); Gov't of the Virgin Islands v. Albert, 241 F.3d 344, 347 n.3 (3d Cir. 2001);
Semper v. Santos, 845 F.2d 1233, 1235-36 (3d Cir. 1988). In the absence of a timely
objection, this court reviews challenged jury instructions for plain error, but exercises
plenary review over the lower court’s interpretation of the relevant law. See Gov’t of the
Virgin Islands v. Rosa, 399 F.3d 283, 292-94 (3d Cir. 2005); Gov’t of the Virgin Islands
v. Fonseca, 274 F.3d 760, 765 (3d Cir. 2001).
                                              5
       Joyce was charged with first-degree rape under V.I. Code tit. 14, § 1701(2), which

provides that “[w]hoever perpetrates an act of sexual intercourse or sodomy with a

person— . . . (2) when the person’s resistance is forcibly overcome . . . is guilty of rape in

the first degree.” V.I. Code tit. 14, § 1701(2). On its face, the statute does not include a

mens rea element; all that is required is that sexual intercourse or sodomy occur and that

the victim’s “resistance [be] forcibly overcome.”

                                              1

       A comparison of subsection (2) of section 1701—under which Joyce was

charged—with the rest of that section leads ineluctably to the conclusion that the

omission of a mens rea requirement in subsection (2) was a deliberate choice by the

Legislature of the Virgin Islands.2 Although the statute includes a requirement of


   2
   Section 1701 sets forth five sets of circumstances under which sexual intercourse or
sodomy may become first-degree rape:
      Whoever perpetrates an act of sexual intercourse or sodomy with a person–
             (1) when through idiocy, imbecility or any unsoundness of
             mind, either temporary or permanent, the person is incapable
             of giving consent, or, by reason of mental or physical
             weakness or immaturity or any bodily ailment, the person
             does not offer resistance;
             (2) when the person's resistance is forcibly overcome;
             (3) when the person's resistance is prevented by fear of
             immediate and great bodily harm which the person has
             reasonable cause to believe will be inflicted upon the person;
             (4) when the person's resistance is prevented by stupor or
             weakness of mind produced by an intoxicating, narcotic or
             anaesthetic agent, or when the person is known by the
             defendant to be in such state of stupor or weakness of mind
             from any cause; or
             (5) when the person is, at the time, unconscious of the nature
                                              6
subjective knowledge on the part of the defendant when the victim is unconscious or in

such a state of stupor or weakness of mind as to be unable to resist, § 1701(4)-(5), it does

not include such a requirement when the victim’s resistance is overcome by force or the

threat of force, § 1701(2)-(3). The Territorial Court of the Virgin Islands and the District

Court have examined other provisions of the Virgin Islands rape statutes and held that

where the Legislature did not set forth a mens rea element, such a choice was deliberate.

See Government of the Virgin Islands v. Richards, No. F40/01, 44 V.I. 47, 55, 2001 WL

1464765 at *5 (Terr. V.I. June 24, 2001) (“[I]t is clear that the omission of any intent

requirement from §§ 1702, 1709 was not merely an oversight by the Legislature. To the

contrary, it appears that the Legislature was fully aware of the significance of the

defendant's knowledge, yet, chose not to include intent in those sections. Therefore, it

would be inappropriate for the Court to engraft such a requirement.”); Francis v. Gov’t of

the Virgin Islands, 236 F. Supp. 2d 498, 500-502 (D.V.I. App. Div. 2002) (citing

Richards and applying the same logic to § 1700, another aggravated rape statute).

                                              2

       Joyce argues, however, that our decision in Government of the Virgin Islands v.

Rodriguez, 423 F.2d 9, 12-15 (3d Cir. 1970), compels us to read a mental state

requirement into the statute. Although we stated in Rodriguez that we presume that a




               of the act and this is known to the defendant–
       is guilty of rape in the first degree.
V.I. Code tit. 14, § 1701 (emphasis added).

                                              7
criminal statute defining an offense includes a mental state requirement where none is

explicit in the statute, we added that we do so when “there is no reason to suppose that the

[legislature], by deliberate choice, omitted such a requirement.” Id. at 13 (quoting

Delaney v. United States, 199 F.2d 107, 117 (1st Cir. 1952)). As explained above, here

there is a reason to suppose that the omission of any mental state requirement in Section

1701(2) was a deliberate choice.3

       Moreover, the Supreme Court has explained recently that the canon of statutory

construction setting forth a presumption in favor of a mental state element in criminal

statutes “requires a court to read into a statute only that mens rea . . . necessary to

separate wrongful conduct from otherwise innocent conduct.” Carter v. United States,

530 U.S. 255, 269 (2000) (internal quotation marks omitted). Here, where the statute

includes the elements of force overcoming the victim’s resistance, at most the only mental

state required to separate criminal conduct from innocent conduct is general intent—that

the defendant intended to make the bodily movement that constitutes the act forbidden by

law, i.e. the act of penetration and the use of force to overcome resistance by the victim.

See id. at 268-70; United States v. Dollar Bank Money Market Account No. 1591768456,

980 F.2d 233, 237 (3d Cir. 1992); 2 Wayne R. LaFave, Substantive Criminal Law, §



   3
    Joyce also relies on V.I. Code tit. 14, § 14(5), which makes a defense of mistake of
fact available in some instances. As the Territorial Court explained in Richards, the
statute provides that mistake of fact “disproves any criminal intent,” and is unavailing
where, as here, criminal intent is not an element of the offense. Richards, 44 V.I. at 49,
2001 WL 1464765 at *1-*2.
                                               8
17.2(b), at 613-17 (2d ed. 2003) (discussing general and specific intent in the context of

rape statutes). As noted, Joyce’s argument is that the statute includes an element of

specific intent, viz. that the defendant subjectively knew that the victim did not consent.

Several state courts, construing their own rape statutes, have rejected this argument and

held that where a statute defines the crime of rape to include an element of force, no

mental state is necessary to separate innocent and criminal conduct. State v. Walden, 841

P.2d 81, 83-84 (Wash. Ct. App. 1992) (“Since one cannot accidentally or innocently

induce another person to engage in sexual intercourse by means of force or threat, there is

no need to imply specific intent as an element of the crime in order to prevent

nonculpable conduct from being criminal.”); see also Commonwealth v. Lopez, 745 N.E.

2d 961, 968-69 (Mass. 2001) (collecting cases from Illinois, Iowa, Maine, New

Hampshire, Pennsylvania, Michigan, Washington, and Wisconsin similarly declining to

interpret their respective rape statutes as requiring a mental state on the part of the

defendant where none is set forth in the statute and where force or the threat of force is an

element of the offense); Commonwealth v. Williams, 439 A.2d 765, 769 (Pa. Super. 1982)

(“If the element of the defendant's belief as to the victim's state of mind is to be

established as a defense to the crime of rape then it should be done by our legislature

which has the power to define crimes and offenses. We refuse to create such a defense.”);

cf. 2 LaFave, § 17.2(b), at 613-17 (2d ed. 2003) (noting that most states do not recognize

mistake of fact regarding the victim’s consent as a defense to rape). We reject Joyce’s

argument as well.

                                               9
       As we read the statute, the Legislature of the Virgin Islands did not intend to make

the mental state element for which Joyce argues an element of the crime of first-degree

rape under V.I. Code tit. 14, § 1701(2), and the cases in which courts have found implicit

mens rea requirements in criminal statutes do not compel a contrary result.4

                                             B

       Sandstrom v. Montana, 442 U.S. 510 (1979) and United States v. Garrett, 574 F.2d

778 (3d Cir.1978) disapprove of jury instructions that relieve the prosecution of its burden

to prove all elements of a charged offense beyond a reasonable doubt, and those cases

hold that an instruction such as was given in the present case may tend to have such an

effect where the defendant’s subjective intent is an element of the charged offense.

Sandstrom, 442 U.S. at 524; Garrett, 547 F.2d at 782-83. The Supreme Court has held,

however, that harmless error analysis applies to Sandstrom-type challenges to jury



   4
    In his appeals to this court and to the Appellate Division of the District Court, Mr.
Joyce does not appear to challenge his convictions for unlawful sexual contact under V.I.
Code tit. 14, § 1708(1). To the extent that he does, however, our analysis of section
1701(2) is equally applicable to section 1708(1). Section 1708(1) provides that “[a]
person who engages in sexual contact with a person not the perpetrator’s spouse . . . when
force or coercion is used to accomplish the sexual contact . . . is guilty of unlawful sexual
contact and shall be imprisoned not more than 15 years.” Like section 1701, section 1708
of the Virgin Islands Criminal Code includes several subsections, some of which include
a mens rea requirement, others of which do not. Like section 1701(2), section 1708(1)
includes no mens rea requirement in its text, but includes “force or coercion” as an
element of the offense. As such, the lack of a mens rea requirement in the text of section
1708(1) appears to be a deliberate choice by the Legislature of the Virgin Islands.
Moreover, because section 1708(1) includes an element of “force or coercion,” it is not
necessary to require subjective knowledge of lack of consent on the part of the defendant
in order to separate innocent and criminal conduct. See Carter, 530 U.S. at 269.
                                             10
instructions. Rose v. Clark, 478 U.S. 570, 581 (1986). Because we have rejected Joyce’s

argument that the offense with which he was charged includes an element regarding the

defendant’s subjective intent as to whether the victim consented, the prosecution had no

burden to prove such an element, and any error by the Territorial Court in giving the

challenged instruction was necessarily harmless. See Collins v. Francis, 728 F.2d 1322,

1352 (11th Cir. 1984) (Tjoflat, J., concurring) (“Intent was not an element of the crime of

rape in Georgia when Collins was tried . . . The challenged instruction bore only on intent

so, in this context, Sandstrom was not implicated.”); cf. United States v. Allah, 130 F.3d

33, 43 (2d Cir. 1997) (Sandstrom error harmless where specific intent was an element of

the crime, but was not contested); Hill v. Kemp, 833 F.2d 927, 929-30 (11th Cir. 1987)

(same).

       We will therefore affirm the judgment below.




                                            11
