On Appeal from the District Court of the Virgin Islands (St. Croix).
Seitz, Garth and Higginbotham, Circuit Judges.
Melvin George appeals from a judgment of conviction for assault and attempted rape, and his sentence as a habitual offender entered on this judgment. We reject his challenge to the conviction. We hold, however, that he was improperly sentenced as a habitual offender, because his admission that he had committed a previous crime was not a knowing, intelligent, and voluntary waiver of his constitutional rights. We will therefore affirm George's conviction, but we will remand to the district court for resentencing.
George was charged by information on August 11, 1983 with first degree assault in violation of 14 V.I.C. § 265(3) (1964) and first degree attempted rape, id. § 701. He was tried before a jury, and was convicted of both charges in the District Court of the Virgin Islands on November 3, 1983.
On November 14, 1983 the United States Attorney filed an information pursuant to the Virgin Islands habitual offender statute, 14 V.I.C. § 61-62*fn1 charging George with being a habitual offender. George appeared at a hearing pursuant to this statute on November 16, 1983. There, accompanied by his attorney, he was asked by the court whether he was the same Melvin George who had been convicted of first degree attempted rape on November 7, 1979. George said that he was. The court thereupon sentenced him to ten years' imprisonment without probation, suspension, or parole.
On appeal to this court, George raises three issues. First, he argues that there was insufficient evidence to prove one element of the rape offense, viz., that the victim was not his wife. We find this argument to be without merit. Second, he argues that he was deprived of the effective assistance of counsel at trial and at the sentencing hearing. This issue is not properly before us on direct appeal from his conviction.
Finally, George contends that he was deprived of his constitutional rights at the habitual offender sentencing hearing because he was not told of the consequences of his admission of a prior crime.*fn2 We find this last contention to be meritorious, and we will therefore vacate George's judgment of sentence, and remand to the district court for resentencing under the guidelines established in this opinion.
George argues that there was insufficient evidence adduced at trial to prove that his victim was not his wife. First degree rape is defined as follows in the Virgin Islands Code:
Whoever perpetrates an act of sexual intercourse with a female not his wife --
(1) when through idiocy, imbecility or any unsoundness of mind, either temporary or permanent, she is incapable of giving consent, or, by reason of mental or physical weakness or immaturity or any bodily ailment, she does not offer resistance;
(2) when her resistance is forcibly overcome;
(3) when her resistance is prevented by fear of immediate and great bodily harm which she has reasonable cause to believe will be inflicted upon her;
(4) when her resistance is prevented by stupor or weakness of mind produced by an intoxicating, narcotic or anaesthetic agent, or when she is known by the defendant to be in such state of stupor or weakness of mind from any cause; or
(5) when she is, at the time unconscious of the nature of the act and this is known to the defendant --
is guilty of rape in the first degree and shall be imprisoned not more than 20 years.
If there is substantial evidence in the record, taking the view most favorable to the Government, to support a jury verdict of guilty, the verdict must be sustained. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942). Our review of the evidence adduced at trial leads us to conclude that there was sufficient evidence to prove beyond a reasonable doubt that the victim was not George's wife.
The victim was asked at trial whether she was married. The transcript reads as follows:
Now a question I failed to ask you earlier: You're not married; are you?
Now, after the comment of pig man coming and they ran away, did ...