YAP STATE COURT APPELLATE DIVISION
Cite as Yow v. Yap
11 FSM Intrm. 63 ( Yap S. Ct. App. 2002)
 
[11 FSM Intrm. 63]
 
YOW,
Defendant-Appellant,
 
vs.
 
STATE OF YAP,
Plaintiff-Appellee.
 
APPEAL NO. 1997-001
 
Cr. Case No. 1997-362
 
OPINION
 
Argued: May 29, 2002
 
Decided: July 25, 2002
BEFORE:
 
Hon. Martin Yinug, Temporary Justice, State Court of Yap*
Hon. Sam Falanruw, Temporary Justice, State Court of Yap**
Hon. Benjamin Tured, Temporary Justice, State Court of Yap***
 
*Associate Justice, FSM Supreme Court
**Former Chief Justice, State Court of Yap
***Directing Attorney, Yap Office, Micronesian Legal Services Corporation
 
APPEARANCES:
 
For the Appellant:                                    Colin Fieman
                                                                  Office of the Public Defender
                                                                  P.O. Box 425
                                                                  Colonia, Yap FM 96943
 
For the Appellee:                                    Victor Nabeyan
                                                                  Office of the Yap Attorney General
                                                                  P.O. Box 435
                                                                  Colonia, Yap FM 96943

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HEADNOTES

Appellate Review) Standard of Review; Criminal law and Procedure
     In a criminal appeal, the appropriate standard of review for sufficiency of the evidence questions is whether, reviewing the evidence in the light most favorable to the trial courts determinations of fact, there is sufficient evidence to convince a reasonable trier of fact of the defendants guilt beyond a reasonable doubt. Yow v. Yap, 11 FSM Intrm. 63, 65 (Yap S. Ct. App. 2002).
 
[11 FSM Intrm. 64]
 
Criminal Law and Procedure ) Aggravated Assault
     Aggravated assault in Yap is when a person attempts to cause serious bodily injury to another or causes serious bodily injury intentionally, knowingly, or recklessly under circumstances showing extreme indifference to the value of human life. Yow v. Yap, 11 FSM Intrm. 63, 65 (Yap S. Ct. App. 2002).
 
Criminal Law and Procedure ) Assault and Battery
     An assault and battery in Yap is when a person unlawfully strikes, beats, wounds or otherwise does bodily harm to another. Simple assault does not require proof of specific intent. Yow v. Yap, 11 FSM Intrm. 63, 66 (Yap S. Ct. App. 2002).
 
Criminal Law and Procedure ) Aggravated Assault
     Yaps aggravated assault statute requires a showing of serious bodily injury, and serious bodily injury, not just any injury, must have been intended. Serious bodily injury is bodily injury which creates a substantial risk of death or which causes serious, or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. The injury must be coupled with the specific intent to inflict that injury. Yow v. Yap, 11 FSM Intrm. 63, 66 (Yap S. Ct. App. 2002).
 
Criminal Law and Procedure ) Aggravated Assault
     Anyone who knowingly causes serious bodily injury has committed aggravated assault, but when a person has acted intentionally to beat someone any difference between these two mental states does not add materially to the discussion. Yow v. Yap, 11 FSM Intrm. 63, 66 (Yap S. Ct. App. 2002).
 
Criminal Law and Procedure ) Aggravated Assault
     A person commits aggravated assault under the extreme indifference recklessness state of mind when he voluntarily creates conditions or engages in behavior that a reasonable person would consider likely to result in serious injury to another. "Likely" means of such nature or so circumstanced as to render something probable. Yow v. Yap, 11 FSM Intrm. 63, 68 (Yap S. Ct. App. 2002).

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COURTS OPINION

MARTIN YINUG, Temporary Justice:

     This appeal presents a single issue. The appellant Yow ("Yow") contends that his conviction for aggravated assault cannot stand because the appellee state of Yap ("Yap") failed to prove that he acted recklessly with extreme indifference to the value of human life when he slapped the victim, Heidi Yirtin ("Yirtin"), twice; threw her to the ground; and then kicked her arms, which she had put out to protect herself, with his bare or zori-clad feet three or four times. Yirtin suffered two broken arms. After trial, Yow was convicted of aggravated assault under 11 Y.S.C.  207; assault and battery under 11 Y.S.C.  210; and unlawful possession and consumption of alcohol under 11 Y.S.C.  808. This appeal followed.

     We affirm the judgment of conviction for aggravated assault.

I. Factual Background

     Relevant events occurred on December 6, 1997. Yirtin went to Garangmaws store in the village of Rang sometime in the afternoon to drink beer. Yirtin is Yows auntie under Yapese custom. After Yirtin was there about two hours, Yow, who had been looking after Garangmaws store but had also

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had a beer to drink, got into an argument with Yirtin concerning Yows wife, who had been beaten earlier in the day by a relative of Yirtins husband. Yirtin used words in speaking to Yow that are highly offensive under Yapese custom. While Yirtin testified that she did not touch Yow, Yow testified that Yirtin took hold of his shirt and swung him around, and that if she had not done this, he would not have attacked her. In any event, as matters progressed Yow became incensed to the point of losing control and slapped Yirtin two times. He then threw her to the ground, and kicked her three or four times while Yirtin put out her arms in front of her face to protect herself from the blows. When Yow kicked Yirtin, he was either in his bare feet or had zoris on. When Yirtin got to her feet, Yow grabbed Yirtin and threw her back on the ground. Yirtin testified that at this point she may then have gone unconscious, but the next thing she recalled was Yows assisting her in getting up. Yirtin told Yow that he had hurt her. Yow replied that he was sorry, that he was upset with the people who had beaten his wife, and that he had taken it out on her. Both of Yirtins arms were broken in the attack.

II. Discussion

     In a criminal appeal, the appropriate standard of review for sufficiency of the evidence questions is whether, reviewing the evidence in the light most favorable to the trial courts determinations of fact, there is sufficient evidence to convince a reasonable trier of fact of the defendants guilt beyond a reasonable doubt. Palik v. Kosrae, 8 FSM Intrm. 509, 512 (App. 1998).

     The Yap aggravated assault statute, 11 Y.S.C.  207, provides in pertinent part that "[e]very person who attempts to cause serious bodily injury to another or causes serious bodily injury intentionally, knowingly, or recklessly under circumstances showing extreme indifference to the value of human life, shall be guilty of aggravated assault." Yow concedes, and we agree, that he inflicted serious bodily injury on Yirtin.

     Yows appeal issue has to do with his mental state. He emphasizes that the trial court made no finding as to whether Yow acted intentionally, knowingly, or recklessly, and urges that at a minimum, the court should remand this case for a finding in this respect.1 Notwithstanding the lack of a specific mental state finding, Yow asserts that assuming he acted at least recklessly when he assaulted Yirtin, Yap failed to prove that he acted with "extreme indifference to the value of human life" under 11 Y.S.C.  207. In addressing Yows contentions, we consider each of the mental states specified in Yaps aggravated assault statute.

A. Intentional or knowing conduct

     The evidence adduced at trial would amply support a finding by a reasonable fact finder that Yow

[11 FSM Intrm. 66]

acted intentionally when he beat Yirtin. He slapped her twice, threw her to the ground, and kicked her arms which she had put out to protect herself three or four times with either his bare feet or with zoris on. Immediately afterward, he assisted her in getting up and told her that he was sorry, and that he had taken out his frustrations on her. These facts present a clear picture of an assault and battery under 11 Y.S.C.  210, which provides in pertinent part that "[e]very person who shall unlawfully strike, beat, wound or otherwise do bodily harm to another, shall be guilty of assault and battery." Simple assault does not require proof of specific intent, 6 Am. Jur. 2d Assault and Battery  20 (1963), and Yow does not contest his conviction on this charge.

     Aggravated assault, however, presents a different picture. Yaps aggravated assault statute requires a showing of serious bodily injury, and "[s]erious bodily injury, not just any injury, must have been intended in order to commit [aggravated assault]." Laion v. FSM, 1 FSM Intrm. 503, 520 (App. 1984) (interpreting the similar FSM aggravated assault statute). "Serious bodily injury" is specifically defined under 11 Y.S.C. 201(c) as "bodily injury which creates a substantial risk of death or which causes serious, or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Yow does not contest that serious bodily injury occurred in this case, but that is only half of the equation. The injury must be coupled with the specific intent to inflict that injury. Laion, 1 FSM Intrm. at 519. We conclude that on the record before the court a reasonable fact finder could not have found that Yows conduct demonstrated a specific intent to inflict serious bodily injury on Yirtin.

     In addition to specifying that anyone who "causes serious bodily injury . . . intentionally" is guilty of aggravated assault, 11 Y.S.C.  207 also provides that anyone who "causes serious bodily injury . . . knowingly . . . shall be guilty of aggravated assault." "Knowingly" is defined as "consciously; intelligently; willfully; intentionally." Blacks Law Dictionary 872 (6th ed. 1990). Since Yow acted intentionally, and since "knowingly" is at least in part a synonym for "intentionally," any difference between these two mental states does not add materially to the present discussion. As between "intentionally" and "knowingly," it suffices to say that when Yow beat Yirtin, he acted intentionally, voluntarily, and with full consciousness of his action, but without the specific intent necessary to inflict serious bodily injury.

B. Extreme indifference recklessness

     The last operative phrase of 11 Y.S.C. 207 states in pertinent that one who acts "recklessly under circumstances showing extreme indifference to the value of human life, shall be guilty of aggravated assault."2 If Yow engaged in this type of conduct under the circumstances indicated, he is guilty of aggravated assault even though he had no specific intent to inflict serious bodily harm.

      To interpret the meaning of extreme indifference recklessness, Yow relies on Machuo v. FSM, 6 FSM Intrm. 40 (App. 1993), as well as on several cases from United States courts, including Commonwealth v. Magnelli, 502 A.2d 241 (Pa. Super. 1982); State v. Shear, 295 N.W.2d 176 (S.D. 1980); and Commonwealth v. Davis, 406 A.2d 1087 (Pa. Super. 1979); and Commonwealth v. Roche, 783 A.2d 766 (Pa. Super. 2001). The latter two cases were presented and discussed at oral argument, although not cited in Yows brief. Yow contends that in order to prove extreme indifference recklessness, the state must show that the defendant acted with such extreme indifference to human life that he subjected the intended victim to the grave risk of death or great bodily injury. Relying on Roche, Yow concludes that "the offensive act must be performed under circumstances which almost

[11FSM Intrm. 67]

assure that injury or death will ensue," and that, in the end, "[a]ggravated assault is, indeed, the functional equivalent of a murder in which, for some reason, death fails to occur. Roche, 783 A.2d at 772, quoting Commonwealth v. OHanlon, 653 A.2d 616, 618 (Pa. 1995) (bold italics supplied by the Roche court deleted).

      In light of the FSM precedent established in Machuo, we are reluctant to go so far as Yow urges. Machuo is an aggravated assault case from the appellate division of the FSM Supreme Court. Although it deals with FSM statutory provisions, those provisions are essentially identical to the analogous Yap provisions.3 Machuo involved facts where the defendant, Teichy Machuo, got into a fight with another man. During the fight a third man, Ricky Sam, approached Machuo from behind. As Machuo swung his knife around in Sams direction, he stabbed Sam, who suffered severe internal injuries requiring several months of hospitalization and medical treatment in Hawaii. In affirming Machuos conviction for aggravated assault, the Machuo court held that "a defendant is guilty of extreme indifference recklessness under the aggravated assault statute when he or she voluntarily creates conditions or engages in behavior that a reasonable person would consider likely to result in serious injury to another." 6 FSM Intrm. at 43.

      For purposes of analyzing Yows conduct, we look to the extreme indifference recklessness standard adopted in Machuo, which differs from that followed in Roche. Nevertheless, Roche offers an example of a recklessness standard applied to otherwise intentional, volitional conduct. In Roche, the conduct at issue was a single, weaponless punch to the victims face. The defendant ceased the attack after one blow and walked away from the victim. While it was undisputed that the victim suffered serious injury to his head from the punch, the court concluded that there was insufficient evidence to find that the defendant possessed the specific intent necessary to sustain a conviction for

[11 FSM Intrm. 68]

aggravated assault. However, the court went on to observe:

We recognize that, when, as here, the victim sustains serious bodily injury, the absence of a demonstration of specific intent is not, in and of itself, wholly fatal to the Commonwealths case. The Commonwealth may also meet its burden of proof by showing that a defendant acted recklessly under circumstances manifesting an extreme indifference to the value of human life.

Roche, 783 A.2d at 771. The Roche court concluded that the defendant in that case had not acted with the degree of recklessness necessary to justify a conviction for aggravated assault.

      Turning to the facts of the case at bar, we apply the extreme indifference recklessness standard of Machuo. Under Machuo, Yow committed aggravated assault if he "voluntarily create[d] conditions or engage[d] in behavior that a reasonable person would consider likely to result in serious injury to another." 6 FSM Intrm. at 43. "Likely" means "of such nature or so circumstanced as to render something probable." Humphrey v. Placid Oil Co., 142 F. Supp. 246, 254 (E.D. Tex. 1956). Dr. Htywe testified that Yirtin was a small boned woman. The injuries themselves ) two broken arms ) attest to the fact that the kicks were forcefully applied after Yow had thrown Yirtin to the ground. Also, the kicks were repeated, as contrasted to the "lone punch" at issue in Roche. 784 A.2d 772. While it presents a close question, a reasonable trier of fact could find that a reasonable person would consider it likely that three or four forcefully delivered kicks with a bare foot, or a foot with a zori on, by an adult man to the arms of a small boned women, where the woman has been thrown to the ground and has placed her arms in front of her face to shield herself, would probably result in serious bodily injury as defined in 11 Y.S.C.  201(d). Accordingly, no error occurred when the trial court convicted Yow of aggravated assault.

     We commend the parties for their clear and succinct presentation of the issue on appeal.

III. Conclusion

     For the foregoing reasons, the trial courts judgment of conviction is affirmed.

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Footnotes:

1. Citing Laion v. FSM, 1 FSM Intrm. 503, 520 (App. 1984), Yow contends that at a minimum this matter should be remanded to the trial court for a finding on whether Yow acted intentionally, knowingly, or recklessly. However, in Laion, which did not deal with reckless conduct, the trial court had found the intentional conduct under the FSM aggravated assault statute based only on the fact that the defendant had purposely thrown a rock that caused serious injury. The court held that "the requisite intent for aggravated assault cannot be found in this manner." 1 FSM Intrm. at 519. In the case at bar, Yow does not contest the essential facts themselves. Rather, he maintains that those facts constitute insufficient evidence of extreme indifference recklessness under the standard that he argues for. But we adopt the standard of Machuo v. FSM, 6 FSM Intrm. 40 (App. 1993), see infra pages 66-68, and unlike Laion, where the facts on which the trial court relied were insufficient to support a specific finding of intentional conduct, the factual record in this case supports a finding by a reasonable fact finder of extreme indifference recklessness under the Machuo standard. No remand is therefore required.

2.We agree with Yaps contention that "under circumstances showing extreme indifference to human life" refers only to the reckless mental state, and not to intentional or knowing conduct.

3. For comparison purposes, the pertinent analogous provisions are as follows.

Aggravated assault under 11 Y.S.C. 207: "Every person who attempts to cause serious bodily injury to another or causes serious bodily injury intentionally, knowingly, or recklessly under circumstances showing extreme indifference to the value of human life, shall be guilty of aggravated assault."

Aggravated assault under 11 F.S.M.C. 916: "A person commits an offense of aggravated assault if he causes serious bodily injury to another intentionally, knowingly, or recklessly under circumstances showing extreme indifference to the value of human life."

Serious bodily injury under 11 Y.S.C. 201(c): "'Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious, or permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

Serious bodily injury under 11 F.S.M.C. 914(1): "'Serious bodily injury means bodily injury which creates a high probability of death or which causes serious permanent disfigurement or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ, or other bodily injury of like severity."

We note that the definition of "serious bodily injury" appears to be taken from the Model Penal Code, which specifies "serious, permanent disfigurement" as opposed to the "serious, or permanent disfigurement" found in the Yap statute. The FSM statute also specifies "serious permanent disfigurement." A synonym for "disfigure" is "deface," which in turn is defined as "to destroy or mar the face or external appearance of," Websters Third New International Dictionary 649, 590 (1965). Thus "disfigurement" implies permanence, and for purposes of discussing the Yap and FSM statutory provisions we do not see a material distinction between "serious, or permanent disfigurement," and "serious permanent disfigurement."