KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Jackson
12 FSM Intrm. 93 (Kos. S. Ct. Tr. 2003)

[12 FSM Intrm. 93]

STATE OF KOSRAE,
Plaintiff,
 
vs.
 
MORLEY JACKSON,
Defendant.
 
CRIMINAL CASE NO. 48-03

JUDGMENT OF CONVICTION; ORDER FOR PRE-SENTENCE REPORT

Yosiwo P. George

Chief Justice

Trial: August 27, 2003

Decided: September 11, 2003

APPEARANCES:

For the Plaintiff:                  Paliknoa Welly, State Prosecutor
                                            Office of the Kosrae Attorney General
                                            P.O. Box 870
                                            Lelu, Kosrae FM 96944
For the Defendant:            Sasaki L. George, Esq.
                                            Micronesian Legal Services Corporation
                                            P.O. Box 38
                                            Lelu, Kosrae, FM 96944

* * * *

HEADNOTES

Evidence ) Witnesses
     Every person is competent to be witness except as otherwise provided by the Evidence Rules. A witness must have personal knowledge of the matter testified to and must, prior to testifying, declare, by oath or affirmation that she will testify truthfully. Kosrae v. Jackson, 12 FSM Intrm. 93, 97 (Kos. S. Ct. Tr. 2003).
 
Evidence ) Witnesses
     The Rules do not specify any mental qualifications for testifying as a witness. The issue is better suited to the fact finder in its determination of the witnessís weight and credibility. Kosrae v. Jackson, 12 FSM Intrm. 93, 97 (Kos. S. Ct. Tr. 2003).
 
Evidence ) Witnesses
     The question of a witnessís competency goes to the issue of credibility, which is for the trier of fact. Even a finding of criminal insanity and incompetence does not make a person incompetent to testify. As long as the person had a sufficient memory, could understand the oath, and could
 
[12 FSM Intrm. 94]
 
communicate what the person saw, the person was competent to serve as a witness. Kosrae v. Jackson, 12 FSM Intrm. 93, 97 (Kos. S. Ct. Tr. 2003).
 
Evidence ) Witnesses
     A witnessís competency to testify requires a minimum ability to observe, record, recollect and recount an event, as well as an understanding to tell the truth. The fact finder hears the testimony and judges the witnessís credibility. Therefore, mental capacity generally functions as an effect on the weight of the testimony to be given, instead of precluding admissibility of the testimony. Generally, any showing of memory about the event is sufficient to make the witness competent to testify. If the witness is capable of communicating in any manner, the witness is competent. Kosrae v. Jackson, 12 FSM Intrm. 93, 97 (Kos. S. Ct. Tr. 2003).
 
Evidence ) Witnesses
     A witness will not be disqualified to testify as witness in a trial due to her mental handicap when she took an oath to testify truthfully; had the memory of what actions had taken place; and, based upon her testimony, showed her ability to observe, record, recollect and recount that event. Kosrae v. Jackson, 12 FSM Intrm. 93, 97 (Kos. S. Ct. Tr. 2003).
 
Evidence ) Witnesses
     Kosrae Rule of Evidence 609 permits impeachment through evidence of conviction of a felony, where the date of the conviction is less than ten years and it also requires the court to determine that the probative value of admitted the prior conviction outweighs its prejudicial effect to the defendant. Kosrae v. Jackson, 12 FSM Intrm. 93, 98 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Burglary
     The criminal offense of burglary is defined as entering by force, stealth or trickery, the dwelling place or building of another with the intent to commit a felony, larceny, assault, or assault and battery therein. Kosrae v. Jackson, 12 FSM Intrm. 93, 98 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Burglary
     When the state has not proven the element of entering by force, stealth or trickery, the state has not proven all elements of the offense of burglary beyond a reasonable double. The burglary charge will accordingly be dismissed. Kosrae v. Jackson, 12 FSM Intrm. 93, 98 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Kidnapping
     The criminal charge of kidnapping is defined as forcibly or fraudulently and deceitfully, and without authority, imprisoning, seizing, detaining, or inveigling away any person (other than his minor child), with intent to cause the person to be secreted against his will, or sent out of the State against his will, or sold or held as a slave or for ransom. Kosrae v. Jackson, 12 FSM Intrm. 93, 98 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Trespass
     Criminal trespass is defined as entering, or causing an object to enter, the dwelling place, premises, or property of another without his express or implied consent, or entering with his consent and, following withdrawal of the consent, refusing to leave the dwelling place, premises, or property. Kosrae v. Jackson, 12 FSM Intrm. 93, 98-99 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Trespass
     When the householders did not give the defendant permission to enter their home, and when, even assuming that the defendant did have some implied consent to enter the home due to being a family friend, that implied consent did not extend to the time and purpose under consideration) to enter

[12 FSM Intrm. 95]

the home between the hours of midnight and 4 am, for the purpose of waking up, and assaulting the handicapped daughter. Kosrae v. Jackson, 12 FSM Intrm. 93, 99 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Sexual Offenses
     Sexual assault is intentionally subjecting another person to sexual penetration, or forcing another person to make a sexual penetration on himself or another or on an animal, against the other personís will, or under conditions in which the offender knows or should know that the other person is mentally or physically incapable of resisting or understanding the nature of his conduct. Sexual penetration is sexual intercourse, cunnilingus, fellatio, anal or oral intercourse, or the causing of penetration of the genital, anal, or oral opening of another to any extent and with any object whether or not there is an emission. Kosrae v. Jackson, 12 FSM Intrm. 93, 99 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Sexual Offenses
     When the state did prove beyond a reasonable doubt that the defendant did commit a sexual assault by intentionally subjecting the victim to sexual penetration, by oral intercourse, under conditions in which the defendant knew or should have known that she was mentally or physically incapable of resisting or understanding the nature of his conduct, the defendant is guilty of the offense of sexual assault. Kosrae v. Jackson, 12 FSM Intrm. 93, 100 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Assault
     Assault is defined as offering or attempting, with force or violence, to strike, beat, wound, or to do bodily harm to another. Kosrae v. Jackson, 12 FSM Intrm. 93, 100 (Kos. S. Ct. Tr. 2003).
 
Criminal Law and Procedure ) Assault
     When the state has proven that the defendant also threatened the victim with a knife after the sexual assault, and told her not to tell anyone what had happened, the state has proven all the elements of the offense of assault beyond a reasonable doubt. Kosrae v. Jackson, 12 FSM Intrm. 93, 100 (Kos. S. Ct. Tr. 2003).

* * * *

COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     This matter was called for trial on August 27, 2003. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Sasaki George, MLSC. The following witnesses testified for the Plaintiff: the victim Micaela George, the victimís mother, Naimi S George, the victimís father, Standon Z. George and Kosrae State Police Detective Harry Jackson. Soloman Asher testified on behalf of the Defendant. The Defendant himself also testified.

     The Defendant was tried on five criminal offenses: burglary, in violation of Kosrae State Code Section 13.403; kidnapping, in violation of Kosrae State Code, Section 13.306; sexual assault, in violation of Kosrae State Code, Section 13.311; trespass, in violation of Kosrae State Code, Section 13.412; and assault, in violation of Kosrae State Code, Section 13.302.

     After the trial, I took the matter under advisement. Based upon the evidence presented at trial, I find that the Plaintiff had proven beyond a reasonable doubt all the elements of the criminal offenses of sexual assault, trespass, and assault. I find the Defendant guilty and convict him of these three criminal offenses. Based upon the evidence presented at trial, I find that the Plaintiff had not proven beyond a reasonable doubt all the elements of the criminal offenses of kidnapping and burglary. I

[12 FSM Intrm. 96]

therefore acquit the Defendant of these two criminal offenses and dismiss these charges. This Judgment of Conviction sets forth my findings of facts and reasoning.

I. Findings of Facts .

     Based upon the evidence presented at the trial, I found the following facts. Many of the facts were undisputed. On the evening of June 6, 2003 and during the early morning hours of June 7, 2003, the family of the Standon and Naimi George was preparing food in the cookhouse for the Tafunsak Elementary School graduation, which was scheduled for June 7, 2003. The victimís parents, Naimi and Standon, were in the cookhouse preparing the food while their daughter Micaela slept in the house. The victim, Micaela is 26 years old, physically and mentally handicapped, and a student at the Special Education Program in Tofol.

     During the evening of June 6, 2003, the Defendant and Soloman Asher were drinking alcohol in Solomanís cookhouse, which is located near the house of Naimi and Standon George. The Defendant first testified that he did not drink alcoholic beverages that evening. Later during the trial, the Defendant admitted that he had only "tasted" the alcoholic drink. Soloman Asher also testified that they had been drinking alcohol together that evening.

     Later in the evening, the Defendant left Solomanís cookhouse and went to the house of Jerry George, where the Defendant was staying. Jerry George is a brother of Standon George. The Defendant watched some television and then went to sleep. Sometime after midnight, the Defendant got hungry and woke up. Defendant went outside, ate some food and then sat outside on a grave. Defendant then saw Otis, a handicapped boy walking around. Otis is a handicapped boy living with Naimi and Standon George. Defendant approached Otis to offer him some food, and then followed Otis into Standonís house. The Defendant was not invited to enter into Standonís house. As Otis entered the house, the Defendant followed him into the house where the victim was sleeping. Otis was in the house, however, his handicap was such that he was not able to do anything.

     At this time, the victim was sleeping alone in the house, while her parents were still preparing food outside in the cookhouse. As the Defendant entered the house and saw the victim sleeping alone, he went closer to where the victim was sleeping. The victim was known to the Defendant as a mentally and physically handicapped person. From the Defendantís view, the victim was sleeping with her legs apart. The Defendant could see the victimís panties, the diaper which the victim was wearing, with some that appeared to be blood. It is at this point that conflicting evidence was submitted as to what happened next.

     The victim testified that the Defendant woke her up. Defendant then placed his penis into her mouth and also touched her genitals. After the Defendant was finished, the victim testified that the Defendant threatened her with a knife and told her not to tell anyone what had happened.

     The Defendant denied that he had touched Micaela George, the victim. Defendant testified that when he walked closer to where the victim was sleeping, he said, "kom open-mouth", meaning that "sleeping that way will invite trouble." In saying those remarks to the victim, she woke up, according to the Defendantís testimony.

     There were no witnesses to the Defendantís actions with the victim. The victimís mother, who was taking a shower during Defendantís presence in the house, heard her daughter scream and saw the Defendant as he stood in the house. Naimi then ran into the house. There she told the Defendant to leave immediately. Micaela was ill the next day or two and vomited several times. Micaela reported the Defendantís actions to her mother subsequently.

[12 FSM Intrm. 97]

II. Conclusions of Law.

     The Defendant raised the issue of whether the victim, Micaela George was competent to be a witness in this trial. Micaela is a 26 year old female, with mental and physical handicaps. She is a student in the Special Education Program. When asked, Micaela was not able to recite her age, nor what year it is now. During closing arguments, Defendant argued that the victim, Micaela George, was not competent to testify as a witness in this case. However, the Defendant did not request that Micaelaís testimony be stricken.

     The Kosrae Rules of Evidence, Rule 601 provides the general rule of competency: "Every person is competent to be witness except as otherwise provided by these Rules." Rule 602 requires that a witness have personal knowledge of the matter testified to. Further, Rule 603 requires every witness, prior to testifying, to declare, by oath or affirmation that she will testify truthfully. Micaela George took an oath to testify truthfully prior to her testimony. Micaela George had personal knowledge as to the Defendantís actions, and testified in detail what the Defendant did to her.

     This Court could not find any FSM cases which have addressed the issue of witness competence. Therefore, this Court turn to United States law, as the Kosrae Rules of Evidence, Rules 601, 602 and 603, are virtually identical to the United States Federal Rules of Evidence. The Rules do not specify any mental qualifications for testifying as a witness, and in the United States, very few witnesses are disqualified on that ground. The issue is better suited to the fact finder in their determination of the weight and credibility of the witness. See U.S. Fed. R. Evid. 601 advisory committeeís note. This approach has been followed in United States Courts. The United States Circuit Court of Appeals has held that "there is no provision in the rules for the exclusion of testimony because a witness is mentally incompetent. The question of competency goes to the issue of credibility, which is for the trier of fact." United State v. Hyson, 721 F.2d 856, 864 (1st Cir. 1983). Even a finding of criminal insanity and incompetence does not make a person incompetent to testify. As long as the person had a sufficient memory, could understand the oath, and could communicate what the person saw, the person was competent to serve as a witness. United States v. Lightly, 677 F.2d 1027 (4th Cir. 1982).

     Competency of a witness to testify requires a minimum ability to observe, record, recollect and recount an event, as well as an understanding to tell the truth. The fact finder hears the testimony and judges the credibility of the witness. Therefore, mental capacity generally functions as an effect on the weight of the testimony to be given, instead of precluding admissibility of the testimony. See 1 McCormick on Evidence ß 62, at 243-48 (4th ed. 1992). Generally, any showing of memory about the event is sufficient to make the witness competent to testify. If the witness is capable of communicating in any manner, the witness is competent. See Goldbergís Deskbook on Evidence for Administrative Law Judges, pt. II, ß A, at II-1, II-2 (1993).

     Accordingly, pursuant to the Kosrae Rules of Evidence, Micaela George is not disqualified to testify as witness in this trial, due to her mental handicap. At this trial, Micaela took an oath to testify truthfully. Micaela had the memory of what actions had taken place with the Defendant on the evening of June 6 and early morning hours of June 7. Micaela, based upon her testimony, showed her ability to observe, record, recollect and recount that event. This Court, as the fact finder, does hear the testimony and judges the credibility of the witness, Micela George. Micaela was capable of communicating her personal knowledge of the event in the Kosraean language, in a manner that was understood by this Court and the parties. Accordingly, I conclude that Micaela George is competent to testify as witness in this trial.

     Furthermore, I find Micaelaís testimony to be credible and convincing regarding the subject

[12 FSM Intrm. 98]

events of June 6 and 7. Micaela provided detailed testimony, pursuant to her memory, as to the Defendantís actions with her that night. The Defendant did not present any evidence or motive for Micaela to be dishonest regarding the Defendantís actions. Coupled with the Defendantís admission that he did enter and was present in the home of Standon George, went near the victim and woke her up, Micaelaís testimony as to the subsequent actions of the Defendant is weighed by this Court to more credible than the testimony of the Defendant. Accordingly, I accepted Micaelaís testimony regarding the Defendantís actions that night of June 6 and 7, regarding his sexual assault upon her, and further threats made with a knife.

     The State asked the Defendant whether he had been convicted of any other crimes. Defendant answered that he had been convicted of another felony before. This Court takes judicial notice of the Defendantís conviction of a felony in State v. Moreley Jackson, Kosrae State Court, Criminal Case No. 93-94, Judgment of Conviction (Oct. 6, 1994). Kosrae Rules of Evidence, Rule 609 permits impeachment through evidence of conviction of a felony, where the date of the conviction is less than ten years. Here, the date of Defendantís conviction of a felony in Criminal Case No. 93-94 was within 10 years of trial of this matter. Rule 609 also requires this Court to determine that the probative value of admitted the prior conviction outweighs its prejudicial effect to the Defendant. When the issue of the Defendantís prior convictions was raised at trial, I found that the prejudicial effect of the Defendantís prior conviction outweighed its probative value. Therefore, I did not accept the evidence of Defendantís prior felony conviction for impeachment and I did not consider the conviction for the purpose of assessing credibility of the Defendant. See Ponape Constr. Co. v. Pohnpei, 6 FSM Intrm. 114 (Pon. 1993).

     The Defendant was tried on five criminal offenses: burglary, in violation of Kosrae State Code Section 13.403; kidnapping, in violation of Kosrae State Code, Section 13.306; sexual assault, in violation of Kosrae State Code, Section 13.311; trespass, in violation of Kosrae State Code, Section 13.412; and assault, in violation of Kosrae State Code, Section 13.302.

     The criminal offense of burglary is defined as "entering by force, stealth or trickery, the dwelling place or building of another with the intent to commit a felony, larcency, assault, or assault and battery therein." Kos. S.C. ß 13.403. The State did not prove the element of "entering by force, stealth or trickery." The undisputed evidence was that the Defendant simply walked into the home of Standon George. The Defendant did not use force or trickery to enter the home of Standon George. The Defendant did not enter by stealth, which means by "secrecy." Websterís New Dictionary 284 (2000 ed). Accordingly, the State did not prove all elements of the offense of burglary beyond a reasonable double. The charge of burglary is accordingly dismissed.

     The criminal charge of kidnapping is defined in Kosrae State Code, Section 13.306 as "forcibly or fraudulently and deceitfully, and without authority, imprisoning, seizing, detaining, or inveigling away any person (other than his minor child), with intent to cause the person to be secreted against his will, or sent out of the State against his will, or sold or held as a slave or for ransom." The State did not present any evidence that the Defendant had intent to cause the victim to be secreted against her will or sent out of the State against her will or sold or held as a slave or for ransom. It is undisputed that the Defendant committed his actions in the victimís home. The Defendant did not have the intent to secret the victim against her will or send her out of Kosrae, or to be sold or held as a slave or for ransom. Accordingly, the State did not prove all elements of the offense of kidnapping beyond a reasonable doubt. The charge of kidnapping is dismissed.

     Trespass is the third criminal charge that Defendant was tried upon. The offense of trespass is defined at Kosrae State Code, Section 13.412. "Trespass is entering, or causing an object to enter, the dwelling place, premises, or property of another without his express or implied consent, or entering

[12 FSM Intrm. 99]

with his consent and, following withdrawal of the consent, refusing to leave the dwelling place, premises, or property." Here it is undisputed that the Defendant entered the property and the home of Standon George. The Defendant was seen by Naimi George standing in their home. The Defendant also admitted that he entered the home of Standon George and walked to the area where the victim was sleeping.

     Defendant argues that he had implied consent to enter the home of Standon George and therefore cannot be found guilty of the crime of trespass. Defendant argued that he, as a friend of the victimís family, had implied consent to enter their home on the night of June 6, 2003 and early morning hours of June 7, 2003. Defendant argued that he did not need to have permission of Standon George or his wife to enter their home, due their family relationship. Standon George and his wife, Naimi, both testified that they did not give the Defendant permission to enter their home. Even assuming that the Defendant did have some implied consent, due to family relationship, to enter the home of Standon George, that implied consent did not extend to the time and purpose under consideration in this case by this Court. The Court finds that there is no basis to believe that the Defendant had implied consent to enter the home of Standon and Naimi George between the hours of midnight and 4 am, for the purpose of waking up, and assaulting their handicapped daughter. Although the Defendant testified that he followed Otis into the house for the purpose of offering Otis some food, Defendant did not leave the house after Otis apparently refused food. Otis, by entering the house of Naimi and Standon where he was living was a clear indication that Otis refused the offer of food made by the Defendant. I conclude that the Defendant did not have implied consent from Standon or Naimi George to enter their home of on June 6 or 7, during the late night and early morning hours in question. See FSM v. Ruben, 1 FSM Intrm. 34 (Truk 1981); FSM v. Boaz, 1 FSM Intrm. 22 (Pon. 1981).

     I find that based upon evidence presented at trial, the State did prove that the Defendant did enter the dwelling place and property of Standon George without his express or implied consent. All of the elements of the offense of trespass have been proved beyond a reasonable doubt and I therefore find the Defendant guilty of the offense of trespass, in violation of Kosrae State Code, Section 13.412.

     The criminal offense of Sexual Assault is defined in Kosrae State Code, Section 13.311.

Sexual assault is intentionally subjecting another person to sexual penetration, or forcing another person to make a sexual penetration on himself or another or on an animal, against the other personís will, or under conditions in which the offender knows or should know that the other person is mentally or physically incapable of resisting or understanding the nature of his conduct. Sexual penetration is sexual intercourse, cunnilingus, fellatio, anal or oral intercourse, or the causing of penetration of the genital, anal, or oral opening of another to any extent and with any object whether or not there is an emission.

     I find the testimony of Micaela George to be more credible than the testimony of the Defendant with respect to the Defendantís actions with Micaela. Micaela George recounted in detail what actions the Defendant had taken with her that night of June 6 or early morning of June 7. She testified that she had been sleeping in the house when the Defendant woke her up. Defendant then placed his penis into her mouth and also touched her genitals. Micaela George also testified that afterwards, Defendant threatened her with a knife and told her not to tell anyone what had happened.

     The Defendant testified that he saw Micaela sleeping on the floor with her legs open, woke her up, and told her that "kom open-mouth", meaning "sleeping like that can cause trouble." From this statement it is reasonable to infer that Defendant intended the words "kom open-mouth" to mean sexual attraction or sexual activity.

[12 FSM Intrm. 100]

     The Defendant further admitted that he knew that Micaela was physically and mentally handicapped, and that she was a student of the Special Education Program. The Defendant testified that he saw Micaela wearing diapers while she lay sleeping on the floor. Thus, even the night of June 6, the Defendant knew or should have known that Micaela was handicapped, and was mentally and physically incapable of resisting his actions, or understanding the nature of his conduct. The Defendant subjected Micaela to sexual penetration by oral intercourse. Based upon the evidence presented at trial, I find that the State did prove beyond a reasonable doubt that the Defendant did commit a sexual assault against Micaela George by intentionally subjecting Micaela to sexual penetration, by oral intercourse, under conditions in which the Defendant knew or should have known that Micaela George is mentally or physically incapable of resisting or understanding the nature of his conduct. I find the Defendant guilty of the offense of sexual assault, in violation of Kosrae State Code, Section 13.311.

     The final charge for which Defendant was tried was the offense of assault. Assault is defined in Kosrae State Code, Section 13.302 as "offering or attempting, with force or violence, to strike, beat, wound, or to do bodily harm to another." The testimony of Micaela George stated that the Defendant threatened her with a knife after the sexual assault, and told her not to tell anyone what had happened. The Defendant denied making the assault. I find the testimony of Micaela George to be more credible than the testimony of the Defendant. I find that the State did prove all the elements of the offense of assault beyond a reasonable doubt. I therefore find the Defendant guilty of the offense of assault.

III. Judgment of Conviction.

     Plaintiff had proven beyond a reasonable doubt all the elements of the criminal offenses of sexual assault, trespass, and assault. I find the Defendant guilty and convict him of three criminal offenses: sexual assault, in violation of Kosrae State Code, Section 13.311; trespass, in violation of Kosrae State Code, Section 13.412; and assault, in violation of Kosrae State Code, Section 13.302.

IV. Order for Pre-sentence Report.

     The Court Marshal is ordered to prepare a pre-sentence report on the Defendant for the sentencing hearing. The pre-sentence report shall be completed no later than September 23, 2003. The sentencing hearing is set for September 30, 2003 at 9 am. The Defendant shall remain in custody until the sentencing hearing.

* * * *