KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Sigrah
12 FSM Intrm. 562 (Kos. S. Ct. Tr. 2004)

[12 FSM Intrm. 562]

STATE OF KOSRAE,
Plaintiff,
 
vs.
 
ERWIN K. SIGRAH,
Defendant.
 
CRIMINAL CASE NO. 75-04
 
JUDGMENT OF CONVICTION; SENTENCING ORDER
 
Yosiwo P. George
Chief Justice
 
Trial: July 21, 2004
Decided: July 29, 2004
 
[12 FSM Intrm. 563]

APPEARANCES:

For the Plaintiff:                        Edwin Mike
                                                  State Prosecutor
                                                  Office of the Kosrae Attorney General
                                                  P.O. Box 870
                                                  Tofol, Kosrae FM 96944
 
For the Defendants:                Harry Seymour, Esq.
                                                 Office of the Public Defender
                                                 P.O. Box 245
                                                 Tofol, Kosrae FM 96944

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HEADNOTES

Evidence ) Witnesses
     Every person is competent to be a witness except as otherwise provided in the Rules. Rule 602 requires lay witnesses to have personal knowledge of the matters that they are testifying to. Rule 603 requires every witness to declare that he will testify truthfully. The Rules do not exclude potential witnesses based upon their status as prisoners. Kosrae v. Sigrah, 12 FSM Intrm. 562, 566 (Kos. S. Ct. Tr. 2004).
 
Evidence ) Witnesses
     When a prisoner’s testimony complied with the requirements of Rules 601, 602 and 603 and the defendant had the opportunity to cross examine him and attack his credibility by evidence of prior criminal convictions, there is no legal authority for the automatic exclusion of a prisoner's testimony. Ultimately, it is the task of trier of fact to determine the witnesses’ credibility and to determine what should be accepted as the truth and what should be rejected as untrue or false. Kosrae v. Sigrah, 12 FSM Intrm. 562, 566 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Aggravated Assault
     The offense of aggravated assault requires proof beyond a reasonable doubt of assaulting, striking, beating, or wounding another with a dangerous weapon, with an intent to kill, rape, rob, inflict grievous bodily harm, or to commit any other felony. Kosrae v. Sigrah, 12 FSM Intrm. 562, 566 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Aggravated Assault
     When the defendant pushed the victim's face into the pillow but there was no evidence presented that the pillow was used to assault, strike, beat or wound the victim, the pillow was not used as a dangerous weapon within the elements of the offense of aggravated assault and the state thus has not proven beyond a reasonable doubt the criminal offense of aggravated assault. Kosrae v. Sigrah, 12 FSM Intrm. 562, 566 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Sexual Offenses
     The offense of sexual assault requires proof beyond a reasonable doubt of intentionally subjecting another person to sexual penetration, against the other person's will. Sexual penetration includes 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. Sigrah, 12 FSM Intrm. 562, 566 (Kos. S. Ct. Tr. 2004).
 
[12 FSM Intrm. 564]
 
Criminal Law and Procedure ) Sexual Offenses
     When the evidence is undisputed that the defendant used his fingers to penetrate the victim’s vagina, he did cause the penetration of the victim’s genital opening with an object: his fingers, and the state has proven beyond a reasonable doubt all of the elements of the criminal offense of sexual assault. Kosrae v. Sigrah, 12 FSM Intrm. 562, 566 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Assault and Battery
     The offense of assault and battery requires proof beyond a reasonable doubt of striking, beating, wounding, or otherwise doing bodily harm to another. Kosrae v. Sigrah, 12 FSM Intrm. 562, 567 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Assault and Battery
     When the evidence is undisputed that the defendant held the victim down, placed his hand over her mouth, and prevented her escape from his attack upon her, and these actions resulted in bodily harm to the victim, the state has proved beyond a reasonable doubt all of the elements of the criminal offense of assault and battery. Kosrae v. Sigrah, 12 FSM Intrm. 562, 567 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Trespass
     The offense of trespass requires proof beyond a reasonable doubt of entering the dwelling place, premises, or property of another without her express or implied consent. Kosrae v. Sigrah, 12 FSM Intrm. 562, 567 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Trespass
     When the evidence is undisputed that the defendant did not have consent to enter the victim's cookhouse at 2 a.m., (although there appeared to be implied consent for neighbors to cross the victim's property around her house and cookhouse, this consent does not extend to the cookhouse’s interior), and that the defendant entered the victim’s dwelling place and property without her express or implied consent, the state proved beyond a reasonable doubt all the elements of the criminal offense of trespass. Kosrae v. Sigrah, 12 FSM Intrm. 562, 567 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Disturbing the Peace
      The offense of disturbing the peace requires proof beyond a reasonable doubt of wilfully committing any act which unreasonably annoys or disturbs another so that she is deprived of peace and quiet. Kosrae v. Sigrah, 12 FSM Intrm. 562, 567 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Disturbing the Peace
     When the evidence is undisputed that the defendant intruded upon the victim while she was sleeping, committed acts to wake the victim from her sleep, restrained her and attacked her, and that she was deprived of her peace, quiet and sleep that night by the defendant's actions, the state has proven beyond a reasonable doubt all the elements of the criminal offense of disturbing the peace. Kosrae v. Sigrah, 12 FSM Intrm. 562, 567 (Kos. S. Ct. Tr. 2004).

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

     This matter was called for trial on July 21, 2004. Edwin Mike, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. The following witnesses testified for the Plaintiff: Procula Jackson and Wilson Tolennoa.

[12 FSM Intrm. 565]

      The Defendant was tried upon the five Counts set forth in the Information: Aggravated Assault, in violation of Kosrae State Code, Section 13.301; Sexual Assault, in violation of Kosrae State Court, Section 13.311; Assault and Battery, in violation of Kosrae State Court, Section 13. 303; Trespass, in violation of Kosrae State Code, Section 13.412; and Disturbing the Peace, in violation of Kosrae State Code, Section 13.503. After the trial, I announced my findings and imposed the sentence upon the Defendant.

       Based upon the evidence presented at trial, I found that the Plaintiff had proved beyond a reasonable doubt that the Defendant had committed the offenses of Sexual Assault, Assault and Battery, Trespass and Disturbing the Peace. I found that the Plaintiff did not prove beyond a reasonable doubt that the Defendant had committed the offense of Aggravated Assault. This Judgment of Conviction and Sentencing Order 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. On the night of June 1, 2004 Procula Jackson went to sleep in her cookhouse in Tafunsak Municipality. In the early morning of June 2, 2004, at approximately 2 am, Ms. Jackson awoke from her sleep when she felt the Defendant moving around her. She smelled alcohol on the Defendant. The Defendant then jumped upon Ms. Jackson who had been sleeping on her back. The Defendant flipped her around, so that she was laying on her stomach, and pushed her head into the pillow. The Defendant locked the victim's arms behind her during the struggle, during which time Ms. Jackson was screaming her son's name and clawing at the Defendant's face, attempting to free herself. During the struggle, the Defendant covered Ms. Jackson's mouth, reducing her ability to breathe, and inserted his fingers into her vagina. The victim struggled against the Defendant, biting and clawing him in the face, and tearing off the Defendant's necklace chain during the struggle. The Defendant's attack upon Ms. Jackson lasted approximately ten minutes. The Defendant then jumped off the victim and ran off. As the Defendant ran past the lighted grave of Reverend Kun N. Sigrah, he fell. The victim then clearly saw the face the Defendant as Erwin K. Sigrah. The Defendant was wearing a yellow t-shirt with white pants. Ms. Jackson testified that the morning after the attack, Ms. Jackson saw the Defendant walking near her house. He was wearing a scarf around his neck, trained his eyes on the ground and did not make eye contact with the Ms. Jackson.

     The necklace torn off the Defendant by Ms. Jackson during the struggle with the Defendant was given to the Police. Ms. Jackson testified that the general area around the house and cookhouse were used by neighbors to walk through. However, Ms. Jackson did not give consent to the Defendant to enter her cookhouse where she was sleeping.

     After the Defendant was arrested and taken to the Central Police Station for booking, the Defendant had a conversation with one of the other prisoners, a Wilson Tolennoa. The Defendant told Wilson that he valued his chain. When Wilson asked the Defendant where was his chain, the Defendant replied that Procula had broken it. Some time later, Wilson was performing cleaning duties at the Police Station. Wilson was cleaning the evidence room, when he saw a chain. Wilson asked one of the police officers, Detective Tulensa Palik, about the chain. The Police Officer replied that it was the chain that was turned in by Procula Jackson. Wilson then told the Police Officer about the conversation he had with the Defendant after the Defendant's arrest.

II. Conclusions of Law.

     The Defendant objected to the testimony of Wilson Tolennoa, based upon his status as a current prisoner at the Kosrae State Jail. Defendant argued that Wilson's testimony is not credible, but did not

[12 FSM Intrm. 566]

offer any authority for his position. The Kosrae Rules of Evidence, Rule 601 provides the general rule of competency for witnesses. Rule 601 declares that every person is competent to be a witness, except as otherwise provided in the Rules. Rule 602 requires lay witnesses to have personal knowledge of the matters that they are testifying to. Rule 603 requires every witness to declare that he will testify truthfully. The Rules do not exclude potential witnesses based upon their status as prisoners. Here, the testimony of Wilson Tolennoa complied with the requirements of Rule 601, 602 and 603. The Defendant did not provide any legal authority for the automatic exclusion of a prisoner's testimony, and this Court also could not find any such authority.

     The Defendant had the opportunity to cross examine Wilson, and attack his credibility by evidence of prior criminal convictions. Ultimately, it is the task of trier of fact to determine the credibility of witnesses. Engichy v. FSM, 1 FSM Intrm 532 (App. 1984). It is the trier of fact to determine what should be accepted as the truth and what should be rejected as untrue or false. Epiti v. Chuuk, 5 FSM Intrm. 162 (Chk. S. Ct. Tr. 1991). The Defendant's objection to the testimony of Wilson Tolennoa, on the basis of his status as a prisoner, was overruled, and Wilson was permitted to testify at the trial.

     The Defendant were tried on five counts provided in the Information: Aggravated Assault, in violation of Kosrae State Code, Section 13.301; Sexual Assault, in violation of Kosrae State Court, Section 13.311; Assault and Battery, in violation of Kosrae State Court, Section 13. 303; Trespass, in violation of Kosrae State Code, Section 13.412; and Disturbing the Peace, in violation of Kosrae State Code, Section 13.503.

1. Offense of Aggravated Assault.

     The offense of aggravated assault requires proof beyond a reasonable doubt of: "assaulting, striking, beating, or wounding another with a dangerous weapon, with an intent to kill, rape, rob, inflict grievous bodily harm, or to commit any other felony." Kos. S.C. § 13.301.

     The State argued that the pillow was used as a dangerous weapon against the victim. The Defendant did push the victim's face into the pillow. However, there was no evidence presented that the pillow was used to assault, strike, beat or wound the victim. Therefore, I cannot conclude that the pillow was a dangerous weapon within the elements of the offense of aggravated assault. Therefore, I find that based upon the evidence presented at trial, the State did not prove beyond a reasonable doubt all elements of the criminal offense of aggravated assault. The Defendant is acquitted of the Count I, the offense of aggravated assault.

2. Offense of Sexual Assault.

     The offense of sexual assault requires proof beyond a reasonable doubt of: "intentionally subjecting another person to sexual penetration, against the other person's will. Sexual penetration includes 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." Kos. S.C. § 13.311.

     The evidence is undisputed that the Defendant used his fingers to penetrate the vagina of the victim. I conclude that the Defendant did cause the penetration of the genital opening of the victim with an object: his fingers. Accordingly, I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all of the elements of the criminal offense of sexual assault. I also conclude, based upon the testimony presented at trial, that there was not serious bodily or psychological injury to the victim. Accordingly, the Defendant is found guilty and convicted of the offense of Sexual Assault, in violation of Kosrae State Code, Section 13.311, a category two felony.

[12 FSM Intrm. 567]

3. Offense of Assault and Battery.

     The offense of assault and battery requires proof beyond a reasonable doubt of: "striking, beating, wounding, or otherwise doing bodily harm to another." Kos. S.C. § 13.303.

     The evidence is undisputed that the Defendant did hold down the victim, did place his hand over her mouth and did prevent her escape from his attack upon her. These actions did result in bodily harm to the victim. I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all of the elements of the criminal offense of assault and battery. Accordingly, the Defendant is found guilty and convicted of the offense of Assault and Battery, in violation of Kosrae State Code, Section 13.303.

4. Offense of Trespass.

     The offense of trespass requires proof beyond a reasonable doubt of: "entering the dwelling place, premises, or property of another without her express or implied consent." Kos. S.C. § 13.412.

     The evidence is undisputed that the Defendant did not have consent to enter the victim's cookhouse at 2 am, while she was sleeping there. While there appeared to be implied consent for neighbors to cross the victim's property around her house and cookhouse, this consent does not extend to the interior of the cookhouse. The Defendant entered the dwelling place and property of the victim without her express or implied consent. I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all the elements of the criminal offense of trespass. Accordingly, the Defendant is found guilty and convicted of the offense of Trespass, in violation of Kosrae State Code, Section 13.412.

5. Offense of Disturbing the Peace.

     The offense of disturbing the peace requires proof beyond a reasonable doubt of: "wilfully committing any act which unreasonably annoys or disturbs another so that she is deprived of peace and quiet." Kos. S.C. § 13.503

     The evidence is undisputed that the Defendant did intrude upon the victim while she was sleeping, commits acts to wake up the victim from her sleep, restrained her and attacked her. The victim testified that her sleep and peace of mind were disturbed by the Defendant's actions, and that she was deprived of her peace, quiet and sleep that night by the Defendant's actions. I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all the elements of the criminal offense of disturbing the peace. Accordingly, the Defendant is found guilty and convicted of the offense of Disturbing the Peace, in violation of Kosrae State Code, Section 13.503.

III. Judgment of Conviction

     Defendant is found guilty and convicted on Counts two, three, four and five of the Information, as follows: one count of the criminal offense of Sexual Assault, in violation of Kosrae State Code, Section 13.311; one count of Assault and Battery, in violation of Kosrae State Code, Section 13.303; one count of Trespass, in violation of Kosrae State Code, Section 13.412; and one count of Disturbing the Peace, in violation of Kosrae State Code, Section 13.503. The Defendant is acquitted of Count I, the offense of aggravated assault.

[12 FSM Intrm. 568]

IV. Sentencing Order.

     Prior to imposing the sentence, the Court allowed Counsel for Defendant to speak on behalf of the Defendant. The Defendant was also provided an opportunity to make a statement in his own behalf. Counsel for Kosrae State was also given an opportunity to speak to the Court.

     Based upon the facts of this case, in consideration of the nature of the offenses, the Defendant’s background and potential, the Court imposes the following sentence upon the Defendant:

1. On the offense of Sexual Assault, the Defendant is sentenced to 24 months incarceration, of which 21 months shall be suspended on the condition that Defendant successfully completes 21 months probation.

2. On the offense of Assault and Battery, the Defendant is sentenced to 6 months incarceration, of which 5 months shall be suspended on the condition that Defendant successfully completes 5 months probation.

3. On the offense of Trespass, the Defendant is sentenced to 6 months incarceration, of which 5 months shall be suspended on the condition that Defendant successfully completes 5 months probation.

4. On the offense of Disturbing the Peace, the Defendant is sentenced to 6 months incarceration, of which 5 months shall be suspended on the condition that Defendant successfully completes 5 months probation.

5. The sentences shall all be served consecutively. Defendant shall be imprisoned at the Kosrae State Jail for a total period of 6 months. Defendant shall then serve his suspended sentence of 36 months (3 years), on the condition that Defendant successfully completes 36 months probation.

6. Conditions of probation include the following:

a. Defendant shall not violate any national, state or municipal laws or ordinances.

b. Defendant shall not leave the State of Kosrae without prior written permission of the Court.

c. Defendant shall not have any hostile contact with the victim or her family.

d. Defendant shall not possess or consume any alcoholic drinks.

e. Completion of the substance a  buse counseling program, as specified in the Supplemental Sentencing Order.

f. Any violation of the conditions of probation may result in the revocation of probation and the return of the Defendant to jail to be incarcerated for the remainder of his total sentence.

     The Clerk shall release the $200 cash bail posted by the Defendant immediately.

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