KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Kilafwakun
12 FSM Intrm. 590 (Kos. S. Ct. Tr. 2004)

[12 FSM Intrm. 590]

STATE OF KOSRAE,
Plaintiff,
 
vs.
 
AKIR M. KILAFWAKUN.
Defendant.
 
CRIMINAL CASE NO. 49-04
 
JUDGMENT OF CONVICTION; ORDER FOR SENTENCING REPORT
 
Aliksa B. Aliksa
Associate Justice
 
Trial: July 2, 26, 2004
Decided: August 9, 2004

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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[12 FSM Intrm. 591]

HEADNOTES

Criminal Law and Procedure ) Double Jeopardy
     The constitutional protection against double jeopardy protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 594 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Sexual Offenses
     Under Kosrae statute, 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. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 594, 596 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Sexual Offenses
     Under Kosrae statute, sexual penetration is sexual intercourse, cunnilingus, fellatio, anal or oral intercourse, or the causing of the 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. Kilafwakun, 12 FSM Intrm. 590, 594, 596 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Sexual Offenses
     Under Kosrae statute, sexual abuse is intentionally having sexual contact with another person who is less than thirteen years old or causing the person to have sexual contact with the offender. Sexual contact means any touching of the sexual or other intimate parts of another done with the intent of gratifying the sexual desire of either party. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 594, 596 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Double Jeopardy; Criminal Law and Procedure ) Sexual Offenses
     When the sexual abuse and sexual assault statutes each require proof of a fact which the other offense does not ) the offense of sexual assault requires proof of the fact of intercourse, penetration, cunnilingus or fellatio; the offense of sexual abuse requires proof of the victimís age, but does not require proof of the fact of intercourse or penetration since sexual contact through touching is adequate ) the court may enter findings and a decision on both offenses without violating double jeopardy protections. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 595 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Double Jeopardy
     If for the same act, both a lesser included and a greater offense are proven, the court should enter a conviction on only the greater offense. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 595 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Insanity
     Evidence that the defendant suffered from a physical or mental disease, disorder, or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 595 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Insanity
     Under Kosrae statute, the affirmative defense of mental condition places the burden of proof upon the defendant to establish the facts which negative liability. The defendant must establish these
 
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facts by a preponderance of the evidence. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 595 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Kidnapping
     The offense of kidnapping requires proof beyond a reasonable doubt of 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. Kilafwakun, 12 FSM Intrm. 590, 595 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Kidnapping
     When there was undisputed evidence that the defendant had grabbed and held on to a six year old girlís arm and then forced her to walk across the street with him into the wooded area where he intended to secrete her against her will and the defendant is not the victimís parent, the state did prove beyond a reasonable doubt all elements of the offense of kidnapping. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 596 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Sexual Offenses
     When the evidence is undisputed that the defendant used his mouth and tongue to fondle and lick the six year old victimís vagina and vaginal area (actions defined as cunnilingus); when it is undisputed that she tried to resist the defendantís actions but he was too strong for her and that she was mentally and physically incapable of resisting or understanding the nature of the defendantís conduct; and when the 44 year old male defendant knew or should have known that she was mentally or physically incapable of resisting or understanding the nature of his conduct, the defendant committed cunnilingus thereby subjecting the victim to sexual penetration, and accordingly, the state proved beyond a reasonable doubt all of the elements of the offense of sexual assault. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 596 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Sexual Offenses
     When the evidence is undisputed that the defendant used his mouth and tongue to fondle and lick the victimís vagina and vaginal area, that the victim was a six year old child at the time, and that the defendant did masturbate during the time he was touching the victim, the defendant intentionally had sexual contact with a victim less than thirteen years old and he touched the victimís intimate parts with the intent of gratifying his own sexual desire. The state thus proved beyond a reasonable doubt all of the elements of the offense of sexual abuse. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 597 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Double Jeopardy
     If for the same act, both a lesser included and a greater offense are proven, the Court should enter a conviction on only the greater offense. Kosrae v. Kilafwakun, 12 FSM Intrm. 590, 597 (Kos. S. Ct. Tr. 2004).

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COURTíS OPINION

ALIKSA B. ALIKSA, Associate Justice:

     This matter was called for trial on July 2, 2004. Edwin Mike, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. The following witnesses testified for the Plaintiff: Mercy Wengu, Desina Wengu, Dr. Alik Tara and Officer Ludick Nithan. The

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following witnesses testified for the Defendant: Dr. Livingston Taulung, Rolden Timothy, Joshua Kilafwakun, Merian H. Alokoa and Alik Kilafwakun. Closing arguments were heard on July 26, 2004.

     The Defendant was tried upon the three Counts set forth in the Information: Kidnapping, in violation of Kosrae State Code, Section 13.306; Sexual Assault, in violation of Kosrae State Court, Section 13.311; and Sexual Abuse, in violation of Kosrae State Code, Section 13.312. The Defendant claimed the affirmative defense of mental disease, disorder or defect. After the trial, I took the matter under advisement.

     Based upon the evidence presented at trial, I find that the Plaintiff had proved beyond a reasonable doubt that the Defendant had committed the offenses of Kidnapping, Sexual Assault and Sexual Abuse. 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 find the following facts. On the afternoon of April 25, 2004, Desina Wengu dressed up her two daughters, Mercy and Esimi, and sent them off to church in Tafunsak Municipality. Mercy is a six year old girl who liked to get quarters. Esimi returned to the house less than one hour later, and told Desina that the Defendant had grabbed Mercy and taken her to a wooded area across the road. Desina took her son, and ran across the road, trying to locate her daughter. They saw the Defendant running away, and shouted for him to stop. Desina found Mercy sitting on a tree stump nearby crying with her legs pulled in towards her body.

     Desina demanded that the Defendant tell her everything that had happened. The Defendant admitted that he had touched and licked Mercy in and around her vagina. Mercy testified that the Defendant had grabbed her arm and pulled her across the road into the wooded area. Mercy tried to stop the Defendantís actions, but he was too strong. Mercy testified that the Defendant took off her panties, and licked and touched her vagina. The Defendant then masturbated while touching the victim.

     Dr. Livingston Taulung testified that he had interviewed the Defendant. During the interview the Defendant admitted to fondling and licking the victimís vagina. Following thp interview, Dr. Taulung concluded that the Defendant had a history of sexual abuse, which suggested that the Defendant may suffer from a sexual dysfunction. Dr. Taulung testified that he has knowledge of patients with mental disorders, and that the Defendant was not on the list of patients with mental disorders before this incident. Further, Dr. Taulung testified that the Defendant knew that what he was doing was a bad thing. Dr. Taulung prepared a report based upon the interview with the Defendant, which was accepted into evidence as Defendantís Exhibit 1. On page 2, under "Diagnostic Impression", the term "Mental Deficiency (Retardation)" is preceded by a question mark. Dr. Taulung testified regarding preparation of his report. Dr. Taulung concluded that the Defendant does not have a mental deficiency, disorder or defect.

II. Conclusions of Law.

     The Defendant claimed the constitutional protection of double jeopardy prevents the State from trying both charges of sexual assault and sexual abuse. The Kosrae State Constitution, Article II, Section 1(f) provides that: "A person may not . . . be twice put in jeopardy for the same offense."

     The Court in Laion v. FSM, 1 FSM Intrm. 503 (App. 1984) has explained the application of the constitutional protection against double jeopardy. The double jeopardy clause of the FSM Constitution protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction and against multiple punishments for the same offense. Id. at

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523. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. Id. at 523-24.

     Defendant argues that the charges of Sexual Assault and Sexual Abuse requires proof of the same facts and therefore, conviction on both offenses is not permitted. An examination of both offenses is required in order to determine whether both offenses require proof of the same facts.

     Kosrae State Code, Section 13.311 sets forth the offense of sexual assault.

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 the 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 State Code, Section 13.312 sets forth the offense of sexual abuse.

Sexual abuse is intentionally having sexual contact with another person who is less than thirteen years old or causing the person to have sexual contact with the offender. Sexual contact means any touching of the sexual or other intimate parts of another done with the intent of gratifying the sexual desire of either party.

A review of these two statutes indicates that proof of different facts are required for each offense. The offense of sexual abuse requires proof of the victimís age. The offense of sexual assault requires proof of the fact of intercourse, penetration, cunnilingus or fellatio. By comparison, the offense of sexual abuse does not require proof of the fact of intercourse or penetration: sexual contact through touching is adequate.

     I conclude that each of these offenses requires proof of a fact which the other offense does not. Therefore, this Court may enter findings and a decision on both the offenses of sexual assault and sexual abuse.

     Sexual abuse, classified as a category one felony, is a greater offense than sexual assault, which is classified as either a category one or category two felony. Therefore, sexual abuse is a greater offense than sexual assault. If for the same act, both a lesser included and a greater offense are proven, the court should enter a conviction on only the greater offense. Palik v. Kosrae, 8 FSM Intrm. 509 (App. 1998). Therefore, if the Defendantís actions are proven beyond a reasonable doubt for both offenses of sexual abuse and sexual assault, this Court should enter a conviction on only the greater offense of sexual abuse offense.

     The Defendant argued the affirmative defense of mental disease, disorder or defect. Kosrae State Code, Section 13.104(2)(e) provides that "Evidence that the defendant suffered from a physical or mental disease, disorder, or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense."

     Dr. Livingston Taulung testified regarding the Defendantís mental status. Dr. Livingston Taulung testified that during his interview with the Defendant, the Defendant admitted to fondling and licking

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the victimís vagina. Dr. Taulung also made observations and conducted questioning of the Defendant, which is described in his report dated June 2, 2004 (Defendantís Exhibit 1). Dr. Taulung concluded that the Defendant had a history of sexual abuse, which suggested that the Defendant may suffer from a sexual dysfunction. Dr. Taulung testified that the Defendant was not on the list of patients with mental disorders before the incident. Based upon his assessment of the Defendant, Dr. Taulung concluded that the Defendant did not suffer from any mental disease, disorder or defect.

     The affirmative defense of mental condition under Kosrae State Code, Section 13.104(2)(e) places the burden of proof upon the Defendant to establish the "facts which negative liability." The Defendant must establish these facts by a preponderance of the evidence. Runmar v. FSM, 3 FSM Intrm. 308 (App. 1988).

     Based upon his assessment of the Defendant, Dr. Taulung concluded that the Defendant did not have any mental defect, disorder or disease. The Defendant did not present any other evidence in support of his affirmative defense of mental condition. Therefore, I conclude, based upon the testimony of Dr. Taulung, and the other evidence presented at trial, that the Defendant did not establish "facts which negate liability" through mental condition, by a preponderance of the evidence. Accordingly, the affirmative defense of mental condition under Kosrae State Code, Section 13.104(2)(e) must be rejected.

     The Defendant was tried on three counts provided in the Information: Kidnapping, in violation of Kosrae State Code, Section 13.306; Sexual Assault, in violation of Kosrae State Code, Section 13.311; and Sexual Abuse, in violation of Kosrae State Code, Section 13.312.

1. Offense of Kidnapping.

The offense of kidnapping requires proof beyond a reasonable doubt of:

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.

Kos. S.C. ß 13.306.

     There was undisputed evidence that the Defendant had grabbed and held on to the arm of Mercy, and then forced her to walk across the street with him into the wooded area. Mercy was a six year old girl child who was unable to resist against the Defendant. The Defendant took Mercy into the wooded area and intended to secrete Mercy against her will in that wooded area. Defendant is not a parent of the victim. I find that the Defendant forcibly and without authority seized and detained Mercy with intent to cause Mercy to be secreted against her will. Based upon the evidence presented at trial, I find that the State did prove beyond a reasonable doubt all elements of the criminal offense of kidnapping. Defendant is found guilty and convicted of the criminal offense of Kidnapping, in violation of Kosrae State Code, Section 13.306.

2. Offense of Sexual Assault.

     The offense of sexual assault requires proof beyond a reasonable doubt of:

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

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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.

Kos. S.C. ß 13.311.

     The evidence is undisputed that the Defendant used his mouth and tongue to fondle and lick the vagina and vaginal area of the victim. These actions are defined as cunnilingus. Merriam-Websterís Collegiate Dictionary 305 (11th ed. 2004). It is undisputed that Mercy did try to resist the Defendantís actions, but the Defendant was too strong for her, a six year old child. I conclude, that the victim, a six year old child, was mentally and physically was incapable of resisting or understanding the nature of the Defendantís conduct. The Defendant, a 44 year old male, knew or should have known that the victim, was mentally or physically was incapable of resisting or understanding the nature of his conduct. I conclude that the Defendant did commit cunnilingus, and therefore did subject the victim to sexual penetration.

     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 no serious bodily orpsychological injury to the victim.

3. Offense of Sexual Abuse.

     The offense of assault and battery requires proof beyond a reasonable doubt of:

intentionally having sexual contact with another person who is less than thirteen years old or causing the person to have sexual contact with the offender. Sexual contact means any touching of the sexual or other intimate parts of another done with the intent of gratifying the sexual desire of either party.

Kos. S.C. ß 13.312

     The evidence is undisputed that the Defendant used his mouth and tongue to fondle and lick the vagina and vaginal area of the victim. It is undisputed that Mercy was a six year old child at the time of the offense. It is undisputed that the Defendant did masturbate during the time he was touching the victim. Based upon these facts, I conclude that the Defendant did intentionally have sexual contact with the victim, who is less than thirteen years old. Defendant touched the intimate parts of the victim with the intent of gratifying his own sexual desire. 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 abuse.

     Based upon the evidence presented at trial, my findings and decision on the offenses charged are entered above. The FSM Supreme Court, Appellate Division, has recommended that a trial court should only enter a conviction on the greater offense of two charged for the same act, but render a decision un both the greater and lesser offenses. Laion v. FSM, 1 FSM Intrm. 503 (App. 1984). If for the same act, both a lesser included and a greater offense are proven, the Court should enter a conviction on only the greater offense. Palik v. Kosrae, 8 FSM Intrm. 509 (App. 1998). Here, it is the same act of the Defendant that form the basis for the offenses of sexual assault and sexual abuse.

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     Accordingly, a decision is rendered on both the lesser offense of sexual assault and the greater offense of sexual abuse. Pursuant to Laion v. FSM and Palik v. Kosrae, a conviction will be entered only on the greater offense of sexual abuse and not on the lesser offense of sexual assault. Accordingly, the Defendant is found guilty and convicted of the offense of Sexual Abuse, in violation of Kosrae State Code, Section 13.312.

III. Judgment of Conviction.

     Defendant is found guilty and convicted on Counts One and Three of the Information, follows: one count of the criminal offense of Kidnapping, in violation of Kosrae State Code, Section 13.306 and one count of the criminal offense of Sexual Abuse, in violation of Kosrae State Code, Section 13.311.

IV. Order for Pre-sentence Report.

      The Court Marshal is ordered to complete a pre-sentence report no later than August 16, 2004 and provide it to the Court and the parties. The sentencing hearing is set for August 20, 2004.

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