KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Anton
12 FSM Intrm. 606 (Kos. S. Ct. Tr. 2004)

[12 FSM Intrm. 606]

STATE OF KOSRAE,
Plaintiff,
 
vs.
 
LIPAR A. ANTON,
Defendant.
 
CRIMINAL CASE NO. 20-04
 
JUDGMENT OF CONVICTION; ORDER SETTING SENTENCING HEARING
 
Yosiwo P. George
Chief Justice
 
Trial: August 18, 2004
Decided: August 23, 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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HEADNOTES

Criminal Law and Procedure ) Burglary
     The offense of burglary requires proof beyond a reasonable doubt of 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. Anton, 12 FSM Intrm. 606, 609 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Standard of Proof
     A defendant’s intention must be inferred from what he says and what he does. An inference is not permitted if it cannot reasonably be drawn from the facts in evidence. Kosrae v. Anton, 12 FSM Intrm. 606, 609 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Burglary
     When there was no evidence presented that the defendant touched or felt the victim in any way so as to infer his intent to commit a sexual assault or other felony upon her and there was no other
 
[12 FSM Intrm. 607]
 
evidence presented that the defendant committed any other acts to support the intent to commit a sexual assault, larceny, assault, assault and battery, or other felony, the state did not prove beyond a reasonable doubt the criminal offense of burglary and therefore, the defendant must be acquitted of that offense. Kosrae v. Anton, 12 FSM Intrm. 606, 609 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Malicious Mischief
     The criminal offense of malicious mischief requires proof beyond a reasonable doubt of wilfully destroying, damaging or injuring property belonging to another. Kosrae v. Anton, 12 FSM Intrm. 606, 609 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Standard of Proof
     Eyewitness testimony is not necessary to prove each fact or element of a criminal offense. Facts may be shown by circumstantial evidence. Kosrae v. Anton, 12 FSM Intrm. 606, 609 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Standard of Proof
     Proof of guilt may be by either direct evidence, circumstantial evidence or both. Direct evidence is evidence, which if believed, proves the existence of facts in issue without inference or presumption. Circumstantial evidence is evidence of facts and circumstances from which the existence or nonexistence of facts in issue may be inferred. Kosrae v. Anton, 12 FSM Intrm. 606, 609-10 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Malicious Mischief
     When testimony regarding the prior, good, and undamaged condition of the window screen and door latch is undisputed and testimony regarding the torn and damaged condition of the window screen and door latch after finding the defendant in the home is also undisputed, that is circumstantial evidence of the defendant's actions to damage the window screen and door latch and the court may infer from the evidence regarding the condition of the window screen and door latch before and after the defendant's entry into the home, that the defendant committed the damage to the window screen and door latch. Accordingly, the state proved beyond a reasonable doubt that the defendant did wilfully damage or injure property belonging to another and is guilty of the offense of malicious mischief. Kosrae v. Anton, 12 FSM Intrm. 606, 610 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Trespass
     The criminal offense of trespass requires proof beyond a reasonable doubt of entering the dwelling place or property of another without consent and when it is undisputed that the defendant entered another’s dwelling place without consent at approximately 5:50 a.m., the state has proven beyond a reasonable doubt all of the elements of the criminal offense of trespass. Kosrae v. Anton, 12 FSM Intrm. 606, 610 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Disturbing the Peace
     The criminal offense of disturbing the peace requires proof beyond a reasonable doubt of wilfully committing any act which unreasonably annoys or disturbs another so that he is deprived of peace and quiet. Kosrae v. Anton, 12 FSM Intrm. 606, 610 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Disturbing the Peace
     When it is undisputed that the defendant did lay down next to a girl while she was sleeping and pulled the sheets from her and this act woke up her from her sleep and caused her to be frightened by the defendant's acts and when it is undisputed that the defendant's acts caused the girl’s mother to be woken from her sleep by her daughter's calls, and that the defendant's acts unreasonably disturbed the mother, the state has proven beyond a reasonable doubt the elements of the criminal offense of
 
[12 FSM Intrm. 608]
 
disturbing the peace, against two victims. Kosrae v. Anton, 12 FSM Intrm. 606, 610 (Kos. S. Ct. Tr. 2004).

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

     This matter was called for trial on August 18, 2004. Edwin Mike, State Prosecutor appeared for the State. Defendant was represented by Harry Seymour, Public Defender. The following persons testified at the trial on behalf of the Plaintiff: Betty K. Luey, Lori-Ann K. Luey, Otani Jacob Aliksa and Police Officer Kiobu Luey.

     The Defendant was tried on the five Counts stated in the Information: Burglary, in violation of Kosrae State Code, Section 13.403; Malicious Mischief, in violation of Kosrae State Code, Section 13.408; Trespass, in violation of Kosrae State Code, Section 13.412; Disturbing the Peace (2 counts), in violation of Kosrae State Code, Section 13.503.

     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 malicious mischief, trespass and disturbing the peace (2 counts). I therefore find the Defendant guilty and convict him of the criminal offenses of malicious mischief, trespass, and disturbing the peace (2 counts). I further find that the Plaintiff had failed to prove beyond a reasonable doubt all the elements of the criminal offense of burglary. The Defendant is acquitted of the criminal offense of burglary. 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. The evidence was undisputed. On the evening of February 6, 2004, Betty Luey, wife of Kiobu, was the last person to go to sleep that night. She locked the door. When she went to sleep, the door latch and the window screen were in good condition, not torn or broken.

     In the early morning of February 7, 2004, at approximately 5:50 am, the Defendant entered the private residence of one Anguri Jacob, where Kiobu Luey and his family resided. Lori-Ann Luey, the twelve year old daughter of Kiobu Luey, was sleeping in the main living area of the house, when the Defendant laid down next to her and pulled the cover sheets from her. Lori-Ann woke up, and at first thought it was her father who had laid down next to her and pulled the sheets. The Defendant pulled the sheets again from Lori-Ann and kicked her in the leg. Lori-Ann awoke and looked again at the Defendant. This time Lori-Ann saw that he was not her father, was frightened and called for her mother. Lori-Ann's mother, Betty Luey, awoke and went to another room to get a flashlight. The Defendant got up and ran to the door.

     Betty Luey retrieved the flashlight and shined the light upon the Defendant, who was struggling to open the door. Betty asked the Defendant "What are you doing here?" The Defendant stated that he was visiting Otani. Otani is the brother of Betty who lives in the same house. Betty then went to Otani's room, and woke up Otani. Otani told Betty that he did not invite the Defendant to the house and did not know why he was there. Otani spoke with the Defendant, who claimed that he was very drunk.

[12 FSM Intrm. 609]

     Betty then returned to the door where the Defendant was standing. The Defendant was gone. The door latch was broken and the window screen was torn. Betty then called the police to report the break in by the Defendant.

II. Conclusions of Law.

     The Defendant was tried on the five Counts stated in the Information: Burglary, in violation of Kosrae State Code, Section 13.403; Malicious Mischief, in violation of Kosrae State Code, Section 13.408; Trespass, in violation of Kosrae State Code, Section 13.4122; Disturbing the Peace (2 counts), in violation of Kosrae State Code, Section 13.503.

A. Burglary

     The offense of burglary requires proof beyond a reasonable doubt of: "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." Kos. S.C. § 13.403.

     The State argued that the Defendant had the intent to commit a felony such as sexual assault, assault or assault and battery, through his actions of laying down next to Lori-Ann and pulling the sheets from her. The intention of the Defendant must be inferred from what he says and what he does. FSM v. Boaz, 1 FSM Intrm. 22 (Pon. 1981).

     There was no evidence presented that the Defendant touched or felt Lori-Ann in any way to infer his intent to commit a sexual assault or other felony upon Lori-Ann. There was no other evidence presented that the Defendant committed any other acts to support the intent to commit a sexual assault or other felony. An inference is not permitted if it cannot reasonably be drawn from the facts in evidence. Este v. FSM, 4 FSM Intrm. 132 (App. 1989). Based upon the facts in evidence, I cannot reasonably infer from the Defendant actions that he intended to commit a sexual assault or other felony. Furthermore, there was no evidence presented to support a inference of an intent to commit, larceny, assault or assault and battery. Accordingly, I find that the State did not prove beyond a reasonable doubt all of the elements of the criminal offense of burglary. Therefore, the Defendant must be acquitted of the offense of burglary.

B. Malicious Mischief

      The criminal offense of malicious mischief requires proof beyond a reasonable doubt of: "wilfully destroying, damaging or injuring property belonging to another." Kos. S.C. § 13.408.

      Defendant argued that the State did not prove beyond a reasonable doubt the offense of malicious mischief because it did not present eyewitness testimony as to the Defendant's damage to the window screen and door latch. The testimony of Betty Luey regarding the condition of the window screen and door latch is undisputed. The Defendant did not present any evidence regarding the condition of the window screen and door latch before or after the Defendant's entry into the Luey home. Counsel's statements constitute argument, not evidence. In re Attorney Disciplinary Proceeding, 9 FSM Intrm. 165 (App. 1999).

     Eyewitness testimony is not necessary to prove each fact or element of a criminal offense. Facts may be shown by circumstantial evidence. Loch v. FSM, 1 FSM Intrm. 566 (App. 1984) (death and cause of death can be shown by circumstantial evidence).

Proof of guilt may be by either direct evidence, circumstantial evidence or both. Direct

[12 FSM Intrm. 610]

evidence is evidence, which if believed, proves the existence of facts in issue without inference or presumption. Circumstantial evidence is evidence of facts and circumstances from which the existence or nonexistence of facts in issue may be inferred.

FSM v. Ting Hong Oceanic Enterprises , 8 FSM Intrm. 166, 171 (Pon. 1997) (citation omitted).

     The testimony of Betty Luey regarding the good and undamaged condition of the window screen and door latch before her going to sleep is undisputed. The testimony of Betty Luey regarding the torn and damaged condition of the window screen and door latch after finding the Defendant in her home, who then tried to unlock the door, is also undisputed. This evidence is circumstantial evidence of the Defendant's actions to damage the window screen and door latch. Based upon the testimony of Betty Luey, I infer from the evidence regarding the condition of the window screen and door latch before and after the Defendant's entry into the home of the Luey family, that the damage to the window screen and door latch was committed by the Defendant. Accordingly, I find that the State did prove beyond a reasonable doubt that the Defendant did wilfully damage or injure property belonging to another. Defendant is found guilty and convicted of the offense of malicious mischief.

C. Trespass

     The criminal offense of trespass requires proof beyond a reasonable doubt of entering the dwelling place or property of another without consent. Kos. S.C. § 13.412. It is undisputed that the Defendant did enter the dwelling place of Kiobu Luey and his family without consent on February 7, 2004 at approximately 5:50 am. I find that the State did prove beyond a reasonable doubt all of the elements of the criminal offense of trespass. Defendant is found guilty and convicted of the offense of trespass.

D. Disturbing the Peace.

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

     It is undisputed that the Defendant did lay down next to Lori-Ann while she was sleeping and pulled the sheets from her. This act woke up Lori-Ann from her sleep and caused her to be frightened by the Defendant's acts. It is undisputed that the Defendant's acts caused Betty Luey to be woken up from her sleep, by her daughter's calls, and that the Defendant's acts unreasonably disturbed Betty. I find that the State has proven beyond a reasonable doubt the elements of the criminal offense of disturbing the peace, against two victims: Lori-Ann Luey and Betty Luey. Defendant is found guilty and convicted of two counts of the offense of disturbing the peace.

III. Judgment of Conviction.

     Plaintiff had proven beyond a reasonable doubt all the elements of the criminal offenses of malicious mischief, trespass and disturbing the peace (2 counts). I therefore find the Defendant guilty and convict him of the following criminal offenses: Malicious Mischief, in violation of Kosrae State Code, Section 13.408; Trespass, in violation of Kosrae State Code, Section 13.412; Disturbing the Peace (2 counts), in violation of Kosrae State Code, Section 13.503.

     Plaintiff did not prove beyond a reasonable doubt all the elements of the criminal offense of burglary. Therefore, I acquit the Defendant of the following criminal offense: Burglary, in violation of Kosrae State Code, Section 13.403.

[12 FSM Intrm. 611] 

IV. Sentencing.

The sentencing hearing shall be set for the week of September 6, 2004.

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