FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Fritz
13 FSM Intrm. 85 (Chk. 2004)

[13 FSM Intrm. 85]

FEDERATED STATES OF MICRONESIA,
Plaintiff,
 
vs.
 
JACK FRITZ,
Defendant.
 
CRIMINAL CASE NO. 2003-1500
 
ORDER AND MEMORANDUM OF DECISION
 
Andon L. Amaraich
Chief Justice
 
Hearing: November 29, 2004
Decided: November 29, 2004
Memorandum Entered: December 21, 2004

APPEARANCES:

For the Plaintiff:           Matthew Crabtree, Esq.
                                     Assistant Attorney General
                                     FSM Department of Justice
                                     P.O. Box PS-105
                                     Palikir, Pohnpei FM 96941
 
For the Defendant:     Peter J. Stelzer, Esq.
                                    Office of the Public Defender
                                    P.O. Box 425
                                    Colonia, Yap FM 96943

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HEADNOTES

Criminal Law and Procedure ) Standard of Proof
     The standard of review that a court uses in considering a renewed motion for acquittal under Criminal Rule 29(c) is whether the evidence could "sustain" a conviction, i.e., such evidence that reasonable persons could find guilt beyond reasonable doubt. It is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade the factfinder to reach a verdict of guilt by the requisite standard. FSM v. Fritz, 13 FSM Intrm. 85, 86 (Chk. 2004).
 
Criminal Law and Procedure ) Standard of Proof
     When considering whether an allegation of variance warrants relief, the court must examine whether the variance was material or prejudicial, that is, whether it affected the substantial rights of the accused. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. The issue is whether the accused is given sufficient notice of the charges against him

[13 FSM Intrm. 86]

so as to be able to present his defense and not be taken by surprise by the evidence offered at the trial and also to be protected against another prosecution for the same offense. FSM v. Fritz, 13 FSM Intrm. 85, 87 (Chk. 2004).
 
Criminal Law and Procedure ) New Trial
     On a defendant’s motion, the court may grant a new trial to that defendant if required in the interests of justice. When the motion is not brought on the ground of newly-discovered evidence, the other grounds on which a motion for a new trial may be granted are if the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, or for any error of sufficient magnitude to require reversal on appeal. FSM v. Fritz, 13 FSM Intrm. 85, 87 (Chk. 2004).
 
Criminal Law and Procedure
     Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of other courts’ decisions, when an FSM court has not previously construed an FSM criminal procedure rule which is identical or similar to a U.S. rule, the court may look to U.S. sources for guidance in interpreting the rule. FSM v. Fritz, 13 FSM Intrm. 85, 87 n.1 (Chk. 2004).
 
Appellate Review ) Notice of Appeal; Criminal Law and Procedure ) New Trial
     If a timely motion for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. FSM v. Fritz, 13 FSM Intrm. 85, 87-88 (Chk. 2004).

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COURT’S OPINION

ANDON L. AMARAICH, Chief Justice:

     This came before the court on November 29, 2004 for hearing on defendant Jack Fritz’s Renewed Motion for Acquittal and his Motion for a New Trial. Both motions were denied orally. This memorandum memorializes and enters those denials.

     In support of both motions, Fritz contended that the court erred in giving the testimony of the former Secretary of Finance, John Ehsa, little or no weight; that the court erred in finding that there was sufficient evidence that Fritz had the requisite mental state; that the court erred in the legal meaning of "availability of funds"; and that there was a variance between the allegations and the evidence. Fritz also contends that certain further findings were required.

     The standard of review that a court uses in considering a renewed motion for acquittal under Criminal Rule 29(c) is

whether the evidence could "sustain" a conviction, i.e., such evidence that reasonable persons could find guilt beyond reasonable doubt. It is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade the [factfinder] to reach a verdict of guilt by the requisite standard.

Andohn v. FSM , 1 FSM Intrm. 433, 442 (App. 1984) (emphasis in original).

      Fritz presented legal arguments that he had previously made concerning the weight to be given

[13 FSM Intrm. 87]

Ehsa’s testimony, the sufficiency of the evidence, and the legal meaning of certain terms in the statutes. The court has carefully reconsidered these arguments and found nothing persuasive.

      Fritz further contends that there was a variance between what he was charged with and what he was convicted of. When considering whether an allegation of variance warrants relief, the court must

examine whether the variance was material or prejudicial, that is, whether it affected the substantial rights of the accused. . . . [A]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. FSM Crim. R. 52(a). [T]he issue is whether the accused is given sufficient notice of the charges against him so as to be able to present his defense and not be taken by surprise by the evidence offered at the trial and also be protected against another prosecution for the same offense.

Otto v. Kosrae , 5 FSM Intrm. 218, 222 (App. 1991). There was no such material or prejudicial variance in this case. Fritz had sufficient notice of the charges against him so as to be able to present his defense and not be taken by surprise by the evidence offered at the trial. The notice was also sufficient to protect him against another prosecution for the same offense.

     Furthermore, the court made the findings necessary for its decision even though neither party made a timely request for special findings. Fritz has not shown that the evidence could not sustain a conviction, or that reasonable persons could not find guilt beyond reasonable doubt from the evidence. The renewed motion for acquittal was therefore denied.

     On a defendant’s motion, the court "may grant a new trial to that defendant if required in the interests of justice." FSM Crim. R. 33. The motion is not brought on the ground of newly-discovered evidence. The other grounds on which a motion for a new trial may be granted are "[i]f the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted," 3 Charles Alan Wright, Federal Practice and Procedure § 553, at 246 (1982) (discussing U.S. Criminal Rule 33 which is identical to FSM Rule 33)1 , or for "[a]ny error of sufficient magnitude to require reversal on appeal," id. § 556, at 306.

     The court, having carefully considered the arguments presented, concluded that the verdict is not contrary to the weight of the evidence. Furthermore, the court was not persuaded that it has committed any error of sufficient magnitude to require reversal on appeal. The motion for a new trial was accordingly denied.

     Fritz has indicated his intention to include this ruling on the two motions as part of his appeal and asks that the court extend the time from November 29, (the day the decision was announced) to December 20, 2004 for him to file a new notice of appeal. Although the decision was announced on November 29, 2004, it will not be entered until this memorandum is entered. "If a timely motion . . . for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion."

[13 FSM Intrm. 88]

FSM App. R. 4(b). By operation of Rule 4(b), the time to appeal this ruling is extended to ten days after the entry of this order.

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Footnotes:

1. Although the court must first look to FSM sources of law and circumstances to establish legal requirements in criminal cases rather than begin with a review of other courts’ decisions, Alaphonso v. FSM, 1 FSM Intrm. 209, 214 (App. 1982), when an FSM court has not previously construed an FSM criminal procedure rule which is identical or similar to a U.S. rule, the court may look to U.S. sources for guidance in interpreting the rule, see, e.g., Engichy v. FSM, 1 FSM Intrm. 532, 541 (App. 1984) (criminal rule 7 construed); Andohn v. FSM, 1 FSM Intrm. 433, 441 (App. 1984); FSM v. Wainit, 11 FSM Intrm. 1, 11 n.2 (Chk. 2002).