KOSRAE STATE COURT TRIAL DIVISION

Cite as Kosrae v. Jonithan, 14 FSM Intrm. 94 (Kos. S. Ct. Tr. 2006)

[14 FSM Intrm. 94]

STATE OF KOSRAE,

Plaintiff,

vs.

KUN K. JONITHAN,

Defendant.

CRIMINAL CASE NO. 115-05

JUDGMENT OF CONVICTION; SENTENCING ORDER;

SUPPLEMENTAL SENTENCING ORDER

Yosiwo P. George

Chief Justice

Trial: February 13, 2006

Decided: February 17, 2006

Judgment Entered: February 20, 2006

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:   Steven George

                                    Office of the Public Defender

                                    P.O. Box 245

                                    Lelu, Kosrae   FM   96944

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HEADNOTES

Criminal Law and Procedure ) Controlled Substances

    The offense of unauthorized consuming, possessing, or giving of alcoholic drink requires proof of consuming or possessing alcoholic drink without attaining the age of twenty-one years. Kosrae v. Jonithan, 14 FSM Intrm. 94, 96 (Kos. S. Ct. Tr. 2006).

Evidence ) Judicial Notice

    When, at argument, the state presented the defendantís certificate of live birth, which indicated his age as less than 21 years of age on the date of the offense, the court can take judicial notice of the defendantís certificate of live birth, which is an official public Kosrae state government record. Kosrae v. Jonithan, 14 FSM Intrm. 94, 96 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Controlled Substances

    The offense of drunken and disorderly conduct requires proof of being drunk and disorderly on

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any street, road, or other public place from the voluntary use of intoxicating liquor. Kosrae v. Jonithan, 14 FSM Intrm. 94, 97 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Arrest and Custody

    Following commission of an offense, a police officer who has reasonable grounds to believe that a particular person has committed the offense may arrest the person. Kosrae v. Jonithan, 14 FSM Intrm. 94, 97 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Arrest and Custody; Criminal Law and Procedure ) Information

    When police officers viewed the defendant struggling and fighting and also heard the defendant swearing and yelling offensive words, based upon that conduct alone, the officers had reasonable grounds to believe that the defendant had committed one or more criminal offenses, including drunken and disorderly conduct, and disturbing the peace. The police officersí determination of reasonable grounds and probable cause is based upon their training and understanding of conduct which forms the basis of criminal offenses. Following an arrest of an accused, related or different criminal offenses may be charged in the information, based upon further investigation and research conducted by the state. Kosrae v. Jonithan, 14 FSM Intrm. 94, 97 (Kos. S. Ct. Tr. 2006).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

    This matter was called for trial on February 13, 2006. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Steven George, Public Defender. Police Officers Manuel Hasugulgam and Burdy Talley testified on behalf of the State. Nora C. Tilfas, Dorris Jonithan, Remina Obet and Palikkun Ezra testified on behalf of the Defendant.

    The Defendant was tried upon the two Counts set forth in the Information: Unauthorized consuming, possessing or giving of alcoholic drink, in violation of Kosrae State Code, Section 13.517(2) and Drunken and disorderly conduct, in violation of Kosrae State Code, Section 13.504. After the trial, I took the matter under advisement.

    I read my decision in open court on February 17, 2006. Prosecutor Paliknoa Welly appeared for the State. Defendant was represented by Steven George. Based upon the evidence presented at trial, I found that the Plaintiff had proved beyond a reasonable doubt that the Defendant had committed both of the charged offenses. This Judgment of Conviction sets forth my findings of facts, reasoning and rulings on motions and issues raised at the trial.

    Prior to beginning trial and also at the hearing on January 17, 2006, the issue of conflict of interest of the Presiding Justice was raised, due to his family relationship with the Public Defender. The conflict of interest was waived by the State and the Defendant.

I.   Findings of Facts.

    Based upon the evidence presented at the trial, I found the following facts. On November 5, 2005, at approximately 10 pm, Nora Tilfas and Remina Obet saw the Defendant laying on the ground beside the road in Lilinset, Utwe Municipality. The Defendant appeared drunk. Remina called the Defendantís family house to inform them of the Defendantís status. Remina was concerned that the Defendant would be struck by a car. Dorris Jonithan answered the telephone call from Remina. Dorris

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informed Palikkun Ezra, who was also a relative of the Defendant. Palikkun went to the location where the Defendant was seen. When Palikkun arrived, another boy was trying to wake up the Defendant. Defendant was belligerent and defensive to the boyís efforts to wake him up and was struggling with him on the public road. Palikkun tried to calm the Defendant, but was not successful. Then Police Officers Manuel Hasugulgam and Burdy Talley arrived at the scene.

    Police Officers Hasugulgam and Talley were conducting their regular patrol in their police vehicle when they approached a commotion at Lilinset. The Officers stopped their vehicle and stepped out to investigate the incident, which at first appeared to be a fight on the public road. The Officers saw the Defendant attempting to fight and struggling with Palikkun, swearing and yelling offensive words. The Police Officers also tried to calm the Defendant, but the Defendant did not cooperate. The Police Officers smelled alcohol upon the Defendant and testified that the Defendant appeared and acted drunk. When the Defendant refused to calm down and continued to struggle and fight, he was arrested and taken into custody. After being transported to the Central Police Station, the Defendant was booked.

II.   Conclusions of Law.

    The Defendant was tried on the two counts provided in the Information: Unauthorized consuming, possessing or giving of alcoholic drink, in violation of Kosrae State Code, Section 13.517(2) and Drunken and Disorderly Conduct, in violation of Kosrae State Code, Section 13.504. Following presentation of the Stateís case in chief, the Defendant moved for judgment of acquittal. I denied the Defendantís Motion, finding that the State had presented a prima facie case on both charges made in the Information. The Defendant then presented his case in chief.

I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all the elements for both of the charged criminal offenses.

A.  Unauthorized consuming, possessing or giving of alcoholic drink.

    After the Defendant was arrested and taken into custody, he was transported to the Central Police Station for booking. At the Police Station, the Defendant provided the booking Police Officer his age, which was recorded on the booking information sheet. The Defendantís age was less than 21 years. The Defendant smelled of alcoholic drinks. The Defendant appeared and acted drunk, seen by the two Police Officers, Ms. Tilfas and Ms. Obet. This evidence supports the inference that the Defendant had consumed alcoholic drinks. The offense of unauthorized consuming, possessing or giving of alcoholic drink, Kosrae State Code, Section 13.517(2) requires proof of consuming or possessing alcoholic drink without attaining the age of twenty-one years.

    Defendant argued that the State had not proved the age of the Defendant as being under twenty-one years, because no evidence of Defendantís age was presented at trial by the State. At argument, the State presented the Certificate of Live Birth for the Defendant, which indicated his age as less than 21 years of age on the date of the offense. I took judicial notice of the Defendantís Certificate of Live Birth, which is an official public Kosrae State government record. I concluded that the age requirement of Kosrae State Code, Section 13.517(2) had been satisfied.

    I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all the elements of charged criminal offense: Defendant did consume alcoholic drink without having attained the age of twenty-one years. I find the Defendant guilty and convict him of the offense of Unauthorized consuming, possessing or giving of alcoholic drink, in violation of Kosrae State Code, Section 13.517(2).

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B.  Drunken and Disorder Conduct.

    After the Defendant was awakened, he fought and struggled with at least two persons: Palikkun Ezra and the boy who awakened him. The Defendant was swearing and yelling other offensive words to Palikkun and those around him. Defendantís conduct took place on the public road. The Defendant also smelled of alcohol, acted and appeared drunk. Based upon the evidence presented, I made the inference that Defendantís consumption of alcoholic drink was voluntary. The offense of Drunken and Disorderly Conduct, Kosrae State Code, Section 13.504 requires proof of being drunk and disorderly on any street, road or other public place from the voluntary use of intoxicating liquor.

    I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all the elements of charged criminal offense: Defendant had consumed alcoholic drinks and was drunk, and was disorderly on the public road at Lilinset by struggling to fight, swearing and yelling offensive words. I find the Defendant guilty and convict him of the offense of Drunken and Disorderly Conduct, in violation of Kosrae State Code, Section 13.504.

C.  Probable Cause for Arrest.

    Defendant argued that there was inadequate probable cause for the arrest of the Defendant. Kosrae State Code, Section 17.1101 specifies the circumstances in which an arrest may be made without an arrest warrant. Section 17.1101(3) provides that following commission of an offense, a police officer who has reasonable grounds to believe that a particular person has committed the offense may arrest the person. Here, Police Officers Hasugulgam and Talley viewed the Defendant struggling and fighting with Palikkun Ezra, and also heard the Defendant swearing and yelling offensive words. Based upon that conduct alone, the Police Officers had reasonable grounds to believe that the Defendant had committed one or more criminal offenses, including drunken and disorderly conduct, and disturbing the peace. The Police Officersí determination of reasonable grounds and probable cause is based upon their training and understanding of conduct which forms the basis of criminal offenses. Following an arrest of an accused, related or different criminal offenses may be charged in the information, based upon further investigation and research conducted by the State. The Defendant may always request a preliminary examination pursuant to the KRCrP. In this case, the Defendant did not request a preliminary examination. Here, based upon the evidence presented, the Police Officers did have reasonable grounds and probable cause to arrest the Defendant without a warrant.

III.   Judgment of Conviction.

Defendant is found guilty and convicted on Counts One and Two of the Information.

IV.  Sentencing.

    Prior to imposing the sentence at the hearing on February 17, 2006, the Court allowed Counsel for the Defendant to speak on behalf of the Defendants. 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 found from the proceeding, in consideration of the nature of the violations, and the Defendantís background and potential, the Court imposes the following sentence upon the Defendant:

1.  On Count I, Unauthorized consuming, possessing or giving of alcoholic drink, the Defendant is sentenced to 12 months imprisonment, all suspended, on the condition that Defendant

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      successfully completes 12 months of probation.

2.  On Count II, Drunken and Disorderly Conduct, the Defendant is sentenced to 6 months imprisonment, all suspended, on the condition that Defendant successfully completes 6 months probation.

3.  The sentences imposed for Counts I and II shall be served concurrently for a total term of 12 months.

4.  On Count I, Defendant shall pay a fine in the amount of $30.00. On Count II, Defendant shall pay a fine in the amount of $20.00. The total amount of the fine, in the amount of $50.00 shall be paid to the Chief Clerk no later than May 17, 2006.

5.  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 pay the fine imposed by the due date, as specific in paragraph 4.

d.  Defendant shall enroll in and complete the substance abuse counseling program, as specified in the Supplemental Sentencing Order.

e.  Defendant shall not consume any alcoholic drinks during the entire term of probation.

6.  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.

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SUPPLEMENTAL SENTENCING ORDER

    As part of the sentence imposed given in this case, you are hereby ordered to attend twelve (12) one hour counseling sessions in alcohol/substance abuse with the Kosrae state Department of Health, Mental Health Division. Within two (2) business days of the date of service of this order, you must contact the Division of Mental Health and arrange for your first session. To arrange your first session, telephone Mental Health at 370-2579 or visit the Mental Health Offices at the Kosrae State Hospital in Tofol.

    You must then attend and participate in twelve (12) sessions, which will be scheduled by the Mental Health Division. Failure to attend all twelve (12) sessions is a violation of the terms of your sentence and probation in this case, and will result in the revocation of your suspended sentence. This means that if you fail to attend all twelve (12) sessions, you will again appear before the Court and you could be sentenced to be imprisoned at Kosrae State Jail for all or part of your suspended sentence.

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