KOSRAE STATE COURT TRIAL DIVISION

Cite as Kosrae v. Tulensru, 14 FSM Intrm. 115 (Kos. S. Ct. Tr. 2006)

[14 FSM Intrm. 115]

STATE OF KOSRAE,

Plaintiff,

vs.

ESPIL TULENSRU,

Defendant.

CRIMINAL CASE NO. 59-05

JUDGMENT OF CONVICTION; SENTENCING ORDER;

SUPPLEMENTAL SENTENCING ORDER

Yosiwo P. George

Chief Justice

Trial: January 26, 2006

Decided: February 20, 2006

Hearing: February 27, 2006

Decided: February 28, 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:   Harry A. Seymour, Esq.

                                    Office of the Public Defender

                                    P.O. Box 245

                                    Lelu, Kosrae   FM   96944

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HEADNOTES

Criminal Law and Procedure ) Traffic Offenses

    The offense of driving under the influence requires proof of two elements: driving a vehicle, and being under the influence of alcoholic drink, controlled substance, or other intoxicating substance. Kosrae v. Tulensru, 14 FSM Intrm. 115, 120 (Kos. S. Ct. Tr. 2006).

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Criminal Law and Procedure ) Traffic Offenses

    When the defendant failed two of the three field sobriety tests administered to him, coupled with the evidence regarding the smell of alcoholic drinks upon his breath, his intoxicated appearance, his intoxicated conduct, his failure to stop at a stop sign, his carrying of a beer can to another car after the accident, the state has presented evidence beyond a reasonable doubt that the defendant was impaired and driving under the influence of alcoholic drinks. Kosrae v. Tulensru, 14 FSM Intrm. 115, 121 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Interrogation and Confession

    Any statements or confessions made after arrest but before accused was provided his rights is subject to suppression of the statements or confession, but when there was no statement and no confession made by the defendant between the time of arrest and the time of his booking a short time later, there are no statements or confessions to suppress. Kosrae v. Tulensru, 14 FSM Intrm. 115, 121 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Traffic Offenses; Evidence

    When there was undisputed evidence presented of the defendantís performance of other physical activity, the court can infer that the defendantís ailments did permit the defendant to complete a variety of activities requiring movement of his arms, legs and body, and did not affect his performance of the field sobriety tests. Kosrae v. Tulensru, 14 FSM Intrm. 115, 122 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Controlled Substances

    The offense of unauthorized consuming, possessing or giving of alcoholic drink, Kos. S.C. ß 13.517(4), requires proof of consuming an alcoholic drink or possessing an open container of alcoholic drink in a public place. Kosrae v. Tulensru, 14 FSM Intrm. 115, 122 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Controlled Substances; Evidence

    When it is undisputed that a public road is a public place and that the defendant was carrying and possessing an open beer can on the public road, the court can draw the inference from the facts in evidence that the open beer can possessed by the defendant on the public road was an open beer can containing beer, which is an alcoholic drink. Kosrae v. Tulensru, 14 FSM Intrm. 115, 122 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Defenses

    A contention that the other driver involved in the accident should have been arrested, and not the defendant, is not a defense because the criminal case charges the defendant, and not the other driver, and it is within the stateís prosecutorial discretion to choose who to charge. Kosrae v. Tulensru, 14 FSM Intrm. 115, 122 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Pleas

    The term "nolo contendere" is a Latin phrase meaning "I will not contest it." It is a plea which has a similar legal effect as pleading guilty. The plea of nolo contendere has been described as a confession, implied confession, admission of guilt of all facts pleaded, conviction, and a guilty plea. A plea of nolo contendere is considered the functional and substantive equivalent of a guilty plea. Kosrae v. Tulensru, 14 FSM Intrm. 115, 123 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Pleas

    The principal difference between a plea of guilty and a plea of nolo contendere is that the plea of nolo contendere may not be used against the defendant in a civil action based upon the same acts. A plea of nolo contendere admits for the purpose of the criminal case all the elements of the offense charged against the defendant, and gives the court complete power to sentence the defendant for that

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offense. Kosrae v. Tulensru, 14 FSM Intrm. 115, 123 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Sentencing

    In Kosrae, in imposing a sentence, state law specifically permits the court to consider a convicted personís criminal record by hearing evidence of the convictedís good or bad character, including a criminal record. A criminal record includes the record or file of the criminal proceedings against an accused, and necessarily includes documentation of disposition of the case, including conviction and sentencing based upon a plea of guilty or nolo contendere, judgment of acquittal, or dismissal. Consequently, a plea of nolo contendere in a prior case and the judgment and sentencing, may be heard and considered in sentencing a defendant. Kosrae v. Tulensru, 14 FSM Intrm. 115, 124 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Sentencing

    A defendantís criminal record is considered evidence of the defendantís character and is therefore admissible in a sentencing hearing. Kosrae v. Tulensru, 14 FSM Intrm. 115, 124 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Sentencing

    A court may consider all criminal matters in which the defendant was accused, even if not convicted. A sentencing judgeís authority is to make broad inquiry into the defendantís background. Specifically the court may consider even cases of which the defendant was accused but not convicted. Kosrae v. Tulensru, 14 FSM Intrm. 115, 124 (Kos. S. Ct. Tr. 2006).

Evidence

    The Kosrae Rules of Evidence do not require corroboration of undisputed testimony. Kosrae v. Tulensru, 14 FSM Intrm. 115, 125 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Controlled Substances

    Possessing an open container of alcoholic drink in a public place except when such place is closed to the general public for the purpose of conducting a private party, reception or social gathering and admission is by invitation or as otherwise provided by law can constitute the offense of unauthorized consuming, possessing or giving of alcoholic drink. The statute does not require the defendant to consume or intend to consume alcoholic drink from the open container to be guilty of the offense. Possession is sufficient. Kosrae v. Tulensru, 14 FSM Intrm. 115, 125 (Kos. S. Ct. Tr. 2006).

Criminal Law and Procedure ) Sentencing

    If a defendant is well enough to attend the sentencing hearing at the courthouse, the defendant must appear at the courthouse, but if he is not well enough to attend the sentencing hearing at the courthouse, then the sentencing hearing will be held at the hospital in a conference room or other suitable location at which the sentencing hearing can be conducted. Kosrae v. Tulensru, 14 FSM Intrm. 115, 126 (Kos. S. Ct. Tr. 2006).

Courts ) Recusal; Criminal Law and Procedure ) Sentencing

    When the justice sentencing the defendant has resigned from the court and it is the justiceís final day of service as a justice, a motion for recusal from sentencing on that ground is meritless. It is within the judgeís authority and is his duty to conduct the sentencing hearing especially since the sentencing hearing was delayed at the defendantís request to address the issue of admission of defendantís prior criminal record. Kosrae v. Tulensru, 14 FSM Intrm. 115, 126 (Kos. S. Ct. Tr. 2006).

Courts ) Recusal; Criminal Law and Procedure ) Sentencing

    That the judge has other criminal cases pending which he has not completed, and has granted

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continuances in other cases are meritless grounds to recuse the judge from sentencing the defendant on his final day as a judge when those matters are unrelated to this case and trial had been completed and the only action left is the imposition of sentence. Kosrae v. Tulensru, 14 FSM Intrm. 115, 126-27 (Kos. S. Ct. Tr. 2006).

Courts ) Recusal

    A verbal motion to recuse will be denied when the motion is untimely; it fails to show any actual partiality or extrajudicial bias by the presiding justice; and is not supported by an affidavit, or any legal authority. Kosrae v. Tulensru, 14 FSM Intrm. 115, 127 (Kos. S. Ct. Tr. 2006).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

    This matter was called for trial on January 26, 2006. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. Juleen Tolenoa, Police Officer Stomar Palik, Larry Kun Mackwelung, and Police Officer Jerry A. Palsis testified on behalf of the State. Police Officer Stomar Palik, Alister Tolenna, Espil Tulensru, Dr. Tholman Alik, Hilton C. Phillip and Junior Jack served as witnesses for the Defendant.

    The Defendant was tried upon the two Counts set forth in the Information: Driving Under the Influence, in violation of Kosrae State Code, Section 13.710 and Unauthorized consuming, possessing or giving of alcoholic drink, in violation of Kosrae State Code, Section 13.517(4). After the trial, I took the matter under advisement.

    I read my decision in open court on February 20, 2006. Prosecutor Paliknoa Welly appeared for the State. Defendant was represented by Harry Seymour. 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.

I.   Findings of Facts.

    Based upon the evidence presented at the trial, I found the following facts. On or about May 7, 2005, at approximately 1:40 pm in the afternoon, the Defendant was driving his vehicle in Tafunsak Municipality. Defendant was proceeding south on the inner public road in Tafunsak towards Lelu as he approached the intersection at Sronsrono. The road upon which Defendant was driving had a stop sign.

    Juleen Tolenoa was driving her vehicle north on the circumferential road towards Tafunsak when she passed the Sronsrono Shopping Center. At Sronsrono Shopping Center, Junior Jack, a Sennyís employee, was standing at the door when he saw Ms. Tolenoaís car pass by, coming from the Lelu direction. Junior testified that Ms. Tolenoaís car was coming fast. Ms. Tolenoa approached the Sronsrono intersection, and turned left onto the inner road.

    The Defendant who was traveling southbound on the inner road did not stop properly at the stop sign. Defendantís vehicle collided with Ms. Tolenoaís vehicle. Defendant exited his car and walked over to Ms. Tolenoaís vehicle on the public road, while carrying an open beer can. Defendant approached Ms. Tolenoa and demanded that she pay for the damages to his vehicle. On the day of the

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accident, Ms. Tolenoa did not possess a driverís license.

    Larry Kun Mackwelung heard the crash of the vehicles at his house. After hearing the crash, he went to the scene of the accident. Mr. Mackwelung did not witness the accident.

Officer Stomar Palik received a call reporting the accident and responded with Officer Jerry Palsis in a police vehicle. When Officers Palik and Palsis arrived at the scene at Sronsrono intersection, Police Officer Ludick Nithan, who was off-duty, was already present. Officer Palsis conducted the preliminary investigation of the accident scene. Officer Palsis saw that the Defendant appeared drunk and acted drunk. Officer Palsis testified that looking at Defendantís face, he determined that Defendant was intoxicated. Officer Palsis has served as a Police Officer for more than two years and had substantial experience with intoxicated persons.

    Officer Nithan instructed Officer Palik to conduct the Field Sobriety Tests (FSTs) upon the Defendant. Officer Palik had served as a Police Officer for more than one year and had administered the FSTs on more than six occasions. Officer Palik had received training on the administration and evaluation of FSTs from the Chief of Police and also from the supervising Police Officer. Officer Palik administered the FSTs according to the training that he had received.

    Officer Palik testified that during the training, they were instructed on performance of the FSTs, preliminary questions to ask before performance of the FSTs, and assessment of the FSTs performed by a suspect. Failure of two out of three FSTs by a suspect indicated impairment and served as the basis for arrest of a suspect and charging of the offense of driving under the influence.

    Officer Palik asked the Defendant whether he had any disability or problems with his body that would affect his performance of the FSTs. Defendant responded "no." Officer Palik explained, demonstrated and administered the first FST: touching the finger to nose. Defendant did not touch his nose with his finger. Instead Defendant touched his forehead. Officer Palik determined that Defendant had failed the first FST. Officer Palik then explained, demonstrated and administered the second FST: walk the straight line. Defendant was able to complete walking the straight line. Officer Palik determined that the Defendant had passed the second FST. Officer Palik then explained, demonstrated and administered the third FST: the one-legged stand. Defendant was not able to stand on one leg pursuant to the instructions given by Officer Palik. Officer Palik determined that Defendant had failed the third FST.

    Officer Palik reported to the senior Police Officer that the Defendant had failed two out of the three FSTs. Officer Palik was instructed to arrest the Defendant. Defendant was arrested and placed in the police vehicle. Officer Palsis smelled the order of alcohol on the Defendant while in the police vehicle. Defendant was taken to the Central Police Station and booked.

    Defendant was then automatically released on conditions later on the same day, May 7, 2005, at approximately 6 pm.

    Alistor Tolenna testified that they had been together with the Defendant on May 7, 2005 in Melo, Tafunsak, to harvest some taro. Mr. Tolenna admitted that he had brought with them one six pack of beer. Mr. Tolenna claimed that he had drank five out of the six beers, and left one beer in the Defendantís car. Mr. Tolenna testified that he did not know whether Defendant had consumed the one beer that he had left in the car. After digging the taro, Defendant dropped off Mr. Tolenoa. Mr. Tolenoa testified that the Defendant had dropped him off at approximately six pm on the day in question. Based upon Mr. Tolenoaís testimony that the Defendant dropped him off after digging taro, at approximately six pm Ė at which time Defendant had already been in custody of the Kosrae State

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Jail ) I rejected Mr. Tolennaís testimony as not credible.

    Defendant also testified that he had been coming from Melo after digging taro with Alistor Tolenna. After dropping of Mr. Tolenna, he was driving towards Lelu on the inner road when he approached the Sronsrono intersection. Defendant testified that he stopped at the stop sign, looked to the Tafunsak side, looked to the Walung side and then began to move. Then the accident occurred with Ms. Tolenoaís vehicle. Defendant called the police, and Officer Nithan appeared first at the scene, but not in police uniform.

    Defendant claimed that when Police Officer Palik asked him about problems with his body, he answered "yes", that he had pain in the leg and pain the back. Defendant had been referred outside Kosrae State for medical treatment. In considering the testimony of Defendantís actions at the stop sign, I found the testimony provided by Ms. Juleen Tolenoa to be more credible. Therefore, I rejected the Defendantís testimony on that issue as not credible.

    Dr. Tholman Alik reported that Defendant suffered from several ailments. Defendant suffers from diabetes and also has a vertebrae disc problem in his back. Defendant also suffers from high cholesterol, arthritis and skin problems. Dr. Alik explained that the back problem, also called a lumbar spinal problem, sometimes causes numbness. Dr. Alik did not know whether any of Defendantís problems would have affected his performance of the FSTs.

    Hilton C. Phillip testified that he was asked by the Defendant to take photos of the accident scene. The photographs were taken on January 24, 2006, the date of this trial, and more than eight months after the date of the accident. The photographs were not admitted into evidence, as there was no evidence presented to show that the photographs accurately reflected the scene of the accident on May 7, 2005.

II.   Conclusions of Law.

    The Defendant was tried on the two counts provided in the Information: Driving Under the Influence, in violation of Kosrae State Code, Section 13.710 and Unauthorized consuming, possessing or giving of alcoholic drink, in violation of Kosrae State Code, Section 13.517(4). 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.  Driving Under the Influence.

    The offense of driving under the influence also requires proof of two elements: driving a vehicle, and being under the influence of alcoholic drink, controlled substance or other intoxicating substance. Kos. S.C. ß 13.710.

    I have considered the evidence regarding the Police Officer Palikís knowledge, training, and interpretation of his observations, in determining whether the evidence of the FSTs are admissible to show impairment of the Defendant. In particular, I considered Officer Palikís tenure as a police officer for more than one year, trainings that he received on the administration of the FSTs from the Chief of Police and his supervising officer, and experience in administration of the FSTs. I considered Officer Palikís training on preliminary questions to ask before performance of the FSTs, and assessment of the FSTs performed by a suspect.

    The Defendant testified that he was asked about any physical problems by Officer Palik prior to the administration of the FSTs and he responded "yes." Officer Palik testified that he did ask Defendant about any physical problems he had in performing the FSTs and that the Defendant responded "no." The Incident Report completed by Officer Palik also referenced the Defendantís response as "no". I

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found Officer Palikís testimony to be more credible, and rejected Defendantís testimony.

    I further considered Police Officer Palikís demonstration of each FST before it was administered and obtaining the Defendantís verbal acknowledge of understanding the instructions for the performance of the FST. With respect to Police Officer Palikís observation of the finger to nose, FST, I considered his observation that the Defendant did not touch his nose, but instead touched his forehead. I conclude that Police Officer Palikís interpretation that the Defendant failed to successfully complete the finger to nose FST according to instructions given was correct, based upon his observation of the Defendantís actions. With

respect to Officer Palikís observation of the one leg stand FST, I considered his observation that the Defendant was unable to follow his instructions. I conclude that Police Officer Palikís interpretation that the Defendant failed to successfully complete the one leg stand FST according to the instructions given was correct, based upon his observation of the Defendantís actions.

    Based upon the evidence presented at trial, I conclude that Police Officer Palik received adequate training in the administration and evaluation of the FSTs during his tenure as a Police Officer. Police Officer Palik also had substantial experience in the administration of the FSTs as a Police Officer, and was competent in the administration of the FSTs in accordance with his training. I conclude that Police Officer Palikís administration of the FSTs upon the Defendant were made in substantial compliance with the FST standards established through his training. I further conclude that Officer Palikís observations that the Defendant did not successfully complete two FSTs as instructed were correct.

    Based upon the evidence presented regarding the FSTs administered to the Defendant, coupled with the evidence regarding the smell of alcoholic drinks upon Defendantís breath, Defendantís intoxicated appearance, Defendantís intoxicated conduct, the Defendantís failure to stop at the stop sign, the Defendantís carrying of a beer can to Ms. Tolennaís car after the accident, I conclude that State has presented evidence beyond a reasonable doubt that Defendant was impaired and driving under the influence of alcoholic drinks.

    The Defendant challenges constitutionality of Kosrae State Code, Section 13.710, the use of the FSTs as evidence of impairment and a basis for proof of driving under the influence, and the application of the FSTs in this case. Defendantís Motion for Declaratory Judgment and for Suppression of Evidence were previously denied, by Order entered on November 9, 2005. This Courtís ruling entered on November 9, 2005 remains unchanged and valid. Defendantís argument is rejected.

    Defendant argued at trial and at the hearing on February 20, 2006 that he was not provided his "Miranda rights" immediately after arrest. Defendant was provided his Miranda rights upon being booked into custody at the Central Police Station. Any statements or confessions made after arrest but before accused was provided his rights is subject to suppression of the statements or confession. Kosrae v. Erwin, 11 FSM Intrm. 192, 194 (Kos. S. Ct. Tr. 2002). Here, there was no statement and no confession made by the Defendant between the time of arrest and the time of his booking at the Central Police Station a short time later. Therefore, there are no statements or confessions to suppress. The Defendant did not file any motion to suppress any statements or confessions. There has been no prejudice to the Defendant by not providing his rights immediately after arrest. Defendantís argument is rejected.

    Defendant argued that Officer Palik did not consider his medical ailments in the administration of the FSTs. Dr. Alik testified to Defendantís ailments: diabetes, a vertebrae disc problem, high cholesterol, arthritis and skin problems. Dr. Alik testified that he did not know whether any of the Defendantís ailments would affect his performance on the FSTs. Defendant did not present evidence of medical certainty or medical probability as to the impact of his ailments upon performance of the

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FSTs. Furthermore, there was undisputed evidence presented of Defendantís performance of other physical activity. Defendant himself testified that he had been out digging taro prior to the accident, a physical activity requiring movement of the arms, legs and body. It is further undisputed that Defendant was driving a vehicle, an activity which requires eye, hand and foot movement. I also take judicial notice that Defendant is a long term employee of the Kosrae State Government, with duties that require physical movement by the Defendant. Based upon these facts in evidence, I infer that the Defendantís ailments did permit the Defendant to complete a variety of activities requiring movement of his arms, legs and body, I further conclude that Defendantís ailments did not affect his performance of the FSTs. Este v. FSM, 4 FSM Intrm. 132 (App. 1989). Defendantís arguments that his ailments affected his performance on the FSTs is rejected.

    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 drive his vehicle under the influence of alcoholic drinks. I find the Defendant guilty and convict him of the offense of Driving Under the Influence, in violation of Kosrae State Code, Section 13.710.

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

     After the accident, Defendant exited his vehicle, and walked on the public road to Ms. Tolenoaís vehicle. Defendant was carrying an open beer can. This evidence was undisputed.

    The offense of unauthorized consuming, possessing or giving of alcoholic drink, Kos. S.C. ß 13.517(4) requires proof of consuming an alcoholic drink or possessing an open container of alcoholic drink in a public place. It is undisputed that the public road at the Sronsrono intersection is a public place. It is undisputed that the Defendant was carrying and possessing an open beer can on the public road. I make the inference that the open beer can possessed by the Defendant on the public road was an open beer can containing beer, which is an alcoholic drink. I draw this inference from the facts in evidence. Este v. FSM, 4 FSM Intrm. 132 (App. 1989).

    At the hearing on February 20, 2006, Defendant argued that there was no evidence presented by the State that the Defendant consumed beer from open beer can that was carried by the him on the public road. Based upon the facts in evidence from the trial, I made the inference that the open beer can carried by the Defendant contained beer. This inference is reasonable based upon the facts in evidence that the Defendant appeared and acted intoxicated at the time of the accident. Defendant possessed an open container of alcoholic drink in a public place.

    Defendant argued as a defense to both charges, that Juleen Tolenoa should have been arrested, and not the Defendant. Defendant argued that since Ms. Tolenoa did not possess a driverís license, she must found liable for accident. This criminal case brings charges against the Defendant and not Ms. Tolenoa. It is within the prosecutorial discretion of the State of Kosrae to pursue action against Ms. Tolenoa. See Rauzi v. FSM, 2 FSM Intrm 8, 13 (Pon. 1985). I conclude that Ms. Tolenoaís failure to possess a driverís license at the time of the accident is not a defense to the criminal charges brought here against the Defendant. Defendantís argument is rejected.

    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 possess an open container of alcoholic drink in a public place. 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(4).

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III.   Judgment of Conviction

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

IV.   Sentencing

    After announcing the verdict and judgment on February 20, 2005, I held the sentencing hearing. Prior to imposing the sentence, 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. Kosrae State based its recommended sentencing, in part, upon Defendantís prior Criminal Case No. 33-04, in which Defendant pled nolo contendre to the offense of driving under the influence. Defendant argued that his plea of nolo contendre cannot be considered a "prior criminal conviction" for purposes of sentencing in this matter. Both the State and the Defendant filed briefs on February 23, 2006, on the effect on sentencing of the Defendantís plea of nolo contendre in Criminal Case. No. 33-04.

    In the case of State v. Tulensru, Criminal Case No. 33-04, Defendant was permitted to enter a plea of nolo contendre to the offense of driving under the influence. In the Judgment of Nolo Contendre, entered on April 22, 2004, the Court explained the effect of Defendantís plea of nolo contendre.

The term "nolo contendre" is that Latin phrase meaning "I will not contest it." It is a plea which has a similar legal effect as pleading guilty. Blackís Law Dictionary 1048 (6th ed. 1990). The plea of nolo contendre has been described as a "confession, implied confession, admission of guilt of all facts pleaded, conviction, and a guilty plea." 21 Am. Jur. 2d Criminal Law ß 727, at 703. It is considered a plea of guilty, functional and substantive equivalent of such a plea. Id. ß 728, at 703. It is hereby clarified that a plea of nolo contendre is considered the functional and substantive equivalent of a guilty plea. There is no other possible interpretation to Defendantís plea. . .

The principal difference between a plea of guilty and a plea of nolo contendre is that the plea of nolo contendre may not be used against the defendant in a civil action based upon the same acts. Blackís Law Dictionary 1048 (6th ed. 1990). A plea of nolo contendre admits for the purpose of the criminal case all the elements of the offense charged against the defendant, and give the court complete power to sentence the defendant for that offense. . .

     In Criminal Case No. 33-04, the Defendant was sentenced for the offense of driving under the influence as follows: 12 months incarceration, all suspended, with conditions, and payment of a fine in the amount of $200.

    Defendant now seeks to exclude his prior conviction based upon his plea of nolo contendre in Crim. Case No. 33-04 from this Courtís consideration in sentencing in this matter. Defendant argues that Defendantís prior plea of nolo contendre has no effect on any other civil or criminal cases involving the Defendant, and therefore may not be used for sentencing consideration in this matter. The State argues that the prior nolo contendre plea is functionally equivalent to a guilty plea and therefore should be treated as a prior conviction for the purposes of sentencing enhancement.

    The application of a plea of nolo contendre as a "prior conviction" in another criminal matter for sentencing consideration has not been specifically addressed in reported cases by courts of the Federated States of Micronesia. The majority view in United States jurisdictions preserves thebenefits

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of the nolo contendere plea to a defendant who fears subsequent civil liability based upon an admission of guilt to a criminal charge. But at the same time, the majority view in the United States looks to the conviction and sentence imposed by the court after the nolo contendre plea and finds the conviction as conclusive as a conviction entered after a plea of guilty or a finding of guilty after trial. See Bailey v. Mississippi, 728 So.2d 1070, 1108 (Miss. 1997) (citing Snyder v. State, 879 P.2d 1025, 1031 (Alaska Ct. App. 1994) ("the only forbidden consequence of a nolo plea is its use as an admission in a civil action . . . all other uses of the conviction are permissible as if the plea were of guilty), overruled on other grounds 930 P.2d 1274 (Alaska 1996)); In re Lewis, 209 N.W.2d 203, 209 (Mich. 1973); State v. Staples, 124 A.2d 187, 189 (N.H. 1956); United States v. One Lot of Eighteen Firearms, 325 F. Supp. 1326, 1328 (D. N.H. 1971); State v. Goodwin, 593 P.2d 326, 328-29 (Colo. 1979). Thus, under the majority view held by courts of the United States, Defendantís prior plea of nolo contendere would be admissible in this matter for sentencing consideration.

    In Kosrae State, in imposing a sentence, State Law specifically permits this Court to consider a convicted personís criminal record. Kosrae State Code, Section 6.4901 provides that: "the Court may . . . hear evidence of the convictedís good or bad character, including a criminal record."

    A criminal record includes the record or file of the criminal proceedings against an accused, and necessarily includes documentation of disposition of the case, including conviction and sentencing based upon a plea of guilty or nolo contendere, judgment of acquittal or dismissal. Consequently, Defendantís criminal record of Criminal Case No. 33-04, including his plea of nolo contendere, the judgment and sentencing, may be heard and considered in the sentencing of the Defendant in this matter. As specified in Kosrae State Code, Section 6.4901, Defendantís criminal record is considered evidence of the Defendantís character and is therefore admissible.

    Furthermore, the FSM Supreme Court, Appellate Division, has held that a court may consider all criminal matters in which the defendant was accused, even if not convicted. "The authority of a sentencing judge is to make broad inquiry into the background of a defendant is very clear. Specifically the court may consider even cases of which the defendant was accused but not convicted." Kallop v. FSM, 4 FSM Intrm. 170, 177 (App. 1989).

    It is clear that pursuant to the holding in Kallop v. FSM, this Court may consider the record of Criminal Case No. 33-04, including the nolo contendere plea and sentencing. Therefore, this Court is authorized under both State Law and under binding precedent to consider Criminal Case No. 33-04. Accordingly, Defendantís Motion to Exclude Prior Conviction is denied and I have considered all evidence of Defendantís character presented by the parties in imposing sentence upon the Defendant in this matter.

    The Sentencing hearing was continued on February 27, 2006. Paliknoa Welly appeared for the State. Harry Seymour appeared for the Defendant. The Defendant did not appear, as he had been hospitalized that day for high blood pressure and diabetes. Dr. Tholman Alik testified at the hearing. At the hearing, two motions filed by the Defendant were heard: Motion for New Trial and Motion to Refrain from Issuing Sentencing Order. These two motions were addressed first. Both Motions were denied. A separate Order Denying Defendantís Motion for New Trial and Denying Defendantís Motion to Refrain from Imposing Sentence was signed and entered on February 27, 2006. The substance of the Order Denying Defendantís Motions is set forth below.

Defendantís Motion for New Trial.

    Defendant requests a new trial on Count II, Kosrae State Code, Section 13.517(4). In his Motion, Defendant argues that the Court did not have adequate evidence to support its finding that the

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Defendant had violated Section 13.517(4), by possessing an open container of alcoholic drink in a public place. The Courtís finding was based upon the testimony of eyewitness Juleen Tolenoa, who saw the Defendant carry an open container of beer towards her on the public road. Juleen Tolenoa had personal knowledge of Defendantís action by seeing the Defendant hold and carry the open beer can. Ms. Tolenoaís testimony was undisputed and uncontroverted. The KRE do not require corroboration of undisputed testimony. I conclude that the KRE, Rule 901 has been satisfied and that there was adequate evidence to support the Courtís finding. The Courtís findings are detailed in the Judgment of Conviction.

    At the hearing, Defendant raised a new argument. Defendant argued that the State did not show that the Defendant intended to consume any alcoholic drink from the open can of beer that he carried on the public road. The State argued that intent to consume alcoholic drink is not required by Kosrae State Code, Section 13.517(4). The State further argued that based upon the totality of the circumstances, the observations made by the witnesses and the police officers, there was substantial evidence that the Defendant had already consumed alcoholic drinks prior to the accident.

The relevant section of Kosrae State Code, Section 13.517, provides as follows:

Section 13.517. Unauthorized consuming, possessing or giving of alcoholic drink. Unauthorized consuming, possessing or giving of alcoholic drink is any of the following acts:

. . . .

(4) consuming an alcoholic drink or possessing an open container of alcoholic drink in a public place except when such place is closed to the general public for the purpose of conducting a private party, reception or social gathering and admission is by invitation or as otherwise provided by law;

    Kosrae State Code, Section 13.517(4) does not require that the Defendant consume or intend to consume alcoholic drink from the open container. Section 13.517(4) defines "the possessing an open container of alcoholic drink in a public place" as a criminal offense. The statute does not require intent of the Defendant to consume the alcoholic drink: possession is sufficient. This Court will not impose a standard of conduct that is not specific in the law.

     Defendantís Motion for New Trial is denied.

Defendantís Motion to Refrain from Issuing Sentencing Order.

    Defendant requests this Court to not impose the sentencing in this matter, due to the Defendantís current hospitalization at Kosrae State Hospital. Dr. Tholman Alik testified that he examined the Defendant yesterday and today for a complaint about arm pain. Dr. Alik then admitted the Defendant to the Kosrae State Hospital. Defendantís admission today to Kosrae State Hospital was due to Defendantís extremely high levels of blood sugar (470). Defendant was given medication for the condition, but at the time of the hearing today (4 pm), Dr. Alik did not know the effect of the medication.

    Due to the Presiding Justiceís impending retirement from this Court, the Sentencing must be completed tomorrow in order to finalize disposition of this case. Pursuant to the KRCrP, the Defendant is entitled to be present at the sentencing hearing. Accordingly, the parties are ordered as follows:

1.   The Sentencing hearing shall be held on Tuesday, February 28, 2006 at 8:30 a.m.

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2.   If the Defendant is well enough to attend the sentencing hearing at the Courthouse, Defendant shall appear at the Kosrae State Courthouse. Defendant may be assisted or supervised by his physician, or any other medical staff as desired. Defendant shall make the determination whether he is well enough to attend the sentencing hearing at the Courthouse.

3.   If the Defendant is not well enough to attend the sentencing hearing at the Courthouse, then the sentencing hearing shall be held at the Kosrae State Hospital. The parties shall arrange for a conference room or other suitable location at which the sentencing hearing can be conducted, immediately at 8:30 am.

4.   If Defendant does not wish to be present at the sentencing hearing, he may waive his right to be present, pursuant to KRCrP Rule 43(b).

     These Orders were served upon both counsels, the Defendant himself and Dr. Tholman Alik on February 27, 2006.

V.   Sentencing Order

    The sentencing hearing was continued on February 28, 2006 at 8:30 am, pursuant to the order and notices which have been served. Counsel Welly and Seymour were present at the hearing. The Defendant did not appear. The parties informed the Court that Dr. Tholman Alik, despite being served a notice to appear, could not be located. Therefore the Defendant remained at the Kosrae State Hospital.

    The Defendant informed the Court that he would not waive his presence at the sentencing hearing. Therefore, I informed the parties that the sentencing hearing would be continued at the Kosrae State Hospital, to allow the Defendant to be personally present at the imposition of the sentence. I ordered a short recess to permit the accommodation to be made at the Kosrae State Hospital for imposition of sentence.

    The Defendant then made a verbal motion to recuse myself from imposing sentence in this matter. The State objected to the motion for recusal. The Defendant presented three grounds for his verbal motion:

1.   That I have resigned from the Court as a Justice;

2.   That I have other criminal cases pending which I have not completed, namely State v. Burt Tilfas; and

3.   That I have granted continuances in other cases, namely State v. Stan Noda and State v. Rinson Nena.

    I rejected the Defendantís grounds for my recusal as being without merit. Defendantís observation is correct that I have resigned from this Court as Chief Justice. Today is my final day of service as Chief Justice. Therefore it is within my authority and my duty to conduct the sentencing hearing in this matter. I note that the sentencing hearing was originally set for February 20, 2006 and was delayed at the Defendantís request to address the issue of admission of Defendantís prior criminal record.

    Defendantís second ground for my recusal is unrelated to this matter and does not present any valid basis for my recusal. Defendantís third ground for my recusal is also unrelated to this matter and does not present any valid basis for my recusal. However, I note that in the cases of State v. Stan Noda and State v. Rinson Nena, trial of these matters were continued at the request of the Defendant.

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In the Noda and Nena cases, trial has not been held. However in this case, trial had been completed and the only action still pending to conclude this matter was the imposition of sentence. Defendantís grounds are without merit and therefore rejected.

    Defendantís verbal motion is untimely. See Tolenoa v. Kosrae, 11 FSM Intrm. 179 (Kos. S. Ct. Tr. 2002). Defendantís verbal motion for recusal also fails to show any actual partiality or extrajudicial bias by the presiding justice. Hartman v. Bank of Guam, 10 FSM Intrm. 89 (App. 2001); Kosrae v. Sigrah, 10 FSM Intrm. 654 (Kos. S. Ct. Tr. 2002). Finally, Defendantís verbal motion for recusal was not supported by an affidavit, nor any legal authority. Jonas v. FSM(II), 2 FSM Intrm 238 (App. 1986). Defendantís Motion for Recusal is denied upon all these grounds.

    During the recess, the Defendant determined that he was in fact well enough to personally attend the sentencing hearing at the Courthouse. After the Defendant appeared at the Courthouse, the hearing was continued and the sentence imposed. Based upon the facts found from trial, in consideration of the nature of the violations, the Defendantís background and potential, the Defendantís character and prior criminal record, the statements provided by the parties, the Court imposes the following sentence upon the Defendant:

1.   On Count I, Driving Under the Influence, the Defendant is sentenced to 12 months incarceration, of which 11 months shall be suspended on the condition that Defendant successfully completes 11 months probation. Also on Count I, the Defendant shall also pay a fine of $200, which shall be paid to the Chief Clerk by June 1, 2006.

2.   On Count II, Unauthorized consuming, possessing or giving of alcoholic drink, the Defendant is sentenced to 12 months incarceration, of which 12 months shall be suspended on the condition that Defendant successfully completes 12 months probation. Also on Count II, the Defendant shall also pay a fine of $50, which shall be paid to the Chief Clerk by June 1, 2006.

3.   The sentences imposed for Counts I and II shall be served concurrently, for a total term of 12 months, of which one month shall be served incarcerated in Kosrae State Jail, and 11 months shall be served on probation, with conditions.

4.   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 fines imposed by the due date, as specific in paragraphs 1 and 2.

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.

5.   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.

    Defendantís term of incarceration at Kosrae State Jail for Count I shall begin on March 1, 2006 or upon the date of Defendantís release from the Kosrae State Hospital. Defendant shall report to the Kosrae State Jail on March 1, 2006 at 8 am, or upon his release from Kosrae State Hospital, whichever is later. Defendant may apply for work release by written motion.

SUPPLEMENTAL SENTENCING ORDER

    As part of the sentence imposed given in this case, you are hereby ordered to attend twelve (12)

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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, or release from Kosrae State Jail, whichever is later, 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 attend and participate in twelve (12) sessions, which will be scheduled by the Mental Health Division. Failure to attend all twelve 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. If you fail to attend all twelve 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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