FSM SUPREME COURT APPELLATE DIVISION

Cite as Moses v. FSM, 14 FSM Intrm. 341 (App. 2006)

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KIMIS MOSES,

Appellant,

vs.

FEDERATED STATES OF MICRONESIA,

Appellee.

APPEAL CASE NO. C1-2004

OPINION

Argued: May 8, 2006

Decided: August 17, 2006

BEFORE:

     Hon. Dennis Yamase, Associate Justice, FSM Supreme Court

     Hon. Judah C. Johnny, Specially Assigned Justice, FSM Supreme Court*

     Hon. Aliksa B. Aliksa, Specially Assigned Justice, FSM Supreme Court**

            *Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei

            **Acting Chief Justice, Kosrae State Court, Lelu, Kosrae

APPEARANCES:

For the Appellant:   Joey J. Sapelalut, Esq.

                                 Office of the Public Defender

                                 P.O. Box PS-174

                                 Palikir, Pohnpei   FM   96941

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For the Appellee:   Keith J. Peterson, Esq.

                                 Assistant Attorney General

                                 FSM Department of Justice

                                 P.O. Box PS-105

                                 Palikir, Pohnpei   FM   96941

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HEADNOTES

Administrative Law

    The Project Control Document is a legally binding document that sets forth the purposes for which the allotted funds must be used and the regulations prohibit the use of funds for a purpose other than for which they are allotted. Moses v. FSM, 14 FSM Intrm. 341, 343 & n.3 (App. 2006).

Administrative Law

    The Financial Management Regulations promulgated by the Secretary of Finance pursuant to statutory authority have the force and effect of law. Moses v. FSM, 14 FSM Intrm. 341, 343 n.3 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    In a criminal case, the appellate court’s responsibility is to determine whether the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence presented. The standard of review is not whether the appellate court is convinced beyond a reasonable doubt, but whether the court can conclude that the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence which it had the right to believe and accept as true. Moses v. FSM, 14 FSM Intrm. 341, 344 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    The appellate court’s obligation is to review the evidence in the light most favorable to the trial court’s factual determinations. The standard of review extends to inferences drawn from the evidence as well. The trial court’s findings will be upheld so long as they rationally reflect evidence which is reasonable and combines with other evidence to present a coherent, believable, overall picture. Moses v. FSM, 14 FSM Intrm. 341, 344 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    A conviction of a crime can only be reversed if the court’s finding is clearly erroneous. The appellate standard of review on the issue of the sufficiency of the evidence is very limited ) only findings that are clearly erroneous can be set aside. Moses v. FSM, 14 FSM Intrm. 341, 344 (App. 2006).

Appellate Review ) Standard of Review ) Criminal Cases

    When there is ample evidence in the record to support the trial court’s finding, the appellate court will conclude that there is sufficient evidence in the record for a reasonable trier of fact to find beyond a reasonable doubt that appellant used none of the national government funds allotted to him for the construction of a new community hall. Moses v. FSM, 14 FSM Intrm. 341, 345 (App. 2006).

Criminal Law and Procedure ) Conspiracy

    Under the conspiracy law, the agreement to commit the crime need not be explicit and may be proven by circumstantial evidence. There is no requirement that there be even a written statement or speaking of words which expressly communicates the agreement. A mere tacit understanding between

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the parties is sufficient to show the agreement. Moses v. FSM, 14 FSM Intrm. 341, 346 (App. 2006).

Criminal Law and Procedure ) Conspiracy

    When, although no evidence was introduced which showed an explicit agreement, given the appellant’s position as the Uman Social Project project manager, the responsibilities that position entailed, the relationship he had with the Southern Namoneas Development Authority executive director, the misuse of national funds under appellant’s and the director’s direction and management, and by appellant himself, and the fact that no new community halls were built by appellant’s and the director’s project, there is sufficient evidence in the record for a reasonable trier of fact to find beyond a reasonable doubt that the appellant agreed with the director to commit theft. Moses v. FSM, 14 FSM Intrm. 341, 346 (App. 2006).

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COURT’S OPINION

DENNIS K. YAMASE, Associate Justice:

     This is an appeal from the June 3, 2004 conviction of defendant/appellant Kimis Moses on a charge of conspiracy to promote or facilitate theft against the government in violation of 11 F.S.M.C. §§ 203 and 601.

1.   Background

     In 1998, the Tenth Congress of the Federated States of Micronesia by P.L. No. 10-126 appropriated $175,000 to the Southern Namoneas Development Authority ("SNDA") for the purposes of funding health, education, infrastructure, and other public projects and programs in Chuuk. Twenty thousand dollars of this amount was allotted for the "Uman Social Project." The Executive Director of SNDA was designated as the allottee of the funds. At the time, Terno Este was the acting Executive Director of SNDA.

     Pursuant to a Project Control Document ("PCD") approved by the FSM in October, 1999 and which was attached to the Advice of Allotment, dated November 1, 1999, the $20,000 had to "be used to build new Community Halls on the Island of Uman." The PCD is a legally binding document that sets forth the purposes for which the allotted funds must be used. The PCD designated Kimis Moses, the appellant, as the project manager for the Uman Social Project and as one of the six individual recipients of funding under the project.

     In 2002, the FSM Attorney General’s office indicted appellant (and six others including the five

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other individual recipients under the Uman Social Project and Terno Este) on a charge of conspiracy to promote or facilitate the theft of national government funds in violation of 11 F.S.M.C. §§ 203 and 601. After trial, appellant was found guilty and sentenced to two years imprisonment with all but six weekends suspended. He was also ordered to pay $3,833.48 in restitution. 

II.   Issues

     A.   Was there sufficient evidence to support the trial court’s finding that appellant did not expend any of the designated funds to build a new community hall?

     B.   Was there sufficient evidence to support the trial court’s finding that appellant agreed with Terno Este to commit theft?

III.   Standard of Review on Appeal

      In a criminal case, the responsibility of the appellate court is to determine whether the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence presented. Tosie v. FSM, 5 FSM Intrm. 175, 178 (App. 1991). The standard of review is not whether the appellate court is convinced beyond a reasonable doubt, but whether the court can conclude that the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence which it had the right to believe and accept as true. Engichv v. FSM, 1 FSM Intrm. 532, 546 (App. 1984). The appellate court’s obligation is to review the evidence in the light most favorable to the trial court’s factual determinations. The standard of review extends to inferences drawn from the evidence as well. Id. at 545. The trial court’s findings will be upheld so long as they rationally reflect evidence which is reasonable and combines with other evidence to present a coherent, believable, overall picture. Id. at 557.

      A conviction of a crime can only be reversed if the court’s finding is clearly erroneous. Loney v. FSM, 3 FSM Intrm. 151, 154 (App. 1987). The appellate standard of review on the issue of the sufficiency of the evidence is very limited ) only findings that are clearly erroneous can be set aside. See Opet v. Mobil Oil Micronesia. Inc., 3 FSM Intrm. 159, 165 (App. 1987).

IV.   Discussion

A.   First Alleged Point of Error

     Appellant first argues that the trial court had insufficient evidence before it to find that he did not spend any of the $4,000 designated to him to build a new community hall.

     Appellant in his briefs and during oral argument repeatedly points to the 40 by 10 foot foundation next to appellant’s house as conclusive evidence that appellant spent at least some of the designated money on building a new community hall. When confronted with the evidence showing that appellant purchased at most 50 bags of cement and that the construction of the foundation at issue would require approximately 200 bags of cement, the appellant states that the only reasonable conclusion the trial court could have drawn was that appellant received the cement from other sources.

     Appellant suggests that this conclusion is the only reasonable one that the trial court could have drawn, but points to no other evidence in the record to support this conclusion. However, there is ample evidence in the record to support the trial court’s finding.

     Fletcher Poll, a certified fraud examiner with the Office of the Public Auditor, testified that when

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he did his site inspection he saw no new community hall. Rather, the concrete foundation that appellant alleges is the foundation for a new community hall appeared to be old and looked like the foundation for a home. Transcript at 644, 652.

     The evidence also showed that appellant submitted invoices for the purchase of 200 cement blocks, concrete nails, a concrete shovel, another shovel, a ruler, and almost $2,000 worth of tin roofing and various sizes of lumber. Transcript at 645-47; Government’s Exs. 2, 8. Poll testified that he saw none of these items either integrated into the foundation or about the premises. Transcript at 685, 689. Additionally, appellant submitted and Este approved a materials breakdown showing the purchase of 50 bags of cement. Transcript at 449, 645-46; Plaintiff’s Ex. 83. Poll testified that the approximately 10 by 40 foot foundation he was shown would have required approximately 200 bags of cement and that the 50 bags allegedly purchased did not go into the foundation. Transcript at 649.

     Even if some of the materials that Moses allegedly purchased with the national government funds were used on the foundation, the trial court may still have reasonably found that they were used to construct a private residence and not a new community hall as called for in the PCD. Not only did Poll testify that the Moses foundation was the foundation for a home, but Nio Moses testified that he helped appellant build his concrete "house" which was unfinished and has "poles all the way from the ocean." Transcript at 376-78. This testimony clearly refers to the foundation appellant alleges is the foundation for a new community hall. Transcript at 680. The trial court’s conclusion that the foundation was not for a community hall is buttressed by the fact that other recipients ) Kiak Billy and Kait Kikku ) under the project Kimis Moses managed indisputably bought construction supplies with the money and then used the supplies to construct private residences. Transcript at 26-27,617-21.

     We conclude that there is sufficient evidence in the record for a reasonable trier of fact to find beyond a reasonable doubt that appellant used none of the national government funds allotted to him for the construction of a new community hall.

B.   Second Alleged Point of Error

     The trial court found that Este "had [an] agreement, tacit or otherwise, with Kimis Moses . . . to promote or facilitate the unlawful use of the Uman Social Project funds for purposes other than that prescribed in the project control document." FSM v. Este, 12 FSM Intrm. 476, 483 (Chk. 2004).

     Appellant argues that there was insufficient evidence before the trial court for it to make this determination because (1) Este and appellant were not associates, and (2) Este’s duty to inspect the project was his own and not appellant’s.

     These arguments are unpersuasive. First, appellant cites to no evidence supporting these assertions and there is ample evidence that suggests otherwise. Second, even accepting both statements as true, they do not overcome the evidence admitted at trial that tended to show an agreement between Este and appellant to commit theft. It was reasonable for the trial court to rely on this evidence in making its finding.

     The evidence adduced showed that Este was the allottee for the Uman Social Project and appellant was the project manager. Transcript at 40, 604; Government’s Exs. 79-80. They were listed as such on the PCD. Government’s Ex. 80. As the allottee and the project manager, Este and appellant were responsible for the construction of six new community halls, which were to be built by six recipients (one of whom was appellant). Id. Testimony indicated that a project manager would have very regular contact with SNDA (and therefore with Este). Transcript at 425. Appellant apparently picked up checks from Este for at least one other recipient, Kiak Billy. Government’s Exs. 68-70. No

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new community halls were built by the five defendants. Transcript at 616-21,627-31,635-37,642-43, 644, 652, 655. Appellant as project manager did not inspect Raify Saimon’s community hall. Transcript at 273. Nobody explained to several of the recipients that the funds were to be used for new community halls. Transcript at 28, 309. Contracts on obligations were to be signed by appellant, but were not. Transcript at 61. No funds should have been spent before the contracts were approved. Transcript at 123. The contracts were never approved, yet recipients spent designated funds. Transcript at 533-42; Government’s Exs. 81, 82. Appellant needed Este’s signature in order to receive funds. Transcript at 52-53. Appellant’s requisitions for payment on materials were approved by Este and those payments were made. Transcript at 87-94, 169-76; Government’s Exs. 1-10, 13-14, 16-17. The materials paid for with project funds were not used by appellant to build a new community hall.
See § IV. A., supra.

     Under the conspiracy law, the agreement to commit the crime need not be explicit and may be proven by circumstantial evidence. See 11 F.S.M.C. 203(3); see generally 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 6.4(d) (1986). There is no requirement that there be even a written statement or speaking of words which expressly communicates the agreement. See American Tobacco Co. v. United States, 328 U.S. 781, 66 S. Ct. 1125, 90 L. Ed. 1375 (1946). A mere tacit understanding between the parties is sufficient to show the agreement. See United States v. Hartley, 678 F.2d 961 (11th Cir. 1982).

     No evidence was introduced which showed an explicit agreement. Nevertheless, given appellant’s position as project manager of the Uman Social Project, the responsibilities that position entailed, the relationship he had with Este, the misuse of national funds under appellant’s and Este’s direction and management, and by appellant himself, and the fact that no new community halls were built by appellant’s and Este’s project, the trial court found beyond a reasonable doubt that appellant and Este agreed to misuse government funds.

     We conclude that there is sufficient evidence in the record for a reasonable trier of fact to find beyond a reasonable doubt that appellant agreed with Terno Este to commit theft.

V.   Conclusion

      We find that the trial court’s findings were not clearly erroneous as there was sufficient evidence for the trial court, as a reasonable trier of fact, to find beyond a reasonable doubt that appellant did not expend any of the designated funds to build a new community hall and that appellant agreed with Terno Este to commit theft. We therefore affirm the conviction of the appellant.

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Footnotes:

1.  Public Law No. 10-126 also provided that the appropriated funds were to be allotted and managed in accordance with the Financial Management Act of 1979, 55 F.S.M.C. §§ 201 to 208.

2.  The Financial Management Regulations in effect at the time provided that references to an allottee shall include the allottee’s designee. Financial Management Regs. § 1.4(a) (June 14, 1999).

3.  The regulations prohibit the use of funds for a purpose other than for which they are allotted. Financial Management Regs. § 10.5 (June 14, 1999). These Financial Management Regulations were promulgated by the Secretary of Finance pursuant to statutory authority and "have the force and effect of law." 55 F.S.M.C. 228; Financial Management Regulations, § 1.1 (June 14, 1999).

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