KOSRAE STATE COURT TRIAL DIVISION

Cite as Kosrae v. Taulung, 14 FSM Intrm. 578 (Kos. S. Ct. Tr. 2007)

[14 FSM Intrm. 578]

STATE OF KOSRAE,

Plaintiff,

vs.

SHRUE S. TAULUNG,

Defendant.

CRIMINAL CASE NO. 72-06

JUDGMENT OF CONVICTION; SENTENCING ORDER

Aliksa B. Aliksa

Chief Justice

Trial:   March 28, 2007

Decided:   April 10, 2007

APPEARANCES:

For the Plaintiff:        Edwin Mike, State Prosecutor

                                 Office of the Kosrae Attorney General

                                  P.O. Box 870

                                 Tofol, Kosrae   FM   96944

 

For the Defendant:   Steve George

                                 Office of the Public Defender

                                 P.O. Box 245

                                 Tofol, Kosrae   FM   96944

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HEADNOTES

Criminal Law and Procedure ) Defamation

      When the evidence did not show it was the defendant's statements rather than another person's statements that resulted in "public hatred, contempt, or ridicule" of the victim and when there was no evidence to show the stronger feelings or behaviors of hatred, contempt, or ridicule from others towards the victim, the insufficient evidence on these elements, alone, offers grounds to acquit the defendant of defamation. Kosrae v. Taulung, 14 FSM Intrm. 578, 580 (Kos. S. Ct. Tr. 2007).

Constitutional Law ) Due Process ) Vagueness; Criminal Law and Procedure ) Defamation

      Kosrae State Code  13.313 is unconstitutionally vague because it fails to provide a specific standard of criminal conduct and therefore does not give adequate notice of what type of speech is being regulated since a statute must be drawn so as to give a person of ordinary intelligence fair notice that the contemplated conduct is forbidden and Kosrae State Code  13.313 does not. Kosrae v. Taulung, 14 FSM Intrm. 578, 580-81 (Kos. S. Ct. Tr. 2007).

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Criminal Law and Procedure ) Defamation; Torts ) Defamation

      Mean-spirited, accusatory words designed to harm another person, without regard to their truth or falsity are the kind of words that may result in a civil suit for the tort of defamation. However, the current criminal statute, Kosrae State Code  13.313, may not be used to pursue a criminal prosecution for defamation because it does not clearly specify what types of speech are prohibited. Kosrae v. Taulung, 14 FSM Intrm. 578, 581 (Kos. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Disturbing the Peace

      Disturbing the peace is willfully committing any act which unreasonably annoys or disturbs another so that he is deprived of peace and quiet, or which provokes a breach of the peace. Kosrae v. Taulung, 14 FSM Intrm. 578, 581 (Kos. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Disturbing the Peace

      When the defendant telephoned the victim early in the morning and accused her of causing the death of a child and since such an alarming accusation had no purpose other than to disturb the person accused; when the call and the statement were not accidental or careless, but were intentional and willful and the timing of the call in the early morning and what was said demonstrated unreasonableness; and when the evidence that the victim was upset and disturbed by the call and statements, the elements of the charge of disturbing the peace were demonstrated beyond a reasonable doubt. Kosrae v. Taulung, 14 FSM Intrm. 578, 581 (Kos. S. Ct. Tr. 2007).

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COURT'S OPINION

ALIKSA B. ALIKSA, Chief Justice:

      This matter was called for trial on March 28, 2007. Kenye K. Killin and Madlina Rinson Edmond testified on behalf of the State. Salik Taulung testified on behalf of the Defendant. Edwin Mike, State Prosecutor, appeared for the State. Defendant appeared and was represented by Steve George, Public Defender.

      The Defendant was tried on two Counts set forth in the Information: Defamation, in violation of Kosrae State Code, Section 13.313 and Disturbing the Peace, in violation of Kosrae State Code, Section 13.503. After the presentation of evidence, I granted Defendant's motion for acquittal on the charge of defamation and denied the motion for acquittal on the charge of disturbing the peace.

      Based upon the evidence presented at trial, I found that the Plaintiff proved beyond a reasonable doubt that the Defendant committed the charged offense of disturbing the peace. This Judgment of Conviction sets forth my findings of facts, reasoning and rulings on motions and issues raised at the trial.

      Sentencing was delayed for one month to allow time for any reconciliation between the victim, the Defendant, and their families.

I.   Findings of Facts.

      Based upon the evidence presented at the trial, I found the following facts:

      The Defendant telephoned Kenye K. Killin on or about September 8, 2006, between the early morning hours of 7:00 and 8:00 am. During the telephone call, Defendant made disturbing statements

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to Kenye K. Killin accusing her of having caused the death of a child. Defendant's husband, after a waiver of spousal privilege, testified that he told Defendant to call Kenye K. Killin and ask her about the problems within the family, including the death of the child and saying that Kenye had something to do with it. Kenye K. Killin testified that she received the call from Defendant accusing her of causing the death of the child. This statement was willfully and intentionally made as shown by the testimony of Salik Taulung and Kenye K. Killin. The call and statement caused Kenye K. Killin to be upset and disturbed.

      Kenye K. Killin also testified that Defendant made statements to others that she, Kenye K. Killin, was doing witchcraft She testified that others were making similar statements. A witness testified that she heard statements made by Defendant and others about Kenye K. Killin using witchcraft and being involved in the death of the child. There was no evidence linking the statements made by Defendant, rather than similar statements made by others, to public hatred, contempt, or ridicule of Kenye K. Killin. The witness testified that the statements by Defendant and others made her uncomfortable. But, the witness did not testify to, and there was no other evidence, showing public hatred, ridicule or contempt of Kenye K. Killin.

II.   Conclusions of Law.

A.   Acquittal on the Charge of Defamation.

     Defendant moved for an acquittal on the charge of defamation after presentation of the evidence, arguing that this charge had not been proved beyond a reasonable doubt. Defamation is defined in Kosrae State Code  13.313 as:

maliciously defaming by making a false statement either by writing, printing, or by signs or pictures, or the like, or by an oral statement, whether or not it is communicated through or by radio or any mechanical or other means or device whatsoever, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation of one who is living, or of any educational, literary, social, fraternal, benevolent or religious corporation, association or organization, and thereby exposing him or it to public hatred, contempt, or ridicule. . . .

      The Court notes that the evidence on several elements was limited. Testimony indicated at least one other person made statements similar to those made by Defendant. The evidence did not show it was Defendant's statements rather than another person's statements that resulted in "public hatred, contempt, or ridicule" of the victim. Therefore, the Plaintiff did not prove beyond a reasonable doubt that the victim had been exposed to "public hatred, contempt, or ridicule" as a result of statements made by Defendant.

      Similarly, the Plaintiff did not sufficiently prove the element of "public hatred, contempt, or ridicule." Kenye K. Killin was personally caused unreasonable upset. In addition, the statements made by Defendant and others had caused discomfort to a third party. However, there was no evidence to show the stronger feelings or behaviors of hatred, contempt, or ridicule from others.

      The insufficient evidence on these elements, alone, offers grounds to acquit the Defendant.

      This Court previously analyzed Kosrae State Code  13.313 and held that this statute was unconstitutionally vague because it "fails to provide a specific standard of criminal conduct" and therefore does not give adequate notice of what type of speech is being regulated. Kosrae v. Waguk, 11 FSM Intrm. 388, 392 (2003). In that case, the Defendant had been charged with defamation for

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allegedly uttering false statements to a victim, which tended to impeach the victim's integrity or reputation; a charge similar to the one filed in this case.

      The Defendant moved for dismissal arguing the prosecution violated her right of freedom of expression and that the statute was unconstitutionally vague because it does not clearly specify what types of speech are prohibited. The language of the statute was compared to other criminal offenses regulating speech. The standard is that "a statute must be drawn so as to give a person of ordinary intelligence fair notice that the contemplated conduct is forbidden." Waguk, 11 FSM Intrm. at 391 (citing FSM v. Moses, 9 FSM Intrm. 139 (Pon. 1999)). Kosrae State Code  13.313 did not give a person of ordinary intelligence fair notice of what speech is forbidden. Further, because it was not enacted as a law designed to protect tradition, enforcement impairs the constitutionally protected right of freedom of expression. The charge of defamation was therefore dismissed. Waguk, 11 FSM Intrm. at 392.

      The Court does not suggest that words like those used by Defendant and others in this case are proper conduct. To the contrary, they are mean-spirited, accusatory words designed to harm another person, without regard to their truth or falsity. They are the kind of words that may result in a civil suit for the tort of defamation. However, the current criminal statute, Kosrae State Code  13.313, may not be used to pursue a criminal prosecution for defamation because it does not clearly specify what types of speech are prohibited.

      Defendant is therefore acquitted of this charge for this reason, as well.

B.   Disturbing the Peace.

      Disturbing the peace is willfully committing any act which unreasonably annoys or disturbs another so that he is deprived of peace and quiet, or which provokes a breach of the peace. Kos. S.C.  13.503. The evidence shows that Defendant telephoned Kenye K. Killin early in the morning and accused her of causing the death of a child. Such an alarming accusation has no purpose other than to disturb the person accused. The call and the statement were not accidental or careless. They were intentional and willful as shown by both the husband's testimony that he told Defendant to make the call and what to talk about, and by the undisputed testimony about the statements that were made. Further, the timing of the call in the early morning and what was said demonstrated unreasonableness. The evidence that Kenye K. Killin was upset and disturbed by the call and statements is not disputed. The timing and nature of the call deprived her of peace and quiet. The elements of the charge of disturbing the peace were demonstrated beyond a reasonable doubt and Defendant is therefore found guilty of this charge.

III.   Judgment of Conviction

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

IV.   Sentencing.

      Sentencing is delayed for one month to allow time for any reconciliation between the victim, the defendant, and their families.  Defendant will be returned for sentencing after one month.

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