FSM SUPREME COURT APPELLATE DIVISION
Cite as DeOrio v. FSM, 24 FSM R. 529 (App. 2024)
MARK DEORIO,
Appellant,
vs.
FEDERATED STATES OF MICRONESIA,
Appellee.
APPEAL CASE NO. P8-2021
(Criminal Case No. 2020-504)
OPINION
Argued: December 15, 2023
Decided: June 28, 2024
BEFORE:
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Dennis L. Belcourt, Associate Justice
Hon. Cyprian J. Manmaw, Temporary Justice*
*Chief Justice, Yap State Court, Colonia, Yap
APPEARANCES:
For the Appellant:
Marstella E. Jack, Esq.
P.O. Box 2201
Kolonia, Pohnpei 96941
For the Appellee:
Josef Rold, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS 105
Palikir, Pohnpei 96941
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In reviewing a criminal conviction against an insufficiency of the evidence challenge, the appellate court must ask whether the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence it had a right to believe and accept as true. DeOrio v. FSM, 24 FSM R. 529, 532 (App. 2024).
A shift of the burden of persuasion to the defendant concerning any essential element of an alleged crime would violate the due process requirement that the government must prove all elements of the crime beyond a reasonable doubt. The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. DeOrio v. FSM, 24 FSM R. 529, 532 n.6 (App. 2024).
Issues of law are reviewed de novo. DeOrio v. FSM, 24 FSM R. 529, 532 (App. 2024).
Any error, defect, irregularity, or variance which does not affect substantial rights will be disregarded, but the court may notice plain errors or defects affecting substantial rights although they were not brought to the court's attention. DeOrio v. FSM, 24 FSM R. 529, 533 (App. 2024).
When a criminal defendant has failed to raise an issue in the trial court and preserve it for appeal, he has generally waived his right to object; but if a plain error that affects the defendant's constitutional rights has occurred, an appellate court may notice that error on its own. DeOrio v. FSM, 24 FSM R. 529, 533 (App. 2024).
Some constitutional errors could never be treated as harmless because violation of a constitutional right is not subject to a harmless error analysis and the defendant need not show any prejudice. DeOrio v. FSM, 24 FSM R. 529, 533 (App. 2024).
Non-constitutional trial errors may affect a defendant's substantial rights. Substantial rights are broader than and not necessarily synonymous with constitutional rights. The plain error rule also applies when the error is obvious and substantial and seriously affects the fairness, integrity, or public reputation of judicial proceedings. Unlike the limited class of inherently prejudicial constitutional errors, substantial rights require prejudicial analysis under the harmless error rule. In these cases, the court must show a reasonable possibility that the error affected the verdict. DeOrio v. FSM, 24 FSM R. 529, 533-34 (App. 2024).
A constitutional error can be found harmless only when it is harmless beyond a reasonable doubt. DeOrio v. FSM, 24 FSM R. 529, 534 (App. 2024).
Mens rea is the state of mind that the prosecution, to secure a conviction, must prove that the defendant had when committing a crime. Mens rea is the second of two essential elements of every crime at common law, the other being the actus reus. DeOrio v. FSM, 24 FSM R. 529, 534 (App. 2024).
Four states of culpability have developed which establish the requisite mental element for a crime: 1) intentional, 2) knowing, 3) reckless, and 4) negligent. DeOrio v. FSM, 24 FSM R. 529, 534 (App. 2024).
"Knowledge" means being aware of the nature of the conduct or omission or of the existing circumstances, or believing that a fact exists which brings the conduct or omission within the provisions of the criminal code, but it does not require any knowledge of the unlawfulness of such conduct or omission. In other words, mistake of fact is a defense, but mistake of law is not a defense. Mistake of fact is always a defense if it negates the mens rea required by the crime. DeOrio v. FSM, 24 FSM R. 529, 534 & n.15 (App. 2024).
Criminal negligence means to engage in conduct which creates a substantial and unjustifiable risk of bodily injury to another, or to engage in conduct which constitutes gross deviation from the standard of care that a reasonable person would exercise, which conduct causes the criminal result. Thus the common law developed not only culpability for purposeful and knowing acts (punished more severely), but also for acts involving the creation of a risk either knowingly or one which should have been known. DeOrio v. FSM, 24 FSM R. 529, 535 (App. 2024).
The recklessness or negligence standards are not sufficient to establish culpability under the unauthorized-possession-or-removal of property statute. Intentionally or knowingly are the only two standards of law that can be applied. DeOrio v. FSM, 24 FSM R. 529, 535 (App. 2024).
Since a person may not be deprived of life, liberty, or property without due process of law, the procedural right not to be deprived of liberty without due process is a substantial constitutional guarantee. DeOrio v. FSM, 24 FSM R. 529, 535 (App. 2024).
Knowledge is the correct standard and negligence the wrong standard to convict on a charge of unauthorized possession or removal of property. A finding of guilt based on negligence when knowledge is the standard is plain error, both obvious and substantial, seriously affecting the proceedings' fairness and integrity. DeOrio v. FSM, 24 FSM R. 529, 535 (App. 2024).
When it is not clear from the record whether the trial court found that the defendant knew that the letter was not intended for him, or whether it found that he should have known and when there is credible evidence in the record to support a decision either way, the appellate court will remand the matter for the trial court to clarify, as it is the trial court's province to make findings of fact, and it is better equipped to do so, and can, if necessary, hold additional hearings, or even a retrial. DeOrio v. FSM, 24 FSM R. 529, 535-36 (App. 2024).
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BEAULEEN CARL-WORSWICK, Associate Justice:
On April 21, 2021, Appellant Mark DeOrio, was convicted and sentenced to thirty (30) days imprisonment, with all but four days suspended,1 for Unauthorized Possession or Removal of Property in violation of 11 F.S.M.C. 604(1) which states, "A person commits a crime if, knowing he or she does not have proper authority, he or she has in his or her possession, or has removed from its location any property, wherever situated, in which another person has any legal, equitable, or possessory interest." (emphasis added).2 Mr. DeOrio timely appealed his conviction, raising as an issue the sufficiency of evidence to convict him of that crime.3
"In reviewing a criminal conviction against an insufficiency of the evidence challenge, the appellate court must ask whether the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence it had a right to believe and accept as true." Nelson v. Kosrae, 8 FSM R. 397, 401 (App. 1988).4
While we conclude from the record that the trier of fact could reasonably have been convinced of Mr. DeOrio's guilt, beyond a reasonable doubt, and that there was sufficient evidence to support a finding that knowing he did not have proper authority, he removed from its location property in which another person had a legal, equitable, or possessory interest, our review of the record suggests doubt upon the trial division's actual findings of Mr. DeOrio's guilt. The trial court stated that Mr. DeOrio "knew or should have known" that he lacked proper authority to remove the property, a photocopy of a letter in the office of the Department of Transportation, Communication and Infrastructure. Did the court find that Mr. DeOrio knew? Or did the court find that Mr. DeOrio merely "should have known?"5
As, for a conviction, due process requires that each element of the crime be found to have occurred beyond a reasonable doubt,6 and as the trial division's findings were ambiguous as to whether it found the element of the crime charged that Mr. DeOrio actually knew he lacked authority, we must reverse and remand for the trial division to clarify its findings as to Mr. DeOrio's state of mind when he removed the paper without authorization.
"We review issues of law de novo." Ned v. Kosrae, 20 FSM R. 147, 152 (App. 2015); Phillip v. Kosrae, 15 FSM R. 116, 119 (App. 2007); See Sigrah v. Kosrae, 6 FSM R. 168, 169 (App. 1993) ("Issues of law we review de novo."); Simina v. Kimeuo, 16 FSM R. 616, 619 (App. 2009) ("Issues of law are reviewed de novo."); George v. Nena, 12 FSM R. 310, 313 (App. 2004); Tulensru v. Kosrae, 15 FSM R. 122, 125 (App. 2007); Nanpei v. Kihara, 7 FSM R. 319, 323 (App. 1995); see Tulensru v. Wakuk, 10 FSM R. 128, 132 (App. 2001) ("Issues of law, on the other hand, are reviewed de novo on appeal.").
Pursuant to FSM Criminal Rule 52(a), "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."7 However, pursuant to FSM Criminal Rule 52(b), "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." (emphasis added). "Fully cognizant of our power to notice plain error as one that the court should exercise cautiously, we are nonetheless presented with this error of constitutional dimension and accordingly, invoke the plain error rule in this instance." Moses v. FSM, 5 FSM R.156, 161 (App. 1991).8
Under the plain error doctrine, when a criminal defendant has failed to raise an issue in the trial court and preserve it for appeal, he has generally waived his right to object; but if a plain error that affects the defendant's constitutional rights has occurred, an appellate court may notice that error on its own.
Wolphagen v. FSM, 22 FSM R. 96, 101 (App. 2018). Our court has declared "that some constitutional errors could never be treated as harmless." Jonah v. FSM, 5 FSM R. 308, 314-15 (App. 1992) (emphasis added).9 "Violation of [a] constitutional . . . right is not subject to a harmless error analysis and the defendant need not show any prejudice." Neth v. Kosrae, 14 FSM R. 228, 232 (App. 2006). See Benjamin v. Kosrae, 19 FSM R. 201, 206-07 (App. 2013) (right of allocution); Neth, 14 FSM R. at 232-34 (right to public trial at all stages); Nena v. Kosrae, 14 FSM R. 73, 77-81 (App. 2006) (rights to public trial and to effective assistance of counsel); Ting Hong Oceanic Enterprises v. FSM, 7 FSM R. 471, 477 (App. 1996) (right to be present at trial); Moses v. FSM, 5 FSM R. 156, 161 (App. 1991) (right to remain silent); In re Juvenile, 4 FSM R. 161, 164 (App. 1989) (right to be advised of rights). Nevertheless, many other constitutional errors are subject to the harmless error rule.
Similarly, other types of non-constitutional trial errors may affect a defendant's substantial rights. Substantial rights are broader than and not necessarily synonymous with constitutional rights.10 Thus, the plain error rule "also applies when the error is obvious and substantial and seriously affects the fairness, integrity, or public reputation of judicial proceedings." Neth v. Kosrae, 14 FSM R. 228, 232 (App. 2006) (emphasis added); see Panuelo v. Amayo, 12 FSM R. 365, 372 (App. 2004) ("When a litigant raises an issue for the first time on appeal, he or she is deemed to have waived the right to challenge the issue unless it involves a plain error that is obvious and substantial and that 'seriously affects the fairness, integrity, or public reputation of judicial proceedings'"); Hartman v. Bank of Guam, 10 FSM R. 89, 95 (App. 2001) ("Error that is 'obvious and substantial' and that 'seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings'") (citation omitted); see Wolphagen v. FSM, 22 FSM R. 96, 100-01 (App. 2018) ("constitutional right to due process and a fair trial"); Etscheit v. Santos, 5 FSM R. 35, 41 n.6 (App.1991) ("due process right to a fair trial"). Unlike the limited class of inherently prejudicial constitutional errors, substantial rights require prejudicial analysis under the harmless error rule.11 In these cases, the court must show a "reasonable possibility" that the error affected the verdict. Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827, 17 L. Ed. 2d 705, 710 (1967).12 The criminal rule itself does not state the standard, but in Jonah v. FSM, our court previously adopted the Chapman Standard, "a constitutional error can be found harmless only when it is harmless beyond a reasonable doubt." 5 FSM R. 308, 315 (App. 1992).
Mens rea, Latin for "guilty mind", means:
The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime
BLACK'S LAW DICTIONARY 1075 (9th ed. 2004) (Mens Rea).13 In the FSM, "Four states of culpability have developed which establish the requisite mental element: [1] intentional, [2] knowing, [3] reckless and [4] negligent." In re Tarpley (II), 3 FSM R. 145, 150 (App. 1987) (emphasis added).14 Pursuant to 11 F.S.M.C. 104(5) "Knowledge" means: "being aware of the nature of the conduct or omission or of the existing circumstances, or believing that a fact exists which brings the conduct or omission within the provisions of this code. It does not require any knowledge of the unlawfulness of such conduct or omission." (emphasis added).15 In other words, "mistake of fact is a defense." FSM v. Wainit, 13 FSM R. 433, 447 (Chk. 2005). However, "mistake of . . . law is not a defense." Id. Ultimately "mistake of fact is [always] a defense if it negates the mens rea required by the crime." STEPHEN A. SALTZBURG, JOHN L. DIAMOND, KIT KINPORTS, & THOMAS H. MORAWETZ, CRIMINAL LAW 216 (1994).16
Pursuant to 11 F.S.M.C. 104(2), Criminal "negligence": "means to engage in conduct which creates a substantial and unjustifiable risk of bodily injury to another, or to engage in conduct which constitutes gross deviation from the standard of care that a reasonable person would exercise, which conduct causes the criminal result." (emphasis added). Thus "[t]he common law developed not only culpability for purposeful and knowing acts (punished more severely), but also for acts involving the creation of a risk either knowingly or one which should have been known." In re Tarpley (II), 3 FSM R. at 150 (emphasis added). In other words, criminal negligence means the defendant should have known of a fact that made the act a crime, but didn't, and it is an omission that an otherwise reasonable person would have known.17
Accordingly, intentionally or knowingly are the only two standards of law that can be applied in this case. The recklessness or negligence standards are not sufficient to establish culpability under this statute.18 Moreover, even an unreasonable mistake is a defense to the specific intent of knowledge, so long as it is sincere.19
Pursuant to Article IV, section 3 of the FSM Constitution, "[a] person may not be deprived of life, liberty, or property without due process of law, or be denied the equal protection of the laws." The procedural right not to be deprived of liberty without due process is a substantial constitutional guarantee. The trial court held that Mr. DeOrio "knew or should have known" that he was not authorized to take the letter. Knowledge is the correct standard and negligence the wrong standard. A finding of guilt based on negligence where knowledge is the standard is plain error, both obvious and substantial, seriously affecting the fairness and integrity of the proceedings. Where knowledge is an element of a crime, it is grave error to fail to convict on that standard. We find, on the record, that there is a reasonable possibility that the trial court could have erroneously convicted on the less culpable mental state which include merely negligent acts. Thus, we cannot say beyond a reasonable doubt that the error was harmless.
Ultimately, it is not clear from the record whether the trial court found that DeOrio knew that the letter was not intended for him, or whether it found that he should have known. There is credible evidence in the record to support a decision either way. We leave that finding to the trial court to clarify, as it is the trial court's province to make findings of fact. It is better equipped to do so, can hold additional hearings, or even a retrial if necessary.
Upon CONSIDERATION of the record and file contained herein, we REVERSE the trial court's order of conviction and REMAND the matter for the trial court to conduct a factual analysis as to whether the defendant had the requisite mens rea to commit this crime. We reach this decision on plain error, rather than the substantial evidence standard raised by the defendant.
_______________________________Footnotes:
1 See Judgment of Conviction (Apr. 21, 2021) with all but four (4) days suspended. Sentence imposed under 11 F.S.M.C. 604(3)(e).
2 The information originally charged defendant with five crimes, three of which were dismissed on defendant's motion. As to the fourth, theft, defendant was found not guilty at trial. See 11 F.S.M.C. 602.
3 His entire sentence is stayed pending this appeal. See Order Granting Stay of Sentence of Imprisonment (Apr. 30, 2021).
4 See Otto v. Kosrae, 5 FSM R. 218 (App. 1991); Tosie v. FSM, 5 FSM R. 175, 177 (App. 1991); Runmar v. FSM, 3 FSM R. 308, 315 (App. 1988); Engichy v. FSM, 1 FSM R. 532, 545-46 (App. 1984).
5 See Tr. at 77-78. "The court can't conclude that the government proved beyond a reasonable doubt that the defendant purposefully deprived the national government of the letter, so the general finding of theft charges, is the court will enter a general finding of not guilty, but on the second – the other charge the court does find that the defendant took the letter without proper authority and that he knew or should have known that he did not have proper authority to take the letter that was received by the President and on which the President wrote a note on or instruction, so the court makes a general finding of guilty on the charge that the defendant violated section 604." (emphasis added).
6 "More germane to our analysis in this case is the general agreement of those other courts that a shift of the burden of persuasion to the defendant concerning, any essential element of an alleged crime would be violative of the due process requirement that the Government must prove all elements of the crime beyond a reasonable doubt." Alaphonso v. FSM, 1 FSM R. 209, 224 (App. 1982) (emphasis added). Furthermore, "[l]est there remain any doubt about the constitutional stature of the reasonable doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Id. at 218 (emphasis added) (citation omitted).
7 See Jonah v. FSM, 5 FSM R. 308, 314-15 (App. 1992) ("harmless error rule").
8 "In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of the judicial proceeding." United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555, 557 (1936).
9 Citing Chapman v. California, 386 U.S. 18, 22-23, 87 S. Ct. 824, 827-28, 17 L. Ed. 2d 705, 709-10 (1967) ("there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction . . . [however] some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error").
10 See Llamas v. State, 991 S.W.2d 64, 68 (Tex. Ct. App. 1998) ("the term 'substantial rights' encompasses not only constitutionally based rights, but also certain statutory rights").
11 See FSM Crim. R. 52(a).
12 See also United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340, 159 L. Ed. 2d 157, 168 (2004) ("reasonable probability").
13 Actus Reus, Latin for "guilty act," means: "The wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability; a forbidden act
14 "The National Criminal Code of the Federated States of Micronesia employs the words, 'intent' (not purpose) and 'knowledge.' 11 F.S.M.C. 104 (4) and (5)." In re Tarpley (II)<, 3 FSM R. at 150. This is based on the "the Model Penal Code's definitions of culpability for an act done 'purposely,' and one done 'knowingly.' Sec. 2.02 (a) and (b)." Id.
15 "Knowledge" is "An awareness or understanding of a fact or circumstance; a state of mind in which a person has no substantial doubt about the existence of a fact." BLACK'S LAW DICTIONARY 950 (9th ed. 2004) (emphasis added). "[B]ecause there are several areas of the criminal law in which there may be good reason for distinguishing between one's objectives and [one's] knowledge, the modern approach is to define separately the mental states of knowledge and intent. . . . This is the approach taken in the Model Penal Code [§ 2.02(2)(a) & (b)]." Id.
16 "Instead of speaking of ignorance or mistake of fact . . . as a defense, it would be just as easy to note simply that the defendant cannot be convicted when it is shown that he does not have the mental state required by law for commission of that particular offense. For example, to take the classic example of the man who takes another's umbrella out of a restaurant because he mistakenly believes that the umbrella is his, it is not really necessary to say that the man, if charged with larceny, has a valid defense of mistake of fact; it would be more direct and to the point to assert that the man is not guilty because he does not have the mental state . . . [which requires the specific] intent to steal the property of another . . . The rather simple rule that an honest mistake of fact . . . is a defense when it negates a required mental element of the crime." WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 47, at 356-57 (1972) (emphasis added).
17 In truth, the gross deviation required for criminal negligence is an even higher standard than tortious negligence. Nevertheless a "reasonable person" is "[a] hypothetical person used as a legal standard, esp. to determine whether someone acted with negligence; specif., a person who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and of others' interests. The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions." BLACK'S LAW DICTIONARY 1360 (9th ed. 2004).
18 "The creation of a risk, either knowingly or where the person should have known, provided the culpable mental state to support criminal sanction. If the risk was great and the actor was aware of it, it is called reckless. . . . Thus a homicide caused unintentionally but where the actor created an unreasonable risk is not murder, but may be involuntary manslaughter." In re Tarpley (II), 3 FSM R. at 149-50 (emphasis added).
19 "There is no justification, however, for requiring that ignorance or mistake be reasonable if the crime or the element of the crime involved requires acting purposefully or knowingly for its commission." Model Penal Code § 2.04 at 271, cmt. 1. (emphasis added). "For crimes that require purpose or knowledge, an honest mistake of fact is a defense, even if the mistake was reckless. For crimes requiring recklessness, a mistake of fact is a defense so long as it was not reckless. And for crimes requiring negligence, a mistake of fact is a defense provided the mistake was not negligent – in other words, it must have been a reasonable mistake." STEPHEN A. SALTZBURG, JOHN L. DIAMOND, KIT KINPORTS, & THOMAS H. MvORAWETZ, CRIMINAL LAW, 216-17 (1994) (emphasis added).
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