FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Ioanis, 24 FSM R. 661 (Pon. 2024)
FEDERATED STATES OF MICRONESIA,
Plaintiff,
vs.
M.C. IOANIS, ROBERT CELESTINE, and
ISABELLA SIPWOLI PRIMO,
Defendants.
CRIMINAL CASE NO. 2020-500
ORDER GRANTING ACQUITTAL IN PART; ORDER DENYING ACQUITTAL IN PART
Beauleen Carl-Worswick
Associate Justice
Trial: September 11-13, October 8-9, 11, 18, December 6, 2024
Decided: December 22, 2024
APPEARANCES:
For the Plaintiff:
Jeffrey S. Tilfas, Esq.
Josephine Leben James, Esq.
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Defendant:
Salomon M. Saimon, Esq.
(Ioanis)
P.O. Box 911
Kolonia, Pohnpei FM 96941
For the Defendant:
Tevita T. Muloilagi, Esq.
(Celestine)
Office of the Public Defender
P.O. Box 814
Weno, Chuuk FM 96942
For the Defendant:
Marstella E. Jack, Esq.
(Primo)
P.O. Box 2210
Kolonia, Pohnpei FM 96941
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The court, on a defendant's or its own motion, will order the entry of judgment of acquittal of one or more offenses charged in the information after the evidence of either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. FSM v. Ioanis, 24 FSM R. 661, 665 (Pon. 2024).
On a Rule 29 motion, the question is not whether the government has proved its case beyond a reasonable doubt to the fact-finder, but the proper question is whether there is such evidence that reasonable persons could find guilt beyond a reasonable doubt. It is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade a finder of fact to reach a verdict of guilt by the requisite standard. The test of sufficiency is whether a reasonable fact-finder, viewing the evidence and reasonable inferences therefrom in the light most favorable to the prosecution, could find the defendant guilty beyond a reasonable doubt. FSM v. Ioanis, 24 FSM R. 661, 665 (Pon. 2024).
Essentially, a Rule 29 motion for judgment of acquittal is a challenge to the sufficiency of the evidence. It tests the sufficiency of the evidence against the defendant, and avoids the risk that the trier of fact may capriciously find the defendant guilty even though there is no legally sufficient evidence of guilt. FSM v. Ioanis, 24 FSM R. 661, 665 (Pon. 2024).
Substantial evidence has been ruled to be more than a scintilla. It means such relevant evidence as a reasonable mind might accept to support a conclusion. It is evidence affording a substantial basis of fact from which the fact in issue can be reasonably inferred. FSM v. Ioanis, 24 FSM R. 661, 665 (Pon. 2024).
The relevant question in assessing a defendant's motion for acquittal is whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. FSM v. Ioanis, 24 FSM R. 661, 665 (Pon. 2024).
The government has the burden of proof in criminal cases, and must prove each element of the crimes charged beyond a reasonable doubt. FSM v. Ioanis, 24 FSM R. 661, 665 (Pon. 2024).
Proof of guilt may be by either direct evidence, circumstantial evidence or both. Direct evidence is evidence, which if believed, proves the existence of facts in issue without inference or presumption. Circumstantial evidence is evidence of facts and circumstances from which the existence or nonexistence of facts in issue may be inferred. FSM v. Ioanis, 24 FSM R. 661, 665 (Pon. 2024).
It is error for the court to rely on exhibits never identified, described, or marked at trial, but the court can consider the contents of the exhibits described in testimony; and which the defendant had a full opportunity, and did cross examine. FSM v. Ioanis, 24 FSM R. 661, 666 (Pon. 2024).
Assault is a crime when a person unlawfully and intentionally offers or attempts, with force or violence, to strike, beat, wound, or do bodily harm to another. Although physical contact is not an essential element, violence, threatened or offered, is. Thus, assault refers to the apprehension of imminent contact, and an assault is not determined by the presence or absence of injury. FSM v. Ioanis, 24 FSM R. 661, 666 (Pon. 2024).
Words alone cannot amount to an assault, unless the words, together with the other acts or circumstances, put one in reasonable apprehension of imminent harmful or offensive contact with one's person. FSM v. Ioanis, 24 FSM R. 661, 666 n.8 (Pon. 2024).
When the victim herself testified that the defendant never struck or hit her and no one else ever saw the defendant hit or attempt to hit the victim, there was not sufficient evidence to support the charge of assault. FSM v. Ioanis, 24 FSM R. 661, 666 (Pon. 2024).
A person commits a crime if he or she willfully, whether or not acting under the color of law, deprives another of, or injures, oppresses, threatens, or intimidates another in the free exercise or enjoyment of, or because of his or her having so exercised any right, privilege, or immunity secured to him by the FSM Constitution or laws. FSM v. Ioanis, 24 FSM R. 661, 666-67 (Pon. 2024).
Pohnpei prison regulations acknowledge that national law (11 F.S.M.C. 701) prohibits a person, acting under color of law (e.g. a staff member), from depriving any other person (such as an inmate) of rights under the FSM Constitution or FSM laws, and that an inmate has a right as a human being to be treated respectfully, impartially, and fairly by all personnel. FSM v. Ioanis, 24 FSM R. 661, 667 (Pon. 2024).
Pohnpei prison regulations acknowledge that inmates have a right to be provided health care which includes regular meals, bedding, and opportunities to shower regularly, proper ventilation, a regular exercise period, and certain necessary medical and dental treatment. "Bedding" means such bedding which comports with the contemporary FSM standard of decency. FSM v. Ioanis, 24 FSM R. 661, 667 (Pon. 2024).
Even though health care, meals, bedding, and opportunity to shower are expressly enumerated in the Pohnpei prison regulations, other rights guaranteed under the constitution or laws of the FSM should not be denied to a prisoner, regardless of their crime. FSM v. Ioanis, 24 FSM R. 661, 667 (Pon. 2024).
Yelling at a non-cooperative inmate for compliance with rules and regulations does not constitute mistreatment or oppression, in the prison context. FSM v. Ioanis, 24 FSM R. 661, 667 (Pon. 2024).
Section 514 is taken, virtually verbatim, from Section 243.1 of the Model Penal Code, and relates to what are commonly known as civil rights offenses, i.e., occasions where policemen or other persons acting under color of official right subject a person to illegal arrest, detention, search, etc. The provision is broadly conceived to any situation where a person acting or purporting to act in an official capacity deprives another of any right, privilege, power, or immunity or infringes on any personal or property right. FSM v. Ioanis, 24 FSM R. 661, 668 (Pon. 2024).
Many acts within the official oppression offense are independently criminal under some other provision so it is thus a residual statute designed to reach official depredations that are not otherwise criminal but that nevertheless should be prosecuted as an abuse of authority. This legislation against oppression discriminates between misbehavior involving the actor's official capacity and purely private wrongdoing by one who incidently may be a public servant. FSM v. Ioanis, 24 FSM R. 661, 668 (Pon. 2024).
Section 514 generally addresses wrongful conduct directed towards members of the public and relates to civil rights crimes where a person acting in an official capacity deprives another of any right, privilege, power, or immunity or infringes on any personal or property right. FSM v. Ioanis, 24 FSM R. 661, 668-69 n.16 (Pon. 2024).
A defendant prison guard will be acquitted of official oppression when it was not shown that she ever hit or even threatened to hit the victim in violation of the law, and when, even if she had, this alone is not necessarily mistreatment in the disciplinary context of the prison setting and such justified uses of force often serve a legitimate penological purpose. FSM v. Ioanis, 24 FSM R. 661, 669 (Pon. 2024).
A motion for acquittal will be denied when, without the facts testified to as true, testimony that is evidence and that is enough to sustain a conviction, and that was independently corroborated by another, viewed in the light most favorable to the government, is sufficient evidence to potentially sustain a verdict against the defendant and a rational trier of fact could have found that the elements of the crimes charged could be met beyond a reasonable doubt. FSM v. Ioanis, 24 FSM R. 661, 669 (Pon. 2024).
Corroboration of witness testimony is not required, and lack of corroboration goes only to the weight of the evidence, not to its sufficiency. FSM v. Ioanis, 24 FSM R. 661, 669 n.19 (Pon. 2024).
A motion for acquittal will be denied when, without accepting the facts as true, the court finds the testimony is evidence, and that it is enough to sustain a conviction, even though there was no corroborating testimony of another witness or any physical evidence to this event, and when, viewing the evidence in the light most favorable to the government, the evidence of a single witness, the victim herself, is sufficient to potentially sustain a verdict against the defendant and that a rational trier of fact could have find that the elements of the crimes could be met beyond a reasonable doubt. FSM v. Ioanis, 24 FSM R. 661, 669-70 (Pon. 2024).
A single victim's testimony, uncorroborated by any other witness, or supported by physical evidence, can be sufficient to sustain a conviction so long as the trial court finds that it is credible and reliable. FSM v. Ioanis, 24 FSM R. 661, 670 n.20 (Pon. 2024).
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BEAULEEN CARL-WORSWICK, Associate Justice:
On October 8, 2024, the Government rested its case in chief, after five days of trial, Associate Justice Beauleen Carl-Worswick presiding. Appearing on behalf of the FSM Government was Assistant Attorney General Jeffrey Tilfas (Tilfas). Appearing on behalf of defendant M.C. Ioanis, (Ioanis), was Salomon Saimon (Saimon). Appearing on behalf of defendant Robert Celestine (Celestine) was Tevita Toloi Muloilagi (Muloilagi). Appearing on behalf of defendant Isabella Sipwoli Primo (Primo) was Marstella Jack (Jack). During the trial, the court heard testimony from six (6) witnesses,1 and admitted into evidence one document, conditionally.2 On October 9, 2024, the next day, attorneys for all three defendants made motions for acquittal and presented oral arguments to the court.
Pursuant to FSM Criminal Rule 29(a), a Motion for Judgment of Acquittal, states in relevant part,
The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the information after the evidence of either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.
(emphasis added). With regard to Rule 29, the appellate division has held,
The question is not whether the government has proved its case beyond a reasonable doubt to the fact-finder. Instead, the proper question in a Rule 29 motion is whether there is such evidence that reasonable persons could find guilt beyond a reasonable doubt; it is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade a finder of fact to reach a verdict of guilt by the requisite standard.
Andohn v. FSM, 1 FSM R. 433, 442-43 (App. 1984) (emphasis added).3 "The test of sufficiency is whether a reasonable jury, viewing the evidence and reasonable inferences therefrom in the light most favorable to the prosecution, could find the defendant guilty beyond a reasonable doubt." Id. at 439. Furthermore, the trial division explained,
Essentially a Rule 29 motion for judgment of acquittal is a challenge to the sufficiency of the evidence. . . . It tests the sufficiency of the evidence against the defendant, and avoids the risk that the trier of fact may capriciously find the defendant guilty even though there is no legally sufficient evidence of guilt.
. . . [S]ubstantial evidence has been ruled to be more than a scintilla. It means such relevant evidence as a reasonable mind might accept to support a conclusion. It is evidence affording a substantial basis of fact from which the fact in issue can be reasonably inferred.
The relevant question in assessing the Defendants . . . motion is whether, after viewing the evidence in the light most favorable to the Government, any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt.
FSM v. Shiro, 21 FSM R. 627, 631 (Chk. 2018) (emphasis added) (citations omitted).4 "The government has the burden of proof in criminal cases, and must prove each element of the crimes charged beyond a reasonable doubt." FSM v. Ting Hong Oceanic Enterprises, 8 FSM R. 166, 171 (Pon. 1997).5
"Proof of guilt may be by either direct evidence, circumstantial evidence or both. Direct evidence is evidence, which if believed, proves the existence of facts in issue without inference or presumption." FSM v. Ting Hong Oceanic Enterprises, 8 FSM R. at 171.6 "Circumstantial evidence is evidence of facts and circumstances from which the existence or nonexistence of facts in issue may be inferred." Id. (emphasis added).
Finally, the court is ever mindful that "it is error for the court to rely on exhibits never identified, described or marked at trial." Waguk v. Kosrae Island Credit Union, 6 FSM R. 14, 18 (App. 1993) (emphasis added). Nevertheless, the court can consider "[t]he contents of the exhibits . . . described in testimony; [and which] defendant had a full opportunity, and did cross examine." Id. (emphasis added).
Defendant Primo was charged with three counts: 1) Count 9: Assault, in violation of 11 F.S.M.C. 609; 2) Count 3: Deprivation of Rights in violation of 11 F.S.M.C. 701; 3) Count 6: Official Oppression in violation of 11 F.S.M.C. 514. The court grants the motion for acquittal in favor of defendant Primo on all three counts, for the reasons that follow.
Pursuant to 11 F.S.M.C. 609(1), Assault, "A person commits a crime if he or she unlawfully and intentionally offers or attempts, with force or violence, to strike, beat, wound, or do bodily harm to another." (emphasis added). "Assault is frequently defined as an . . . attempt to commit a battery." 6 AM. JUR. 2D Assault and Battery § 1, at 10 (rev. ed. 1999) (emphasis added).7 "Although physical contact is not an essential element, violence . . . threatened or offered – is." Id. (emphasis added).8 Thus, "[a]ssault refers to the apprehension of imminent contact." Paul v. Celestine, 4 FSM R. 205, 207 (App. 1990).9 "An assault is not determined by the presence or absence of injury." Id.
Inmate Anreta Fred (Fred), herself testified that officer Primo never struck or hit her. No other correctional officer ever saw Primo hit or attempt to hit inmate Fred.10 The government itself conceded, in oral argument on the motion, that there was not sufficient evidence to support this charge. Accordingly, the court finds there was not sufficient evidence for a rational trier of fact to conclude Fred was assaulted by Primo in violation of 11 F.S.M.C. 609.
The FSM Constitution article IV, § 8, the declaration of rights states in full, "Excessive bail may not be required, excessive fines imposed, or cruel and unusual punishments inflicted. The writ of habeas corpus may not be suspended unless required for public safety in cases of rebellion or invasion." (emphasis added).11 Pursuant to 11 F.S.M.C. 701(1), deprivation of rights,
A person commits a crime if he or she willfully, whether or not acting under the color of law, deprives another of, or injures, oppresses, threatens, or intimidates another in the free
exercise or enjoyment of, or because of his or her having so exercised any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia, the laws of the Trust Territory of the Pacific Islands, or the Constitution or laws of the United States of America which are applicable to the Federated States of Micronesia.
(emphasis added). "Chapter 7 of Title 11 of the FSM Code creates a statutory cause of action for individuals whose constitutional rights have been violated. It was enacted to safeguard the rights guaranteed to all FSM citizens under Article IV of the FSM Constitution." Ladore v. Panuel, 17 FSM R. 271, 275 (Pon. 2010). The Policies and Procedures for Pohnpei State Department of Justice Division of Corrections, (Prison Regulation), Chapter 2, Inmate Rights, Privileges, and Responsibilities, in relevant part states that, "National Law (11 F.S.M.C. 701) prohibits a person, acting under color of law (e.g. a Staff Member), from depriving any other person (such as an inmate) of rights under the FSM Constitution or laws of the Federated States of Micronesia." (emphasis added). Pursuant to Prison Regulation 2.3(a)(1), prisoner's rights, "Inmates have a right as a human being to be treated respectfully, impartially, and fairly by all personnel." (emphasis added). Further noting that,
Inmates have a right to be provided health care which includes regular meals, bedding and opportunities to shower regularly, proper ventilation, a regular exercise period, and certain necessary medical and dental treatment. "Bedding", as used herein, means such bedding which comports with the contemporary standard of decency of the FSM.
(emphasis added).12 Even though health care, meals, bedding, and opportunity to shower are expressly enumerated, other rights guaranteed under the constitution or laws of the FSM should not be denied to a prisoner, regardless of their crime.13
Inmate Fred testified that there was considerable animosity and resentment between her and Primo. While Fred testified that Primo would frequently yell at her and threaten her, she testified that Primo never hit her, struck her, or assaulted her. Fred further testified that on one occasion Primo removed her bedding, pillows, and blanket. As a result, her "back hurt." Correctional Officer Clayton Pelep (Pelep), testified that he had heard Primo yelling at Fred threaten to put her into solitary confinement. According to his testimony, however, yelling at an uncooperative inmate is a normal part of discipline within the prison system, and, in his opinion, neither mistreatment nor oppression. Pelep further testified to the prison policy regarding "one inmate, one mattress." Correctional Officer Ivaleen Kapriel (Kapriel) also testified to this policy as well, stating that it is not uncommon for officers to take extra bedding away from prisoners.14 At the end of the witness' testimony, it was not clear if Fred had only extra bedding removed, or all of it.
Based on these witnesses, the court finds that yelling at a non-cooperative inmate for compliance with rules and regulations does not constitute mistreatment or oppression, in the prison context. Furthermore, threats to place someone in solitary confinement are not a violation of the rights of prisoners, and indeed
were contemplated therein.15 Finally, the court finds that it was not shown by sufficient evidence that Primo deprived Fred of bedding, sheets and pillows, forcing her to sleep on the bare concrete. While some evidence was presented to the court, it was not sufficient for a reasonable trier of fact to conclude that it in fact happened, especially given their antagonistic relationship and the incentive for an inmate to seek revenge for perceived abuses in the prison context. With the inferences drawn in the light most favorable to the government, the court finds that there was not sufficient evidence for a rational trier of fact to conclude that Fred was deprived of rights by Primo in violation of 11 F.S.M.C. 701(1).
Pursuant to 11 F.S.M.C. 514(1) Official Oppression is committed when,
A person acting or purporting to act in an official capacity on behalf of the Federated States of Micronesia, or taking advantage of such actual or purported capacity, commits a crime if, knowing that his or her conduct is illegal, he or she: (a) subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien, or other infringement of personal or property rights; or (b) denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity.
(emphasis added). In FSM v. Arnold, our court held stated:
Section 514 is taken, virtually verbatim, from Section 243.1 of the Model Penal Code. The Model Penal Code Explanatory Note for Section 243.1 explains that
Section 243.1 relates to what are commonly known as civil rights offenses, i.e., occasions where policemen or other persons acting under color of official right subject a person to illegal arrest, detention, search, etc. The provision is broadly conceived to any situation where a person acting or purporting to act in an official capacity deprives another of any right, privilege, power, or immunity or infringes on any personal or property right. . . .
FSM v. Arnold, 23 FSM R. 557, 569 (Chk. 2022) (emphasis added). Further,
Many acts within this offense are independently criminal under some other provision . . . . Section 243.1 is thus a residual statute designed to reach official depredations that are not otherwise criminal but that nevertheless should be prosecuted as an abuse of authority." 3 MODEL PENAL CODE § 243.1 cmt. 2 at 293 (1980). This "[l]egislation against oppression discriminates between misbehavior involving the actor's official capacity and purely private wrongdoing by one who incidently may be a public servant." Id. § 243.1 cmt. 3, at 295 (e.g., altercation between two on-duty policemen leading to an assault by one on the other raises only private wrongdoing issues while a policeman's assault on a prisoner raises abuse of authority issues).
Arnold, 23 FSM R. at 569 (emphasis added).16
Fred testified that she was not abused or mistreated for the first six (6) months she was in prison. As stated, supra, there was animosity between Primo and Fred, and Primo frequently yelled at Fred for noncompliance. However, it was not shown that Primo ever hit or even threatened to hit Fred in violation of the law.17 Noting that even if she had, this alone is not necessarily mistreatment in the disciplinary context of the prison setting and such justified uses of force often serve a legitimate penological purpose.18 Nor was it shown with sufficient evidence that Primo removed all of Fred's bedding. Accordingly, the court finds there was not sufficient evidence for a rational trier of fact to conclude that Fred was oppressed or mistreated by Primo in violation of 11 F.S.M.C. 514.
Defendant Ioanis was charged with three counts: 1) Count 7: Assault, in violation of 11 F.S.M.C. 609; 2) Count 1: Deprivation of Rights in violation of 11 F.S.M.C. 701; 3) Count 4: Official Oppression in violation of 11 F.S.M.C. 514. Upon careful consideration of the witness's testimony and exhibits admitted into evidence, the court denies the motion for acquittal against defendant Ioanis on all three counts.
Inmate Fred testified that Correctional Officer Ioanis called her into the Captain's Office to massage his back. After the massage he asked her to have sex. She testified that she said no more than once. She testified that she tried to resist but he pulled her shorts down. He then grabbed her, pushed her down, and sexually assaulted her. Without accepting these facts as true, the court finds that testimony is evidence and that this is enough to sustain a conviction. Significantly, this event was independently corroborated by Correctional Officer Ivaleen Kapriel (Kapriel) who testified that defendant Ioanis admitted that he had sex with her and that he would not do it again.19
Accordingly, in the light most favorable to the Government, the court finds that the evidence presented was sufficient to potentially sustain a verdict against defendant Ioanis and that a rational trier of fact could have found that the elements of these crimes could be met beyond a reasonable doubt.
Defendant Celestine was charged with three counts: 1) Count 8: Assault, in violation of 11 F.S.M.C. 609; 2) Count 2: Deprivation of Rights in violation of 11 F.S.M.C. 701; 3) Count 4: Official Oppression in violation of 11 F.S.M.C. 514. Upon careful consideration of the witness's testimony and exhibits admitted
into evidence, the court denies the motion for acquittal against defendant Celestine on all three counts.
Inmate Fred testified that Correctional Officer Celestine came into her cell at night wearing only his boxer shorts. Fred testified that he pulled her sheet off of her and then pulled her pants and underwear down. She testified that he put his head between her legs and performed oral sex on her. She testified that she tried to resist, but then let him. She further testified that afterward she went to the bathroom and he left. Without accepting these facts as true, the court finds this testimony is evidence, and that it is enough to sustain a conviction, noting that there was no corroborating testimony of another witness or any physical evidence to this event.20
Nevertheless, in the light most favorable to the Government, the court finds that the evidence of a single witness, in this case the victim herself, is sufficient to potentially sustain a verdict against defendant Celestine and that a rational trier of fact could have find that the elements of these crimes could be met beyond a reasonable doubt.
UPON CONSIDERATION of the testimony and evidence admitted, the court GRANTS the Motion for Acquittal for defendant Primo but DENIES the motion for Acquittal for defendants Ioanis and Celestine.
IT IS HEREBY ORDERED that Officer Primo is ACQUITTED as to all three counts: 1) Count 9: Assault, in violation of 11 F.S.M.C. 609; 2) Count 3: Deprivation of Rights in violation of 11 F.S.M.C. 701; and 3) Count 6: Official Oppression in violation of 11 F.S.M.C. 514. A judgment of acquittal shall follow.
_______________________________Footnotes:
1 1) Captain Kasner Aldens; 2) Inmate Anreta Fred; 3) Officer Clayton Pelep; 4) Correctional Facility Cook Elmihter Albert; 5) Inmate Theresa Hallers; 6) Correctional Officer Ivaleen Kapriel.
2 Government's Exhibit M is a witness statement made by Clayton Pelep. The court conditionally admitted only the Pohnpeian version, due to discrepancies with the English translation.
3 See FSM v. Sonis, 18 FSM R. 620, 621 (Chk. 2013) (citing Andon v. FSM, 1 FSM R. 433, 442 (App. 1984).
4 "It is an important safeguard to the defendant. It tests the sufficiency of the evidence against the defendant." 2A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 461, at 325 (4th ed. 2009) (emphasis added). "The requirement that the prosecution must establish a prima facie case by its own evidence before the defendant may be put to his defense." Id. § 462, at 333.
5 See Ludwig v. FSM, 2 FSM R. 27, 35 (App. 1985) ("the government's traditional burden of proving beyond a reasonable doubt every fact necessary to constitute the offense").
6 See BLACK'S LAW DICTIONARY 413 (5th ed. 1979).
7 "Originally, common-law assault was simply an attempt to commit a battery." MODEL PENAL CODE § 211.1, cmt. b at 176 (1997).
8 "Words alone cannot amount to an assault, unless the words, together with the other acts or circumstances, put one in reasonable apprehension of imminent harmful or offensive contact with one's person." AM. JUR. 2D Assault and Battery § 1, at 12 (1999).
9 In contrast, "[b]attery is 'a harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff . . . to suffer such a contact.'" Paul v. Celestine, 4 FSM R. 205, 207 (App. 1990) (emphasis added) (citation omitted).
10 As testified by two other correctional officers: 1) Clayton Pelep, and 2) Ivaleen Kapriel.
11 See Hudson v. Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 3198, 82 L. Ed. 2d 393, 401 (1984) ("Prisons are not beyond the reach of the constitution").
12 See also attachment 2, Prisoner Rights and Responsibilities.
13 Bedding is defined therein as "such bedding which comports with the contemporary standard of decency in the FSM." Pon. Prison Reg. 2.3(a)(4).
14 "Prisoner's have a right as a human being to be treated respectfully, impartially, and fairly by all personnel . . . [and] Prisoner's have a right to be provided with health care . . . meals, bedding and opportunities to shower." Joint Law Enforcement Agreement, Attachment 1, Prisoner's Rights. (emphasis added). Bedding means that "which comports with the contemporary standard of decency of the FSM." Id. See also FSM Const. art. IV, § 8 ("cruel and unusual punishments").
15 "Segregated prisoners have a right to be housed in quarters used for disciplinary segregation which are ventilated, adequately lighted, and maintained in a sanitary condition." Pon. Prison Regs. 2.4(a)(1); see also Joint Law Enforcement Agreement, Attachment 1, Prisoner's Rights.
16 Section 514 was not designed to address a public servant's wrongdoing that affects the ability of other public servants of similar rank in performing their duties. It generally addresses wrongful conduct directed towards members of the public. Since Section 514(1) relates to civil rights crimes where a person acting in an official capacity deprives another of any right, privilege, power, or immunity or infringes on any personal or property right, it would not apply here.
FSM v. Arnold, 23 FSM R. 557, 569 (Chk. 2022) (emphasis added).
17 "While an inmate is not without civil rights, the rights are nevertheless tempered, by the fact of incarceration and the exigencies of correctional facility management and discipline." Prison Reg. 2.1 (emphasis added). A legal justification is "A defense that arises when the defendant has acted in a way that the law does not seek to prevent. Traditionally, the following defenses were justifications: consent, self-defense, defense of others, defense of property, necessity (choice of evils), the use of force to make an arrest, and the use of force by public authority." BLACK'S LAW DICTIONARY 944 (9th ed. 2009).
18 Cf. Ortiz v. New Mexico, 550 F. Supp. 3d 1020, 1068 (D.N.M. 2021) ("Where no legitimate penological purpose can be inferred from a prison employee's alleged conduct").
19 "Corroboration of witness testimony, however, is not required under federal law." Parks v. Sheahan, 104 F. Supp. 3d 271, 283 (E.D.N.Y. 2015). "Lack of corroboration goes only to the weight of the evidence, not to its sufficiency." United States v. Hamilton, 334 F.3d 170, 179 (2d Cir. 2003) (citation omitted).
20 The testimony of a single victim, uncorroborated by any other witness, or supported by physical evidence, has been held sufficient to sustain a conviction so long as the trial court finds that it is credible and reliable. See Ned v. Kosrae, 20 FSM R. 147, 152 (App. 2015). In Ned, the appellate court affirmed the conviction, notwithstanding Ned's own testimony to that directly contradicted the victim.
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