Cite as State of Yap v. Langmed, (1995)

[page 1]

Criminal Case No. 1994-270

     This case was tried to the court on June 21st and 22nd, and on the 26th through the 29th. Defendant entered a plea of not guilty to a thirteen count Information. Sonya Pinen, the Defendant's stepdaughter who was 11 years of age at relevant times, is the victim as to two counts of assault and battery (counts I and IV); one count of assault (count II); and six counts of sexual, abuse (counts III, V, VII, VIII, XII, and XIII). Martha Chilif, who is the mother of Sonya Pinen and who was at relevant times the Defendant's wife, is the victim as to one count of assault and battery (count VI), and three counts of sexual assault (counts IX, X, and XI). Pursuant to Rule 23 of the Yap Rules of Criminal Procedure, the court enters the following conclusions of law:

     As to counts I through IX, and counts XII and XIII, the court finds the Defendant guilty.

     As to counts X and XI, the court finds the Defendant not guilty.

Memorandum of Decision
     The Information in this case involves two victims, Sonya Pinen a minor, and Martha Chilif. The court will consider each in turn.

[page 2]

I.   The charges involving the minor child
     The court first considers the allegations of the Information with respect the minor child. The facts of this case, as adduced through the testimony of the Defendant, Sonya Pinen, and Martha Chilif, and which, support the allegations regarding the counts as to which the minor child is a victim, go well beyond the merely disturbing. A brief review of that testimony, however distasteful, is appropriate for the purpose here.

     The Defendant testified with remarkable candor, and in a matter of fact way, about his conduct regarding the child.  He denied that any sexual contact occurred on August 20, 1994 (count XIII). As to the remaining five counts of sexual abuse, he admitted the essential allegations of the Information and testified that he engaged in numerous sex acts with the child. For example, on one such occasion, which supports the allegations of count VII, Defendant instructed his eleven-year-old stepdaughter to take off her clothes and lie on the hood of his pickup. Defendant testified that in the presence of the girl's mother, he put his penis in Sonya's private part. According to the testimony of Martha Chilif, this appalling incident occurred sometime after 4:00 a.m., and Martha Chilif; whom Defendant had just beaten, testified that when he put the girl on top of the car, he told her to shine a flashlight on the girl's genital area so that she, Martha Chilif, would know that "he is not the one to break her [Sonya's] virginity." Defendant's stated reason for this aberrant conduct, which he testified to without shame or any visible embarrassment, was as a disciplinary measure to teach the child and her mother a lesson.

     Defendant contended that on this and the other occasions as to which he admitted, his penis was not erect when he penetrated the eleven-year-old girl. Upon cross examination, he said that his penis was "not really hard, not really soft," in an apparent attempt to show that he did not receive sexual gratification from these acts. However, in the Defendant's statement which was admitted into evidence, he admitted that he "had sex" with the eleven year-old on four occassions, and "put my private part insider her on a fifth occasion.  State`s Exhibit 1.  Both the eleven-year-old victim and her mother testified that on the occasions alleged in the Information, including the August 20th incident, which Defendant denies ever happened, Defendant's penis was erect. Further; Sonya Pinen testified that on at least one occasion, Defendant kissed her and caressed her while he penetrated her. The court also notes the extraordinary inconsistency with respect to the Defendant's testimony generally, in that he testified that he was concerned about his

[page 3]

eleven-year-old stepdaughter becoming pregnant from others, yet acknowledged in his statement (State's Exhibit 1) that he had sex with her, and in his testimony said that he repeatedly put his private part inside her. In sum, having observed the demeanor of the Defendant while he testified in exhaustive and exhausting detail as to the relative state of excitement of his penis at these times, and given his in his statement, the court finds that on this point, Defendant's testimony that he did not receive sexual gratification from his sex acts with the child was patently incredible.1  In addition, the court further finds, again after having closely observed the demeanor of the victim and her mother as they testified, that the testimony of both the victim and her mother regarding the Defendant's state of excitement at relevant times was credible. In any event, the Defendant's sordid conduct, as adduced through his testimony and the testimony of the victim and her mother, amply supports a finding that Defendant is guilty beyond a reasonable doubt as to the charges involving the sexual abuse of his stepdaughter. The court feels compelled to make the all too apparent observation that this unspeakable conduct lies far outside the bounds of any imaginable standard of decency.

     With respect to the assault charge, count I, and the two assault and battery charges, counts II and IV, Defendant admitted count I and count IV, and denied the allegations of count II. With respect to count II, the Sonya Pinen testified that Defendant pulled a knife on her; Defendant denied that

[page 4]

he did. As to this issue of pure credibility,  the Court finds the testimony of the victim credible, and the testimony of the Defendant incredible. As to all three of these charges, the court finds the Defendant guilty beyond a reasonable doubt.

II:  The charges involving Martha Chilif
     The Information alleges one count of assault and battery (count VI) as to Martha Chilif. Defendant admitted the allegations that support that count. As to the sexual assault charges with respect to Martha Chilif, Defendant admitted the acts that support the allegations of counts IX and X, and denied that he did the acts which support the allegations of count XI. Again, having observed the demeanor of both Martha Chilif and the Defendant as they testified, the court has no hesitation in resolving the issue of credibility squarely in favor of the victim: the court makes the specific finding that on this point, Martha Chilif was credible and the Defendant was not.  Having resolved the fact issue, there remains for resolution the issue of law, the query being whether as a matter of law the facts support a finding beyond a reasonable doubt that the Defendant committed sexual assault as defined by 11 YSC section 205. That section provides in pertinent part as follows:

Section 205. Sexual assault.  Every person who intentionally subjects another person to sexual penetration by force, . . . , or who intentionally engages in sexual penetration with another person whom he knows or should know that the other person is mentally or physically incapable of resisting or understanding the nature of his conduct, . . . , shall be guilty of sexual assault . . . .

It is apparent from the testimony of the victim that as to the first occasion at least, which took place on August 18, 1994, and is the subject of count DC Defendant accomplished penetration by force. Martha Chilif testified that she was beaten and then instructed to take a shower and to engage in intercourse with the Defendant. The sex acts, coming as they did on the heels of a beating and having been made to watch as the Defendant violated her eleven-year-old daughter; establish beyond a reasonable doubt in the court's mind that all the necessary elements of 11 YSC 205 were met. Even if physical force was not used to compel submission as the couple

[page 5]
engaged in the physical act of sex itself, that is not a necessary prerequisite to establish force or compulsion.

The term "by force" does not necessarily imply the use of actual physical force to compel submission of the victim to sexual intercourse, but it may mean threatened force or violence if the female does not comply. The threat of such force or violence may create area apprehension of dangerous consequences, or bodily harm, in order to prevent resistance.

65 Am Jug 2d, Rape, sec. 4. The victim testified that as to the August 18th events, she had just been beaten, and that she submitted because of fear that further beating would occur if she did not submit. The court finds that this conduct was that of a reasonable person, and obviated the necessity for her to demonstrate resistance.

     The events of the subsequent nights, August 19th and 20th, 1994, present a closer question. Martha Chilif testified that she submitted on those nights out of the fear that had been induced by the beating administered on the August 18th. However, these parties were married at relevant times, and the court cannot divine whether she submitted from reasonably felt fear, or whether she had come to the point in her relationship with the Defendant where she engaged in sex out of a sense of stoic, albeit consensual, resignation. It may have been that the feeling of fear that Martha Chilif felt was so all pervasive that her conduct on the successive nights in submitting without an expression of nonconsent was reasonable.  However, the fit that this may have been the case does not mean that the court can find beyond a reasonable doubt that it was the case, no matter how egregious the previous conduct of the Defendant. Therefore, the court is compelled to find the Defendant not guilty as to counts X and XI.

      The court also believes that given the nature of the Defendant's actions on August, 18th, Martha Chilif may have been incapable of resisting or understanding the nature of the Defendant's conduct in the sense contemplated by 41 YSC 205 on August 19th and 20th.  Surely any person who witnessed and was subjected to the events of August 18th could not be thinking entirely clearly, and again it may have been that as a result of this experience, Martha Chilif was in a sufficiently dazed state that she "was mentally incapable of resisting or understanding the nature of [Defendant's] conduct" within the meaning of 11 YSC sec. 205 on August 19th and 20th, thus obviating the need for her to demonstrate any

[page 6]

resistance or nonconsent. However, after giving this issue careful consideration, the court cannot in good conscious find beyond a reasonable doubt that this was in fact the case on those occasions. For these reasons then, the court cannot find beyond a reasonable doubt that all the elements of 11 YSC sec. 205 were met on the occasions which occurred on August 19th and 20th, and which are the subject of counts X and XI. Hence, the court must find the Defendant not guilty as to counts X and XI.
Based on the foregoing,


     1)  that the Defendant is guilty as to counts I through IX, and counts XII and XIII of the Information; and

     2)  that the Defendant is not guilty as to counts X and XI of the Information.

                                        Constantine Yinug
                                        Chief Justice

     SO ORDERED THIS 13th DAY OF JULY, 1995.

Filed this 13th day of JULY, 1995

Clerk of Court, Yap


1. The Defendant's argument on Ors point is apparently made to suggest that the sexual contact element of 11 YSC 206(a) is not met. That section provides in pertinent part as follows:

     Sec. 206. Sexual abuse.
(a) Every person who intentionally has sexual contact with another person who is less than thirteen years old . . . is guilty of sexual abuse, . . . .'

The definition of sexual contact is found in 11 YSC sec. 201(e):
(e) "Sexual contact means any touching of the sexual or other intimate parts of a person not married to the actor, done with the ratifying the sexual desire of either party.

Although research has discovered no meaningful legislative history with respect to Section 201(e), it would seem that the inclusion of the language regarding sexual gratification is meant as a shield to protect parents, physicians, and others who deal with the medical or hygiene needs of a child. The Defendant, having engaged vile acts: with an eleven-year-old girl,seeks to use this language as a sword by which to enable him to justify his deviant purposes. It is flatly inconceivable that a would "have sex (see states exhibit 1, the Defendant's own statement) on multiple occasions with a child for any purpose other than sexual gratification. Although the Defendant may find gratification in this skewed logic, the court is not persuaded by it. (Back to Opinion)
rct M@Pt tDEu:@PL@ D@aMFFCFE F F@5Ez[ACeeVqCWMs=EPhԁ~;`7u)URPQ ugEtPj%m Q%t/vX!QVP(]`Yu u!\u Hu! M >薞AQ^2@F5t,@X-E 6 Ơl(QA(D Vt1m c 1@