Federated States of Micronesia v Boaz [1981] FMSC 4; 1 FSM Intrm. 022 (Pon. 1981) (21 September 1981)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

Cite as FSM v. Boaz, 1 FSM Intrm. 22 (Pon. 1981)

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STATE OF PONAPE
FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

SINDEN BOAZ,
Defendant.

CONVICTION-BURGLARY

CRIMINAL NO. 1981-502

The testimony in this case shows that during the night of August 7, 1981, at approximately 2 A.M., Bob Pedrus was awakened by pounding on the wall of the house owned by Joab Micah, adjacent to Mr. Pedrus' house in Mand, Madolenimw. Going outside he encountered the defendant, Sinden Boaz, in a drunken condition pounding against the walls of the house. The extent of the damage inflicted upon the house by Mr. Boaz is not clearly shown in the testimony but it obviously was considerable. Two witnesses, including Mr. Pedrus, testified that the defendant "broke the house". Another witness, Ohrden Ohry, testified that Mr. Boaz subsequently entered the house through the hole in the wall that he caused. There is some question whether Mr. Ohry actually saw the defendant enter, and the Court is not accepting that testimony for purposes of determining the defendant's place of entry into the house, but even if the conclusion of the witness is based merely on his later viewing of the hole in the wall, it

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conveys an impressive sense of the damage caused by the defendant's pounding activities.

Mr. Pedrus pushed the defendant away from the house. Mr. Boaz fell, then said to Mr. Pedrus, a 66 year old man and a respected member of his community, "If you touch me, I'll kill you." Therefore, Mr. Pedrus and other members of the family and community grabbed the defendant and held him down to subdue him.

They then left the defendant alone, apparently thinking no further damage would be done. The defendant however had other ideas. He soon began shouting threats such as, "I'm going to beat you up," and, "You're the ones who have been disturbing me. Now I'm going to chase you," at the occupants of Joab Micah's house, four teenagers.

We can not be certain whether the defendant actually would have carried out his threats of violence, for almost precisely as he entered the house, everybody else left.

Based upon the above facts, prosecution was initiated against Mr. Boaz charging him with burglary under 11 F.S.M.C. 951, which provides that:

A person commits the offense of burglary if he enters a building or occupied structure, or separately occupied or secured portion thereof, with the purpose to commit any felony, assault, or larceny therein, unless the premises are at the time open to the public or the person is licensed or privileged to enter.

There can be no question that the defendant entered the building. The testimony of all three of the witnesses who were in the house at the time is in agreement on this point.

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The analysis must proceed, then, to the question of whether the defendant's entry was accompanied with the "purpose to commit any felony, assault or larceny therein."

There is no suggestion that the defendant intended to commit larceny in the house. Moreover, there is no indication that he carried with him any kind of weapon and there appears no basis for believing that he intended to commit a felony.¹

The critical issue then becomes whether he intended to commit an assault in the building. Even this question becomes slightly more refined because of the wording of the information filed against the defendant. The information states that the defendant went into the occupied building "for the purpose of fighting with Saisiano Solomon." Under this language it became necessary to show not only that Mr. Boaz had a generalized intent to commit assault when he entered the building as would normally be sufficient to show a violation of 11 F.S.M.C. 951, but the prosecution was required to establish that he entered, as it had claimed, "for the purpose of fighting with Saisiano Solomon."

This Court has concluded that the defendant did indeed enter the building for the purpose of fighting with Saisiano Solomon as well as with several other defendants. The

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intention of an actor must be inferred from what he says and what he does. Before he entered the building, the defendant had threatened to kill one person if he touched the defendant, and he had pounded the walls of the house in which Saisiano Solomon and others were living with such force that he actually "broke" the walls. These are violent actions which, with the shouted threats, certainly evince an intention to commit an assault upon the occupants of the house. Since Saisiano Solomon was one of those occupants and testified that Mr. Boaz had shouted that he would "beat us up", the government has established that Mr. Boaz entered the building for the purpose of fighting with Saisiano Solomon, although of course this does not negate the defendant's desire to assault the other occupants of the other building as well.

It is true that no overt threatening action other than the pounding of the walls and the raucous entry into the building was carried out by the defendant. However even this does not rebound to his credit since actual attacks on Saisiano Solomon and the others were made impossible by their absence from the building. Indeed, the hasty departure of the building's occupants is persuasive testimony as to their own impressions of the defendant's intention when he entered the house. There certainly seems to have been no doubt in their minds that he was entering for the purpose of carrying out an assault on the people in the house. Under 11 F.S.M.C. 951 the issue is not whether the defendant actually committed an assault or a battery, but whether he entered the house with the purpose

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to commit an assault. The claim in the information that the defendant entered the building for the purpose of "fighting" rather than "assaulting" a person within the building does not render the information inadequate for a conviction. A desire to fight carries with it a desire to commit an assault.

The defendant has suggested two possible defenses. The first is that he was privileged to enter the building within the meaning of 11 F.S.M.C. 951 because the building was owned by his cousin, Joab Micah, who had received the property upon the death of Sinden Boaz's uncle, Mikail Micah. He supplements this claim by his testimony that he on numerous occasions in the past entered the building without seeking permission.

Even granting that Mr. Boaz may have had some form of implied privilege under normal circumstances, that privilege surely could have not been exercised at the time and in the manner under consideration in this case. The Court finds no basis for believing there was a privilege to smash the walls of the house and enter at 2 A.M. to the accompaniment of loudly shouted threats at the occupants.

In addition, Mr. Boaz's actions reveal that he did not consider himself to be entering through the exercise of a privilege. The evidence indicates that Joab Micah had authorized Saisiano Solomon's mother and Bob Pedrus to watch over the house during Mr. Micah's absence in Saipan. Mr. Boaz saw Mr. Pedrus just a few minutes before he entered the building but did not seek permission to enter. Instead, he threatened Mr. Pedrus, that "if you touch me, I'll kill you."

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Lastly, the defense has suggested that Mr. Boaz may have been so drunk that he could not formulate the requisite intent to commit an assault or fight with Saisiano Solomon that would be necessary for his actions to constitute the crime of burglary. There is no clear evidence whatever as to the quantities of alcohol consumed by Mr. Boaz on the day preceding his entry into the building. There are general references to gin, vodka, and beer but the defendant did not establish when, or in what quantities, these were consumed.

In any event, this Court would be loathe to uphold a defense based upon a contention that defendant's voluntary intoxication should absolve him of the legal consequences of his conduct. We believe it to be a far better rule that the defendant, rather than the rest of the community, should bear the risk of his own intoxication.

For all of these reasons, we find the defendant, Sinden Boaz, guilty of the crime of burglary under 11 F.S.M.C. 951 of the National Criminal Code as charged. Sentencing is scheduled for Wednesday, October 21 at 9:00 a.m. In the meantime, the defendant is released without restriction.

So ordered this 21st day of September, 1981.

EDWARD C. KING
Chief Justice
Supreme Court of the
Federated States of Micronesia

1. It is perhaps worthy of note that the assault which the Court finds the defendant intended to commit when he entered the building was merely a simple assault. The evidence does not indicate that the defendant had a weapon or intended to inflict serious bodily injury on the occupants. Such an assault is punishable only by 6 months' imprisonment, 11 T.T.C. Sections 201 and 203. This assault itself would be neither a major crime under the National Criminal code, because it does not call for three years' imprisonment, 11 F.S.M.C. 104(6), nor a felony.