Este v Federated States of Micronesia [1989] FMSC 14; 4 FSM Intrm. 132 (App. 1989) (28 July 1989)

[1989] FMSC 14; 4 FSM Intrm. 132 (App. 1989)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

FSM APPEAL NO. T1-1988
From Crim. No. 87-1513

KENNEDY ESTE

Appellant

V

FEDERATED STATES OF MICRONESIA

Appellee

BEFORE:
The Honourable Richard H. Benson, Associate Justice, FSM Supreme Court
The Honourable Arthur Ngiraklsong, Temporary Justice, FSM Supreme Court*
The Honourable Jose Dela Cruz, Temporary Justice, FSM Supreme Court**

*Associate Justice, Supreme Court, Republic of Palau
**Associate Justice, Commonwealth Trial Court of the Northern Mariana Islands (at the time of the hearing); now Chief Justice, Supreme Court of the Commonwealth of the Northern Mariana Islands

APPEARANCES: For the Appellant: Michael A. Powell, Chief Public Defender; For the Appellee: Steven P. Pixley, Chief, Div. of Litigation (on brief) and Audrey K. Straight, Asst. Attorney General (in oral argument)

OPINION: 28 July 1989

HEADNOTES

Evidence - Judicial Notice
The trial court may take judicial notice at any stage of the proceedings and may do so when he gives his findings. Este v. FSM, [1989] FMSC 14; 4 FSM Intrm. 132, 135 (App. 1989).

Evidence - Judicial Notice
When the trial court states that it is taking judicial notice of a fact the parties can raise the issue on the propriety thereof. Este v. FSM, [1989] FMSC 14; 4 FSM Intrm. 132, 135 (App. 1989).

Statutes - Weapons
Dangerous device is defined in three categories, 1) explosive, etc., 2) an instrument designed or redesigned as a weapon, and 3) an instrument which can be used to inflict bodily harm and which under the circumstances of its possession serves no lawful purpose. Este v. FSM, [1989] FMSC 14; 4 FSM Intrm. 132, 136 (App. 1989).

Statutes - Weapons
In requiring an identification card in order to possess a dangerous device there was not an intent to require such a card for that category of dangerous devices which can be used to inflict bodily harm and which under the circumstances of its possession serves no lawful purpose. 11 F.S.M.C. 1204(3). Este v. FSM, [1989] FMSC 14; 4 FSM Intrm. 132, 136-37 (App. 1989).

Evidence
An inference is not permitted if it can not reasonably be drawn from the facts in evidence. Este v. FSM, [1989] FMSC 14; 4 FSM Intrm. 132, 138 (App. 1989).

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

The defendant has appealed his conviction in the Trial Division of the following offenses: possession of a dangerous device while under the influence of alcohol; possession of a dangerous device without an identification card; and attempted criminal coercion.

The appeal raises these issues:

1. Whether the evidence supported a finding that a BB gun was a dangerous device;

2. Whether possession of a dangerous device in the category of an "instrument which can be used for the purpose of inflicting bodily harm and which under the circumstances of its possession serves no lawful purposes," without an identification card, is punishable;

3. Whether the court was entitled to infer from the evidence that the defendant attempted criminal coercion.

We hold that the trial court was entitled to find that a BB gun is a dangerous device based on his findings supported by the evidence, namely, that it was capable of inflicting bodily harm and that it was possessed without any lawful purpose.

We next hold that the statute requiring identification cards for dangerous devices was not intended to apply to the classification of dangerous devices which can be used for inflicting bodily injury and which under the circumstances serve no lawful purpose.

We lastly hold that the facts of this case did not support the inference drawn by the court that the defendant was guilty of attempted criminal coercion.

FACTS

This case arose out of incidents occurring in the waters of Truk lagoon near Moen Island about 4:30 p.m. December 31, 1986. Most of the facts are undisputed.

The defendant with some three male companions on board operated an outboard motorboat to overtake another boat which was en route from Moen to Dublon with about 13 persons aboard - men, women and children.

The defendant overtook and made three or four passes of the second boat. During one pass he asked one of the passengers on the other boat if he had arrested "Terry," his brother-in-law. The passenger addressed was a Dublon municipal policeman who had made the arrest. He answered, "Yes." The defendant then said that he was going to shoot the policeman, reached and took a BB gun into his hands. The record is conflicting as to whether the gun was aimed at the policeman, but the defendant's companions immediately acted to take the gun from the defendant, grabbed it, struggled with the defendant, and succeeded in getting the gun away from the defendant. This incident occurred while the boats were 50 feet apart. The passengers were terrified because it appeared that the defendant was holding a rifle.

The evidence fully supported the court's finding that the defendant was under the influence of alcohol at the time.

There was testimony to the effect that the BB gun introduced by the defendant was used for shooting birds, that it had been used for that purpose on that day, although none were killed, and that it could injure an eye, and that a BB fired from the gun would reach 50 feet.

REASONING

I. DANGEROUS DEVICE

The defendant was accused of violating section 1223(4) of title 11 of the FSM Code, which makes it unlawful to carry any gun or dangerous device while under the influence of alcohol.

The definition of dangerous device applicable to this case is found in section 1204(3) of the same title and states, "dangerous device means. . . any instrument which can be used for the purpose of inflicting bodily harm and which under the circumstances of its possession serves no lawful purpose."

The defendant makes no claim that the gun was being possessed for a lawful purpose. Instead he focuses on the requirement that the instrument can be used for the purpose of inflicting bodily injury.

The description of the gun in the statement of facts above reflects that it can be used for the purpose of inflicting bodily injury. The defendant however argues that there was no evidence that the BB gun was loaded or that it had been pumped to make it capable of discharging a BB. The defendant makes this contention for the first time before this court in his brief. It was not presented to the trial court. The trial court found that the object was a BB gun. He did not find that it was the BB gun introduced by the defendant.

We find the record entirely sufficient to support the trial court's finding of dangerousness in the absence of direct evidence of loading and pumping. We point particularly to the action of two of the defendant's companions who grabbed the gun, struggled with the defendant for its possession, and took it from him. Such actions are only consistent with their belief that the gun was presently capable of inflicting injury. We note too that the defendant's companions did not intervene earlier in the incident when passes of the other boat were made, a circumstance which highlights the danger they perceived from defendant's use of the gun.

The defendant next objects to the trial court taking judicial notice of dangerousness while giving his findings. The court said, "... based upon just generalized awareness of which, I guess I'll call it judicial notice, of the capacity of an air pump pellet gun or BB gun such as Exhibit 1 is - I find that it did have the capacity for inflicting bodily harm." Transcript pages 132-33.

The government offered no authority in support of the action of the trial court in taking judicial notice.

Rule 201 of the FSM Rules of Evidence provides that the court can take judicial notice of a fact whether requested or not, FSM Evid. R. 210(c) and at any stage of the proceeding, FSM Evid. R. 201(f). The defendant failed to make a timely request raising the issue of the propriety of taking notice. FSM Evid. R. 201(e).

We therefore find no error in the notice taken by the trial judge.

II. POSSESSION WITHOUT AN IDENTIFICATION CARD

The defendant contends that the violation is not applicable to this classification of dangerous devices. The classification before us in this case are those devices which can be used to inflict harm and which under the circumstances are not possessed for a lawful purpose. He bases this contention on two grounds.

First, he states that requiring the defendant to obtain an identification card would violate his privilege against self-incrimination, since the user would be intending to use an otherwise lawful object in an unlawful way and would be compelled to reveal that intent.

Even though the government failed to oppose this constitutional contention, we do not need to decide the matter, since we agreed with the defendant's second contention.

The defendant asserts that the statute was not intended to reach this classification of devices. The entire definition reads,

"Dangerous device" means any explosive, incendiary, or poison gas bomb, grenade, mine, or similar device, switch or gravity blade knife, blackjack, sandbag, metal wooden or shark's tooth knuckles, dagger, any instrument designed or redesigned for use as a weapon, or any other instrument which can be used for the purpose of inflicting bodily harm and which under the circumstances of its possession serves no lawful purpose.”

The first two classifications have no use other than to inflict injury. The third classification however embraces objects that are lawful and can have entirely innocent functions, but fall within the definition if they meet, under the circumstances, the twofold test of capability to inflict harm, and possession for no lawful purpose. This Court has earlier used a pen as an example. Joker v. FSM, 2 FSM Intrm. 38, 45 (App. 1985).

The government meets this proposal with the contention that the card required will show eligibility to possess a dangerous device. The government relies on 11 F.S.M.C. 1206(1) for this position.

“No person shall purchase, possess, or use a firearm, dangerous device, or ammunition unless he is the holder or an identification card issued pursuant to this chapter evidencing the eligibility of such person to purchase, possess, and use a firearm, dangerous device, or ammunition. Such person shall be at least twenty-one years of age.”

The government's position was that a person at least 21 years of age could obtain a card permitting possession of a dangerous device without stating what the device was, or the purpose of the device.

This position conflicts with the Regulations of the FSM concerning firearms and dangerous devices. The regulations set forth the information required on an application for an identification card. I FSM Regs. Weapons at 57 (1988 ed.). Included among items required is, "Detailed list of firearms, dangerous devices, or ammunition which the applicant owns, intends to possess or acquire."

We conclude that identification cards were intended to be required for the weapon in the first two classification of dangerous devices, but not the third.

III. ATTEMPTED CRIMINAL COERCION

Criminal coercion is defined in 11 F.S.M.C. 922(1) as follows:

“Criminal coercion. A person commits the offense of criminal coercion if he intentionally compels or induces another person to engage in conduct from which he has a legal right to abstain or to abstain from conduct in which he has legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the defendant or a third person will: (a) commit any felony offense”

Attempt is defined in 11 F.S.M.C. 201(1) as follows:

“A person commits the offense of an attempt to commit a crime if, with intent to commit a National offense, he does an act which constitutes a substantial step in a course of conduct planned to culminate in the commission of that offense.”

The amended information sets out the alleged offense in these words:

“Count V. Attempted Criminal Coercion. On or about December 31, 1986, at 1600 hours, in the water off of the island of Moen, State of Truk, Kennedy Este committed the offense of attempted criminal coercion by intentionally attempting to compel Dublon Municipal police officer, Yaichy Reseki, to abstain from taking further legal action against Terry Francis, who had been legally arrested by the said police officer for dynamiting fish in violation of Truk State Law, by means of instilling in him a fear, pointing a long rifle at him, that if the demand is not complied with, the defendant will commit a felony offense of assault with a dangerous weapon and aggravated assault against him in violation of 11 F.S.M.C. 201 and 922(1)(a).”

The defendant contends that the evidence either directly or by inference will not support the finding.

That evidence has been set forth above. In brief, the defendant asked the policeman-passenger if he had arrested his brother-in-law. When the policeman said, "yes" the defendant said, "I'm going to shoot you." The defendant then picked up the gun aimed it, or tried to aim it.

The trial judge found this act was "almost exclusively" to punish the policeman. The judge found in addition that the defendant's act was to make the policeman fearful of continuing the prosecution of the brother-in-law.

The facts found by the trial court fully warrant his conclusion that the defendant intended to inflict present punishment.

At issue is whether the same facts can also be the basis for an inference of a present criminal intent to compel the policeman to abstain from prosecution under threat of future assault if the demand is not met. We conclude that such an inference cannot reasonably be drawn from the facts.

The conviction of possession of a dangerous device without an identification card is reversed and the matter remanded to the trial court for dismissal of the charge.

The conviction of attempted criminal coercion is reversed and remanded to the trial court for further proceedings consistent with this opinion.

The conviction of possession of a dangerous device while intoxicated is affirmed.

So ordered the 28th day of July, 1989.