Semes v Federated States of Micronesia [1991] FMSC 2; 5 FSM Intrm. 49 (App. 1991) (29 January 1991)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION

FSM APPEAL CASE P1-1988

HERMAN SEMES
Appellant

V

FEDERATED STATES OF MICRONESIA
Appellee

OPINION: Argued: July 29, 1988 - Decided: January 29, 1991

BEFORE: The Honorable Richard H. Benson, Associate Justice, FSM Supreme Court
The Honorable Mamoru Nakamura, Temporary Justice, FSM Supreme Court*
The Honorable Judah Johnny, Temporary Justice, FSM Supreme Court**

*Chief Justice, Palau Supreme Court, on this Court by designation for this case.

**Associate Justice, Pohnpei State Supreme Court, on this Court by designation for this case.

APPEARANCES: For the Appellant: Michael Powell, Esq. And John B. Brackett, Esq. (on briefs) Chief Public Defender, Federated States of Micronesia; For the Appellee: Steven P. Pixley, Esq. and Geoffrey Clason, Esq., Chief, Division of Litigation, Federated States of Micronesia

HEADNOTES

Contempt of Court
Where the record reflects that assets were removed from an insolvent's warehouse by its president following the issuance of a writ of execution banning removal of the insolvent's property and no evidence was presented which showed that the assets removed were not the insolvent's property, a reasonable trier of fact could infer that the assets belonged to the insolvent and could base the president's conviction for contempt of court upon such a finding. Semes v. FSM, [1991] FMSC 2; 5 FSM Intrm. 49, 51 (App. 1991).

Evidence
In a contempt trial, the trial court may consider information in addition to evidence adduced in the contempt hearing itself when the other information came to the knowledge of the trial court in previous judicial hearings related to the matter which gave rise to the contempt charge, and when the judge identified the "outside" information and gave the defendant an opportunity to object but the defendant failed to do so. Semes v. FSM, [1991] FMSC 2; 5 FSM Intrm. 49, 52 (App. 1991).

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

The defendant appeals from a judgment of criminal contempt of court. The trial court found that he disobeyed an order of the court by removing assets of Mid-Pacific Construction Company, an insolvent, from the warehouse of the company following the issuance of a writ of execution on August 31, 1987. The defendant is the president of the insolvent.

The appellant presents the following issues:

Does the record support the finding that the assets taken belonged to Mid-Pacific?

Does the record support the finding that the assets were taken after the issuance of the writ of execution on August 31, 1987?

Did the trial judge improperly consider matters outside the record in making his findings?

We conclude that his appeal fails to establish an error of law and we therefore affirm the conviction.

I.

Herman Semes was accused by order to show cause dated November 6, 1987 of defying an order of the Pohnpei trial division of this court in Civil Action No. 1987-028, by removing assets of Mid-Pacific Construction Company from the warehouse of Mid-Pacific "immediately following the issuance of a writ of execution on August 31, 1987." The order was amended before trial to embrace "at any time on August 31 or any date thereafter prior to September 8th."

The case in which the writ was issued is Rodrigo Sanchez v. Mid-Pacific Construction Co.. The five plaintiffs were former employees of the defendant who were granted judgment for past due pay and repatriation expenses totalling some $12,000.00.

II.

A. Concerning the appellant's contention that the record does not support a finding that assets taken were owned by Mid-Pacific, the trial court set forth the following as warranting the finding:

1. The assets taken were located at the warehouse of Mid-Pac; and

2. No evidence was presented that the assets were not the property of Mid-Pac.

The record also includes the testimony of the appellant, in an unrelated case, in which he states he took the property from the warehouse.

We find that the entire record warrants the finding that the assets taken were those of Mid-Pac. We "can conclude the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence which it has a right to believe and accept as true." Engichy v. FSM, [1984] FMSC 13; 1 FSM Intrm. 532, 546 (App. 1984).

B. The next issue is the finding that the assets were taken on August 31, 1987 after the issuance of the writ, and that the appellant knew of the writ. We have examined the entire record with care and considered counsel's written and oral argument. We conclude that the trial court was warranted in making its finding. Id.

The testimony warranted an inference that the appellant knew in advance of the hearing on the motion for a writ, and that he learned of the issuance of the writ. There was evidence that after the court proceedings held August 31, 1987 the appellant and others, that day, moved property from the warehouse.

There is also testimony of the appellant, later in 1987, in another case, in which he describes moving property from the warehouse on September 1, 1987.

C. The last matter for consideration is whether the trial judge improperly considered matters outside of the record in arriving at his findings. The appellant phrases the issue in this way: "A trial judge may not be a witness in a trial over which he is presiding."

The appellant objects to these words of the trial judge contained in his special findings:

“The Court specifically notes that in earlier hearings, and I just do not think it would be appropriate to pretend that I don't have the knowledge that in earlier hearing, certain assets were carved out, specifically spoken of. That some assets were not included among Mid-Pac assets and I have here -- I simply can not believe that these assets wouldn't have been pointed to as well, had this -- occurs. So in the absence of any kind of showing that these were not assets of Mid-Pac, I think, demands a conclusion that they were assets of Mid-Pacific Construction Company.”

These words follow up the court's finding that he was inferring the ownership of the materials from their location at the Mid-Pac warehouse. (See discussion III A above).

We are not persuaded by the appellant's contention for two reasons:

We understand the passage quoted to amount to his observation that no evidence was presented which would conflict with the inference he was drawing.

We digress here to comment on an aspect of the case which arises in the appellant's argument on this point, and was earlier the ground of the appellant's motion that the judge recuse himself. It is true that the judge heard many earlier aspects of the several cases which arose because of Mid-Pac's insolvency. We observe that the court was most careful to limit his findings to evidence presented in the contempt trial. He was invited by the prosecution to take judicial notice of all hearings and refused to do so. He took judicial notice, when requested, to limited and discrete portions of earlier proceedings. The appellant had the opportunity, which he frequently took advantage of, to object to the matter being offered. We find several passages in the record in which the trial court restates his insistence that only matters presented in the contempt trial would be considered.

The second reason that the appellant's argument fails is that if he felt improper notice were being taken, the opportunity existed at the trial to question the propriety thereof. Rule 201(e) of the FSM Rules of Evidence. Este v. FSM, [1989] FMSC 14; 4 FSM Intrm. 132, 135 (App. 1989).

For the reasons stated the conviction of contempt is affirmed.