Tosie v Federated States of Micronesia [1991] FMSC 37; 5 FSM Intrm. 175 (App. 1991) (4 September 1991)

FEDERATED STATES OF MICRONESIA
SUPREME COURT APPELLATE DIVISION
Cite as Tosie v. FSM, [1991] FMSC 37; 5 FSM Intrm. 175 (App. 1991)

[1991] FMSC 37; [5 FSM Intrm. 175]

TOSIWO TOSIE,
Appellant,

v.

FEDERATED STATES OF
MICRONESIA,
Appellee.

APPEAL CASE NO. K3-1989
(From Crim. Case No. 1988-2506)

Argued: April 4, 1990
Decided: September 4, 1991

[5 FSM Intrm. 176]

Before:
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
Hon. Lyndon Cornelius, Temporary Justice, FSM Supreme Court*;
Hon. Jesus C. Borja, Temporary Justice, FSM Supreme Court**

* Acting Chief Justice, Kosrae State Court
**Associate Justice, Supreme Court of the Northern
Mariana Islands

APPEARANCES:

For the Appellant:
Joseph Phillip, Esq.
Public Defender
Office of the Public Defender
Federated States of Micronesia
P.O. Box PS-174
Palikir, Pohnpei 96941

For the Appellee:
Richard Kaminski, Esq.
Attorney General's Office
Kosrae State, FM 96944

* * * *

HEADNOTES

Criminal Law and Procedure - Defenses
Privilege to use reasonable force in defense of family, home and property may under the circumstances extend onto the road adjacent to the home. Tosie v. FSM, [1991] FMSC 37; 5 FSM Intrm. 175, 177 (App. 1991).

Criminal Law and Procedure - Defenses
A person can use no more force than is reasonably necessary to protect himself, his family, home and property from an intruder, and to expel the intruder. Tosie v. FSM, [1991] FMSC 37; 5 FSM Intrm. 175, 177-78 (App. 1991).

Appeal and Certiorari
In a criminal case the task of an appeals court is to determine whether the trier of fact could reasonably have been convinced of the charge beyond a reasonable doubt by the evidence. Tosie v. FSM, [1991] FMSC 37; 5 FSM Intrm. 175, 178 (App. 1991).

* * * *

COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

The defendant appeals his conviction in the trial division of this court of the offense of assault with a dangerous weapon, asserting that the trial

[5 FSM Intrm. 177]

court failed to properly consider his defense of self-defense and that the exact nature of the weapon was not proved. We affirm the conviction.

I.

This unfortunate matter arose out of a family quarrel. The son-in-law of the defendant was separated from his wife, and had earlier in the day of the offense argued with both his wife and her brother. In the evening after drinking at a bar, the son-in-law asked the victim, his cousin, to accompany him to the home of the defendant so that he might attempt a reconciliation.

They arrived at about 11:00 p.m., knocked, and were admitted to the house by the defendant's wife. Discussions began with the wife, and then the defendant entered the room. The defendant asked the victim and his son-in-law to leave the house. Some arguing ensued and the defendant and his son used pushing to evict the two. The trial court found the force used at this time to be entirely reasonable.

The two went to the road in front of the defendant's house and arguing continued. The defendant's son confronted the victim with force to force him to go farther away from the house. The victim, putting his arms around the waist of the son, picked him up. Answering a shout from the son, the defendant ran to assist, saying he would cut the son-in-law and the victim. Upon the approach of the defendant, the victim dropped the son and began running from the defendant. He fell on the road, and while he was on the ground the defendant swung a sharp instrument and cut the victim.

The police were called. While they were talking to the defendant and his son, the son-in-law and the victim approached. The victim was crawling and had blood on his face. The defendant said, "You see what I did to your face."

The court found that the defendant caused bodily injury to the victim with a dangerous weapon.

II.

A. The issues raised by the defendant were the subject of full argument in the court below, and the court made findings on them. On appeal, we interpret issues raised by the defendant as questions regarding the sufficiency of the evidence and not as an incorrect application of the law.

His first point is that the force used was reasonable and privileged in defense of family home and property. The record reveals that the court considered the privilege, and in the son's case, said that defense of home extended, under the circumstances onto the road adjacent to the home.

The defendant relies upon FSM v. Ruben, 1 FSM Intrm. 34 (Truk 1981). The court there said that "a person can use no more force than is reasonably necessary to protect himself, his family, home and property from an intruder,

[5 FSM Intrm. 178]

and to expel the intruder." Id. at 37. This was the standard used by the trial court. The defendant, simply asks us to reach a different conclusion than that reached by the trial court.

There is an unusual aspect to the defendant's assertion on appeal that he was using reasonable force: his testimony at the trial was not to the effect that he cut the victim. He testified he was not present when that occurred. He was the only defense witness.

The defendant is thus relying on the testimony of the government's witnesses to establish his defense.

Section I above sets forth facts that are uncontroverted, and facts as found by the court. Our task is to determine whether the trier of fact could reasonably have been convinced of the charge beyond a reasonable doubt by the evidence.Engichy v. FSM[1984] FMSC 13; , 1 FSM Intrm. 532, 556 (App. 1984). We conclude that he could have.

At the time of the assault the victim had released the son and was fleeing from the defendant. When he fell he posed no present danger to the defendant, his son, his home or property. The blow was not reasonably necessary to expel the victim.

B. The second point asserted by the defendant is that there was not proof beyond a reasonable doubt as to the object which caused the injury, or the manner in which it was inflicted. Once again the defendant is asking us to reach a different conclusion from that of the trial court based on the evidence before the court.

The testimony of the physician at the hospital who treated the victim the night of the assault was that the wound had been caused by a "sharp edge like a knife or a machete." The victim exhibited the injured abdomen to the trial court. The testimony of the victim is that while he was on the ground the defendant swung at him. The defendant had, just before, run after the victim saying, "What, do you want me to cut you up (or chop you)?"

The trial court's findings from all the evidence that the weapon was a sharp instrument capable of causing serious bodily injury or death were fully supported. The trial court acting reasonably could be convinced beyond a reasonable doubt that the sharp instrument used was a dangerous weapon.

The judgment of the trial court is affirmed and the appeal dismissed.