Fritz v Federated States of Micronesia [2008] FMSC 67; 16 FSM Intrm. 192 (App. 2008) (24 November 2008)

FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. C2-2004

JACK FRITZ,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

__________________________________________

OPINION

Argued: December 11, 2007
Decided: November 24, 2008

BEFORE:

Hon. Richard H. Benson, Temporary Associate Justice, Presiding, FSM Supreme Court*
Hon. Judah C. Johnny, Temporary Associate Justice, FSM Supreme Court**
Hon. Aliksa B. Aliksa, Temporary Associate Justice, FSM Supreme Court***

*Retired Associate Justice, FSM Supreme Court
** Chief Justice, Pohnpei Supreme Court, Kolonia, Pohnpei
***Chief Justice, Kosrae State Court, Tofol, Kosrae

APPEARANCES:

For the Appellant: Richard Hermes, Esq.
Office of the Public Defender
P.O. Box 425
Colonia, Yap FM 96943

For the Appellee: Pole Atanraoi, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

* * * *

HEADNOTES

Appellate Review  Standard of Review  Criminal Cases; Evidence  Expert Opinion
An issue of whether the trial court erred by failing to recognize someone as an expert witness is reviewed for an abuse of discretion. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 197 (App. 2008).

Appellate Review  Standard of Review  Criminal Cases
An abuse of discretion occurs when 1) the court's decision is clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an erroneous conclusion of law; 3) the court's findings are clearly erroneous; or 4) the record contains no evidence on which the court rationally could have based its decision. The burden is on the appellant to show an abuse. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 197 (App. 2008).

Evidence  Expert Opinion
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of opinion or otherwise. It is not the witness, but the trial judge who has the responsibility and discretion to determine whether a witness is qualified as an expert. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 197 (App. 2008).

Evidence  Witnesses
Matters regarding a person's qualification to be a witness must be determined by the trial court, and the proponent must establish the qualification. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 197 (App. 2008).

Evidence  Expert Opinion; Evidence  Witnesses
Once faced with the proffer of an expert witness, the question of whether the witness may be qualified as an expert is a preliminary fact to be decided by the trial court. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 197 (App. 2008).

Evidence
When an FSM Evidence Rule is modeled after a United States rule, the court should look to United States court decisions interpreting that rule. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 197 (App. 2008).

Appellate Review  Standard of Review  Criminal Cases; Evidence  Expert Opinion
When the defendant never presented a witness as an expert witness at trial, the appellate court cannot find that the trial court abused its discretion in declining or otherwise refusing to qualify that witness as an expert witness. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 197 (App. 2008).

Appellate Review  Standard of Review  Criminal Cases; Evidence  Expert Opinion
Although Evidence Rule 706 provides that the court may, on its own motion, enter an order to show cause why an expert witness should not be appointed, a trial court in not acting sua sponte to have a defense witness qualified as an expert witness did not abuse its discretion. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 197-98 (App. 2008).

Evidence
Evidence that speaks for itself is evidence that is significant or self-evident. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 198 (App. 2008).

Evidence  Witnesses
At the core of the trier-of-fact's task is the power and obligation to determine the witnesses' credibility. The trial court may rely upon that testimony which it finds credible and disregard testimony which does not appear credible. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 199 (App. 2008).

Appellate Review  Standard of Review  Criminal Cases
The standard of review of a trial court's findings is whether those findings are clearly erroneous. In making this determination, the appellate court must view the evidence in the light most favorable to the appellee, and if, upon viewing all the evidence in the record, the appellate court is left with the definite and firm conviction that a mistake has been made, it may then conclude that the trial court's finding was clearly erroneous, but it cannot substitute its judgment for that of the trial court. Fritz v. FSM, [2008] FMSC 67; 16 FSM Intrm. 192, 199 (App. 2008).

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COURT'S OPINION

RICHARD H. BENSON, Temporary Associate Justice, Presiding:

I. INTRODUCTION

This appeal arises from Appellant Fritz's conviction of four counts of violating Section 221 of Title 55 of the FSM Code, as alleged in Counts I–IV of the Criminal Information filed against him.

For the reasons set forth below we affirm the trial court judgment.

A. Background

Section 221 of Title 55 of the FSM Code provides as follows:

[U]nless otherwise specifically authorized by law, no officer or employee of the Federated States of Micronesia, or allottee of funds, shall make or authorize an expenditure from, or create or authorize an obligation pursuant to any appropriation, apportionment, reapportionment, or allotment of funds of the United States Government or the Federated States of Micronesia Government:

(1) in excess of the sum made available by law; or

(2) in advance of the availability of funds; or

(3) for purposes other than those for which an allotment has been made.

After the admission of both documentary evidence and the testimony of several witnesses, the trial court entered its special findings. [2004] FMSC 47; 12 FSM Intrm. 602 (Chk. 2004). The trial court's special findings stated the following:

Public Law No. 10-126, § 2(1) appated a lump sum of m of $175,000 to the Southern Namoneas Development Authority "for the purpose of funding health, education, itructure and other public projects." Pursuant to a Project Control Document approved by they the FSM in October, 1999 and which was attached to Advice of Allotment # 401C0009, dated November 1, 1999, twenty thousand dollars of these funds were allotted for the "Uman Social Project." Pursuant to the Project Control Document, the Uman Social Project funds had to "be used to build new Community Halls on the Island of Uman" because "[t]he population of Uman ha[d] grown substantially" and "more Community halls [we]re needed to meet [the] needs of the people." The project control document specified that the Uman Social Project funds were to be used for six new meeting halls. . . .
On December199, Kait Kait Kikku met with the defendant and asked the defendant for help in completing his private home on Uman. In response, the defendant gave Kikku a hand-written letter addressed to JPoll,manager of Truk Druk Develoevelopment Enterprises, a commercial enterprise on Weno, Chuuk. . .&#

[FSM v. M v. Fritz, [2004] FMSC 47; 12 FSM Intrm. 602, 604 (Chk. 2004) (alterations by the trial court).]

The letter provides:

Subj: Kikku – LK

Merry Xmas & Happy New Year!

Sorry to take up your time. I am sending this fellow to you if you could help him for his project needs. He has 2K for supplemental to a Meeting Hall. We already have the Advice of Allotment. Our staff & Finance will not be able to cut the proper documents & check on time. If you could help him, then bill our SDA we will take appropriate action after X-mas.[1]

Jack Fritz

Gov't's Ex. 8.

The trial court record further shows that Jason Poll provided Mr. Kikku with goods and materials which were used in connection with the construction of Mr. Kikku's residence on Uman. FSM v. Fritz, 12 FSM 602, 604 n.2 (Chk. 2004).

The trial court found that Fritz's above-described activity occurred before any of the proper documents had been prepared in order for the Uman Social Project funds to be legally available for obligation. The trial court found that this action by Fritz resulted in the authorization of an expenditure of the Uman Social Project funds for a purpose other than that for which the allotment had been made. The trial court also concluded that Fritz knew that the funds had not yet been made available because the proper documents had not been prepared and approved. This resulted in Fritz's conviction of 55 F.S.M.C. 221(3) (obligating funds for a purpose other than that for which an allotment has been made) as set forth in Count I of the Criminal Information, and 55 F.S.M.C. 221(2) (obligating funds in advance of availability) as set forth in Count IV of the Criminal Information.

With regard to Counts II and III of the Criminal Information, the trial court's special findings provided as follows:

On January 4, 2000, the defendant willfully addressed a memorandum to Acting Director Terno Este of the Southern Namoneas Development Authority. Ex. 4. That memorandum designated six recipients for the Uman Social Project funds. Two of those recipients were Kait Kikku and Gerhardt Pitiol. The memorandum authorized $2,000 each for Kikku and Pitiol for "repair and renovations" of existing community halls.

[Fritz, 12 FSM Intrm. at 605 (footnote omitted).]

The trial court record shows that the January 4, 2000 memorandum that Fritz wrote provided as follows:

MEMORANDUM of 1/4/2000

TO : ACTING DIRECTOR TERNO ESTE, SNDA

FROM : SPEAKER FRITZ

SUBJECT : GRANTEES UNDER AD. ALLOT. 401C0009

ACCT. NO. 8067/012676 (UMAN SOC. PROJT)

The following individuals are the grantees under the above cited Advice of allotment with the relevant account. For new Community halls, each grantee is given $4,000. For repair and renovations, each grantee is given $2,000. These are the grantees:

1. Kimis Moses $4,000.00

2. Senso Lorenzo $4,000.00

3. Raify Saimon $4,000.00

4. Kaik Billy $4,000.00

5. Kait Kikku $2,000.00

6. Kerat Pitiol $2,000.00

Please notify them and take appropriate actions to ensure that their projects are implemented within a reasonable time.

cc: Frank Darra, National Finance Representative

The trial court's special findings state:

The memorandum authorized $2,000 each for Kikku and Pitiol for "repair and renovations" of existing community halls. Repair and renovation of existing community halls was not a purpose for which the Uman Social Project funds were allotted. The defendant knew this when he sent the memorandum. Furthermore, repair and renovation of existing community halls was not consistent with the Uman Social Project's justification that more community halls were needed on Uman because of Uman's growing population. By means of this memorandum, the defendant authorized expenditures of the Uman Social Project funds. The funds were expended and then disbursed at later dates. An authorization of an expenditure can, and will, come before the actual expenditure, and an expenditure can take place before the actual disbursement of funds to complete or satisfy that expenditure. Disbursement of funds is the actual payment of money. An expenditure will often be, but not always, made before the actual funds are disbursed. This is analogous to a credit purchase. Authorization of an expenditure will necessarily come before the actual expenditure. In this case, the defendant authorized a later expenditure.

[Fritz, 12 FSM Intrm. at 605 (footnote omitted).]

The trial court's special findings conclude that Fritz's activity with respect to Mr. Kikku resulted in his conviction on Count II of the Criminal Information (obligating funds for a purpose other than that for which an allotment has been made), while his actions with respect to Mr. Pitiol resulted in his conviction of Count III of the Criminal Information (obligating funds for a purpose other than that for which an allotment has been made).

II. ISSUES ON APPEAL

On appeal, Fritz presents two issues. First, he argues that the trial court erred by failing to recognize one of his witnesses, John Ehsa, as an expert, and further by concluding that Mr. Ehsa's testimony be given "little or no weight." Second, Fritz argues that there was insufficient evidence presented at trial for the court to conclude that he had authorized an expenditure, and that he had the necessary mens rea to be convicted of Counts II and III of the Criminal Information.

A. Testimony of John Ehsa

John Ehsa, who was called as a witness for Fritz, was a former FSM Secretary of Finance. Mr. Ehsa testified that while serving as the Secretary of Finance he promulgated the 1999 Financial Management Regulations that were applicable at the time that Fritz engaged in the activities at issue here. He further testified as to his current understanding of the legal effect and meaning of certain of these regulations. Specifically, Mr. Ehsa testified that the December 20, 1999 and January 4, 2000 memoranda that Fritz wrote did not result in an "obligation" of the Uman Social Project funds. John Ehsa also testified that the Uman Social Project funds were available some time after November 1, 1999, the date that the Advice of Allotment concerning the $20,000 in funds at issue here was issued.

1. Expert Witness

For his first issue on appeal, Fritz argues that the trial court erred by failing to recognize John Ehsa as an expert witness. This issue is reviewed for an abuse of discretion. "An abuse of discretion occurs when (1) the court's decision is 'clearly unreasonable, arbitrary, or fanciful'; (2) the decision is based on an erroneous conclusion of law; (3) the court's findings are clearly erroneous; or (4) the record contains no evidence on which the . . . court rationallld ouve bave based its decision." Jano v. King, [1992] FMSC 11; 5 FSM Intrm. 326, 330 (App. 1992) (quoting Heat & Control, Inc. v. Hestor, Inc., 785 F.2d 10172 (Fer. 1986)). The burden is on the Appellant to show show an a an abuse. Jano, 5 FSM Intrm. at 330.

The trial court record, however, fails to show that Fritz ever proffered John Ehsa as an expert witness. Under Rule 702 of this Court's Rules of Evidence, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of opinion or otherwise. However, "it is the trial judge, and not the witness . . . who has theonsibility andy and discretion to determine whether a witness is qualified as an expert." Lolie v. Ohio Brass Co., 502 F.1, 74 (7th Cir. 1974) (citing Spring Co. v. Edgar, 99 U.S. [1878] USSC 155; (9 Otto) 645, 658, 258, 25 L. 5 L. Ed. 487 (1878); Salem v. United States Lines Co., [1962] USSC 131; 370 U.S. 31, 35[1962] USSC 131; , 82 S. Ct. 1119, 8 L. Ed. 2d 313 (1962)). Rule 104(a) of this Court's Rules of Evidence provides that matters regarding the qualification of a person to be a witness shall be determined by the trial court, and the qualification must be established by the proponent. Thus, once faced with the proffer of an expert witness, "[t]he question of whether a witness may be qualified as an expert is a preliminary fact to be decided by the [trial] court." United States v. Haro-Espinosa, [1980] USCA9 245; 619 F.2d 789, 795 (9th Cir. 1979) (citing Federal Rules of Evidence 104(a) and 702).

When an FSM court rule is modeled after a United States rule, the Court should look to United States court decisions interpreting that rule. Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 441 (App. 1984) ("[I]t is a settled rule of statutory construction that a statute adopted from another jurisdiction is presumed to have been adopted as construed by the courts of that jurisdiction") (citing Marlin v. Lewallen, [1928] USSC 141; 276 U.S. 58, 62[1928] USSC 141; , 48 S. Ct. 248, 250[1928] USSC 141; , 72 L. Ed. 467, 469 (1928)). Here, Rules 104 and 702 of this Court's Rules of Evidence were adopted on July 11, 1981, FSM GCO 1981-1, and were patterned on the United States Federal Rules of Evidence.

The qualification of John Ehsa as an expert witness was never presented to the trial court for its consideration. Thus, since Fritz never presented John Ehsa as an expert witness at trial, on appeal we cannot find that the trial court abused its discretion in declining or otherwise refusing to qualify John Ehsa as an expert witness. Hartman v. Bank of Guam, [2001] FMSC 60; 10 FSM Intrm. 89, 95 (App. 2001) (issues raised for the first time on appeal are waived).

Fritz, however, argues that a party is not affirmatively required by the Court's rules to have the trial court qualify a witness as an expert. Fritz argues that trial courts can do so sua sponte. We find this argument unavailing. Although Rule 706 of this Court's Rules of Evidence provides that a court may, on its own motion, enter an order to show cause why an expert witness should not be appointed, the failure of a trial court to do so is reviewed on appeal for an abuse of discretion. Fugitt v. Jones, [1977] USCA5 616; 549 F.2d 1001, 1006 (5th Cir. 1977) (exercise of Rule 706 powers remains a matter of discretion with trial court).

Here, again, based upon our review of the entire trial court record, we cannot say that the trial court abused its discretion in not acting sua sponte under Rule 706 to have John Ehsa qualified as an expert witness.

2. Weight of John Ehsa's Testimony

Fritz further argues that not only was Mr. Ehsa's testimony corroborated by other witnesses, but that the trial court failed to give Mr. Ehsa's testimony the highest weight of any of the witnesses who testified at trial. At trial, John Ehsa testified that although the Project Control Document specified that the funds in question be used to construct six new community halls, the funds could have been used for both "new community halls and [the] repair and renovation" of existing community halls. Tr. at 957-59 and 966-67. Mr. Ehsa explained that he would have allowed this obligation because, in his view, "the primary objective . . . was to ensure this countrountry moves forward in its developmental effort." Tr. at 1007. John Ehsa further testified that such a use of funds would have not only been acceptable to the FSM Department of Finance, but, that as the Secretary of Finance, he would have approved the disbursement of funds for repair and renovation of community halls without requiring any amendment to the Project Control Document. Tr. at 1006-07.

A review of the trial court record, however, shows that not all of John Ehsa's testimony was, in fact, corroborated by other witnesses. For example, Rose Nakanaga, an Assistant Secretary of Finance, testified that she would have required the allottee of the funds to secure an amendment to the Project Control Document in order to use the funds for any purpose other than the construction of six new community halls. Tr. at 59-60.

In any event, the trial court concluded that Mr. Ehsa's testimony as to his "current understanding of the legal effect and the meaning of [the 1999 Financial Management Regulations]," can "only be given little or no weight." Fritz, 12 FSM Intrm. at 605. Instead, the trial court found that the "the Financial Management Regulations speak for themselves." "Speak for itself" is an idiom meaning "to be significant or self-evident." 16 Oxford English Dictionary 140 (2d ed. 1989).[2]

Here, the trial court properly relied upon the cases of Lonno v. Trust Territory (I), 1 FSM Intrm. 53 (Kos. 1982), and Etscheit v. Adams, [1994] FMSC 6; 6 FSM Intrm. 365, 380-81 (Pon. 1994) in concluding that John Ehsa's testimony carried "little or no weight." Indeed, both Lonno and Etscheit are pertinent because Mr. Ehsa's testimony concerned the possible action he would have taken in the past based upon his present knowledge of the case at hand, rather than what he, in fact, did while he was serving as the FSM Secretary of Finance.

In Lonno the court rejected the claim that it lacked jurisdiction over a seaman's claims of wrongful discharge against the Trust Territory Government. In seeking a dismissal, the Trust Territory Government relied upon Secretarial Order 3039, which distinguished the functions of the Trust Territory High Court from those of the newly-established FSM Supreme Court, along with a memorandum, prepared in connection with the case, which contained a summary of the intended meaning of the language in the Secretarial Order. This memorandum also contained narrative statements taken from someone who had earlier assisted in drafting the language at issue in the Secretarial Order. The court rejected the memorandum because it was "an internal and unofficial document prepared by an officer of an agency, three years after the action it purports to explain, for a specific lawsuit in which the agency is directing one of the parties, would not qualify as satisfactory 'legislative history.' It involves a tortured chain of information and deductions . . . leaving us toume [an] int] intention [at] that time . . . ." Lonno, 1 nSM I atm. at 61-62.

Similarly, in [3] In support of their argument the plaintiffs, inter alia, cited the Ponape district legislature's 1978 effort to do away with the rule of primogeniture. The legislature stated in 1978 that primogeniture was the "law of Pohnpei." Etscheit, 6 FSM Intrm. at 381. The court found this of little persuasive weight, noting that land tenure rules are complex, and that the district legislature in 1978 would have had only limited insight into what prior administration officials meant to do in the past. Id.

Thus, Fritz is only able to challenge the trial court's consideration of John Ehsa's testimony as a lay witness, including the weight it assessed to his credibility and the consideration it gave to the matters upon which he testified. As this Court has previously explained "[a]t the core of the task of the trier of fact is the power and obligation to determine the credibility of witnesses. The trial court may rely upon that testimony which he finds credible and disregard testimony which does not appear credible." Engichy v. FSM, [1984] FMSC 13; 1 FSM Intrm. 532, 556 (App. 1984).

Accordingly, under these circumstances, and based upon our review of the entire trial court record, we cannot assign any error to the trial court in its consideration of John Ehsa's testimony.

B. Sufficiency of the Evidence

As stated supra, page 196, Fritz contends that the trial court erred in finding that he had authorized an expenditure and that he had the necessary mens rea. The standard of review of a trial court's findings is whether those findings are clearly erroneous. "In making this determination the appellate court must view the evidence in the light most favorable to the appellee. . . . If, upon vi all the evideevidence in the record, the appellate court is left with the definite and firm conviction that a mistake has been made, it may then conclude that the trial court's finding was cl erro, but it cannot snot substiubstitute its judgment for that of the trial court." Livaie v. Weilbacher, [2005] FMSC 19; 13 FSM Intrm. 139, 143 (App. 2005) (citing Rodriguez v. Bank of the FSM, [2003] FMSC 12; 11 FSM Intrm. 367, 374 (App. 2003); Kinere v. Kosrae, [1993] FMSC 43; 6 FSM Intrm. 307, 309 (App. 1993)).

Concerning the issue of whether Fritz authorized an expenditure, a review of the trial court record shows that Rose Nakanaga, who worked at the FSM Department of Finance, testified that the January 4, 2000 memorandum at issue here did "authorize an expenditure." Tr. at 88. Thus, we cannot find that the trial court's finding was clearly erroneous.

Fritz next argues that there was insufficient evidence presented at trial for the court to find that he knew that allotting funds to Kait Kikku and Gerhardt Pitiol for the "repair and renovation" of existing community halls would be an obligation of funds for purposes other than that permitted, i.e., the construction of "new" community halls to address the increasing population in Uman. In support of this argument, Fritz maintains that the only evidence showing that the purpose of the Uman Social Project funds was for the construction of new community halls was the Project Control Document. Fritz also cites the testimony of three witnesses who testified that the Project Control Document was only used internally at the FSM Department of Finance. Fritz contends that as such, he was unaware of its content.

Fritz's memorandum of January 4, 2000, however, specifically distinguished between the grantees who were to receive funding for "new" community halls, and those who were to receive funding for "repair and renovation" of existing community halls. Indeed, while some grantees would receive $4,000 for building a new community hall, others would only receive $2,000 for repair and renovation of an existing community hall. Fritz's January 4, 2000 memorandum also records the Advice of Allotment number 401C0009 and the account number. The record shows that Advices of Allotment are prepared following the approval of the Project Control Document by the Department of Finance. The Project Control Document in this case specifies that the funds only be obligated for the construction of new community halls. Evidence was presented that Project Control Documents are attached to Advices of Allotment.

The trial court found that Fritz knew that allotting funds for repair and renovation of existing community halls were for purposes other than permitted. Viewing the evidence in the light most favorable to the appellee, we cannot conclude that this finding was clearly erroneous.

III. CONCLUSION

In conclusion, based upon the evidence before us and applying the appropriate standard, we cannot assign any abuse of discretion or error in the trial court's treatment of John Ehsa's testimony, nor can we conclude that the trial court's findings on the points raised by the Appellant were clearly erroneous. Accordingly, we affirm the trial court's judgment.

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JUDAH C. JOHNNY, Temporary Associate Justice:**

NOTE: **Concur on one, respectfully dissent on another. Dissent will be issued separately.

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^[1]The record shows that the parties agreed that SDA stood for Southern Namoneas Development Authority.
^[2]The regulations in question are the FSM Financial Management Regulations, promulgated on June 14, 1999. Part I of these regulations provides definitions, including a definition for the term "obligations," FSM Fin. Mgmt Reg. § 1.4(j)le the provisions of s of part X of these regulations govern Project Control Documents, which are required for "all funds appropriated under national law for the Congress of the Federated Stat Micronesia for public proj projects," and prepared "[p]rior to an allotment of national government funds for any public project." FSM Fin. Mgmt. Reg. § 10Part X of these regulatiolations, at 10.5, provides that an "[o]bligation must be consistent with the allotment and underlying PCD."
^[3]Primogeniture is defined as the superior right possessed by the eldest son to succeed to the estate of his ancestor. BLACK’S LAW DICTIONARY 1072 (5th Ed. 1979).