FSM v Shiro [2018] FMSC 25; 21 FSM R. 627 (Chk. 2018) (5 July 2018)

FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2016-1503

FEDERATED STATES OF MICRONESIA, )
)
Plaintiff, )
)
vs. )
)
LUCKY SHIRO, ONSORI SINO, TAISIRO )
LOVES, and KACHURA ANGKEN, )
)
Defendants. )
__________________________________________ )

DENIAL OF MOTION FOR SPECIAL FINDINGS AND RENEWED RULE 29(c) MOTION FOR JUDGMENT OF ACQUITTAL BY DEFENDANTS LOVES AND ANGKEN

Dennis K. Yamase
Chief Justice

Decided: July 5, 2018

APPEARANCES:

For the Plaintiff: Craig D. Reffner, Esq.
Abigail Avoryie, Esq.
Assistant Attorneys General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant: Bethwell O’Sonis, Esq.
(Shiro) Office of the Public Defender
P.O. Box 814
Weno, Chuuk FM 96942

For the Defendant: Charleston Bravo
(Sino) Office of the Public Defender
P.O. Box 814
Weno, Chuuk FM 96942

For the Defendant: Lorrie Johnson-Asher, Esq.
(Loves) Chief Public Defender
Office of the Public Defender
P.O. Box 1736
Kolonia, Pohnpei FM 96941

For the Defendant: Timoci Romanu, Esq.
(Angken) Office of the Public Defender
P.O. Box 1736
Kolonia, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure Finding
The court must make a general finding and must in addition, on request made before the general finding, find the facts specially and make necessary conclusions of law. FSM v. Shiro, 21 FSM R. 627, 630 (Chk. 2018).

Criminal Law and Procedure Finding; Criminal Law and Procedure Motions
A defendant’s motion for special findings made after the court had already entered its general findings is untimely and will be denied. FSM v. Shiro, 21 FSM R. 627, 630 (Chk. 2018).

Criminal Law and Procedure Motions for Acquittal
The court’s standard of review when considering a renewed motion for judgment of acquittal under Rule 29(c) is whether the evidence is such that reasonable persons could find guilt beyond a reasonable doubt. It is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade the fact finder to reach a verdict of guilt by the requisite standard. FSM v. Shiro, 21 FSM R. 627, 631 (Chk. 2018).

Criminal Law and Procedure Motions for Acquittal
The requisite standard for evaluating a Rule 29(c) motion is the same as the due process standard used in evaluating whether the evidence is sufficient to sustain the verdict: whether viewing all the evidence in the light most favorable to the government, any rational fact finder could find the defendant guilty beyond a reasonable doubt. FSM v. Shiro, 21 FSM R. 627, 631 (Chk. 2018).

Criminal Law and Procedure Motions for Acquittal
Essentially, a Rule 29 motion for judgment of acquittal is a challenge to the sufficiency of the evidence. FSM v. Shiro, 21 FSM R. 627, 631 (Chk. 2018).

Criminal Law and Procedure Motions for Acquittal
A Rule 29 motion is an important safeguard for the defendant. It tests the sufficiency of the evidence against the defendant, and avoids the risk that the trier of fact may capriciously find the defendant guilty even though there is no legally sufficient evidence of guilt. FSM v. Shiro, 21 FSM R. 627, 631 (Chk. 2018).

Evidence Burden of Proof
Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept to support a conclusion. It is evidence affording a substantial basis of fact from which the fact in issue can be reasonably inferred. FSM v. Shiro, 21 FSM R. 627, 631 (Chk. 2018).

Criminal Law and Procedure Motions for Acquittal
The relevant question in assessing a Rule 29(c) motion is whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the crime’s essential elements beyond a reasonable doubt. FSM v. Shiro, 21 FSM R. 627, 631 (Chk. 2018).

Criminal Law and Procedure Human Trafficking
Receiving a child by any means for the purpose of exploitation includes the obtaining of financial or other material benefit from the prostitution of another person; or the exaction of forced labor or services, which were exacted under threat of any penalty and for which the person concerned has not offered himself or herself voluntarily, or the obtaining of labor or services through deceit, fraud, or by means of a material misrepresentation; or slavery or practices similar to slavery. FSM v. Shiro, 21 FSM R. 627, 632-33 (Chk. 2018).

Criminal Law and Procedure Motions for Acquittal
When the court finds that there is such evidence that reasonable persons could find guilt beyond a reasonable doubt, the court will deny the defendants’ motion for judgment of acquittal after finding of guilt. FSM v. Shiro, 21 FSM R. 627, 633 (Chk. 2018).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

I. BACKGROUND

This matter was tried before the Court on June 6 and 7, 2018 on Weno, Chuuk. FSM Assistant Attorneys General Abigail Avoryie and Craig Reffner, Esq. appeared for the Federated States of Micronesia. FSM Chief Public Defender Lorrie Johnson Asher, Esq. represented the Defendant Taisiro Loves. Assistant Public Defender Bethwell O’Sonis, Esq. represented the Defendant Lucky Shiro. Assistant Public Defender Timoci Romanu, Esq. represented the Defendant Kachura Angken. Assistant Public Defender Charleston Bravo represented the Defendant Onsori Sino. All Defendants appeared personally in court for the trial.

A trial was begun on June 6, 2018 for all four of the Defendants with oral closing arguments presented at the end of that day. During trial, the testimony of one witness (Child Victim) for the Government and the entry into evidence of one exhibit for the Defendant Sino (Defendant Sino’s Exhibit A Child Victim’s Birth Certificate) were submitted. No witness testimony was taken for the four Defendants.

After the close of the Government’s case on June 6, 2018, the Defendants moved for FSM Criminal Rule 29 judgments of acquittal upon the respective counts being charged against each of them. Upon resuming trial on June 6, 2018, the Court denied the Rule 29 motion as to Counts I, IV, V, and VIII, and granted the respective Defendants’ Rule 29 motions on Counts II, III, VI, VII, and IX. The Defendants then proceeded with their case in chief. No witness testimony was taken for any of the four Defendants.

On June 6, 2018, the Court then heard oral closing arguments and the Government and the Defendants submitted their case. On June 7, 2018, the Court rendered its General Findings, no Special Findings having been requested. After the Court had rendered its General Findings, the Defendant Loves moved for the Court to render Special Findings. This motion was denied as being untimely pursuant to FSM Criminal Rule 23.

Based on the testimony of the Child Victim witness (with the Court being able to judge the demeanor and credibility of the witness), all of the evidence presented, and the arguments of counsel, the Court’s General Findings, no Special Findings having been requested, was rendered as follows:

As to Count I which is the charge against the Defendant Onsori Sino of trafficking in children in violation of 11 F.S.M.C. 612 and 616 the Court found that the Government had met it’s burden of proving beyond a reasonable doubt all of the necessary elements of the offense charged and found the Defendant Sino guilty under Count I of the Information.

As to Count IV which is the charge against the Defendant Kachura Angken of trafficking in children in violation of 11 F.S.M.C. 612 and 616 the Court found that the Government had met it’s burden of proving beyond a reasonable doubt all of the necessary elements of the offense charged and found the Defendant Angken guilty under Count IV of the Information.

As to Count V which is the charge against the Defendant Taisiro Loves of trafficking in children in violation of 11 F.S.M.C. 612 and 616 the Court found that the Government had met it’s burden of proving beyond a reasonable doubt all of the necessary elements of the offense charged and found the Defendant Loves guilty under Count V of the Information.

As to Count VIII which is the charge against the Defendant Lucky Shiro of trafficking in children in violation of 11 F.S.M.C. 612 and 616 the Court found that the Government had met it’s burden of proving beyond a reasonable doubt all of the necessary elements of the offense charged and found the Defendant Shiro guilty under Count VIII of the Information.

II. FSM CRIMINAL RULE 23 MOTION FOR SPECIAL FINDINGS

On June 14, 2018, the Defendants Loves and Angken filed a FSM Criminal Rule 29(c) Renewal of Motion for Judgment of Acquittal After Finding of Guilt. The Defendants motion also contained a FSM Criminal Rule 23 Motion for Specific Findings of Fact. On June 21, 2018, the Government filed a Plaintiff’s Opposition to Defendant’s Motion for Judgment of Acquittal After Finding of Guilt. The Government’s opposition opposed the Motion for Specific Findings of Fact on the grounds that it is untimely.

The Court finds that the Defendants Loves and Angken’s Motion for Special Findings at this time is untimely pursuant to FSM Criminal Rule 23, which states as follows:

Rule 23. Findings By The Court Upon Trial. The court shall make a general finding and shall in addition, on request made before the general finding, find the facts specially and make necessary conclusions of law. Such findings and conclusions may be oral. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.

(emphasis added).

A Motion for Special Findings was also made by the Defendant Loves after the Court had already entered its General Findings on June 7, 2018. This motion was denied from the bench as being untimely. THEREFORE the Defendant’s Motion for Special Findings that was ruled untimely when first made by the Defendant Loves on June 7, 2018 is untimely pursuant to FSM Criminal Rule 23 and is HEREBY DENIED.

III. FSM CRIMINAL RULE 29(C) MOTION FOR JUDGMENT OF ACQUITTAL AFTER FINDING OF GUILT

The applicable rule on Motions for Judgment of Acquittal after finding of guilt are found in FSM Criminal Rule 29(c), which states as follows:

Rule 29. Motion For Judgment of Acquittal.

(a) . .&# .

(b) >(b) Vacant.

(c) Motion After Finding of Guilt. A motion for judgment of acquittal may be made or renewed within seven days after the court makes a finding of guilt or within such furtime as the court may fix dfix during the seven day period. If a finding of guilt is made the court may on such motion set aside the finding and enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the parties resting.

The standard of review that a court uses in considering a renewed motion for judgment of acquittal under FSM Criminal Rule 29(c) is whether the evidence is such that reasonable persons could find guilt beyond a reasonable doubt. It is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade the fact finder to reach a verdict of guilt by the requisite standard. Andohn v. FSM, [1984] FMSC 4; 1 FSM Intrm. 433, 442 (App. 1984); FSM v. Fritz, [2004] FMSC 36; 13 FSM Intrm. 85, 86 (Chk. 2004).

The requisite standard for evaluating a FSM Criminal Rule 29(c) motion is the same as the due process standard used in evaluating whether the evidence is sufficient to sustain the verdict: whether viewing all the evidence in the light most favorable to the Government, any rational fact finder could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, [1979] USSC 159; 443 U.S. 307, 319[1979] USSC 159; , 99 S. Ct. 2781, 2789[1979] USSC 159; , 61 L. Ed. 2d 560, 573 (1979).

Essentially a Rule 29 motion for judgment of acquittal is a challenge to the sufficiency of the evidence. United States v. King, [1999] USCA6 134; 169 F.3d 1035, 1038 (6th Cir. 1999). It has been said that a Rule 29 motion is an important safeguard for the defendant. It tests the sufficiency of the evidence against the defendant, and avoids the risk that the trier of fact may capriciously find the defendant guilty even though there is no legally sufficient evidence of guilt. 2A CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 461 (4th ed. .

>

Additionally, substantial evidence has been ruled to be more than a scintilla. It means such relevant evidence as a reasonable mind might accept to support a conclusion. Ievidence affording a substaubstantial basis of fact from which the fact in issue can be reasonably inferred. United States v. Martin, [1967] USCA6 106; 375 F.2d 956, 957 (6th Cir. 1967).

The relevant question in assessing the Defendants Loves’ and Angken’s FSM Criminal Rule 29(c) motion is whether, after viewing the evidence in the light most favorable to the Government, any rational trier of fact could have found the essential elements of the crime of human trafficking in children beyond a reasonable doubt. United States v. Garrido, 467 F.3d 971, 984 (6th Cir. 2006) (citing Jackson v. Virginia, [1979] USSC 159; 443 U.S. 307, 319[1979] USSC 159; , 99 S. Ct. 2781, 2789[1979] USSC 159; , 61 L. Ed. 2d 560, 573 (1979)).

The evidence produced at trial on the charged offense of human trafficking in children (11 F.S.M.C. 612 and 616) for the Defendants Loves and Angken are as follows:

1. 1. On the elements of the offense of human trafficking in children (11 F.S.M.C. 612 and 616), the evidence for the Defendants Loves and Angken that they "knowingly recruited, transported, transferred, harbored, or received a child by any means for the purpose of exploitation"was as follows:
   
2. 2. That Child Victim was at the time of the offenses and is still currently a "child" (minor under age of 18 at the time of the commission of the offenses, pursuant to 11 F.S.M.C. 612(1)).
   
   1. The Child Victim’s testimony of her birth date was that she was a child at the time of the offenses charged.
      
   2. The Birth Certificate (Defendant Sino’s Ex. A) shows the Child Victim is still a child with a birthdate of August 9, 2000.
      
3. 3. For the Defendant Angken the testimony of the Child Victim was that he forced her to do something "bad", which was to have sex with him when she was 14 years old. That Angken called her and that he held her hand and pulled her. That she told him that she didn’t want to go, but that he forced her. She had sex with him twice. A police statement indicated that she was given $15.00.
   
4. 4. For the Defendant Loves the testimony of the Child Victim was that when she walked by his home he called to her through his door, dragged her to his home, and she had sex with him inside his house. He gave Child Victim $1.00.
   
5. 5. The testimony of the Child Victim was that she was afraid of all of the Defendants and were forced by them into having sex, as they were much older men and because she knew that at least three of them were working for the church. The Child Victim had referred to some of them as "God’s Servants", which meant that they held high title within their respective churches as Won Parons or Pastors. She indicated that she usually listens when older people tell her something.
   
6. 6. On the element of the offense of human trafficking in children (11 F.S.M.C. 612 and 616), the evidence for the Defendants Loves and Angken that they "received a child by any means for the purpose of exploitation," for which a definition of "exploitation" and "forced labor or services" is included in 11 F.S.M.C. 612(3) and (4), respectively, are as follows:
   

(3) Exploitation means:

(a) the obtaining of financial or other material benefit from the prostitution of another person;

(b) the exaction of forced labor or services, or the obtaining of labor or services through deceit, fraud, or by means of a material misrepresentation;

(c) slavery or practices similar to slavery.

(4) "Forced labor or services" mean work or services, the solicitation of financial or material benefits, . . . exacted under threat of any penalty and for which the person concerned has not offered himself or herself voluntarily . . . .

7. 7. The Child Victim engaging in sth Dents A and Loves were sexual services that provided these Defendants with a mh a materiaterial beal benefit from the prostitution of the Child Victim, 11 F.S.M.C. 612(3)(a).
   
8. 8. The Evidence indicated that there was exaction by Loves and Angken of forced sexual services from the Child Victim, 11 F.S.M.C. 612(3)(b).
   
9. 9. The Defendants Loves and Angken’s practice of forced/compelled sexual services from Child Victim was a practice similar to slavery, 11 F.S.M.C. 612(3)(c).
   
10. 10. The Defendants Loves and Angken engaged in sexual relations with the Child Victim numerous times when she was still a child.
    
11. 11. The Child Victim testified repeatedly for all Defendants that she was forced to engage in sex and that she did it against her will.
    
12. 12. When asked how many times you engaged in sex with each Defendant she stated: for Defendant Sino, three times; for Defendant Shiro, two times; for Defendant Loves, one time; and for Defendant Angken, two times.
    
13. 13. The Defendant Loves gave the Victim one dollar.
    
14. 14. The Defendant Angken gave the Victim fifteen dollars.
    

After a further and thorough review of the evidence in the trial of this matter, the Defendants Loves and Angken’s motion and brief in support of its Rule 29(c) Renewed Motion for Judgment of Acquittal, the Government’s Opposition to the motion, and the other filings at trial, the Court finds that there is such evidence that reasonable persons could find guilt beyond a reasonable doubt.

NOW THEREFORE, the Defendants Loves and Angken’s Renewal of Motion for Judgment of Acquittal After Finding of Guilt pursuant to FSM Criminal Rule 29(c) is HEREBY DENIED.

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