Yinmed v Yap [1997] FMYSC 1; 8 FSM Intrm. 95 (Yap S. Ct. App. 1997) (20 June 1997)

STATE COURT OF YAP
APPELLATE DIVISION

APPEAL NO. 1993-001
CRIMINAL CASE NO. 1992-232

FRANCIS YINMED,
Appellant,

vs.

THE STATE OF YAP,
Appellee.

OPINION

Decided: June 20, 1997 (no oral argument)

BEFORE:

Hon. Constantine Yinug, Chief Justice, State Court of Yap
Hon. Andrew Ruepong, Associate Justice, State Court of Yap
Hon. Martin Yinug, Temporary Justice, State Court of Yap*

* Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant: Marvin Hamilton III, Esq.
Office of the Public Defender
P.O. Box 425
Colonia, Yap FM 96943

For the Appellee: Kathleen M. Burch, Esq.
Office of the Yap Attorney General
P.O. Box 435
Colonia, Yap FM 96943

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HEADNOTES

Appeal and Certiorari - Standard of Review; Criminal Law and Procedure
In an appeal of a criminal conviction, before the appellate court can conclude that a trial court error was harmless, the court must conclude that it was harmless beyond a reasonable doubt. Yinmed v. Yap, 8 FSM Intrm. 95, 99 (Yap S. Ct. App. 1997).

Search and Seizure
An officer making an arrest has a limited right to conduct a warrantless search incident to that arrest. This right to search is for the limited purposes of preventing the arrested person from reaching concealed weapons to injure the officer or others, and from destroying evidence. Yinmed v. Yap, 8 FSM Intrm. 95, 100 (Yap S. Ct. App. 1997).

Search and Seizure
A search incident to valid arrest must be confined to the person and the area from within which he or she might have reached weapons or destructible evidence and be done on the spot or later at the place of detention. Yinmed v. Yap, 8 FSM Intrm. 95, 100 (Yap S. Ct. App. 1997).

Search and Seizure
When the police, after arresting the accused and while he was being escorted away, returned to seize items that had been lying next to him when arrested did make the seizure, they did no more than they were entitled to do incident to the usual custodial arrest, and the accused was no more imposed upon than he would have been had the seizure taken place simultaneously with his arrest. The seizure was thus valid under the search incident to lawful arrest exception to the warrant rule. Yinmed v. Yap, 8 FSM Intrm. 95, 100-01 (Yap S. Ct. App. 1997).

Criminal Law and Procedure; Criminal Law and Procedure - Aggravated Assault; Criminal Law and Procedure - Assault and Battery
When the Yap Legislature has not demonstrated a positive intent to authorize conviction for two crimes, one of which requires proof of an additional fact, on the same facts, the trial court should render a decision and enter a conviction only on the more major of the crimes proven beyond a reasonable doubt. Therefore a conviction for aggravated assault should be vacated when for the same act there is a conviction for assault with a dangerous weapon, which requires proof of an additional fact. Yinmed v. Yap, 8 FSM Intrm. 95, 101 (Yap S. Ct. App. 1997).

Criminal Law and Procedure - Burglary; Criminal Law and Procedure - Trespass
Since under Yap statutory law trespass is a lesser included offense of burglary, a trespass conviction will be vacated when there is a burglary conviction for the same act. Yinmed v. Yap, 8 FSM Intrm. 95, 101-02 (Yap S. Ct. App. 1997).

Criminal Law and Procedure - Sentencing
A single, consolidated sentence for multiple offenses is proper, and when some convictions are vacated on appeal the consolidated sentence will be affirmed if it neither exceeds the maximum sentence of all the remaining convictions combined nor exceeds the maximum possible sentence for the most serious conviction remaining. Yinmed v. Yap, 8 FSM Intrm. 95, 103 (Yap S. Ct. App. 1997).

Criminal Law and Procedure - Sentencing
Although a single, consolidated sentence for multiple offenses is proper, the better practice is for the trial court to impose sentence on each count individually, and to indicate on the record whether the sentences are to run concurrently or consecutively. A sentence which tracks the individual counts in this manner facilitates appellate review, and obviates the need for the appellate court to review the propriety of the entire sentence in the event any count underlying a general sentence is vacated. Yinmed v. Yap, 8 FSM Intrm. 95, 103 (Yap S. Ct. App. 1997).

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COURT'S OPINION

CONSTANTINE YINUG, Chief Justice:

I. INTRODUCTION

Appellant Yinmed appeals his conviction on all counts of a four count information, which charged the him with aggravated assault, assault with a dangerous weapon, burglary, and trespass, pursuant to 11 Y.S.C. §§ 207, 208, 302, and 307 respectively. On appeal, Yinmed raises three issues:

1. Whether the trial court erred in denying his motion to suppress evidence.

2. Whether the trial court erred in convicting him of the separate offenses of aggravated assault and assault with a dangerous weapon based on the same conduct.

3. Whether the trial court erred in convicting defendant of the separate offenses of trespass and burglary based on the same conduct.

A fourth issue arises from the disposition which the court makes of this case, and is whether remand for resentencing is necessary.

This court affirms the trial court's ruling on the motion to suppress evidence. The judgments of conviction for aggravated assault and trespass are vacated. For the reasons set out below, no remand for resentencing is required.

II. FACTUAL BACKGROUND

The evidence concerning the commission of the crime itself was that in the early morning hours of Christmas Day, 1992, the defendant entered the house of Yiftheg and assaulted him with a machete causing serious injury. Yiftheg sustained blows to his head, wrist, and leg. He was taken to the hospital, where he remained for 27 days.

Facts relevant for purposes of review of the trial court's denial of the motion to suppress center on events which occurred later on Christmas Day. At about 7:00 a.m., an unidentified person called the Yap Division of Public Safety and reported that Yinmed had assaulted Yiftheg. The police had in mind two places to look for the Yinmed, one of which was Nug's house. The police went to one family's house, and were told that Yinmed was staying with Nug. They went to Nug's place in Riken, asked Nug's wife where Yinmed was, and she said he was in the koyeng, a small, open-sided hut, on Nug's property. The officers went to the koyeng, where they found Yinmed, who was sleeping. The police woke Yinmed, arrested him, and handcuffed his hands behind his back. As an officer was escorting Yinmed out to the road, Officer Gililung received a radio message that the weapon used in the assault was probably in Yinmed's basket with the flashlight. Officer Gililung asked Officer Ramngen to ask the other people where Yinmed's basket was. Nug pointed Yinmed's basket out to a police officer. The basket was on the floor "laying beside," Tr. at 29, the place where Yinmed had been lying in the koyeng. When Officer Gililung looked toward the basket, he saw the machete. At Officer Gililung's direction, Officer Ramngen took the basket. At this point, Yinmed and the other police officers were outside the fence walking along toward Wanyan. Officer Ramngen then asked where Yinmed's flashlight was, and Nug said the flashlight was near the basket. Officer Ramngen took the flashlight; Nug told him that he had to return the flashlight because it was his, Nug's.

III. DISCUSSION

A. The Motion to Suppress

Yinmed appeals the trial court's denial of his motion suppress. The motion sought to exclude the defendant's basket, containing a machete, and a flashlight which were seized from the koyeng on Nug's property where Yinmed was staying at the time of arrest. The basket was located near where Yinmed had been sleeping; the flashlight was near the basket. Appellant's position is that because the police seized the basket and flashlight after taking Yinmed from the koyeng, the seizure did not fall within the search incident to lawful arrest exception to the warrant rule. That exception has its rationale in the notion the police may search the area within the arrestee's immediate control: Yinmed urges that after he was taken from the koyeng, he had no access to the area searched or the things seized. Appellant also contends that the search was not valid under the exigent circumstances exception to the warrant rule. The state responds that the basket and flashlight were seized as a part of a search incident to a lawful arrest; that the search was valid under the plain view doctrine; that the search of Nug's koyeng was consensual; that the police were authorized to make the search under 12 TTC § 101; and that the admission into evidence of the machete, basket, and flashlight was harmless error.

This court concludes that the trial court's consideration of the basket, machete, and flashlight was not harmless error, given the significant nature of those pieces of evidence. This court also concludes that the trial court properly considered these items of evidence because the basket, machete, and flashlight were properly seized as part of a search incident to a lawful arrest.

1. Harmless Error

It appears, based on this court's search of the record, that the trial court did not formally admit the basket, machete, or flashlight into evidence. The state moved at the conclusion of its case to admit these items, but no ruling admitting them is of record in so far as this court can determine. Nevertheless, the trial court makes mention of the machete and flashlight, but not the basket, in its Findings. Specifically, reference is made to the machete in the context of the discussion of Tina Bowen's testimony. Tina Bowen is Yiftheg's daughter who was sleeping in the same room as Yiftheg at the time of attack. The court noted:

The witness [Tina Bowen, the victim's daughter] noticed that the defendant had a flashlight and a machete when she saw him crouching near a drum-can. The machete was in the defendant's hand and was used to cause the first strike which the witness saw before she fled. At Trial Tina identified the machete seized from defendant upon arrest as the same type and size as the one she saw in defendant's possession at their encounter before and during the attack on her father.

Findings at 4. Although not formally admitted, the court considered the machete, which was found in Yinmed's basket, and flashlight. This court will treat the machete, basket, and flashlight as having been admitted into evidence.

Rule 52(a) of the Rules of Criminal Procedure for the Trial Division of the State Court of Yap provides as follows: "Rule 52. Harmless Error and Plain Error. (a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."

This court has not considered the question of the standard of review for harmless error. The FSM Supreme Court in considering the issue has held that the reviewing court must be able to determine that the error was harmless beyond a reasonable doubt. Jonah v. FSM, 5 FSM Intrm. 308 (App. 1992) (interpreting similar FSM Crim. R. 52, and citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). Chapman established the rule that before error can be harmless, the court must conclude that it was harmless beyond a reasonable doubt. Commenting on Chapman, the Jonah court said:

The next question is whether the Chapman rule is suitable for the Federated States of Micronesia. We think it is, for reasons parallel to those expressed by us in Alphonso v. FSM, 1 FSM Intrm. 209, 221 (App. 1982). That case established that the government's burden in a criminal case is to establish proof beyond a reasonable doubt in order to support a conviction, and that this standard was suitable for Micronesia.

If a constitutional error occurred in the trial, surely it cannot be declared harmless if a reasonable doubt existed as to its effect on the rights of the defendant. The highest standard is appropriate. We therefore hold that a constitutional error can be found harmless only when it is harmless beyond a reasonable doubt.

Jonah, 5 FSM Intrm. at 315. Looking to Jonah, this court finds that before error can be harmless, the court must conclude that it was harmless beyond a reasonable doubt.

As applied to the facts of this case, the alleged error in the court's consideration of the basket, machete, and flashlight was not harmless. In Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968), a case coming after Chapman, a rifle, illegally seized, was introduced into evidence as the weapon allegedly used in the commission of the crime. The court held that "[b]ecause the rifle was plainly damaging evidence against the petitioner with respect to all three of the charges against him its admission at the trial was not harmless error." 391 U.S. at 550, 88 S. Ct. at 1792, 20 L. Ed. 2d at 803. The basket, machete, and flashlight were plainly damaging to the defendant in this case. There was eye-witness testimony from the victim's daughter that she saw the defendant assault her father. She said that defendant had a machete and flashlight just before the attack and that the machete was like the one offered by the prosecution, which was taken from defendant's basket. The basket tied the defendant to the machete. The basket, machete, and flashlight were significant items of evidence. Viewed in one light, the testimony of the victim's daughter was independent, eye-witness testimony about the attack; necessarily, though, the real evidence gave credence to that eye-witness testimony. The admission of the basket, machete, and flashlight was not harmless error beyond a reasonable doubt.

2. Search Incident to Lawful Arrest

The court now turns to the question whether the warrantless seizure of the basket, machete, and flashlight from the koyeng falls within an exception to the warrant rule. In Ludwig v. FSM, 2 FSM Intrm. 27