THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Andohn v. FSM,
1 FSM Intrm. 433 (App. 1984)

APPELLATE DIVISION

[1 FSM Intrm. 433]

OLTER ANDOHN,
Appellant,
vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO.  P2-1983

OPINION

Before:
Hon. Dorothy W. Nelson, Judge, United States Court of Appeals for the Ninth Circuit;*
Hon. Samuel P King, Judge, United States District Court, District of Hawaii*
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court

APPEARANCES:
     For the Appellant:     Loretta Faymonville, Esq.
                                 Public Defender
                                 State of Ponape
                                 Ponape, Caroline Islands 96941

     For the Appellee:      Frederick C. Canavor, Jr., Esq.
                                 Special Counsel
                                 Department of Legal Affairs
                                 State of Ponape
                                 Ponape, Caroline Islands 96941

[1 FSM Intrm. 434]
 
Per Curiam:
     The appellant was convicted of burglary, sexual assault and robbery.  He has appealed and assigned several errors.  All have been considered, but only two require discussion.  In oral argument appellant's counsel confined herself to these two points, in apparent agreement with our evaluation.

     These are the issues presented by the appellant:

1.  whether or not the trial court erred in stating that the prosecution's burden was to present a prima facie case when deciding a Rule 29 motion for a judgment of acquittal at the close of the prosecution's case; and

2.  whether or not the record reflects the trial court exhibited partiality to the prosecution, especially in recalling a witness after both sides had rested and asking 19 questions of her.

[1 FSM Intrm. 435]

     We conclude that the defendant has failed to show that the trial court applied an incorrect standard, and that the record fails to reveal partiality or the appearance of partiality by the court.

     After oral argument this court on its own motion invited memoranda on the question of the sufficiency of the evidence to sustain the conviction of robbery. The issue thus raised was whether or not a robbery conviction can be supported by this evidence: after a female occupant of an apartment retired for the night, the apartment was entered by force and the female sexually assaulted by one using a dangerous weapon; a towel present in the apartment when the female retired was absent after the assailant departed.

     The government in its memorandum does not oppose dismissal of the robbery count.  And we conclude that the robbery conviction cannot be sustained upon the evidence.

     The defendant was accused by information filed March 3, 1982 of sexual assault, of burglary (entering an apartment intending to commit sexual assault), all occurring on February 25, 1982 in Ponape.  At trial on March 19, 1982, the defendant did not contest the occurrence of the offenses, but defended on the ground that he was not the perpetrator.  Record at 31, 70, 141, 142.  FSM v. Andohn, Tr. Division No. 1982-501 (Pon. 1982).

     After the government rested, the trial court announced that it wished to ask additional questions of the victim

[1 FSM Intrm. 436]

concerning the basis of her identification of the defendant.  Record at 82, Andohn.  The witness was not available.  Record at 82.  It was agreed that the defense would go forward subject to a later call of the victim.  Record at 82.  The defendant then moved pursuant to Rule 29 of the Rule of Criminal Procedure for the Trial Division of the Supreme Court of the Federated States of Micronesia for a judgment of acquittal on the ground that, as to the robbery, there was no connection between the force used in the alleged sexual assault and the taking of the towel, and that as to all counts, the prosecution had failed to prove the case beyond a reasonable doubt because the identification testimony was conclusory only.
 
Record at 83, 84.

     The government's case tended to show that the defendant entered the apartment of the victim by cutting a screen and removing the louvers of a first floor bathroom window, and committed forcible rape of the victim in her second floor bedroom.  The victim testified that when she went to her bedroom to sleep for the night, a red towel was in the bathroom, and that after the incident the red towel was not in the apartment.

     The trial court denied the motion as to the robbery, saying, "...as long as there was force employed in the course of the entry into the house, there was no way that the ... victim was in a position to protect either herself or her property, and therefore, the taking of the towel in

[1 FSM Intrm. 437]

the course of those events would constitute robbery."  Record at 84.

     As to the motion to acquit on all counts, the trial court said, "I believe the burden on the prosecution in leading a criminal proceeding in its original case is to present a prima facie case.  After the court's [sic] has heard all of the evidence, the court then must make a determination that beyond reasonable doubt, guilty [sic] has been shown.  I think that the standard that the prosecution must meet at this point, has been met. . . I don't know enough information at this point about that to feel entirely comfortable with it, but I still think through her conclusions and what she has said to use, we know enough to conclude that the government has met its original burden of going forward."  Record at 85.

     The defendant then called five alibi witnesses, including himself, and rested. The government had no rebuttal.  The victim was recalled by the court and answered 19 questions asked of her by the trial court.. Record at 133-138. Prosecutor and defendant then questioned her briefly.  Record at 137, 138.

THE MOTION FOR A JUDGMENT OF ACQUITTAL
     In asserting that the trial court applied an incorrect standard in ruling on his motion for a judgment of acquittal, the defendant fails to say what he understood by

[1 FSM Intrm. 438]

the court's word that the prosecution's burden was to "present a prima facie case."  In other words, the appellant does not define in what way the court erred.

     We find authority for the use of the term "prima facie" in describing the correct standard to employ in deciding a Rule 29 motion.  We find nothing in the record to demonstrate that an incorrect standard was used.
 
     In his brief at pages 5 and 42, the appellant cites two authorities for the standard he believes is correct.  These will be repeated.

A motion for a directed verdict of not guilty [now, judgment of acquittal] will be granted if there is insufficient evidence to support a conviction.  The test of sufficiency is whether a reasonable jury, viewing the evidence and reasonable inferences therefrom in the light most favorable to the prosecution, could find the defendant guilty beyond a reasonable doubt.

3 C. Torcia, Wharton's Criminal Procedure 520 (12th ed. 1975).

The second authority relates:

. . . This Court has stated most recently in United States v. Jeffords, 491 F.2d 90 (5th Cir. 1974):

The test in a criminal case to determine whether here is sufficient evidence to submit the case to the jury is:

       On a motion for judgment of acquittal, the test is whether, taking the
view most favorable to the Government, a

[1 FSM Intrm. 439]

reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. . .

United States v. Amato, 495 F.2d 545, 549 (5th Cir. 1974). We concur in the standard.

     As to the use of the phrase "prima facie," Professor Moore states,

Where defendant rests without putting on a defense, the sole basis for moving for acquittal, or raising the point on appeal, is that the government has failed to establish a prima facie case.  In this context the term `prima facie' is used to denote evidence which, if believed, would be sufficient to establish defendant's guilt beyond a reasonable doubt.

8A J. Moore, Moore's Federal Practice, 29.07 (2d ed. 1981).  Professor Moore in the footnote gives 9 Wigmore, Evidence 2493, at 293-94 (3rd ed. 1940) as his authority for this proposition.

     Rule 29 of the Rules of Criminal Procedure of the Trial Division of the Supreme Court is drawn from and repeats Rule 29 of the Rules of Criminal Procedure for the United States District Courts.  The FSM rule reads in part,

(a)     Motion Before Parties Rest.  The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the information after the evidence of either side is closed if the

[1 FSM Intrm. 440]

evidence is insufficient to sustain a conviction of such offense or offenses.

     Every Circuit Court of Appeals in discussing the standard to be applied in ruling on the motion for judgment of acquittal employs a formulation substantially similar to that of United States v. Amato, 495 F.2d 545, 549.  See Crawford v. United States, 375 F.2d 332, 334, 126 U.S. App. D.C. 156 (D.C. Cir. 1967); Parker v. United States, 378 F.2d 641, 644,
(1st Cir. 1967), cert. denied, 389 U.S. 842 (1967); United States v. Taylor, 464 F.2d 240, 243 (2d Cir. 1972); United States v. Allard, 240 F.2d 840, 841 (3rd Cir. 1957), cert. denied, 353 U.S. 939 (1957); United States v. Sawyer, 294 F.2d 24, 31 (4th Cir. 1961), cert. denied, 368 U.S. 916 (1961); Jones v. United States, 391 F.2d 273, 274 (5th Cir. 1968); United States v. Gaines, 353 F.2d 276, 278 (6th Cir. 1965); United States v. Williams, 311 F.2d 721, 723 (7th Cir. 1963), cert. denied, 374 U.S. 812 (1963); Conaway v. United States, 349 F.2d 907, 910 (8th Cir. 1965), cert. denied, 382 U.S. 976 (1966); Kaplan v. United States, 329 F.2d 561, 563 (9th Cir. 1964); Maguire v. United States, 358 F.2d 442, 444 (10th Cir. 1966), cert. dismissed, 385 U.S. 801, cert. denied, 385 U.S. 870 (1966).

[1 FSM Intrm. 441]

     There is nothing in the record to suggest that the trial court failed to apply this uniform authority when it decided the Rule 29 motion.

     We are not bound by these United States cases. However it 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. Marlin v. Lewallen, 276 U.S. 58, 62, 48 S. Ct. 248, 250, 72 L. Ed. 467, 469 (1928). Thus the interpretation of Rule 29 by the United States Courts is at least persuasive in the interpretation of FSM Rule 29.

     In the Federated States of Micronesia, the burden on the government in criminal prosecutions is that guilt be shown beyond a reasonable doubt.Alaphonso v. FSM, 1 FSM Intrm. 209, 223 (App. 1982).  Thus the ordinary reading of Rule 29 would require that the prosecution's case warrant a finding of guilt beyond a reasonable doubt, or else the motion should be granted. The language of the Rule is that the motion must be granted if the evidence "is insufficient to sustain a conviction...".  FSM Crim. R. 29.

     In the Federated States of Micronesia criminal cases are tried before a judge as factfinder.  This does not alter the proper way to decide a Rule 29 motion. The question is not whether the government has

[1 FSM Intrm. 442]

proved its case beyond a reasonable doubt to the factfinder.  Instead, the proper question is whether the evidence could "sustain" a conviction, i.e., such evidence that reasonable persons could find guilt beyond reasonable doubt.  It is not a requirement that the evidence compel, but only that it is capable of or sufficient to persuade the jury to reach a verdict ofguilt by the requisite standard."  Crawford v. United States, 375 F.2d 332, 334 (D.C. Cir. 1967).

     At the close of the prosecution's case, it is clear from the words of the trial court that he was satisfied that guilt could be found because of the certainty of the victim's identification.  Record at 83, line 1.  He added that he would not himself find guilt, and put the parties on notice that he intended to recall the victim.

     Based on the record itself and the authorities cited, we find no error in the manner of the trial court's ruling on the Rule 29 motion, and no error in the standard he employed in reaching his ruling.

PARTIALITY OF THE TRIAL COURT
     The appellant states that the partiality of the court toward the prosecution is shown by the record in these ways:

[1 FSM Intrm. 443]

     1)  by suggesting to the witness that she might use the term "incident" in her relating of the sexual offense;

     2)  by interrupting defense counsel while he was stating an objection to a question of the prosecution;

     3)  by showing solicitousness to the witness who was the alleged victim of the sexual assault in suggesting a short recess during her testimony;

     4)  in asking questions of defense counsel during his closing argument (when none were asked of the prosecution); and

     5)  by recalling the victim after both parties had rested and asking her 19 questions.

     Counsel contends that this last point is particularly indicative of partiality because the court said at the close of the government's case that he did not feel "comfortable" with the basis for the victim's belief that the defendant was her assailant.

     The first four of these points are trivial in themselves or taken together. Concerning the second point, appellant concedes there was no error in the ruling on the objection itself.  We are confident that appellant raised them only because of his fifth point, believing that the four points are corroborative of the partiality he contends is shown by the questioning of the witness.

[1 FSM Intrm. 444]

     We have carefully examined the entire record, and fail to find evidence of partiality by the trial judge. Had he entertained a bias or prejudice against the appellant, it would have been his duty to disqualify himself from the proceeding. 4 F.S.M.C. 124(2)(a).  Additionally, the court was bound by the American Bar Association Code of Judicial Conduct incorporated into law by 4 F.S.M.C. 122. Canon 3(A) of the Code entitled "A Judge Should Perform The Duties of His Office Impartially and Diligently" obligates a judge to "(1) ... be unswayed by partisan interests, public clamor, or fear of criticism and "(3) ... be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others..." with whom he works.

     On the calling of the case for trial, the defense counsel was permitted to ask several questions of the court in regard to bias.  After the judge had answered them, counsel expressed satisfaction that no bias existed and that he had not observed any actions orheard the court express any opinions that indicated bias.  Record at 21-25.

     An examination of the questions to which appellant objects fails to reveal bias. Judging from the questions, the answers thereto could have been favorable to one side or to the other.

[1 FSM Intrm. 445]

     The judge gave clear notice of his intention to recall the witness.  There were no objections made at that time, or at the time the questions were asked. Barba-Reyes v. United States, 387 F.2d 91, 93 (9th Cir. 1967); United States v. Stirone, 311 F.2d 277, 280 (3rd Cir. 1962).  Because the case was tried to the court, counsel were free to make objections without risking the unfavorable reactions of a jury.  See United States v. Hill, 332 F.2d 105, 106 (7th Cir. 1964).  At the close of the court's questions, counsel were giventhe opportunity to ask additional questions, which each did.  United States v. Lewis, 338 F.2d 137, 141 (6th Cir. 1964).  "The mere fact that the witness questioned was a government witness does not make the judge a prosecutor." Barba-Reyes, 387 F.2d at 93.

     The appellant does not contest the duty of a trial judge to ask questions to the end that truth should emerge and be reflected in the judgment.  It is his contention instead that the judge's questions demonstrated a prejudice against the appellant and assisted the prosecutor to convict.  The record, as we have said, fails to show such partiality.

     The trials of the cases cited above were before juries where, because of the weight juries might give to any indication of partiality by the judge, a high standard of impartiality is expected.  In the trial of

[1 FSM Intrm. 446]

this case there was no jury to be influenced by an appearance of partiality.  Even using the standard employed in the context of the jury trial, however, we find no partiality, or appearance of partiality.

     That the answers given by the witness happened to strengthen the government's case does not indicate that the judge was impermissibly helping the prosecution, or that he was biased against the defendant.

     Since we do not find error in the recall and examination of the government's witness, the other contentions of bias need not be discussed.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT ROBBERY
     The appellant was convicted of violating 11 F.S.M.C. 920 which reads:

A person commits the offense of robbery if he takes away
anything of value from the person of another, or from the immediate control of another, by use or threatened use of immediate force or violence.

     The trial court found that the dangerous weapon had been used to obtain the property, which aggravating circumstances enhanced the maximum term of imprisonment to ten years.

     "Robbery requires that the taking be done by means of violence or intimidation."  W. LaFave & A. Scott, Jr. Handbook on Criminal Law 696 (1972). "The violence or intimidation must precede or be

[1 FSM Intrm. 447]

concomitant or contemporaneous with the taking."  67 Am. Jur. 2d Robbery 26 (1973).

     The evidence is silent as to when the towel was taken.  It cannot be assumed that it was taken after the assault.  For all the record shows, the taking could have occurred without any violence or intimidation.  Hicks v. State, 232 Ga. 393, 207 S.E.2d 30, 37 (1974).1

     The motion for a judgment of acquittal of the offense or robbery at the close of the government's case should have been granted.

     For the reasons stated, the judgment is affirmed as to the convictions of burglary and sexual assault. The judgment is reversed as to the conviction of robbery and the case remanded to the Trial Division for the dismissal of the robbery count, and for the re-sentencing of the appellant.

     So ordered this 20th day of March, 1984.
 /s/ Dorothy W. Nelson
DOROTHY W. NELSON
Judge, United States Court of
Appeals for the Ninth Circuit
(As Designated Justice of the
Supreme Court of the Federated States of Micronesia)

[1 FSM Intrm. 448]

 /s/ Samuel P. King
SAMUEL P. KING
Judge, United States
District Court, Hawaii
(As Designated Justice of
the Supreme Court of the Federated States of Micronesia)

 /s/ Richard H. Benson
RICHARD H. BENSON
Associate Justice
Supreme Court of the
Federated States of Micronesia

     Entered this   1st day of June, 1984.
 /s/ Emeliana J. Kihleng
Chief Clerk or Court
Supreme Court of the
Federated States of Micronesia

*Designated Justice sitting pursuant to 4 F.S.M.C. 104.
 

Footnote:

1. Southeastern Reporter is not available in the Federated States of Micronesia. The report is therefore attached. Back to opinion
                                                                                                                                                                                                                                                                                                           
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