THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Bueka v. FSM ,
1 FSM Intrm. 487 (App. 1984)

[1 FSM Intrm. 487]
APPELLATE DIVISION

MARSENINO BUEKEA,
Appellant,
 
vs.
 
FEDERATED STATES OF MICRONESIA,
Appellee.

OPINION

     Before Edward C. King, Chief Justice, FSM Supreme Court; and Federated States of Micronesia Supreme Court designated Justice Mamoru Nakamura (Chief Justice,Supreme Court of the Republic of Palau) and Herbert D. Soll (Judge, Commonwealth Court of the Northern Mariana Islands).

Argued June 26, 1984; Decided June 27, 1984

APPEARANCES:
     For Marsenino Buekea:          Michael K. Powell
                                                        Public Defender
                                                        State of Truk
                                                        Truk, Caroline Islands 96942

     For the Federated                   Jack Warndof
     States of Micronesia:              Asst. Attorney General
                                                        Federated States of Micronesia
                                                        Ponape, Caroline Islands 96941

[1 FSM Intrm. 488]

PER CURIAM:
     The principal issue here is the proof required to support a conviction for a sexual offense.  Defendant urges the Court to hold that in the Federated States of Micronesia, or at least in Truk State, there may never be a conviction for a sexual offense involving force unless the testimony of the complaining witness is supported by other testimony or additional evidence of some kind.

     We decline to adopt such a sweeping rule and we find ample evidence in the record in this case to support the defendant's conviction for the crime of

[1 FSM Intrm. 489]

sexual assault in violation of 11 F.S.M.C. 914.  The decision of the trial court is therefore affirmed.

Factual Background
     The victim in this case, a woman residing on the island of Tol in Truk State, testified that on April 6, 1983 she was just finishing bathing in water a short distance from her family's house, when Marsenino Buekea attacked her.  She testified that he wrestled her to the ground, covering her mouth to stifle her screams.  According to her testimony, Marsenino also punched her in the head, then placed his knife at her throat,demanding that she have intercourse with him. When she refused, he forcibly inserted his finger in her vagina.

     Hearing noises from nearby people, he grabbed her by the hair and began trying to drag her away, punching her and hitting her with a stick as she resisted. Finally, as the victim continued struggling and screaming, the defendant ended his attack and fled.

     The victim's testimony was supported by that of another witness who confirmed that she heard the victim's screams, ran in that direction and then saw the victim screaming and crying, running toward her, collapsing when she reached her.

She testified that the victim was disheveled, her

[1 FSM Intrm. 490]

hair in disarray, with grass in it.  The victim was wearing no blouse and the witness observed scratches on her chin, back and shoulder.

     A third witness, a young man living on the same island, testified that he and two others were in the area that day and heard screams.  Shortly thereafter, he saw Marsenino in an apparently agitated condition, about 100 meters from the victim's house, and a similar distance from the bathing place.  Marsenino was standing under a breadfruit tree about 15 feet off the road.  He was sweating, breathing heavily, wearing muddy pants and holding a knife.  Marsenino signaled the young man to come to him and then, without apparent provocation, grabbed him and told him to fight.

     Based upon this evidence, the trial court found Marsenino Buekea guilty of sexual assault.  The court did not hold that use of the knife forced the victim to submit within the meaning of 11 F.S.M.C. 914(3)(b).  The defendant was sentenced to imprisonment for a term of three years and six months.

Sufficiency Of The Evidence
     Marsenino Buekea's counsel directs our attention to the truth that nuance of language, and small gestures and mannerisms, can be important clues for the trier of

[1 FSM Intrm. 491]

fact in determining whether a witness is telling the truth.  He also contends that the various Micronesian cultures may have distinctive ideas, values and actions concerning sexuality.  He urges that these factors may heighten the possibility that an American judge, such as the trial judge here, or even a Micronesian judge from another area, may misinterpret actions or words and reach mistaken conclusions.  He argues that the possibility of error is greatest in sexual offense cases.  He concludes that in cases where a person claims to have been sexually violated, the court should never accept the testimony of the alleged victim as sufficient unless that testimony is corroborated by other testimony or physical evidence.

     We appreciate appellant's concern with cross cultural problems that may arise in the truth finding process.  This was well articulated in his brief and again in oral argument.  Yet most of the difficulties referred to are problems for all judges in all places. Even those aspects which may be unique here seem to apply to practically all crimes, especially crimes of passion, and are not limited to sexual offenses.  The legitimate concerns raised by counsel serve as reminders that judges and advocates here face special

[1 FSM Intrm. 492]

challenges and bear heavy responsibility to proceed with even greater care and thoroughness than might be necessary elsewhere.

     Nevertheless, we remain unconvinced that complaints by women of sexual assault in Micronesia require any more corroboration than that of other witnesses in other serious cases.  Good prosecution practice should always provide available testimony to enhance the credibility of primary witnesses.  Effective defense counsel must point to flaws in the case of the prosecution and bring to the attention of the court any reasons to doubt the charges or evidence against the defendant.

     The constitutional requirement that proof of guilt be established beyond a reasonable doubt provides pro-tection to persons accused of sexual offenses as wellas those accused of other crimes.  See Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1983).  No rule of corroboration will emanate from this decision.

     Actually, as already related in the preceding section of this opinion, there was in this case a great deal of evidence to corroborate the testimony of the complaining witness.  The trial judge, who heard the testimony and observed the witnesses, was persuadedbeyond a reasonable doubt that the defendant had subjec

[1 FSM Intrm. 493]

-ted the victim to sexual penetration against her will.  There is abundant evidence in the record to support the trial judge's conclusion.  The Appellate Division therefore has no right, and no inclination, to set aside the finding of guilt.

The Information
     Defendant raises one other issue.  The single count in the Information, after charging sexual penetration against the victim's will, added, "and a dangerous weapon, to wit, knife, was used by Marsenino Buekea in such a manner as to cause the victim to submit to the sexual assault....

     Pointing out that the trial judge was not persuaded beyond a reasonable doubt that use of the knife caused the victim to submit, Marsenino Buekea asserts that the entire Information must fall.  He argues that the government's failure to prove that the assault occurred in the manner alleged prevents a finding of guilt under that count.

     Our Trial Division has previously pointed out that the allegations in the Information alleging a criminal violation must be proven in order to obtain a conviction. FSM v. Boaz, 1 FSM Intrm. 22 (Pon. 1981).  It is not sufficient that the evidence show a violation of the

[1 FSM Intrm. 494]

statute specified in the Information if the actual violation is different from the one alleged.  Of course, at the discretion of the trial judge the Information may be amended to conform to the evidence if it appears fair to do so.

     In this case however, no amendment was made and none was necessary. The basic charge, that the defendant "did intentionally subject another person ... to sexual penetration against the other person's will," independently states a violation of 11 F.S.M.C. 914. The allegation concerning the use of the knife was an additional point relating to the possible sentence. The government's failure to establish the claim that use of the knife caused the victim to submit merely prevented application of the greater punishment available under 11 F.S.M.C. 914(3)(b).

     There is no logical inconsistency in finding the use of force, even without ruling that the knife forced the victim to submit.  This is especially so here where the victim apparently never ceased struggling.  In any event, there is sufficient evidence of other force in the record to support the conviction for forced sexual penetration, wholly aside from use of the knife.

     The decision of the trial court is affirmed.

[1 FSM Intrm. 495]

     So ordered this 27th day of June, 1984.
 
 /s/ Edward C. King
Edward C. King
Chief Justice
 
 /s/ Mamoru Nakamura
Mamoru Nakamura
Chief Justice, Supreme Court of the Republic of Palau (Designated Justice)
 
/s/ Herbert D. Soll
Herbert Soll
Judge, Commonwealth Court,
Commonwealth of the Northern
Mariana Islands
(Designated Justice)

     Entered this 28th day of June, 1984.

 /s/ Emiliana J. Musrasrik
Chief Clerk of Court
                                                                                                                                                                                                                                                                                                           
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