For the Plaintiff:   Paliknoa Welly, trial counselor

                                 State Prosecutor

                                 Office of the Kosrae Attorney General

                                 P.O. Box 870

                                 Lelu, Kosrae   FM   96944

For the Defendant:   Harry A. Seymour, Esq.

                                      Office of the Public Defender

                                      P.O. Box 245

                                      Lelu, Kosrae   FM   96944

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YOSIWO P. GEORGE, Chief Justice:

     This matter was set for trial on June 22, 2005. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. Myrah Kilafwakun testified on behalf of the State. The Defendant testified on his own behalf.

     During the trial, the Defendant made a verbal motion to suppress the written witness statement of Dina Kilafwakun, one of the alleged victims. After hearing argument from the parties, I took the motion under advisement. I grant the Defendant’s Motion to Suppress. This Order sets forth my ruling below.

     The Defendant was tried upon the four Counts set forth in the Information: two Counts of Assault and Battery, in violation of Kosrae State Code, Section 13.303 and two Counts of Assault, in violation of Kosrae State Code, Section 13.302. Following the presentation of the case by both parties, I took the matter under advisement.

      Based upon the evidence presented at trial, I find that the Plaintiff had proved beyond a reasonable doubt that the Defendant had committed two of the charged offenses: two counts of assault and battery, in violation of Kosrae State Code, Section 13.303. Defendant is convicted of Count One, assault and battery against victim Myrah K. Kilafwakun, and is convicted of Count Three, assault and battery against victim Dina K. Kilafwakun. Counts Two and Four, the criminal offense of

Assault, are lesser included offenses of Counts One and Three.

     This Judgment of Conviction and Sentencing Order sets forth my findings of facts, and reasoning.

      The Plaintiff sought to introduce into evidence the written statement prepared by Dina K. Kilafwakun, one of the victims in this matter. Dina K. Kilafwakun was off-island and not available to testify at the trial. As a preliminary matter, Defendant moved to suppress introduction of Dina’s written witness statement on several grounds: lack of foundation and hearsay. The Kosrae Rules of Evidence, Article IX, require authentication and identification of documentary evidence, sufficient to support a finding that the document is what its proponent claims. With respect to the written statement, the author of the statement was not present to identify and authenticate the document. The Plaintiff did not present any person to identify and authenticate the subject statement. Plaintiff has failed to satisfy the requirements of authentication and identification of documents under the KRE, Article IX. Accordingly, Defendant’s Motion to Suppress must be granted. The written statement by Dina K. Kilafwakun is suppressed, is not accepted into evidence of this matter and is not considered in making my findings and decision.

     Based upon the evidence presented at the trial, I found the following facts. Myrah K. Kilafwakun and her daughter, Dina K. Kilafwakun, were walking along the public road to Senny’s Store, when they encountered Melvina Kilafwakun at Melvina’s house in Fwinfoko. Melvina is a sister of the Defendant, a sister-in-law of Myrah and aunty of Dina. Melvina started an argument with Myrah and Dina, involving angry words and physical contact. A scuffle resulted among the three women. The Defendant, who was present at Melvina’s house, heard the commotion, and interjected himself into the argument among the women. The Defendant took the side of Melvina: he slapped the face of Dina and pushed Myrah to the ground.

     The Defendant admitted the allegations, that he did slap Dina’s face and did push Myrah to the ground. Defendant argued that it is within his customary authority to slap the face of his niece-in-law, Dina, and to push his sister-in-law, Myrah, to the ground. Defendant testified that he was acting in defense of his sister Melvina when he struck Dina and pushed Myrah. No customary actions were taken later between the Defendant and the victims.

     The Defendant were tried on the four counts provided in the Information: two counts of Assault and Battery, one count for each victim, Myrah K. Kilafwakun and Dina K. Kilafwakun; and two counts of Assault, one count for each victim Myrah K. Kilafwakun and Dina K. Kilafwakun. The proof of the lesser offense of assault is necessarily included as part of the showing of the greater offense of assault and battery. Kosrae v. Tosie, 4 FSM Intrm. 61 (Kos. 1989).

     Defendant argues two defenses to his actions of slapping Dina and pushing Myrah. First, Defendant argues that he was provoked into committing those actions, the provocation being the ongoing scuffle between the three women. Second, Defendant argues that he is charged with the duty of defending his sister Melvina from Dina and Myrah, and that it is within his customary authority to slap his niece-in-law Dina and push his sister-in-law Myrah to the ground. Defendant did not present any legal authority to support his defense arguments of provocation and defense of others.

     These defenses were recently addressed by this Court in the case of State v. Larry B. Neth, Crim. Case No. 131-04 (Amended Judgment of Conviction, Dec. 27, 2004). In the Neth case, this Court held that:

Neth, at 3 (citations omitted). See also FSM v. Ruben, 1 FSM Intrm. 34 (Truk 1981).

     I have carefully considered the evidence presented at the trial. Here, the facts differ slightly from those in the Neth case. Here, the Defendant claims that he was exercising defense of a family member, his sister Melvina. There was no testimony presented at trial that Melvina was threatened by imminent unlawful bodily harm by Dina and Myrah. The evidence presented at trial identified Melvina as the aggressor and as the person who started the fight with Myrah and Dina.

      Defendant argued that Myrah and Dina intentionally chose to walk along the road to Senny’s and to pass Melvina’s house, solely to provoke a fight with Melvina. However, the Defendant failed to present any evidence of this argument. This Court declines to accept Defendant’s argument as it is mere speculation, in the absence of any supporting evidence.

     I conclude that based upon the evidence presented at trial, that Melvina was the aggressor who initiated the argument with Myrah and Dina. I further conclude that there was no threat of imminent assault made by Dina and Myrah upon Melvina. Accordingly, the Defendant was not justified in using the type of force he used to commit the batteries upon Dina and Myrah. I further conclude that the force used by the Defendant, was not reasonable in the light of the amount, degree and kind of force being used by the three women in the argument. Therefore, Defendant’s defenses of provocation and defense of a family member must fail.

     Defendant argues that it is within his customary authority to strike his sister-in-law and his niece-in-law. Kosrae State Code, Section 6.303 requires this Court to receive satisfactory evidence of tradition, before it may utilize tradition in reaching a decision. The Defendant presented only his testimony in support of his argument that pursuant to Kosraean custom, that he may strike his sister-in-law and niece-in-law. The Defendant did not take any steps to separate the women during their argument, nor take any other actions to promote peace or resolve the argument.

      I conclude that the Defendant’s testimony is self-serving, and does not satisfy the evidentiary requirement of Kosrae State Code, Section 6.303. This Court declines to accept Defendant’s argument that based solely upon his status as a male relative, he is entitled to commit a battery upon a female relative. Defendant’s defense of customary authority must fail.

     I find that based upon the evidence presented at trial, the State did prove beyond a reasonable doubt all the elements of all the four charged criminal offenses. The Defendant committed batteries upon Myrah and Dina, by striking both victims. Accordingly, the Defendant is found guilty and convicted of two counts of the offenses of assault and battery, in violation of Kosrae State Code, Section 13.303, one count for each victim.

     In accordance with the mandate of Palik v. Kosrae, 8 FSM Intrm. 509 (App. 1998), convictions are entered only upon the two greater offenses of assault and battery, one count for each victim. The charges of assault, two counts, Kosrae State Code, Section 13.302, are dismissed.

     Defendant is found guilty and convicted on Counts One and Three of the Information, both being the offense of assault and battery, in violation of Kosrae State Code, Section 13.303.

     Court Marshal Tilfas shall complete the pre-sentence report on the Defendant by July 29, 2005. The Clerk shall set the sentencing hearing during the week of August 1, 2005.