KOSRAE STATE COURT TRIAL DIVISION

Cite as Kosrae v. Likiaksa, 14 FSM Intrm. 618 (Kos. S. Ct. Tr. 2007)

[14 FSM Intrm. 618]

STATE OF KOSRAE,

Plaintiff,

vs.

NICKERSON S. LIKIAKSA,

Defendant.

CRIMINAL CASE NO. 64-06

ORDER DENYING MOTION TO DISMISS

Aliksa B. Aliksa

Chief Justice

Hearing:  April 26, 2007

Decided:  April 30, 2007

[14 FSM Intrm. 619]

APPEARANCES:

For the Plaintiff:        Edwin Mike, State Prosecutor

                                 Office of the Kosrae Attorney General

                                 P.O. Box 870

                                 Tofol, Kosrae FM 96944

 

For the Defendant:   Steve George

                                 Office of the Public Defender

                                  P.O. Box 245

                                  Tofol, Kosrae FM 96944

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HEADNOTES

Criminal Law and Procedure ) Aggravated Assault

      The court will decline to draw a formal, arbitrary line about whether parts of the body can be dangerous weapons, or, about which parts of the body can be dangerous weapons. The analysis must be a functional one, looking at the capacity and manner of use and not the nature of whatever is used. Any object, article, substance, instrument, thing, item, or entity can become a dangerous weapon when it is used in a manner that may be anticipated to produce death or great bodily harm. Accordingly, teeth, depending on the manner in which they are used, may be a "dangerous weapon" under Kosrae State Code §13.303. This is primarily a question of fact and will depend on the presentation of evidence at trial. Kosrae v. Likiaksa, 14 FSM Intrm. 618, 620 (Kos. S. Ct. Tr. 2007).

Criminal Law and Procedure ) Dismissal; Criminal Law and Procedure ) Double Jeopardy

      A defendant cannot be sentenced on both a greater and lesser-included offense. However, this is not grounds for dismissal of either charge prior to trial. If the state proves all elements of both offenses, then the court may enter a conviction and sentence for the greater offense. Kosrae v. Likiaksa, 14 FSM Intrm. 618, 621 (Kos. S. Ct. Tr. 2007).

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COURT'S OPINION

ALIKSA B. ALIKSA, Chief Justice:

      The Defendant filed a Motion to Dismiss on April 16, 2007 arguing that the charge of aggravated assault must be dismissed because a teeth bite does not constitute a dangerous weapon under Kosrae State Code §13.303. Defendant also argues that a lesser-included offense charged in the same information must be dismissed because charging both offenses in the same Information constitutes double jeopardy. The State opposes the Motion. The hearing on the Motion was held April 26, 2007. Edwin Mike, Attorney General’s Office, represents the Plaintiff. Steve George, Public Defender’s Office, represents the Defendant.

Analysis

      Whether teeth may be a "dangerous weapon" under Kosrae State Code §13.303

      The Defendant argues that the term "dangerous weapon" as used in Kosrae State Code §13.303

[14 FSM Intrm. 620]

refers to a foreign object only and cannot refer to a body part. The statutes do not define the phrase "dangerous weapon." Black’s Law Dictionary defines "dangerous weapon" in the context of criminal possession of a weapon, as "any article which, in circumstances in which it is to be used, attempted to be used, or threatened to be used, is readily capable of causing death or other serious physical injury." It goes on to state that whether something is a dangerous weapon does not depend on the nature of the object but on its capacity and manner of use and that it is often a question of fact.

      The constitutionality of a national statute using the phrase "dangerous weapon" was challenged in Laion v. FSM, 1 FSM Intrm. 503 (App. 1984). The Defendant in that case questioned whether a rock used to hit the victim in the head could be considered a weapon.

      The Court analyzed legislative history, Trust Territory case law, United States case law and legal reference materials and held that "a ‘dangerous weapon’ is an object which, as used, may be anticipated to produce death or great bodily harm." Laion, 1 FSM Intrm. at 512 (emphasis added).

       In Palik v. Kosrae, 8 FSM. Intrm., 509 (App. 1998), the Defendant argued that stationary objects could not be considered weapons. This Court relied on the holding in Laion, and held that the wooden post and cement surface, as well as the shoes on his feet, which he used to beat his wife’s head, constituted using those objects as dangerous weapons. Palik, 8 FSM Intrm. at 513.

      The Court found no published case in the Federated States of Micronesia addressing the questions of whether teeth, or any other part of a person’s body, could be used as a dangerous weapon. And, case law from the United States is of limited value as most US jurisdictions, both federal and state, rely on statutory definitions of the phrases "dangerous weapon," "deadly weapon," and "dangerous instrumentality." So, the outcomes of cases are different, depending on the wording, purpose, and intent of the statutes.

      The question of what constitutes a weapon under a particular statute in the U.S. is generally an issue of fact. United States v. Hamilton, 626 F.2d 348, 349 (4th Cir.), cert. denied, 449 U.S. 902 (1980); United States v. Barnes, 569 F.2d 862, 863 (5th Cir. 1978). And, when analyzing statutes, courts generally look to the item’s capacity and how it is used, rather than on the intrinsic nature of the object. See, for example, United States v. Moore, 846 F.2d 1163, 1166 (8th Cir. 1988). (In Moore, an inmate’s teeth were found to be dangerous weapons.)

      This Court declines to draw a formal, arbitrary line about whether parts of the body can be dangerous weapons, or, about which parts of the body can be dangerous weapons. The analysis must be a functional one, looking at the capacity and manner of use and not the nature of whatever is used. Any object, article, substance, instrument, thing, item, or entity can become a dangerous weapon when it is used in a manner that may be anticipated to produce death or great bodily harm. This is consistent with the holding in Laion v. FSM, 1 FSM Intrm. 503, 512 (App. 1984) that "a ‘dangerous weapon’ is an object which, as used, may be anticipated to produce death or great bodily harm."

      It is also consistent with common sense as the Court will not be put in the position of holding that a bite with dentures may be assault with a dangerous weapon, but a bite with teeth is not.

      Accordingly, I hold that teeth, depending on the manner in which they are used, may be a "dangerous weapon" under Kosrae State Code §13.303. This is primarily a question of fact and will depend on the presentation of evidence at trial. The Motion to Dismiss is therefore denied on these grounds.

[14 FSM Intrm. 621]

      Whether Defendant is placed in double jeopardy when being charged with both a greater and lesser-included offense

      Defendant states that he cannot be sentenced on both a greater and lesser-included offense and that if he is found guilty of both, then the lesser-included offense must be dismissed. He then argues that because a conviction cannot be entered under both offenses, the charge of assault must be dismissed before trial as infringing on his protection against double jeopardy.

      He accurately states the law, that he cannot be sentenced on both a greater and lesser-included offense. However, this is not grounds for dismissal of either charge prior to trial. If the State proves all elements of both offenses, then the Court may enter a conviction and sentence for the greater offense. See, for example, Palik, 8 FSM Intrm. at 516.

      An assertion of double jeopardy is not proper on the grounds raised by Defendant at this stage in the proceedings and his Motion to Dismiss is denied on these grounds, as well.

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