THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Teruo vs. FSM, 2 FSM Intrm. 167 (App. 1986)

[2 FSM Intrm. 167]

AWEKO TERUO, IPAO (AWEKO) FABIAN,
KERESEN OTOGICHY, OTOGICHY ENGICHY
Appellants,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

App. No. T4-1984
From: Crim. 1984-1500, consolidated with 1984-1515,
Benson, J.; Decided August 4, 1984

Argued:  January 30, 1986
Decided:  May 12, 1986
 
Before:
     Hon. Edward C. King, Chief Justice, FSM Supreme Court;
     Hon. Mamoru Nakamura, Temporary Justice, FSM Supreme Court*;
     Hon. Judah Johnny, Temporary Justice, FSM Supreme Court**;

     *Chief Justice, Republic of Palau Supreme Court, on this Court for this case by designation.
     **Associate Justice, Pohnpei Supreme Court, on this Court for this case by designation.

APPEARANCES:
     For the Appellants:        Gary Marr
     (Keresen Ootokichy)     Assistant Public Defender
                                             Office of the Public Defender
                                             Moen, Truk  96942

[2 FSM Intrm. 168]

     (Otokichy Engichy)          Thomas J. Lannen
                                               Attorney-at-Law
                                               3rd Floor, Calif. First Bank
                                               Hernan Cortes Ave.
                                              Agana, Guam 96910

     (Aweko Teruo and          Terry Timblin
     Ipao Fabian)                    Attorney-at-Law
                                               Suite 202, CA Prof. Bldg.
                                               Agana, Guam 96910

     For the Appellees:          Jack Warndof
                                               Chief, Division of Litigation
                                               Office of the Attorney General
                                               Federated States of Micronesia
                                               Kolonia, Pohnpei 96941

*       *       *       *

HEADNOTES
Criminal Law and Procedure--kidnapping
     The victims were confined in a "place of isolation" within the meaning of 11 F.S.M.C. 921(1), defining the offense of kidnapping, where they were moved from place to place but all locations were in the same vicinity, their captors were in complete control, and they could expect no assistance from anybody.  Teruo v. FSM, 2 FSM Intrm. 167, 170-71 (App. 1986).

Criminal Law and Procedure--kidnapping
     Confinement for four to six hours is a "substantial period" of confinement within the meaning of 11 F.S.M.C. 921(1), defining the offense of kidnapping, particularly where the victims were subjected to indignities and brutalities amounting to torture during that time.  Teruo v. FSM, 2 FSM Intrm. 167, 171 (App. 1986).

Defenses
     Defendants were not acting as police officers or under the direction of police officers so as to make their conduct lawful where the record reveals generally that the defendants' actions were not those of police officers acting in good faith to enforce the law, but were taken on their own behalf to punish and intimidate their victims.  Teruo v. FSM, 2 FSM Intrm. 167, 171 (App. 1986).

Constitutional Law--interpretation
     Defendants are not within the coverage of FSM Const. art. V, 1, preserving "the role or function of a traditional leader as recognized by custom and tradition," simply by virtue of their status as municipal police officers.  Teruo v. FSM, 2 FSM Intrm. 167, 172 (App. 1986).

[2 FSM Intrm. 169]
*        *        *        *

COURT'S OPINION
EDWARD C. KING, Chief Justice:
     This is another case where the actions of persons claiming to be municipal police officers in Truk have resulted in criminal charges against the officers. 1 These defendants rounded up several young men, took them to another village, then held and tormented them for hours.

     Appealing from their convictions for kidnapping, the defendants contend that they were acting as police officers and that this precludes their convictions.

I.  Factual Background
     Undisputed evidence in the trial record reveals the following.

     On December 31, 1983, Otokichy Engichy picked up one young man, and the late Michael Otokichy found three others at their homes in or near Penieta Village.  They took them to Sapetiw, the home village of Otokichy Engichy.  The four defendants kept them there for several hours, subjecting them to a series of indignities and brutalities amounting to torture.

     All four defendants were convicted of kidnapping Justo Solomon, age 15, on December 31, 1984.  Otokichy Engichy presented himself at Penieta Village and told Justo and his father that he wanted Justo to go with him.  He gave no reasons until they had traveled by boat to Sapetiw.  There, Justo was handcuffed and informed by Engichy that he was under arrest for stealing Engichy's marijuana plants.

     Justo testified that Keresen Otokichy then, in the presence of Otokichy Engichy, slapped and punched Justo several times in the face and kicked him in the mouth.  Otokichy  Engichy, laughing, explained that this was the price Justo must pay.

     Justo testified that over a period of several hours Keresen Otokichy banged Justo's head against a cupboard, poked his thumb and index finger into Justo's eyes and choked him until he lapsed into unconsciousness.  Keresen pushed the end of a chair leg into Justo's thigh causing severe bruises, hit him several times in the head with a small board, then broke the board by

[2 FSM Intrm. 170]

hitting Justo in the leg. Keresen also beat Justo with a coconut branch, knocked him down with a piece of mangrove, pressed a lighted cigarette against Justo's upper lip to extinguish his cigarette, and kicked him in the stomach and back.

     Although Keresen Otokichy seems to have been the most assiduous tormentor, the other defendants were also active.  Aweko Teruo took his turn at pushing the end of the chair leg into Justo's thigh and Ipao (Aweko) Fabian punched Justo several times.  Otokichy Engichy observed much of what happened.  Moreover, after Keresen departed, Engichy enlisted the help of two other sons, not defendants in this case.  They hung Justo by his hands, handcuffed behind his back, from a tree.  This was done several times, a few minutes each time.

     The other victims experienced similar treatment.  For several hours, the boys were shuttled back and forth by the defendants, from a cookhouse to a dispensary to a warehouse to a tree, all within a relatively small area in Sapetiw.

II.  Procedural Background
     The defendants originally were charged with violations of civil rights, assault with a dangerous weapon, aggravated assault and kidnapping.  The civil rights claims were withdrawn and the trial court found the defendants not guilty of assault with a dangerous weapon and aggravated assault.

     However, Otokichy Engichy and Keresen Otokichy were found guilty of kidnapping Justo Solomon and one other of the boys in violation of 11 F.S.M.C. 921(1)(c).  They were sentenced to two years in jail.

     Aweko Teruo and Ipao (Aweko) Fabian were convicted only of kidnapping Justo Solomon.  Each was sentenced to six months in jail to be followed by 18 months of probation during which they would be under house arrest between sunset and sunrise.

     The four appeal jointly from their kidnapping convictions.

III.  Legal Analysis
     The record here plainly is sufficient to support the trial court's decision that all elements of the crime of kidnapping existed here. 2

[2 FSM Intrm. 171]

     The defendants suggest that there was no adequate showing that the confinement was in a "place of isolation." The victims were moved from place to place but all locations were in the same vicinity, within approximately 100 yards of all others.  That area was a "place" within the meaning of the statute.  Manifestly, Otokichy Engichy was in complete control there.  The victims could expect no assistance from anybody.  This is the very essence of isolation.

     The confinement apparently extended for four to six hours.  We find this substantial.  Indeed, it must have seemed almost an eternity to the victims, given the events transpiring at the time.  The record amply documents that the purpose of the confinement was to inflict bodily injury and terrorize the victims.

     The last requirement is that the confinement be unlawful.  It is here where the defendants advance their principal argument.  They maintain that the confinement was not "unlawful" within the meaning of the statute because all four defendants were acting either as police officers or under the direction of police officers.

     To be sure, there is testimony in the record to the effect that Otokichy Engichy was magistrate of Wonei Municipality, that Keresen Otokichy had in 1983 been sworn in as a police officer, and that Ipao Fabian had been seen wearing a police officer's uniform and acting as a police officer.  We are asked to infer that Aweko Teruo considered himself to be acting under  "direction of police authority" at the time.

     Yet, the conduct of the defendants does not support a view that they considered themselves to be exercising lawful powers as police officers.
 
     There is no indication that any defendant was wearing a police uniform on December 31, 1983.  The defendants at no time stated to the victims that they were acting as police officers.  Most important, there was no showing that defendants made any attempt to contact a municipal judge or any other judicial official to obtain authorization for arresting or confining the boys.  No prosecution was ever begun against the boys.  In this connection it is worth noting that, although the municipal jail was in the area and one of the victims was kept next to it for awhile, other places were used for the confinement.

     These were not the actions of police officers acting in good faith to enforce the law.  Instead, the record is an eloquent persuader that the defendants' actions were taken on their own behalf to punish and intimidate the boys.

     If association with legal authority has any relevance to the defendants here, it is to their detriment.  To the extent any defendants employed official authority in any way, they did so improperly, as an abuse of authority.  Words such as "arrest" were used to ease the problem of getting the boys to accompany them to Sapetiw.  The handcuffs were used to expedite

[2 FSM Intrm. 172]

the beating and torture.  Questioning was used in some perverse way to justify the beatings.

     Of course, had the defendants, or any of them, been acting as police officers, this would not have justified their conduct.  As we said in Loch v. FSM, 1 FSM Intrm. 566, 574-75 (App. 1984):

While a police officer may use force to effect an arrest and to protect himself and other citizens, he may not use force or violence simply to punish people he dislikes or those he decides have done wrong.  The principal functions of the police officer are to preserve peace and order and to apprehend lawbreakers so that they may be tried by the courts and handled justly.

     Punishment is no part of the police officer's assignment.  A policeman who chooses to mete out punishment violates his office and does so at his own peril.

     Counsel for defendants have argued that there is great danger in finding police officers guilty of violating the law against kidnapping, for police officers frequently must confine citizens as part of their normal duties.  They suggest a ruling against the defendants could have a chilling effect on other police, making them fearful of enforcing the law.

     Police officers acting in good faith to enforce the law have nothing to fear from this decision.  As we have already said, the holding in this case is based upon the reality that these defendants were not acting to enforce the law but instead were simply punishing the victims.

     One other point requires comment.  The defendants quote Article V, Section 1 of the Constitution, relating to the "role or function of a traditional leader as recognized by custom and tradition."  It is unclear why that section is cited.  The record is devoid of any evidence suggesting that any defendant is a traditional leader or that any role or function being carried out by the defendants on December 31, 1983 would have been "recognized by custom and tradition."  The burden of proof is on the party seeking to establish the customary role.  11 F.S.M.C. 108(3).  That burden has not been met here.

     It seems possible that the defendants were citing this constitutional provision to suggest that a "chief magistrate and an individual sworn in by the community judge as a police officer" might somehow, on the basis of their governmental positions, qualify as traditional leaders. We reject that notion.

IV. Conclusion
     The record here supports the trial court's conclusion that the defendants unlawfully confined the victims for a substantial period in a place of isolation for the purpose of inflicting bodily injury and terrorizing

[2 FSM Intrm. 173] 

them.  The convictions are affirmed.

Footnotes:
 
1.  Loch v. FSM, 1 FSM Intrm. 566 (App. 1984) (municipal police officer used a mangrove coconut husker to beat to death a man who resisted arrest); FSM v. Jack, Truk Cr. No. 1981-1518 (municipal police officer shot toward a group of boys in the dark because they were playing the radio too loudly and being raucous.  One boy was shot in the wrist.)

2.  The section, 11 F.S.M.C. 921, reads in relevant part as follows:  "(1) A person commits the offense of kidnapping if he ... unlawfully confines another for a substantial period in a place of isolation, with any of the following purposes:... (c) to inflict bodily injury on or to terrorize the victim or another .... (2) a ... confinement is unlawful under this section if it is accomplished by force, threat, or deception...."
                                                                                                                                                                                                                                                                                                           
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