Cite as FSM v. Hadley ,
3 FSM Intrm. 281 (Pon. 1987)

[3 FSM Intrm. 281]





Before Edward C. King
Chief Justice
FSM Supreme Court
December 29, 1987

          For the Plaintiff:          Randy Boyer
                                               State Attorney
                                               Office of the State Attorney
                                               Pohnpei, FSM 96941
          For the Defendant:     Roberta Lindberg
                                               Micronesian Legal Services
                                               Pohnpei, FSM 96941

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[3 FSM Intrm. 282]

Criminal Law and Procedure -_Aiding and Abetting
Criminal Law and Procedure - Robbery
     One who suggests to his drinking companions that they obtain additional liquor by taking a bottle from construction laborers in the area, and who then leads his companions in an effort to attack one of the workers, solicits more possibilities than just the taking of a bottle, and is guilty of aiding and abetting the robbery of a watch and money from another construction worker carried out by his companions while the original instigator is still pursuing the first laborer.  FSM v. Hadley, 3 FSM Intrm. 281, 284 (Pon. 1987).

Criminal Law and Procedure - Aiding and Abetting
Criminal Law and Procedure - Robbery
     It is reasonably foreseeable that a robbery of watch and money from a Korean construction worker may be a probable consequence of a common plan to take a bottle from "some Koreans," and the person who suggests the plan and initiates efforts to attack one of the construction workers may be held guilty of aiding and abetting the robbery of watch and money carried out by his companions against another Korean worker, immediately after the defendant initiated the first attack. FSM v. Hadley, 3 FSM Intrm. 281, 284 (Pon. 1987).

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EDWARD C. KING, Chief Justice:
     The issue presented here is whether a young man who suggests to two others that they go "take" a bottle of liquor from "some Korean," may be found guilty of aiding and abetting a robbery carried out by the two others who, unknown to the defendant but concurrently with and inspired by his aggressive actions toward a Korean worker, chase down another of the Koreans, then take a watch and money from him.

     After trial of this case on October 23, 1987, this Court concluded that the original defendant, Mark (Solua) Hadley, has through his actions aided and abetted the other two individuals to rob the victim and is therefore guilty of the crime of robbery in violation of 11 F.S.M.C. 920.  The decision was announced in open court on December 29, 1987.  This memorandum opinion is filed to record the Court's reasons for the decision.

I.  Factual Background
     Based upon the evidence submitted during the trial of this case I find the facts are as follows.

     On Saturday night, June 28, 1987, defendant Mark (Solua) Hadley and two others, Berden Eliam and a juvenile, were drinking together in Palikir, Sokehs Municipality in Pohnpei when they ran out of money.

[3 FSM Intrm. 283]

     They were near the construction camp of Hanil Company, the general contractor for construction of the capitol complex for the national government of the Federated States of Micronesia.  A number of Korean workers, some of whom had bottles of liquor in their possession, were in the area.  Mr. Hadley suggested to his companions that they take a bottle from one of the Koreans.  He then went with them and confronted three Hanil construction laborers returning from a store with a bottle of whisky.

     Mark Hadley grabbed at the flashlight held by one of the men, Nam Dai Woo.  Mr. Nam ran away with his flashlight and his bottle of whisky.  The defendant gave chase, but Mr. Nam was able to evade his pursuer.

     While the defendant was chasing Mr. Nam, Berden Eliam and the juvenile began running after the other two Koreans.  They caught one of them, Kim Dong Ki, and robbed him of his watch and money.

     Mr. Eliam and the juvenile then rejoined Mr. Hadley.  All three went to a local bar and purchased additional alcohol, using money obtained in the robbery.

II.  Legal Analysis
     The government does not claim that Mark Hadley was present when Kim Dong Ki was robbed of his watch and money or even that Mr. Hadley was aware that the robbery was taking place.  Nevertheless, the government contends that Mr. Hadley aided and abetted the robbery.  It is the government's position that Mr. Hadley effectively solicited, planned and assisted efforts to commit the offense and that it was reasonably foreseeable that such a robbery would be a probable consequence of attempting to commit the specific robbery that Mr. Hadley suggested.

     The pertinent language of the National Criminal Code is found in 11 F.S.M.C. 301.

301.  Liability for crimes of another.

(1)     A person is criminally liable for the conduct of another, if:

(a)     he intentionally aids, abets, advises, solicits, counsels, or conspires with or otherwise procures the other to commit an offense; or....

(2)     A person liable under subsection (1) of this section is also liable for any other offense committed in the pursuance of the intended crime if reasonably foreseeable  by him as a probable consequence of committing or  attempting to commit the offense intended.

     There are under this statute two theories whereby a defendant who does

[3 FSM Intrm. 284]

not directly commit a crime may nevertheless be held liable under this provision. Mr. Hadley's actions bring him under both.

     Under 11 F.S.M.C. 301(1)(a), a defendant may be held liable for the crime committed by another if the defendant "solicits, counsels or conspires with" the other to commit the crime.  Mr. Hadley counseled the other two youths to join him in an effort to take a bottle from one of the Koreans.  This was not a highly refined plan.  There was no discussion of the particular brand of liquor they were seeking or the exact individual they would attack.  Watches and money were not excluded from Mr. Hadley's plans, nor was there a stipulation that all must be together when the crime occurred.

     In short, Mr. Hadley's words solicited more possibilities than just the taking of a bottle.  The common design included taking and using any property then in the possession of Koreans in the area to satisfy the wish of the young men to obtain more liquor for themselves.  The other two youths obviously comprehended Mr. Hadley's advice in that way.  Mr. Hadley's words, and his actions in attacking Nam Dai Woo, triggered the actions of the other two.

     The fact that Mr. Hadley rejoined the other two defendants and drank alcoholic beverages acquired with money which he knew had been taken from Kim Dong Ki is additional evidence that he saw their actions as falling within his plan.  Mr. Hadley therefore is guilty of the crime of robbery by virtue of 11 F.S.M.C. 301(1)(a).

     Mr. Hadley is also criminally liable for the robbery under 11 F.S.M.C. 301(2) since it was reasonably foreseeable that a robbery of watch and money would be a probable consequence of a plan and efforts to take a bottle from "some Koreans."  Engichy v. FSM, 1 FSM Intrm. 532, 548-49 (App. 1984).

     It was wholly predictable, given the common design to exploit or attack Koreans to obtain additional alcohol, that Mr. Hadley's companions would set off after companions of the first victim and try to take something of value from one of those companions if possible.  The fact that Mr. Hadley was not present when Kim Dong Ki was robbed was mere happenstance, flowing from the fact that he was occupied chasing Mr. Nam.

     Mr. Hadley's plan and actions were sufficient to warrant his conviction of the crime of robbery1 as an aider and abetter, under 11 F.S.M.C. 301(1)(a) and 301(2).

[3 FSM Intrm. 285]

III.  Conclusion
     The Court finds Mark (Solua) Hadley guilty of the crime of robbery in violation of 11 F.S.M.C. 920.

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1. While FSM statutory provisions and case precedent furnish ample support for this decision, it may be worth noting as well that the principles applied here are not novel to the Federated States of Micronesia.  United States v. Sempol, 636 F.2d 621, 676 (D.C. Cir. 1980) ("A culpable aider and abetter  need not perform the substantive offense, United States v. Staten, 581 F.2d 878, 886 (D.C. Cir. 1978), and need not know its details, United States v. Sanborn, 563 F.2d 488, 491 (1st Cir. 1977), and need not even be present, United States v. Molina, 581 F.2d 56, 61 (2d Cir. 1978), so long as the offense committed by the principal was in furtherance of the common design."); United States v. Pino, 608 F.2d 1001, 1003 (4th Cir. 1979).
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