FSM SUPREME COURT
APPELLATE DIVISION
Cite as Otto v. Kosrae ,
5 FSM Intrm. 218 (App. 1991)

[5 FSM Intrm. 218]

PETER OTTO,
Appellant,

v.

STATE OF KOSRAE,
Appellee.

APPEAL CASE NO. K1-1989
(From Criminal Case No. 148-88)

Argued:  April 9, 1990
Decided:  October 8, 1991

[5 FSM Intrm. 219]

Before:
     Hon. Edward C. King, Chief Justice, FSM Supreme Court;
     Hon. Richard H. Benson, Associate Justice, FSM Supreme Court;
     Lyndon Cornelius, Temporary Justice, FSM Supreme Court*;

     *Acting Chief Justice, Kosrae State Court

APPEARANCES:
     For the Appellant:     Wesley W. Simina, Esq.
                                         Public Defender-Kosrae
                                         Office of the Public Defender
                                         P.O. Box 245
                                          Tofol, Kosrae  96944

     For the Appellee :     Richard Kaminski, Esq.
                                         Assistant Attorney General
                                         Office of the Attorney General
                                         Tofol, Kosrae  96944

*     *     *     *

HEADNOTES
Criminal Law and Procedure - Standard of Proof
     A variance - a discrepancy or disagreement between allegations of the charging instrument and the proof adduced at trial - will be tolerated as long as it is not material to the basic elements of the crime charged.  Otto v. Kosrae, 5 FSM Intrm. 218, 221-22 (App. 1991).

Appeal and Certiorari
     An issued raised in closing argument at trial can be properly brought before the appellate court.  Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

Criminal Law and Procedure - Defenses
     Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.  FSM Crim. R. 52(a).  Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

Constitutional Law - Due Process; Criminal Law and Procedure - Standard of Proof
     Variance between charge of striking police car windshield with fists and evidence adduced at trial of damaging headlights with a beer can not so misleading and prejudicial that defendant was denied a fair trial or suffered from a lack of notice as to the evidence to be offered at trial on a charge of damaging the property of another.  Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

[5 FSM Intrm. 220]

Appeal and Certiorari
     The test on appeal is not whether the appellate court is convinced beyond a reasonable doubt, but whether the trial court acting reasonably is convinced.  Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991).

Criminal Law and Procedure - Standard of Proof
     Where evidence offered at trial showed the defendant was hitting vehicle and that there was damage to vehicle and that defendant was at and participated in illegal roadblock the trial court, acting reasonably, could be convinced beyond a reasonable doubt of the defendant's guilt.  Otto v. Kosrae, 5 FSM Intrm. 218, 223 (App. 1991).

* * * *

COURT'S OPINION
PER CURIAM:
 
I. Introduction
     Defendant Peter Otto appeals from his conviction in the Kosrae State Court of malicious mischief and obstructing justice.

     On appeal, defendant contends that: (1) a substantial variance between the allegations in the criminal complaint and the evidence adduced at trial resulted in the denial of his right to due process of law; and (2) there is insufficient evidence to support his convictions.

     We conclude that no substantial rights of the defendant were denied and that there is sufficient evidence to sustain the convictions.

II.  Background
     The Kosrae State complaint charged the defendant with (1) the commission of malicious mischief "by wilfully injuring property, a police vehicle, when he used his fists to strike the glass windshields of the police vehicle" and (2) the crime of obstructing justice "by interfering with police officers in the lawful pursuit of their duties."

     At trial the evidence showed that when Kosrae State Police Officer Sigrah arrived in his police vehicle at the scene of a roadblock he and his fellow officers could not pass freely because many people, including the defendant, were blocking the road.  Some of the people started to throw rocks at the police officers.  The defendant stood in front of the police car, aimed but did not throw a beer can at Officer Sigrah, then hit the headlamp.  Officer Sigrah testified that the headlamps on the car were broken.

     The evidence also showed that Salpan Tilfas was on the road, but was unable to proceed due to the roadblock at which the appellant was present.

[5 FSM Intrm. 221]

     The defendant did not offer any testimony or evidence at trial.  In closing argument he objected to the variance between the offense as charged and the evidence presented.

III.  Legal Analysis
     A.  Variance between the complaint and proof.
     The defendant argues that since the complaint accuses him of injuring a police vehicle by striking at the windshield with his fists, and the trial testimony was that he struck the headlamp of the vehicle with a beer can, he was denied due process of law in that he failed to receive adequate notice of the charges against him.  He contends that this was a substantial variance which resulted in misleading notice to him, and in turn could not be considered notice at all.  He argues that even though on its face the charging document was sufficient, in fact he was precluded from asserting pretrial motions and was moreover lulled into believing that the prosecution was going to try to prove that he injured the car by breaking the windshield with his fists.

     The government contends that the issue of variance: is raised for the first time on appeal, that the variance is not material, and that it is cured by the verdict of the trial court.

     Both counsel correctly define a variance as a discrepancy or disagreement between allegations of the charging instrument (a criminal complaint in this case) and the proof adduced at trial.

     We note that this jurisdiction has previously addressed the issue of variance. In FSM v. Boaz (I), 1 FSM Intrm. 22 (Pon. 1981), the court held that where the information stated that:

the defendant went into the occupied building "for  the purpose of fighting with Saisiano Solomon"... it became necessary to show not only that Mr. Boaz had   a generalized intent to commit assault when he  entered the building as would normally be sufficient to show a violation of [the statute], but the prosecution was required to establish that he entered, as it had claimed, "for the purpose of fighting with Saisiano Solomon."

Id. at 24.

The Boaz court went on to find that the prosecution had proved its allegations, thus there was no variance between the information and evidence.  It did not address, therefore, how much difference could be tolerated before the variance would become fatal to the conviction.

[5 FSM Intrm. 222]

     And in Buekea v. FSM, 1 FSM Intrm. 487 (App. 1984), the court stated that "it is not sufficient that the evidence show a violation of the statute specified in the information if the actual violation is different from the one alleged."  Id. at 493-494 (emphasis added).  Yet, although the information there alleged use of a knife to cause the victim to submit to the sexual assault and the evidence did not bear this out, the court upheld the conviction on the grounds that the use of the knife was merely an aggravating element not essential to the basic charge.  Thus we read the Buekea decision as saying that a variance will be tolerated as long as it is not material to the basic elements of the crime charged.

     We first conclude that the issue of variance is properly before the court.  The record shows that in closing argument this issue was raised by defendant's counsel.  The defendant on appeal has carefully framed the constitutional basis of his objection to the variance.

     Next we examine whether the variance was material or prejudicial, that is, whether it affected the substantial rights of the accused.  We note at this point that any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.  FSM Crim. R. 52(a).  Both counsel agree, and we hold, that the issue is whether the accused is given sufficient notice of the charges against him so as to be able to present his defense and not be taken by surprise by the evidence offered at the trial and also be protected against another prosecution for the same offense.

     Applying this standard we conclude that the variance complained of did not affect the defendant's substantial rights.  The allegation of a violation of Kosrae State Code section 13.408, "wilfully destroying, damaging or injuring property of another," was proved at trial.  The police vehicle in question was intentionally injured by the defendant.  We conclude that the allegation concerning the striking of the windshield was not essential to the malicious mischief charge: it was sufficient that the evidence at trial proved that the defendant wilfully injured Officer Sigrah's police car.  In this instance, the variance was not so misleading and prejudicial that the defendant was denied a fair trial or suffered from a lack of notice as to the evidence to be offered at trial.  In this latter regard, we note that through pretrial discovery the defendant had received Officer Sigrah's police report, which report contained his statement that the appellant struck the police car with a beer can.  We are unable to find undue surprise or an inability to prepare for trial under these circumstances.

     B.  Sufficiency of the evidence.
     On appeal we are guided by our earlier recognition of the standard to be applied in reviewing the sufficiency of the evidence in criminal cases as stated in Engichy v. FSM, 1 FSM 532, 546 (App. 1984): "the test is not whether the appellate court is convinced beyond a reasonable doubt, but whether this court can conclude the trier of fact could, acting reasonably, be convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true."  We now examine the two convictions.

[5 FSM Intrm. 223]

     1.  Malicious mischief
     As discussed above, the evidence before the trial court consisted of the testimony of Officer Sigrah and Mr. Tilfas regarding the roadblock and surrounding circumstances.

     The defendant argues that these was no evidence to show that he caused any damage to the police vehicle.  We are unable to agree with the defendant because Officer Sigrah's testimony was that the defendant "was in front of the vehicle, hitting the vehicle with the...can."  The officer further answered "yes" when asked if there was any damage to the car and also testified as to the broken headlamps.  We therefore conclude that the trial court, acting reasonably, could be convinced beyond a reasonable doubt that the defendant caused the damage in question.

     2.  Obstructing justice
     The government offered evidence which demonstrated the defendant's presence at and participation in a roadblock, including his threatening acts with a beer can toward the police.  The evidence also showed that the on-duty police officers arrived at the scene of the roadblock in response to the directive of the Chief of Police.

     The defendant argues that this evidence was insufficient to support the conviction for obstructing justice because there was no showing of interference, that is, there was no actual physical contact between the defendant and the officer, nor was there any evidence to show that the officer was unable to carry out any of his duties.  He urges us to find that the lower court's conclusions and findings of fact were erroneous.

     Again we are unable to agree with the defendant.  The officers were engaged in the lawful performance of their duties in their response to the police chief's order regarding the roadblock.  They were confronted with the task of clearing the roadway, albeit in the face of a hostile crowd, which crowd included the appellant. The defendant's interference with the officer's pursuit of his duty to clear the road was supported by the testimony regarding the defendant's attack on the police car.

     We therefore conclude that the trial court, acting reasonably, could find the defendant guilty beyond a reasonable doubt of obstructing justice.

IV. Conclusion
     Based on the foregoing we affirm the convictions below and dismiss the appeal.
                                                                                                                                                                                                                                                                                                           
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