THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Johnny v. FSM, 8 FSM Intrm. 203 (App. 1997)

[8 FSM Intrm. 203]

NICKONTRO JOHNNY,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL CASE NO. P3-1996

CRIMINAL CASE NO. 1995-500
OPINION

Argued:  March 25, 1997
Decided:  October 17, 1997

BEFORE:
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin Yinug, Associate Justice, FSM Supreme Court
Hon. Lyndon L. Cornelius, Temporary Justice, FSM Supreme Court*

*Chief Justice, Kosrae State Court, Lelu, Kosrae

APPEARANCES:
For the Appellants:  Joses Gallen, Esq.
                    P.O. Box 255
                    Kolonia, Pohnpei FM 96941

For the Appellee:     Ron Moroni, Esq.
                    P.O. Box 1618
                    Kolonia, Pohnpei FM 96941

[ 8 FSM Intrm. 204]

*    *    *    *

HEADNOTES
Appeal and Certiorari ) Standard of Review; Contempt
     The standard of review for a criminal contempt conviction, like the standard for any criminal conviction, is whether the appellate court can conclude that the trier of fact reasonably could have been convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true.  Johnny v. FSM, 8 FSM Intrm. 203, 206 (App. 1997).

Contempt
     Any intentional disobedience or resistance to the court's lawful writ, process, order, rule, decree, or command is contempt of court, which the court has the power to punish.  Johnny v. FSM, 8 FSM Intrm. 203, 206 (App. 1997).

Appeal and Certiorari ) Standard of Review; Evidence
     An appellate court will not reweigh the evidence presented at trial.  Credibility determinations are uniquely the province of the factfinder, not the appellate court.  Johnny v. FSM, 8 FSM Intrm. 203, 207 (App. 1997).

Contempt
     Conduct proscribed by a court order may be punished as contempt even though authorized by an executive order because such activity is illegal, and under a government of laws, illegal conduct pays a price.  Johnny v. FSM, 8 FSM Intrm. 203, 208 (App. 1997).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Associate Justice:

Introduction
     This appeal is from a conviction of criminal contempt.  Appellant was charged with three counts of criminal contempt pursuant to 4 F.S.M.C. 119(1)(b).  After trial before Judge Benson sitting in Pohnpei on September 12 and 13, 1995, in which the FSM was represented by a special prosecutor, the court found defendant guilty as to one of those counts.  This conviction stemmed from defendant's actions on January 24, 1995; the other two counts were based on defendant's alleged conduct occurring on January 20 and 25, 1995.  On February 16, 1996, the court sentenced Mr. Johnny to three weeks of confinement to his home, and a fine of $1,000.  This appeal followed.  We find that there was sufficient evidence to sustain the conviction, and affirm the judgment.

I.  Background
     Other litigation before the trial division of this court engendered the case at bar. On March 18, 1991, in Damarlane v. Pohnpei Transportation Authority, Civ. No. 1990-075, the court entered an order which enjoined the Pohnpei Transportation Authority ("PTA"), as well as PTA's officers, agents, servants, employees and attorneys from any earthmoving at Mesenpal, in U, Pohnpei.  The order remained in effect apparently without incident until January of 1995, when dredging began at the site.  On January 20, 1995, in an effort to stop the dredging, the trial division reaffirmed the injunction, and also ordered PTA to stop earthmoving and to remove its equipment.  PTA ignored the second order,

[8 FSM Intrm. 205]

as it had the first, and continued dredging.  It is the role that appellant played in the events which began on January 20th, and specifically January 24th, which resulted in the contempt conviction.  Mr. Johnny has challenged the conviction on an insufficiency of evidence basis.  We review the evidence about the events before and on January 24, 1995, in some detail.

     A.  The prosecution witnesses
     The FSM presented five witnesses, two of whom, Johnny Santos and Tarios Ludwig, offered testimony about events of January 24, 1995.  Johnny Santos, an officer with the National Police for a little over three years, first went to the dredge site after 10:00 p.m. on January 20th with other officers to serve a copy of one of the court orders prohibiting earthmoving.  At the site the officers spoke to Patrick Rodriguez, who requested permission to continue dredging until midnight because he was under an order from the governor, and might lose his job if he stopped.  Mr. Rodriquez told the officers that he had been instructed to call the Director of Public Safety, Nickontro Johnny, the appellant, in the event that the National Police appeared at the site.  The officers allowed him to continue working until midnight. Mr. Santos next went to the site with Tarios Ludwig on the 24th at around eleven o'clock in the morning, when they talked to Dienaman Fiki, who told officers Santos and Ludwig that Director Johnny and two DPS officers had let them in at the site that morning.  Equipment was at the site, including a shovel loader, a couple of dump trucks, and a back hoe, and the hauling of gravel in and out was continuing.  Officers Santos and Ludwig returned to the office, then went back to the site at around 4:00 p.m. to serve the court order.  Officer Santos went to Ioanis Rodriquez, who indicated that he was willing to stop, but did not do so because Mr. Johnny arrived. According to Officer Santos' testimony, "he [Nickontro Johnny] arrived and told them to continue working."  Per Officer Santos, Mr. Johnny told the workers that if they obeyed the court order, they could lose their jobs, and that he, Mr. Johnny, would be the one responsible for violation of the order.  Officer Santos left after Mr. Johnny had been at the site for about 15 minutes.

     The second witness for the FSM who testified about events on January 24th was Tarios Ludwig, an investigator for the FSM police since 1983.  He said that on January 24th, he, along with other officers, went to the Mesenpal site to serve an order at about four o'clock in the afternoon.  They spoke to Ioanis Rodriquez, who said he was going to comply with the order, which to Mr. Ludwig meant that Mr. Rodriquez was going to tell the employees at the site to stop working.  At that point, Mr. Johnny arrived in a government vehicle and talked to three people, including Mr. Rodriquez.  Mr Ludwig testified that Mr. Johnny "told them that the order that we served was to put them in jail, but the executive order [which authorized the dredging] that was issued was going to terminate them from their job."  Appellant went on to say that if a warrant was issued as a result of violating the order, he would be the one arrested because he was the one supervising them.  The workers held off doing anything while the conversation was going on.  After the conversation was over, Officer Ludwig and Mr. Johnny exchanged orders:  Officer Ludwig gave Mr. Johnny a copy of the court order; Mr. Johnny gave Officer Ludwig a copy of the executive order.  Officer Ludwig testified that the workers then continued working as they were told to do by Mr. Johnny.  Officer Ludwig left the site.

     B.  The defense witnesses
     Mr. Johnny put on eight witnesses, of whom seven testified in at least general terms about events at the Mesenpal site on January 24, 1995.  Patricio Rodriquez, construction superintendent for the Pohnpei Transportation Authority, testified that "never once" during January of 1995 did he receive any instruction from Nickontro Johnny to go and work at the Mesenpal site.  Once at the site, he never received any instruction to work from Mr. Johnny.  Swingly Poll, acting Commissioner for the Pohnpei Transportation Authority, testified that during January of 1995 he advised his employees to go and work at the Mesenpal site.  Nickontro Johnny never instructed him to conduct earth moving at the site,

[8 FSM Intrm. 206]

and during January of 1995 never directed him or his employees at the site.  Ioanis Rodriguez, a PTA foreman, testified that he was at the site on one occasion when Mr. Johnny was there, that he heard no conversation between Mr. Johnny and the National Police, and that Mr. Johnny told him that the "work was done.  Finish."  Mr Rodriquez testified that he told Mr Johnny that they were finished for the day because the police had asked them to leave, and also because it was already 4:00 p.m. Other PTA employees remained at the site to secure the equipment after Mr. Rodriquez left.

     Dienaman Fiki, a twenty-five year employee of PTA, testified that he was a loader operator at the Mesenpal site in January of 1995, and recalled a time, although he did not know the date, when Mr. Johnny and police officers were there.  He never spoke to Mr. Johnny on that occasion.  It was quitting time when Mr. Johnny and the police left the site.  While Mr. Johnny was there, he never directed Mr. Fiki, or supervised his work activities.  Roy William, a 13 year employee of PTA, believed that he was at the Mesenpal site for two days in January of 1995, but could not recall the dates.  He testified that he never received any instruction or direction from Mr. Johnny at the dredge site.  Murphy Simon testified he was truck driver a the Mesenpal site in January of 1995, and that only Patricio Rodriquez was his supervisor.

     Mr. Johnny himself testified that he stopped at the Mesenpal site on January 24th, and spoke briefly with Officer Tarios Ludwig.  Then, Ioanis Rodriquez came up to Mr. Johnny, told Mr. Johnny that he had finished work, and asked Mr. Johnny what the document that he, Mr. Rodriquez, had in his vehicle was about.  Mr. Johnny testified he thought that it was the injunction.  Mr. Rodriguez asked what they were supposed to do, and Mr. Johnny testified that he replied that he could not tell him what to do. He told Mr. Rodriquez that he had an executive order and a court order, that if he disobeyed the executive order he could lose his job, and that if he disobeyed the court order he could go to jail.  Mr. Johnny said that he then told officers Ludwig and Santos that "we", meaning Pohnpei state, would have to answer to the court if there were an order to show cause as a result of the activities at the site.   Mr. Johnny said that he never gave any instructions or directions to PTA employees at any time during the month of January, including January 25th, and that he never received any instructions from anyone to supervise and direct the work activities at the site.  Mr. Johnny knew at the time dredging started at the site that there was an injunction in place.

II.  Discussion
     The standard of review for a criminal contempt conviction under 4 F.S.M.C. 119(1)(b), like the standard for any criminal conviction, is whether the appellate court can conclude that the trier of fact reasonably could have been convinced beyond a reasonable doubt by the evidence which it had a right to believe and accept as true. Tosie v. FSM, 5 FSM Intrm. 175 (App. 1991); Runmar v. FSM, 3 FSM Intrm. 308 (App. 1988).  The issue here is whether the evidence about Mr. Johnny's conduct at the dredge site on the 24th of January, 1995, if believed by the trial court, was sufficient to sustain a conviction beyond a reasonable doubt.  We conclude that the evidence was sufficient, and affirm the judgment of the trial court.

     4 F.S.M.C. 119(1)(b) provides in relevant part as follows:  "(1)  Any justice of the Supreme Court shall have the power to punish contempt of court.  Contempt of court is . . . (b) any intentional disobedience or resistance to the court's lawful writ, process, order, rule, decree, or command."  The order entered on March 18, 1991, in Damarlane v. Pohnpei Transportation Authority, FSM Civil Action No. 1990-075, and subsequently reaffirmed on January 20, 1995, enjoined "the Pohnpei Transportation authority, as well as PTA's officers, agents, servant, employees and attorney and those persons in active concert or participation with PTA" from "earthmoving activities of any kind at the Mesenpal site."  The record is clear that the Pohnpei Transportation Authority engaged in dredging at the Mesenpal site on January, 1995, and specifically on January 24th.  Dredging falls within the ambit of the March 18,

[8 FSM Intrm. 207]

1991, order, and as such, was punishable under 4 F.S.M.C. 119(1)(b) as criminal contempt.  Nothing in the record suggests, at least conclusively, that Nickontro Johnny, as the Director of Public Safety, was an agent of the Pohnpei Transportation Authority.  However, the record supports the conclusion that, as the trial judge said in his findings, "the defendant was a person in active concert or participation with Pohnpei Transportation Authority, in his conduct, on January 24, 1995, at Mesenpal." According to the testimony of Officer Santos, Mr. Johnny let the workers into the site on the morning of the 24th, then left.  At about four o'clock that afternoon, Ioanis Rodriguez told Officer Johnny he was willing to stop the work; then Mr. Johnny arrived, told workers to continue working, and that if they did not, they could lose their jobs.  Mr. Johnny said that he would be responsible for any violation of the court order.  After Mr. Johnny spoke, work continued.  To the same effect was the testimony of Officer Ludwig, who said that Mr. Johnny instructed the workers to continue, and told those working that he would be the one arrested because he, Mr. Johnny, was the one supervising them.  This testimony reasonably led the trial court to conclude that Mr. Johnny was in active concert with the Pohnpei Transportation Authority in the dredging activity that violated the March 18, 1991, court order.

     Mr. Johnny puts a different gloss on his statements made at the site on January 24th.  He testified that when he told the workers at the site that they had two choices ) to continue working and go to jail, or to stop working and lose their jobs ) he intended this, in effect, as a comment on the dilemma that the workers faced, and did not intend to spur them on to further dredging.  According to his testimony, his statement about taking responsibility was a general statement ) "we will have to answer to the Court if there is order to show cause because of the activities that are going on here" ) in which the "we" was a general reference to the state of Pohnpei. On this point, Mr. Johnny urges in his brief that his only responsibility at the site was to keep the peace, and that he was not responsible for any acts of PTA employees that violated the court order.  Mr. Johnny relies on the testimony of Patricio Rodriquez, Ioanis Rodriquez, and Roy William that Mr. Johnny did not direct workers at the site, and on Dienaman Fiki's testimony that no work continued at the site after 4:00 p.m. on January 24, 1995.

     At most, appellant underscores a conflict among the testimonies of the various witnesses.  The fact that three of Mr. Johnny's witnesses said Mr. Johnny did not direct workers at the site does not change the fact that officers Santos and Ludwig said that he did, to the extent of telling the workers that if they did not continue, they could lose their jobs.  Similarly, Mr. Johnny's explanation of his statement about responsibility for the dredging activity at the site does not change officers Santos and Ludwig's testimony about that same statement and its context.  An appellate court will not reweigh the evidence presented at trial.  5 Am. Jur. 2d Appellate Review 662 (1995).  Credibility determinations are uniquely the province of the factfinder, and not the appellate court.  81 Am. Jur. 2d Witnesses 1029 (1992). The trial judge resolved the conflict in the testimonies against Mr. Johnny.  This court will not disturb that determination.

     At oral argument, defense counsel argued a point touched on in appellee's brief that the only activity that took place after 4:00 p.m. on January 24th was the storing of equipment in preparation for concluding work for the day.  Since Mr. Johnny arrived at the scene at approximately 4:00 p.m., Mr. Johnny contends that nothing he said should be construed as actively directing the men in the activities proscribed by the injunction.  The precise nature of the work done is not a material concern.  Officer Santos testified that on January 24th, after Ioanis Rodriguez told Officer Johnny that he was willing to stop the operation, Mr. Johnny arrived, told the workers to continue to work, and that if they did not they could lose their jobs.  The workers, according to Officer Santos, did not stop working.  Work continued at the site the next day.

     All of this is not to say that the court does not acknowledge Mr. Johnny's unenviable

[8 FSM Intrm. 208]

predicament at relevant times.  As the Director of Public Safety, he was the highest ranking peace officer in Pohnpei state.  The Pohnpei Transportation Authority was at the site under ostensible authorization of the highest ranking executive officer of the state; at the same time the order of FSM Supreme Court proscribed the very activity that was authorized by the executive order.  The best that can be said is that the events at the site happened without a breach of the peace.  Nevertheless, the activity there was illegal, and under a government of laws, illegal conduct carries a price. The enforcement of 4 F.S.M.C. 119(1)(b) under the unfortunate facts of this case results in the exaction of that price from Mr. Johnny.

III.  Conclusion
     There was sufficient evidence presented at trial such that the trial court, acting reasonably, could conclude that appellant was guilty beyond a reasonable doubt of the crime of criminal contempt as proscribed by 4 F.S.M.C. 119(1)(b).  The conviction is affirmed and the appeal dismissed.
                                                                                                                                                                                                                                                                                                     
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