THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
APPELLATE DIVISION
Cite as Nelson v. Kosrae ,
8 FSM Intrm. 397 (App. 1998)

[8 FSM Intrm. 397]

AGNIS J. NELSON and SENIAR NELSON,
Appellants,

vs.

STATE OF KOSRAE,
Appellee.


APPEAL CASE NO. K2-1995
KOSRAE CRIMINAL ACTION NO. 90-95

OPINION

Argued:  November 19, 1996
Decided:  July 31, 1998

BEFORE:
Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court

APPEARANCES:
For the Appellants:     Joses Gallen, Esq.
                                      FSM Public Defender, Kosrae
                                      P.O. Box 245
                                      Tofol, Kosrae FM 96944

For the Appellee:        Scott Benbow, Esq.
                                      Office of the Kosrae Attorney General
                                      P.O. Box AG
                                      Tofol, Kosrae FM 96944

*    *    *    *

HEADNOTES

Criminal Law and Procedure ) Right to Counsel
     The right to counsel means competent counsel, but a trial counselor is not, merely because he is a trial counselor and not a lawyer, incompetent counsel.  Representation by a trial counselor is not per se ineffective assistance of counsel failing to meet the constitutional requirement.  Nelson v. Kosrae, 8 FSM Intrm. 397, 400 (App. 1998).

[8 FSM Intrm. 398]

Appeal and Certiorari ) Standard of Review; Criminal Law and Procedure
     In reviewing a criminal conviction against an insufficiency of the evidence challenge, the appellate court must ask whether the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence it had a right to believe and accept as true.  Nelson v. Kosrae, 8 FSM Intrm. 397, 401 (App. 1998).

Criminal Law and Procedure ) Trespass
     A necessary element of the crime of trespass is that the property trespassed upon be property of another.  Nelson v. Kosrae, 8 FSM Intrm. 397, 401-02 (App. 1998).

Criminal Law and Procedure ) Trespass
     The real property on which a defendant is alleged to have trespassed must be the property of another.  A good faith claim of right to the property provides a complete defense to the crime of trespass because it negates the criminal intent necessary for conviction.  Nelson v. Kosrae, 8 FSM Intrm. 397, 402 (App. 1998).

Criminal Law and Procedure) Malicious Mischief
     An essential element of the crime of malicious mischief is that the property injured or destroyed be the property of another.  A good faith belief that one owns the property injured or destroyed typically constitutes a defense to the crime.  Nelson v. Kosrae, 8 FSM Intrm. 397, 402, 407 (App. 1998).

Criminal Law and Procedure) Theft
     As with trespass and malicious mischief, a necessary element of the offense of petty larceny is that the subject personalty be "property of another."  Thus a good faith belief in a right to the property negates an element of the offense of petty larceny as well.  Nelson v. Kosrae, 8 FSM Intrm. 397, 402 (App. 1998).

Criminal Law and Procedure) Theft
     Where one, in good faith, takes the property of another and converts it to his own use, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny, although his claim is based on a misconception of the law or of his right under it, for although ignorance of law and honest intentions cannot shield a man from civil liability for a trespass committed by him, they do protect him from criminal liability by divesting the act of the felonious intent without which it cannot be a crime.  Nelson v. Kosrae, 8 FSM Intrm. 397, 402 (App. 1998).

Criminal Law and Procedure ) Malicious Mischief; Criminal Law and Procedure) Theft; Criminal Law and Procedure) Trespass
     As a matter of law, then, if one has a good faith belief that he or she owns the property subject to the crime, he or she cannot be guilty of trespass, malicious mischief or petty larceny. Whether a defendant has a good faith belief in ownership is ordinarily a determination for the trier of fact.  Nelson v. Kosrae, 8 FSM Intrm. 397, 402-03 (App. 1998).

Criminal Law and Procedure ) Trespass; Torts ) Trespass
     The court's role in a civil trespass case is to determine which party has the greater possessory right to disputed property.  In a criminal trespass case, in contrast, the court must determine whether the prosecution has established each element of the crime of trespass beyond a reasonable doubt.  Nelson v. Kosrae, 8 FSM Intrm. 397, 403 (App. 1998).

Appeal and Certiorari ) Standard of Review
     When facts not controverted are admitted, or have been assumed by both parties, the failure to

[8 FSM Intrm. 399]

make findings thereof does not necessitate a remand.  Nelson v. Kosrae, 8 FSM Intrm. 397, 403-04 (App. 1998).

Property
     The ownership of realty carries with it, as an incident thereto, the prima facie presumption of the ownership of both the natural products of the land and the annually sown crops.  Nelson v. Kosrae, 8 FSM Intrm. 397, 404 (App. 1998).

Criminal Law and Procedure
     A first and fundamental principle of criminal jurisprudence is that in order for a state to impose criminal penalties on an individual, it must be shown that he or she committed some unlawful act or engaged in some prohibited course of conduct, together with a wrongful intent or mens rea. Nelson v. Kosrae, 8 FSM Intrm. 397, 405 (App. 1998).

Criminal Law and Procedure; Property
     The criminal law is not to be used to settle conflicting claims to property.  Property disputes in Micronesia strain the social fabric of the communities in which they occur.  The filing of a criminal action injects an element of criminality into a matter which is, at its core, civil, and increases that strain.  Nelson v. Kosrae, 8 FSM Intrm. 397, 406 (App. 1998).

Custom and Tradition)Kosrae
     Under the Kosrae Code, a court cannot consider tradition unless satisfactory evidence of tradition is introduced.  Nelson v. Kosrae, 8 FSM Intrm. 397, 406 (App. 1998).

Criminal Law and Procedure) Malicious Mischief; Criminal Law and Procedure) Standard of Proof
     The burden was on the government to establish beyond a reasonable doubt that defendants' interference with the crops at issue was unlawful; if there was any doubt about defendants' claim of right, defendants should have been acquitted on the malicious mischief charge.  Nelson v. Kosrae, 8 FSM Intrm. 397, 406-07 (App. 1998).

Criminal Law and Procedure) Malicious Mischief
     If defendants, in good faith, believe they can assert ownership rights over plantings made on their own land, they cannot be guilty of malicious mischief with respect to those plantings.  Nelson v. Kosrae, 8 FSM Intrm. 397, 407 (App. 1998).
Criminal Law and Procedure) Standard of Proof
     Where a person claims to have acted in the lawful exercise of his rights, the burden is on the government to show that his interference with the property was unlawful; if the evidence leaves any room for reasonable doubt as to the accused's claim of right, the accused should be acquitted.  Nelson v. Kosrae, 8 FSM Intrm. 397, 407 (App. 1998).

*    *    *    *

COURT'S OPINION
MARTIN YINUG, Associate Justice:

I.  Introduction

     This appeal follows from convictions on all charges contained in a five-count information.  Agnis Nelson was charged with two counts of trespass on property claimed by Ilai Abraham; Seniar Nelson

[8 FSM Intrm. 400]

was charged with one count of trespass on the same property.  Agnis was charged with one count of malicious mischief for damaging soft taro plants and tangerine trees which the information alleged belonged to Ilai and were growing on the property, while Seniar was charged with one count of malicious mischief for damaging banana trees.  Both were charged with one count of petty larceny for taking ripe coconuts from the property.  After trial held on March 13, 1995, and May 5, 1995, the court found defendants guilty on all charges.  They were sentenced on October 5, 1995; this appeal followed.

     Appellants raise two main issues on appeal.  First, they challenge the sufficiency of the evidence to support their convictions on the basis that the Kosrae trespass, malicious mischief and petty larceny criminal statutes all require that the property protected by the statutes be property of another.  They urge that the state failed to meet its burden of proof on that element of the crimes because defendants make a claim of right to the property.  Second, appellants urge that they were denied effective assistance of counsel solely because they were represented at trial by a trial counselor and not an attorney.

     Appellants' contention with respect to the sufficiency of the evidence is meritorious.  A review of the record discloses undisputed evidence at trial that appellants had a good faith belief that they owned the land which was the subject of the trespass counts, and this good faith belief subsumes, as a matter of law, a good faith claim to the agricultural products which are the subject of the malicious mischief and petty larceny counts.  As a result, appellants lacked the criminal intent necessary to render them culpable for the crimes charged.  On this basis, and as further set out below, we reverse appellants' convictions.

     We summarily dispose of the appellants' contention concerning their representation by a trial counselor.  We conclude it is without merit.

     The FSM and the Kosrae Constitutions employ identical language:  "[T]he defendant in a criminal case has a right . . . to have counsel for his defense."  FSM Const. art. IV, 6; Kos. Const. art. II, 1(e).  The appellants offer no support for their statement that a trial counselor "does not meet the definition of `counsel.'"

     Concerning effectiveness, it is true that the provision for counsel means competent counsel.  Hartman v. FSM, 5 FSM Intrm. 224, 233 (App. 1991).  A trial counselor is not, merely because he is a trial counselor and not a lawyer, incompetent counsel.  We cannot say that representation by a trial counselor is per se ineffective assistance of counsel failing to meet the constitutional requirement.  We decline to adopt such a rule.

II.  Factual Background
     The evidence presented at trial was that on April 16, 1994, Ilai Abraham entered a piece of land at Fenef in Lelu which he believed to be his and observed damage to the property.  All of the soft taro had been cut down, as well as most of the fruit bearing branches of two tangerine trees.  Ilai himself had planted the taro and the tangerines.  As a result of the damage, Mr. Abraham began to monitor the activities on the land.  On April 30, 1994, he saw Joseph Nelson's daughters, the defendants, now appellants, Agnis and Seniar Nelson, near the boundary line. They saw Ilai and, along with some children who were with them, came onto the property.  Ilai testified as follows:

A:  According to my recollection, on the day of April 30, Agnis first met me on that parcel of mine.  She started discussing the previous incident that happened maybe last two Saturdays prior to April 30.  During that time I asked her, "you mean you were

[8 FSM Intrm. 401]

Transcript Proceeding (Trial) at 6-7.  Seniar cut down eight bearing and eight non-bearing banana trees.

     Ilai testified that he purchased the land from Joince Paliknoa.  He and Joince signed a deed of sale, which was admitted into evidence.  Also admitted into evidence was a certificate of title showing title in the heirs of Paliknoa Nena. Joince Paliknoa is the eldest son of Paliknoa Nena and testified for the prosecution.  He knew that there was a dispute among Ilai and "the Heirs of Joseph" over the land that he sold to Ilai.  Id. at 32.  The owners of the land adjacent to the land claimed by Ilai were Joseph Nelson from the Lelu boundary, and Elnora Scott and Walton Palik from the Malem boundary.  The land at issue for purposes of the trespass was from the main road up and inland.

     Joseph Nelson, defendants' father, was 71 years old at the time he testified for the defense.  He said that he had worked on the land called Fenef doing clearing, husking copra and getting breadfruit and bananas ever since he started doing things for himself.  Joseph Nelson claimed that the land was owned by his father, Nelson Sigrah.  He had worked the land with his father.  Joseph Nelson had seen Paliknoa Nena work the beach side of the property, but never saw Paliknoa Nena work the upper side of Fenef.  Joseph Nelson told his daughters Agnis and Seniar to work the entire upper part of Fenef.

III.  Discussion
     Appellants urge that the evidence was insufficient to support their convictions for trespass, malicious mischief, and petty larceny because they had a good faith claim of right to the land on which they were accused of trespassing, as well as a claim of right to the agricultural products which are the subject of the malicious mischief and petty larceny counts.  Underlying their position is the logically-sound proposition that one cannot trespass on, steal from, or commit malicious mischief upon one's own property.

     In reviewing a criminal conviction against an insufficiency of the evidence challenge, the appellate court must ask whether the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence it had a right to believe and accept as true.  Otto v. Kosrae, 5 FSM Intrm. 218 (App. 1991); Tosie v. FSM, 5 FSM Intrm. 175 (App. 1991); Runmar v. FSM, 3 FSM Intrm. 308, 315 (App. 1988) (citing Engichy v. FSM, 1 FSM Intrm. 532, 545-46 (App. 1984)).  We consider the basis in law for appellants' defenses, and review the record below.

A.  Appellants' defense
     Appellants were convicted of trespass, as defined by Title 13 of the Kosrae State Code of Laws.  The applicable statute provides as follows:

Section 13.412.  Trespass.  Trespass is entering, or causing an object to enter, the dwelling place, premises or property of another without his express or implied consent, or entering with his consent and, following withdrawal of the consent, refusing to leave the dwelling place, premises, or property.  Trespass is a category two misdemeanor.

Kos. C. 13.412 (second emphasis added).  A necessary element of the crime of trespass is that the

[8 FSM Intrm. 402]

property trespassed upon be "property of another."  A dispute over who has title to the property bears directly on this element:

If a defendant has a claim of right to be on certain property, he lacks the criminal intent to trespass thereon.  Just as, in a case of theft of personalty, a conviction cannot be upheld if ownership of the property is disputed between the complaining witness and the defendant, the application of such a rule is appropriate where the right of access to the property is in dispute in a criminal trespass conviction.

75 Am. Jur. 2d Trespass 184 (1991) (footnote omitted).  In sum, the real property on which a defendant is alleged to have trespassed must be the property of another.  A good faith claim of right to the property provides a complete defense to the crime of trespass because it negates the criminal intent necessary for conviction.

     The same is true of both the crimes of malicious mischief and petty larceny. The Kosrae malicious mischief statute is as follows:  "Section 13.408.  Malicious mischief.  Malicious mischief is wilfully destroying, damaging, or injuring property belonging to another.  Malicious mischief is a category one misdemeanor."  Kos. C. 13.408 (second emphasis added).  An essential element of the crime is that the property injured or destroyed be "property belonging to another."  A good faith belief that one owns the property injured or destroyed typically constitutes a defense to the crime:

Ordinarily, one who injuries [sic] or destroys property under the honest and reasonable belief that he has a right to do so is generally held not to be guilty of malicious mischief if he has taken proper precautions to learn what his rights and duties are and if, furthermore, his actions in relying upon his belief have not been heedless, reckless, or careless.

52 Am. Jur. 2d Malicious Mischief 13 (1970) (footnotes omitted).  Similarly, the Kosrae petty larceny statute provides as follows:  "Section 13.409.  Petty larceny. Petty larceny is stealing, taking, or carrying away the personal property of another, the value of which is less than fifty dollars, without the owner's consent, and with the intent to convert it to one's own use.  Petty larceny is a category one misdemeanor."  Kos. C. 13.409 (second emphasis added).  As with trespass and malicious mischief, a necessary element of the offense of petty larceny is that the subject personalty be "property of another."  Thus a good faith belief in a right to the property negates an element of the offense of petty larceny as well:

Where one, in good faith, takes the property of another and converts it to his own use, believing it to be legally his own, or that he has a legal right to its possession, he is not guilty of larceny, although his claim is based on a misconception of the law or of his right under it, for although as discussed in Trespass 5, ignorance of law and honest intentions cannot shield a man from civil liability for a trespass committed by him, they do protect him from criminal liability by divesting the act of the felonious intent without which it cannot be a crime . . . .

52A C.J.S. Larceny 26 (1968) (footnotes omitted).  As a matter of law, then, if one has a good faith belief that he or she owns the property subject to the crime, he or she cannot be guilty of trespass, malicious mischief or petty larceny.

B.  Evidence below in support of appellants' defense
     Whether a defendant has a good faith belief in ownership is ordinarily a determination for the

[8 FSM Intrm. 403]

trier of fact.  In Kosrae v. Tolenoa, 4 FSM Intrm. 201 (Kos. S. Ct. Tr. 1989), for example, defendant Molid Tolenoa was charged with larceny of sugar cane taken from real property that he claimed was owned by his father, Teroa Tolenoa.  Teroa Tolenoa had planted a few sugar canes on his own land, and then "transferred ownership of the [sugar cane] farm to Ashley [Jackson] and further told Ashley to expand the farm and to tend to the farm."  Id. at 203.  The court found that defendant's father had conferred a use right on Mr. Jackson, and that the sugar cane was therefore Mr. Jackson's personal property.  Id. at 204.  As the trial court noted:

Here the defendant argued that he severed and sold the sugar cane (five bundles) in good faith because the realty belongs to his father.  But the circumstances lead the Court to believe that the sugar cane in question belongs to Mr. Jackson and not the defendant.

. . . Sugar cane will not grow properly without such cultivation, and since the evidence reflects that defendant did not cultivate the sugar cane, he could have no reasonable belief that it was his own.  Therefore, defendant's "good faith" argument is not supported by the facts.

Id. at 203.

     We have reviewed the transcripts of the court's findings in the instant case with some care.  We conclude that the trial court in this case, unlike the court in Tolenoa, did not make a specific finding as to whether the defendants had a good faith belief that they owned either the real property or crops at issue.  The trial court focused its analysis on the fact that defendants had deliberately destroyed and removed crops from the land, without also considering the reasonableness of defendants' subjective belief that they owned the underlying property.  For example, with respect to the malicious mischief counts, the Court noted that "There were no disputes that these two defendants did in fact destroy these properties."  Transcript Proceeding (Closing Argument) at 22-23.  The court did ask rhetorically:  "As pointed out by the prosecution, if it's indeed these crops belong to a person, why would he turn around and destroyed them?  If he claimed ownership to this land, why would he destroy the existing crops.  If they're mine, why would I destroy them?"  Id. at 23.  In finding defendants guilty, the trial court may have reasoned that defendants' destruction of crops was inconsistent with their claim of ownership of the underlying land.  However, defendants' actions were perfectly consistent with their claim of ownership if the purpose of those actions was to disrupt what they believed were Ilai's competing attempts to assert ownership rights over land they viewed as their own.

     The trial court made no express finding on whether or not defendants had a good faith belief in ownership.  This may have resulted from the trial court's reliance upon a civil trespass case, Ponape Enterprises Co. v. Soumwei, 6 FSM Intrm. 341 (Pon. 1994), for guidance in framing its analysis and formulating its findings.  The trial court was persuaded that Ilai, by virtue of the certificate of title in favor of his predecessor in interest, had a better right to possession of the real property in dispute.  However, the burden of proof in a criminal trespass case differs substantially from the burden of proof in a civil trespass case. The court's role in a civil trespass case is to determine which party has the greater possessory right to disputed property.  In a criminal trespass case, in contrast, the court must determine whether the prosecution has established each element of the crime of trespass beyond a reasonable doubt.  As discussed in Section A., above, a common element of the crimes of trespass, petty larceny and malicious mischief that the state must prove is that the property belongs to another.  A good faith belief in a claim of ownership negates a necessary element of all three offenses.

     Since the trial court made no explicit finding on the question of appellants' good faith claim of ownership to the disputed property, remand for a determination on this point would ordinarily be appropriate.  "When, however, facts not controverted are admitted, or have been assumed by both

[8 FSM Intrm. 404]

parties, the failure to make findings thereof does not necessitate a remand."  5 Am. Jur. 2d Appeal and Error 974 (1962).  It is clear from the record below that a good faith dispute over title to the land upon which appellants allegedly trespassed existed at the time of the offenses charged, and still exists.

     Significantly, when Agnis and Ilai met on the property on April 30, 1994, by Ilai's own account, "[h]er [i.e., Agnis'] first question to me was, how come I work this land nowadays, because this land was theirs in the first place and they were still using that land till today."  Transcript Proceeding (Trial) at 8.  Agnis also told Ilai at their meeting that her father claimed the land as theirs.  Agnis' father, who was 71 years old at the time he testified, said that he had worked the land doing clearing, husking copra and harvesting breadfruit and bananas "ever since I began to do things by myself until today," Transcript Proceeding (Trial) at 46, and that he had worked the land with his father.  Joince Paliknoa, in testifying for the state, said that he was aware of the dispute among the "Heirs of Joseph" and Ilai.  Id. at 32. The state offered no evidence to contradict this testimony.  Nor did the state suggest that the defendants' claims were insincere, or challenge in any other respect the good faith of defendants' claim to the land.

     As previously noted, the trial court was apparently persuaded by the existence of a certificate of title in the name of Paliknoa Nena that Ilai, who purchased the land from Joince Paliknoa, had a greater possessory interest in the real property than did the defendants.  However, the historical dispute between the parties over the land at issue in this case continues today in the Kosrae State Court as Civil Case No. 78-93, Joseph Sigrah v. Land Commission.1  That case has not yet been finally resolved.

     In view of the testimony of the parties before the trial court and the existence of a pending Kosrae State case addressing the parties' competing claims of ownership, we conclude that the evidence of the existence of the good faith dispute over the real property is such that no remand on this point is necessary.

     Similarly, no remand with respect to the question of a good faith belief to a claim of ownership to the coconuts, soft taro, and tangerines is necessary.2  Ilai testified that the tangerine plants were his, and that he planted the eight bearing and eight non-bearing banana trees that are the subject of count four of the criminal information.  Regardless of who planted the destroyed tangerine and banana trees, these crops were planted on land over which ownership was, and is, hotly disputed.  Hence defendants' good faith belief that they had a claim of right to the land comprehends, under the facts of this case, a good faith claim to the land's agricultural products as well.  "The ownership of realty carries with it, as an incident thereto, the prima facie presumption of the ownership of both the natural products of the land and the annually sown crops."  21A Am. Jur. 2d Crops 7 (1981).

     Ilai's good faith belief that he owned the crops he planted is immaterial to whether or not Agnis and Seniar Nelson themselves also had a good faith claim to the same crops which they believed had

[8 FSM Intrm. 405]

been planted on their land.  It is defendants' mental state that is at issue.  A first and fundamental principle of criminal jurisprudence is that "[i]n order for a state to impose criminal penalties on an individual, it must be shown that he [or she] committed some unlawful act or engaged in some prohibited course of conduct, together with a wrongful intent or mens rea."  21 Am. Jur. 2d Criminal Law 4 (1981) (footnote omitted).  Because the record is clear that defendants had a good faith belief that they owned both the real property and crops at issue in this case, as a matter of law they lacked the mental state necessary to subject them to criminal sanctions for their actions.

     The approach we take in this case is the one historically taken in Micronesia. Before this Court was established, the Trust Territory High Court considered the defense of a good faith claim of ownership in the context of the crimes of trespass, malicious mischief and petty larceny.  In each case, the High Court reviewed the evidence presented to the trial court and reversed convictions based on defendant's good faith claim of ownership of the disputed property.

     In Tasio v. Trust Territory, 3 TTR 262 (App. 1967), the High Court addressed two separate but related cases in Chuuk (then Truk) in which defendants had been charged with trespass.  The court noted the important distinction between civil trespass and criminal trespass, and further noted that "criminal statutes should not be used to try disputed rights in land or as a substitute for other adequate civil remedies for trespass."  Id. at 267.  With respect to the burden of proof, the court explicitly held that

where a person accused [of trespass] under this section claims to have acted in the lawful exercise of his rights, the burden is on the government to show beyond a reasonable doubt that this interference with the property was unlawful and that where the evidence leaves room for any reasonable doubt as to the validity of the accused's claim of right, the accused should be acquitted of the criminal charge, and the allegedly injured party be left to pursue the matter civilly if he so desires.

Id. at 268.  In reversing the convictions, the court opined that "[t]he evidence set forth in the record in each of the cases under appeal is considered clearly insufficient to justify a conclusion that the accused's claim is either worthless or made in bad faith.  The court therefore holds it is insufficient to support a finding of guilty."  Id.

     In Aliwis v. Trust Territory, 2 TTR 223 (App. 1961), the High Court also reversed a conviction for malicious mischief in Chuuk in the context of a land dispute.  In Aliwis, both the complainant and the defendant had destroyed crops which were growing on the disputed land.  The complainant pulled up coconut trees planted by the defendant and proceeded to plant some crops of her own; in turn, when the defendant discovered this, she pulled up the crops planted by the complainant, and was subsequently charged with malicious mischief.3 Id. at 225.  Under the Trust Territory malicious mischief statute, as it stood at the time of the alleged crime, "malice" was a necessary element of the offense:  "`Whosoever shall unlawfully, wilfully, and maliciously destroy, damage, or otherwise injure property belonging to another, shall be guilty of malicious mischief. . . .'"  See id. at 225 (quoting TTC 398).  The court noted:

It appears to this court that this is essentially a case of an honest land or boundary dispute, and that, regardless of whether the plants were actually on the land

[8 FSM Intrm.406]

which the accused was lawfully taking care of, or were over the line on property owned by the complainant and others, the necessary malice has not been shown beyond a reasonable doubt.  Such disputes can be handled far better as civil actions than through criminal proceedings.

Id.

     Finally, in Niforongu v. Trust Territory, 1 TTR 549 (App. 1958), the High Court addressed petty larceny.  Defendant had taken breadfruit from the land which he contended was historically owned by his wife's family, and the ownership of which was disputed.  The court reviewed the evidence presented to the trial court, and concluded that the facts did not establish the elements of larceny.  In reversing the convictions, the court observed that

[i]t is a fundamental principle that one who takes property in good faith, under color of claim or title, honestly believing he (or whoever authorized the taking) is its owner, and has a right to its possession, is not guilty of larceny, even though he is mistaken in such belief, as in such case the felonious intent is lacking.  22 Am. Jur. 936, Larceny, 41.

It is well settled that the taking of property openly in the honest belief of ownership thereof, and of the right to take and retain it, absolves from a felonious intent.  Lechner v. Ebenreiter, 292 N.W. 913.

The criminal code is not to be used for the purpose of determining conflicting claims to property.  There are ample procedures in the civil courts which will give the alleged owner all the protection he requires of any property rights possessed by him.

1 TTR at 551 (emphasis added).

     We find the reasoning of these Trust Territory cases persuasive.  We particularly agree with the High Court's observation in each case that the criminal law is not to be used to settle conflicting claims to property.  Property disputes in Micronesia strain the social fabric of the communities in which they occur.  The filing of a criminal action injects an element of criminality into a matter which is, at its core, civil, and increases that strain.  As the Niforongu court commented, a civil action is the appropriate vehicle for resolving these types of disputes.  While order must be maintained among disputing parties, adequate civil means exist to accomplish this end.  For example, temporary injunctive relief may be granted to preserve the status quo until the issue of ownership is finally resolved.  Only after the parties have fully and fairly litigated underlying issues of ownership to their conclusion should disputes of the sort raised in this litigation become the province of the criminal law.

     The dissenting opinion urges that this prosecution should be remanded to the Kosrae State Court on the malicious mischief charge, for the trial judge to rule on whether "as a matter of Kosrae state law or custom, a Kosraean landowner has the right to destroy crops he finds on his land that he knows that he did not plant." We believe remand is inappropriate.  The remand on the dissent's terms raises unnecessarily in this criminal case ) a case which itself has taken place in the context of an on-going civil dispute between the defendants and the complainant ) a question of civil land tenure law which, to the extent that it exists as more than an abstract hypothesis, is better left to a time and place where the parties themselves have presented the issue to the trial court, and where from the beginning they have followed the mandate of Kos. C. 6.303.  Under the Kosrae State Code, the Court cannot consider tradition unless satisfactory evidence of tradition is introduced.  Kos. C. 6.303; Seymour v. Kosrae, 3 FSM Intrm. 537, 540 (Kos. S. Ct. Tr. 1988).  No evidence was presented to the trial court on the point the dissent raises.  The burden was on the government to establish beyond a reasonable

[8 FSM Intrm. 407]

doubt that defendants' interference with the crops at issue was unlawful; if there was any doubt about defendants' claim of right, defendants should have been acquitted on the malicious mischief charge.  Cf. Tasio, 3 TTR at 268.  Remand is not appropriate to assist the state in prosecuting its criminal case.

     Under Kosrae State law, "malicious mischief" is defined as "wilfully destroying, damaging or injuring property belonging to another."  An essential element of the crime is that the property be the "property of another."  There was evidence on the record that Ilai Abraham planted the tangerines and bananas that defendants destroyed.  However, the state did not produce sufficient evidence on the record to prove beyond a reasonable doubt that the property on which these crops were planted was Ilai's property.  The existence of a pending civil action between Ilai Abraham and the Nelson family over the land itself raises that reasonable doubt. The critical issue then is the mental state or "mens rea" of Agnis and Seniar Nelson at the time they destroyed crops Ilai planted.  It is clear from the evidence on the record that defendants believed their family owned the disputed property, and believed that their ownership of the land carried with it an attendant right to defend that land against incursions by others making plantings on the same land. The State of Kosrae presented no evidence of Kosraean custom or state law regarding this form of self-help, to demonstrate that defendants' belief was unfounded or unreasonable.  If defendants, in good faith, believed they could assert ownership rights over plantings made on their own land, they could not be guilty of malicious mischief with respect to these plantings.  There is ample support in the law for this position.  See Aliwis, 2 TTR at 224-26 (malicious mischief claim reversed on appeal where defendant dug up complainant's crops in honest belief that these plants were on land he owned).  Compare Niforongu, 1 TTR at 551 (petit larceny conviction reversed on appeal where defendant taking breadfruit believed in good faith that the person who had authorized that taking was the owner of the underlying land); Tasio, 3 TTR at 268 (trespass conviction reversed on appeal where prosecution's evidence left reasonable doubt as to the validity of the accused's claim of right to the land); Tolenoa, 4 FSM Intrm. at 203-04 (defendant found guilty of larceny where court found his claim of ownership of sugar cane was not made in good faith).
 
     Where a person claims to have acted in the lawful exercise of his rights, the burden is on the government to show that his interference with the property was unlawful; if the evidence leaves any room for reasonable doubt as to the accused's claim of right, the accused should be acquitted.  Tasio, 3 TTR at 268. In this case, the evidence set forth in the record is insufficient to justify a conclusion that defendants' claim of ownership was worthless or made in bad faith.  See id. For this reason, we feel that acquittal is appropriate on all charges.

IV.  Conclusion
     We reverse the convictions for trespass, malicious mischief, and petty larceny. The trial court is directed to enter judgments of acquittal on all counts.

*    *    *    *

CONCURRING AND DISSENTING OPINION

RICHARD H. BENSON, Associate Justice:
     I write separately because, although I concur with the bulk of the court's holding and reasoning, I dissent in part.  I concur with the court that representation by a trial counselor is not per se ineffective assistance of counsel.  I further concur fully with the court's holding that the Nelson sisters' convictions on the trespass and petty larceny counts must be reversed and judgments of acquittal entered thereon, although it is only by the most generous interpretation of the appellants' brief and oral argument that it could be considered that the appellants raised the ground upon which our reversal is

[8 FSM Intrm. 408]

based.  (That ground might have been reached anyway by application of the plain error doctrine.  See, e.g., Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 477, reh'g denied, 7 FSM Intrm. 481 (App. 1996); Moses v. FSM, 5 FSM Intrm. 156, 161 (App. 1991).)

     I dissent from the court's reasoning and holding on the malicious mischief charge.  The fundamental difference between my approach on this charge and that taken by the court today is the court's willingness to establish as a rule of Kosrae state customary law, based on a rebuttable presumption found in a treatise on American law, that a landowner owns the crops planted on the land by another.1  This point was neither raised below nor argued on appeal.  I believe it inadvisable to decide Kosrae state law issues, especially mixed questions of fact and law, on appeal without the benefit of prior consideration and ruling by the Kosraean trial judge in the Kosrae State Court.  The appellate process contemplates that an issue before an appellate court will first have been ruled upon by a trial judge.  Loch v. FSM, 2 FSM Intrm. 234, 236 (App. 1986).

     My dissent also stems from my conclusion that when the trial judge asked the rhetorical question "if it's indeed these crops belong to a person, why would he turn around and destroyed them?  If he claimed ownership to this land, why would he destroy the existing crops[?]  If they're mine, why would I destroy them?" he was making his finding that the sisters knew that they did not own the taro, tangerines and bananas, and were purposely destroying another's personal property.  I believe this rhetorical question can only be read as the trial judge making his finding that the sisters did not have a good-faith belief that they owned the taro, tangerines and bananas, but that they knew that those crops were Ilai Abraham's property.  The judge's rhetorical questions come in the middle of his soliloquy after closing arguments.  In this soliloquy, which runs seven and a half pages in the transcript, the trial judge sums up his view of the case, makes his findings, and issues his judgment of conviction.  The court today states that "the trial court made no explicit finding on the question of the appellants' good faith claim to ownership to the disputed property."  This is certainly true concerning the land and the coconuts.  However, the rhetorical question ) "If they're mine, why would I destroy them?" ) is a specific finding by the judge that the defendants did not have a good-faith belief that they owned the crops they destroyed.

     The court today correctly holds that the standard of review in a criminal case where the sufficiency of the evidence is challenged is that an appellate court must determine "whether the trier of fact could reasonably have been convinced beyond a reasonable doubt by the evidence that it had a right to believe and accept as true."  But what the court overlooks is that when applying this standard of review "the appellate court must `review the evidence in the light most favorable to the trial court's factual determination.'"  Alfons v. FSM, 5 FSM Intrm. 402, 405 (App. 1992) (quoting Kimoul v. FSM, 5 FSM Intrm. 53, 55 (App. 1991)).  Thus I believe the court errs when it concludes that a Kosraean trial judge, familiar with Kosraean attitudes, and observing and listening to Kosraean witnesses, made either a clearly erroneous or no finding of fact when, based on the evidence of the defendants' actions in destroying perfectly-good, food-bearing crops, he found they would not have destroyed the crops if they thought they owned them, and substitute contrary factual findings for his.  To do so, the court today holds, for the first time, and without argument or briefing, here or below, and without authority other than an American legal treatise, that as a matter of Kosrae state customary, statutory, or case law there is a legal presumption that food crops are the landowner's sole property (even when the landowner is aware that the crops were planted by another).  I conclude that the trial judge made a specific finding that the Nelson sisters did not have such a good-faith belief and knew they did not own the crops they destroyed, and that there was evidence before the trial judge on which he could have

[8 FSM Intrm. 409]

based this finding.  This is where we differ.  The court today concludes that the trial judge made no such finding.2

     In this case, the FSM Supreme Court appellate division is sitting as the highest state court in Kosrae and the appeal only involves issues of Kosrae state law. Under Kosrae statute "[t]he appellate court does not set aside the Court's findings of fact unless clearly erroneous."3  Kos. C. 6.403(2).  The court today avoids this mandate by concluding that the trial court made no explicit finding.

     "An appellate court will not reweigh the evidence presented at trial.  Credibility determinations are uniquely the province of the factfinder, and not the appellate court."  Johnny v. FSM, 8 FSM Intrm. 203, 207 (App. 1997) (citation omitted).  It is undisputed that Ilai Abraham planted the taro, tangerines and bananas.4  The court acknowledges this.  It is further undisputed that the defendants destroyed these crops.  But I cannot agree with the majority that "the record is clear that defendants had a good faith belief that they owned both the real property and the crops."  It is undisputed that the defendants had a good-faith belief they owned the real property, but not that they owned the crops they destroyed.  The only thing in the record from which the inference that the sisters had a good-faith belief that they owned the destroyed crops might be drawn was their actions in destroying those crops.  The trial judge, who heard the evidence and saw the witnesses, drew the opposite inference from that evidence.  The court today speculates that "the purpose of those actions [destroying crops] was to disrupt what they believed were Ilai's competing attempts to assert ownership rights over land they viewed as their own."5  Thus, with the exception of whether the Nelson sisters had a good-faith belief that they owned the crops they destroyed, the facts in this case were undisputed.  Because the trial judge found that the state proved this one disputed fact (that is, the sisters' lack of a good-faith belief to ownership of the destroyed crops), the sisters should have the opportunity to show that some other law excuses or permits their conduct.  My suggested remand would allow them that opportunity.

     I would therefore remand the malicious mischief counts to the trial court.  On remand, the trial judge would rule on whether, as a matter of Kosrae state law, a Kosraean landowner has the right to destroy crops he finds on his land that he knows that he did not plant.  If the answer is yes, the trial court should then enter judgments of acquittal on the malicious mischief counts.  If no, then the trial judge should determine if the evidence before him shows the appropriate mens rea for a malicious mischief conviction (that is, in this case, knowing another owned the crops).  If his answer is no, then a judgment of acquittal should be entered.  If the answer is yes, the judge should then enter a judgment of conviction, and inform whomever is convicted of their right to appeal.  If appealed, we could then

[8 FSM Intrm. 410]

correct any error at the trial level.

     I do not recommend this remand lightly, but consider it preferable to the majority's approach of denying the trial court an opportunity to consider this point of Kosrae state law on crop ownership while at the same time reaching a result based solely on an American legal treatise on a legal point neither briefed nor argued before us or below.  The court today asserts that my dissent "unnecessarily" raises this "question of civil land tenure law," yet they find it necessary to raise the same question and then decide it solely on the authority of an American legal treatise without "follow[ing] the mandate of Kosrae Code section 6.303," as they would, in dicta, have the parties to a civil suit do.  I think the court's suggestion of settling this legal question in some future case is unworkable because the trial court in any future civil case will have before it this case and the court's authoritative statement of what the civil land tenure law is.

     Nor do I, as the court today suggests, recommend remand "to assist the State in prosecuting its criminal case," but instead to allow the Kosrae trial court an opportunity to develop Kosrae state law.  I am disheartened that the court might consider that assisting the prosecution was the purpose behind my suggested remand.
 
     The court today relies in part on a Trust Territory High Court case in Chuuk, Aliwis v. Trust Territory, 2 TTR 223 (App. 1961), to determine state law in Kosrae. I note that the statute involved in Aliwis included malice as an element of the crime, and that it was the lack of proof on this element that required reversal in Aliwis.  Id. at 225-26.  Malice is not an element of the crime found in the Kosrae statute.  While I am satisfied that Aliwis was the law in Chuuk at the time, I am not satisfied that that is the current state law in Kosrae.  It may be that under Kosrae state law a person may not be criminally prosecuted for destruction of crops he knows were planted by another on land he has a good-faith belief is his.  I would prefer that, before this appellate court adopts such a principle as a rule of Kosrae state law, the issue be considered and ruled upon by a Kosraean judge in the Kosrae State Court.

     As a final thought, I agree with the proposition that "criminal statutes should not be used to try disputed right in land or as a substitute for other adequate civil remedies for trespass."6  Tasio v. Trust Territory, 3 TTR 262, 267 (App. 1967). Ideally, one or both of the parties in the civil case concerning title, should have obtained a court order, by stipulation or otherwise, concerning who was permitted to do what on the disputed land while the case was pending.  That way the criminal justice system would not become involved while the dispute is still pending, unless someone were to violate the court order and was charged with criminal contempt of court for the violation.  Unfortunately, for both the defendants and the court system, this path was not followed.

*    *    *    *

1.  The court inquired about the status of this matter at oral argument, and was advised by counsel that it remains pending.  Civil Case No. 78-93 is an appeal from the prior Land Commission determination.  Section 11.614 of the Kosrae State Code of Laws provides that "[a] determination of ownership by the Commission is subject to appeal to the Court."

2.  Count two of the information alleges that Agnis J. Nelson committed malicious mischief by willfully destroying soft taro plants and two bearing tangerine plants.  Count four of the information alleges that Seniar J. Nelson committed malicious mischief by damaging eight bearing and eight non-bearing banana trees.  Count five alleges that both Agnis and Seniar Nelson committed petty larceny by stealing ripe coconuts.

3.  The facts of Aliwis underscore the inherent difficulties in attempting to force what is fundamentally a civil dispute into the mold of a criminal case.  Both complainant and defendant had engaged in destructive conduct, yet only the defendant was charged with malicious mischief.

 

Footnotes:

1.  Under Kosrae state law, custom must be proved by evidence.  Kos. C. 6.303.  There is none in the record on this point.

2.  If the majority had had any doubt concerning the trial judge's findings on the issue of the Nelson sisters' absence of good-faith belief in ownership of the destroyed crops, I would have readily agreed to a remand to allow the trial judge to clarify his factual findings on this point with directions that if he did find that the sisters had such a belief then judgments of acquittal were to be entered.

3.  Appellate court" is defined as "the appellate division of the Supreme Court of the Federated States of Micronesia," Kos. C. 1.201(7), and "Court" is defined as "the [Kosrae] State Court," Kos. C. 1.201(14).

4.  Ilai Abraham obviously did not plant the coconut trees because he had only bought the property in October, 1993, and the incidents that gave rise to this criminal case occurred in April, 1994.  It takes longer than that for planted coconut trees to mature and bear coconuts.

5.  It is unclear whether the court today concludes that the defendants own the destroyed crops or only have the right to destroy them.  The record supports neither conclusion.

6.  I cannot fault the state for initially bringing the prosecution.  The police acted upon a citizen's complaint.  The complainant had a deed of sale for the land on which the charged offenses occurred, and the deed of sale was from someone who held a certificate of title for the land.
                                                                                                                                                                                                                                                                                                           
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