8 FSM Intrm. 509-517

The proper standard of appellate review for a criminal conviction challenged for insufficiency of evidence is not whether the appellate court believes the defendant is guilty but whether there is evidence sufficient to convince a reasonable trier of fact of the defendant's guilt beyond a reasonable doubt. The appellate court must review the evidence in the light most favorable to the trial court's factual determination. A trial court's factual findings challenged for insufficiency are reviewed on a clearly erroneous standard. Palik v. Kosrae, 8 FSM Intrm. 509, 512 (App. 1998).

Kosrae statute provides that aggravated assault is assaulting, striking, beating, or wounding another with a dangerous weapon, with an intent to kill, rape, rob, inflict grievous bodily harm or to commit any other felony. Palik v. Kosrae, 8 FSM Intrm. 509, 513 (App. 1998).

A dangerous weapon is any object that, as used or attempted to be used, can endanger life or inflict great bodily harm. Shoes worn on the feet are dangerous weapons when used to kick a victim. Stationary objects can also be dangerous or deadly weapons. Palik v. Kosrae, 8 FSM Intrm. 509, 513 (App. 1998).

In the Kosrae Code there are two alternative mens rea elements under which the killing of another can be second-degree murder ) the killing is either done with malice aforethought, or it is done while perpetrating or attempting to perpetrate a felony other than one which would statutorily incur liability for first-degree murder. Proof of either one of the two alternative mens rea elements is sufficient for a second-degree murder conviction. Palik v. Kosrae, 8 FSM Intrm. 509, 514 (App. 1998).

When the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. If the test is met, a dual conviction will not violate the constitutional protection against double jeopardy. Palik v. Kosrae, 8 FSM Intrm. 509, 514 (App. 1998).

The primary function of the felony-murder doctrine is to relieve the prosecution of the necessity of proving, and the trier of fact of the necessity of finding, actual malice on the part of the defendant in the commission of the homicide. The malice involved in the perpetration or attempted perpetration of the felony is transferred or imputed to the commission of the homicide so that the accused can be found guilty of murder even though the killing is accidental. Palik v. Kosrae, 8 FSM Intrm. 509, 514 (App. 1998).

Malice is always presumed when a person deliberately injures another, and if a person uses a deadly weapon on another maliciousness must be inferred. Thus the malice aforethought required for a second-degree murder conviction may correctly be inferred from the deliberate use of three dangerous or deadly weapons. Palik v. Kosrae, 8 FSM Intrm. 509, 515-16 (App. 1998).

An appellate court will not set aside a factual finding where there is credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. Palik v. Kosrae, 8 FSM Intrm. 509, 516 (App. 1998).

If, for the same act, both a lesser included and a greater offense are proven, the court should then enter a conviction on only the greater offense. A defendant cannot be sentenced on both the higher and the lesser included offense arising out of the same criminal transaction. Palik v. Kosrae, 8 FSM Intrm. 509, 516 (App. 1998).

Jacob W. Palik appeals his conviction in Kosrae State Court on the charges of murder in the second degree and aggravated assault for the death of his wife, Arlene Palik. We affirm the second-degree murder conviction and vacate the aggravated assault conviction. Our reasoning follows.

On the morning of July 2, 1997, Jacob W. Palik argued with his wife because she had not done the laundry so that he would have a clean shirt for work. He had to be at work by 11:00 a.m. She left with their infant daughter and went to her aunt's house where there was a washing machine. He later went looking for her and eventually found her there. She was sitting at a table just inside the door talking to her aunt's young daughter, while he was standing just outside the doorway. Palik demanded that she and their infant daughter return home with him. She said she would come later. Palik then reached into the house, pulled her out by her hair, and banged her head against a wooden post just outside the door. The aunt's daughter left to get her mother. Palik next slammed his wife's head twice into the cement floor outside the house and then kicked her in the head while she was lying motionless

The aunt then came out of the house and pushed him away, he took his infant daughter and left. Arlene Palik was dead on arrival at the hospital. The incident was witnessed by the aunt's daughter, who saw him reach in and grab the victim and pull her out, the next door neighbor, who saw what happened outdoors, and the aunt, who once her daughter fetched her, saw the kicking and stopped him. Two doctors at the hospital determined with reasonable medical certainty that the victim died from blunt injury trauma to the head. The three eyewitnesses and Dr. Austria from the hospital all testified at Palik's trial.

Palik was tried on an information containing two counts. Count One charged him with murder in the second degree in violation of Kosrae Code section 13.309 for taking the life of Arlene Palik "with malice aforethought, and while in the perpetration of the crime of aggravated assault against Arlene Palik." Count Two charged that Palik "committed the crime of Aggravated Assault by assaulting, striking, beating, or wounding another, to wit Arlene Palik with an intent to inflict grievous bodily harm upon Arlene Palik," and that Palik's actions were "in violation of Kosrae Code Section 13.301." Under section 13.301, aggravated assault also involves the use of a dangerous weapon.

After trial, Palik was convicted on both counts. The trial judge found that the wooden post, the concrete floor, and Palik's shod foot were all dangerous weapons Palik used while assaulting his wife with the intent to inflict grievous bodily harm. The trial judge further found that Palik killed his wife both with malice aforethought and while committing the felony of aggravated assault against her. For each count, the judge sentenced Palik to six years in jail, with the last two years suspended. The sentences are to be served concurrently. Palik appealed.

Palik contends that the trial court erred because there was insufficient evidence to convict him of aggravated assault. Palik further contends the trial court erred in finding him guilty of second-degree murder based on a felony that was an integral part of the homicide offense and that the trial court erred because there was insufficient evidence to convict him of second-degree murder.

"The proper standard of appellate review for a criminal conviction challenged for insufficiency of evidence `is not whether the appellate court believes the defendant is guilty but whether there is evidence sufficient to convince a reasonable trier of fact of the defendant's guilt beyond a reasonable doubt.'" Alfons v. FSM, 5 FSM Intrm. 402, 405 (App. 1992) (quoting Kimoul v. FSM, 5 FSM Intrm. 53, 55 (App. 1991) (citing Engichy v. FSM, 1 FSM Intrm. 532, 546 (App. 1984))); see also Otto v. Kosrae, 5 FSM Intrm. 218, 222 (App. 1991) (test is not whether appellate court is convinced beyond reasonable doubt, but whether trial court, acting reasonably, was convinced). "In addition, the appellate court must `review the evidence in the light most favorable to the trial court's factual determination.'" Alfons, 5 FSM Intrm. at 405 (quoting Kimoul, 5 FSM Intrm. at 55). A trial court's factual findings challenged for insufficiency are reviewed on a clearly erroneous standard. Loney v. FSM, 3 FSM Intrm. 151, 155 (App. 1987). Whether a defendant may be found guilty of second-degree murder on a felony-murder theory when the felony is aggravated assault on the same victim is a question of law. Questions of law we review de novo. Nanpei v. Kihara, 7 FSM Intrm. 319, 323-24 (App. 1995).

The pertinent statute provides that "[a]ggravated assault is assaulting, striking, beating, or wounding another with a dangerous weapon, with an intent to kill, rape, rob, inflict grievous bodily harm or to commit any other felony." Kos. C. § 13.301. Palik contends that the evidence was insufficient to show that he used a dangerous weapon or weapons when he assaulted his wife. This contention can be interpreted two ways ) one, that the wooden post, cement floor, and shod foot are not dangerous weapons, or two, that, in the case of the wooden post and cement floor, because they are stationary objects, he could not have "used" them as dangerous weapons. He also contends that the evidence was insufficient to show that he intended to inflict serious bodily harm on his wife.

A dangerous weapon is any object that, as used or attempted to be used, can endanger life or inflict great bodily harm. Laion v. FSM, 1 FSM Intrm. 503, 510 (App. 1984) (giving as examples wine bottles, shoes, a rake, a thrown club, a chair, and a chair leg). Shoes worn on the feet are dangerous weapons when used to kick a victim. See generally Christopher Vaeth, Annotation, Kicking as Aggravated Assault, or Assault with Dangerous or Deadly Weapon, 19 A.L.R.5th 823, 850-53, 875-82 (1994) (superseding Mel Dayley, Annotation, Kicking as Aggravated Assault, or Assault with Dangerous or Deadly Weapon, 33 A.L.R.3d 922, 927-29 (1970)). A number of jurisdictions have held that stationary objects can be dangerous or deadly weapons. This view was taken in United States v. Murphy, 35 F.3d 143, 147-48 (4th Cir. 1994) (stationary steel bars constituted dangerous weapon when victim's head thrust against them) and in State v. Reed, 709 P.2d 551, 551-52 (Or. Ct. App. 1990) (forcibly striking victim's head against concrete sidewalk constituted use of concrete sidewalk as dangerous weapon). See generally David J. Marchitelli, Annotation, Stationary Object or Attached Fixture as Deadly or Dangerous Weapon for Purposes of Statute Aggravating Offenses Such as Assault, Robbery, or Homicide, 8 A.L.R.5th 775 (1992).

The trial court's findings that Palik's acts of bashing his wife's head against a wooden post, smashing her head against a cement surface and kicking her while wearing shoes, constituted the use of those objects as dangerous weapons, are therefore not clearly erroneous. Even if we were to assume, which we do not, that the use of a stationary object in an assault cannot constitute assault with a dangerous weapon, kicking someone while wearing shoes would still qualify.

Palik also contends that there was insufficient evidence to conclude that he had the intent to inflict grievous bodily injury on his wife when he assaulted her. A review of the evidence, particularly the testimony of the three eyewitnesses to the assault, shows that there is sufficient evidence from which a reasonable trier of fact could conclude beyond a reasonable doubt that Palik acted with the intent to inflict grievous bodily harm when he assaulted his wife.

Palik was also charged with violation of Kosrae Code section 13.309 which provides that "[m]urder in the second degree is taking the life of another with malice aforethought, or while in the perpetration of, or in the attempt to perpetrate, any felony other than those enumerated in Section

13.308 of this chapter."1 There are thus two alternative mens rea elements under which the killing of another can be second-degree murder ) the killing is either done with malice aforethought, or it is done while perpetrating or attempting to perpetrate a felony other than one which would statutorily incur liability for first-degree murder. The trial judge found that Palik killed his wife both with malice aforethought and while committing the felony of aggravated assault against her. Proof of either one of the two alternative mens rea elements is sufficient for a second-degree murder conviction. The trial judge found both proven beyond a reasonable doubt.

Palik contends that the aggravated assault charge is an integral part of the homicide charge and therefore cannot be used as a separate felony to support a second-degree murder conviction on a felony-murder theory. On appeal, the state did not contest this point in either its written or oral argument, but instead relied upon the trial court's alternative finding of malice aforethought to support the second-degree murder conviction. When this issue was raised below, the state contended that because aggravated assault contained an element not found in second-degree murder ) "with a dangerous weapon" ) and second-degree murder contained an element not found in aggravated assault ) "killing" ) aggravated assault was an independent offense which could support a felony-murder charge.

We conclude that the murder conviction based on the felony-murder theory must be reversed. Our analysis involves first, FSM cases bearing on whether aggravated assault and second-degree murder charges for the same act can support two separate convictions or whether one is an included offense of the other, and, second the related doctrine of merger as found in United States authorities.

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. If the test is met, a dual conviction will not violate the constitutional protection against double jeopardy. Laion, 1 FSM Intrm. at 523-25. As the state has pointed out, the test is met in this case.

The test, however, does not always apply where homicide is concerned. See Runmar v. FSM, 3 FSM Intrm. 308, 316-18 (App. 1988) (manslaughter is an included offense of murder even though manslaughter requires proof of elements not required for murder ) "under influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse"; and murder requires proof of malice aforethought, which manslaughter does not). To determine the test's applicability in this case we will inquire into the purpose of the felony-murder rule.

"The primary function of the [felony-murder] doctrine is to relieve the prosecution of the necessity of proving, and the [trier of fact] of the necessity of finding, actual malice on the part of the defendant in the commission of the homicide." Erwin S. Barbre, Annotation, What Felonies Are Inherently or Foreseeably Dangerous to Human Life for Purposes of Felony-Murder Doctrine, 50 A.L.R.3d 397, 399 (1973). "[T]he malice involved in the perpetration or attempted perpetration of the felony is `transferred' or `imputed' to the commission of the homicide so that the accused can be found guilty of murder even though the killing is accidental." Id. at 399-400.

with, or be included in, the homicide and therefore is not available as a separate offense which could support a felony-murder conviction. See Richard L. Simpson, Annotation, Application of Felony-Murder Doctrine Where the Felony Relied upon Is an Includable Offense with the Homicide, 40 A.L.R.3d 1341, 1343-45 (1971). See, e.g., State v. Essman, 403 P.2d 540, 545 (Ariz. 1965) ("The felony-murder doctrine does not apply where the felony is an offense included in the charge of homicide. The acts of assault merge into the resultant homicide, and may not be deemed a separate and independent offense which could support a conviction for felony murder."); People v. Ireland, 450 P.2d 580, 589-90, 40 A.L.R.3d 1323, 1338-39 (Cal. 1969) (assault with deadly weapon conviction cannot be used to relieve jury from finding malice aforethought for second-degree murder when husband shot wife); Tarter v. State, 359 P.2d 596, 602 (Okla. Crim. App. 1961) (assault with dangerous weapon not independent felony that can support felony murder conviction, but is included within resulting homicide); State v. Branch, 415 P.2d 766, 767-68 (Or. 1966) (assault of victim with a dangerous weapon, a pistol, cannot support a second-degree murder conviction by felony-murder rule).

Palik contends that if an assault charge could be used to support a second-degree murder conviction on a felony-murder theory then a trier of fact would never need to determine whether there was malice aforethought because almost all homicides are the result of assaults and would thus be felony-murders. The Ireland court found this reasoning persuasive. 450 P.2d at 590, 40 A.L.R.3d at 1338-39. So do we. We therefore consider the offense of aggravated assault to be included in the resulting homicide.

Accordingly, the aggravated assault conviction cannot be used to support a felony-murder conviction. The trial court's second-degree murder conviction based on Palik's having committed the felony of aggravated assault while killing his wife is reversed. We next consider Palik's second-degree murder conviction based on the trial court's finding that he killed his wife with malice aforethought. If the second-degree murder conviction is sustained, the aggravated assault conviction will be vacated because the aggravated assault is considered to have merged with the homicide.

The trial court also found Palik guilty of second-degree murder because he killed his wife with malice aforethought. Palik's only assertion of error that challenges this trial court conclusion is his contention that there was insufficient evidence to convict him of second-degree murder. Palik contends that the prosecution had to show, and failed to, that he went to the aunt's house with the intention of either killing, or causing grievous bodily harm to the victim. He contends that he assaulted his wife because their argument caused him to be angry.

Palik's contention that to be guilty of second-degree murder the state had to prove that he intended either kill, or cause his wife grievous bodily harm before he went to the aunt's house is misplaced. If that level of intent had been proven, the killing would have been premeditated, and that is an element of first-degree, not second-degree, murder.

The trial court relied on Davison v. People, 90 Ill. 229 (1878) (cited in a treatise, Law of Crimes § 10.06, at 652) for the proposition that malice is always presumed when a person deliberately injures another, and if a person uses a deadly weapon on another maliciousness must be inferred. The trial court found that Palik "did deliberately injure" the victim by use of the deadly weapons of the wooden post, the concrete surface, and also "when he kicked her in the head as she lay defenseless on the ground," and concluded that the malice required for second-degree murder was proven beyond a reasonable doubt. (Palik had argued that Davison supported his position that there was no malice.)

crime scene. He found the required malice from the evidence. All that Palik could point to to show the absence of malice was his own testimony. The trial judge evidently found the prosecution's eyewitnesses more credible, and discounted Palik's testimony where it differed. The prosecution's witnesses, although none of them saw the whole incident, each corroborated the testimony of the others. Palik's testimony thus did not rebut the presumption of malice from the use of a deadly weapon, or in this case, from the deliberate use of three deadly weapons, one in succession after another, ending with the kicking with shoes a defenseless (and probably unconscious by then) victim lying on the ground.

We think that the trial court may correctly infer the required malice from the deliberate use of these three dangerous or deadly weapons. See Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law 537, 539-40 (1972) (malice may be presumed or inferred from use of deadly weapon). We will not set aside a factual finding where there is credible evidence in the record to support that finding, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony. Hadley v. Bank of Hawaii, 7 FSM Intrm. 449, 452 (App. 1996); Emilios v. Setile, 6 FSM Intrm. 558, 560 (Chk. S. Ct. App. 1994) (appellate court shall give due regard to trial court's opportunity to judge the eyewitnesses' credibility). We conclude that the trial judge's finding of the required malice is not clearly erroneous. The second-degree murder conviction is therefore affirmed.

We have affirmed "the trial court's findings concerning proof of the elements of the aggravated assault charge," and have held that an aggravated assault conviction could not provide the element of malice to support a murder conviction, since the assault merged with, and was included in the killing. But we did affirm Palik's second-degree murder conviction based on the trial court's finding of malice aforethought. We now consider the proper disposition of Palik's aggravated assault conviction.

If, for the same act, both a lesser included and a greater offense were proven, the court should then enter a conviction on only the greater offense. Yinmed v. Yap, 8 FSM Intrm. 95, 101-02 (Yap S. Ct. App. 1997) (under Yap statute criminal trespass is lesser included offense of burglary; therefore on appeal after conviction for both for same act, trespass conviction vacated, burglary conviction affirmed). "[A] defendant cannot be sentenced on both the higher and the lesser included offense arising out of the same criminal transaction." 21 Am. Jur. 2d Criminal Law § 551 (1981).

Even if we had taken the approach recommended by the state and concluded that aggravated assault is not an offense included in the resulting homicide, we may still have vacated the aggravated assault conviction under the principle enunciated in Laion v. FSM, 1 FSM Intrm. 503, 528-29 (App. 1984) (rule of lenity applies where there is no clear legislative intent to approve separate punishments for the same act). In Laion, the appellate court recommended that the trial court should only enter a conviction on the greater offense of two charged for the same act, but render a decision on both the greater and lesser offenses so that in case the greater offense is reversed on appeal the trial court could then enter a conviction on the lesser offense. Id. at 529.

charge of aggravated assault for the same act are affirmed, but, for the reasons stated above, Palik's aggravated assault conviction is hereby vacated. This matter is hereby remanded to the Kosrae State Court for further proceedings consistent with this opinion.