KOSRAE STATE COURT
FEDERATED STATES OF MICRONESIA
Cite as Kosrae v. Kephas (1989)

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KOSRAE STATE,
Plaintiff

vs

MIXSON M. KEPHAS,
 Defendant

CRIMINAL CASE NO. 87-89

OPINION



FACTUAL BACKGROUND

     October 15th at approximately 1:00 a.m. in Malem Municipality, an incident occured at Mr. Limberg Talley's house. The facts reveal that victim owns several VHS Cassettes with his initial "L.T." written on the tapes.


     On the early morning of September 16th, victim reported the incident to police station. An investigation followed. The missing items that allegedly been stolen were at the station and were authenticated by victim as the stolen tapes on September 16th when he reported the incident.


     On the 15th of September in Malem municipality, Officer Kiatoa Ittu was on duty and met defendant at a nearby spot close to victim's house. Officer Ittu saw defendant carrying a bag during the time they met; the officers questioned defendant as to the contents of the bag. Defendant in his response advised


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Officer Ittu that the contents were cassettes owned by one, George Cline and also advised that "I borrowed the cassettes." During the course of this conversation, one of the cassettes fell down from the bag and defendant, without further utterances, ran away. The officer took the tapes and marked it and placed it in the evidence room at the police station.

     Victim reported the incident to police station following day, September 16, 1989, identified the stolen tapes and advised the officer that the tapes were the exact ones stolen from his house. Victim was authorized to return the tapes. A complaint was filed thereafter charging defendant with the offense: Trespass and Larceny from Dwelling Place.

DISCUSSION

     Trespass: The charge in which defendant is acquitted requires the following elements: 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 as property..,.KC 13.412. In applying the standard of proof in order to sustain conviction, it is clear that government failed to establish its case on charge of Trespass as required under Rule 401 and 402 of Kosrae Rules of Evidence.

     However, on the alleged information on count two in this action, the Court, after considering the evidence, information and testimonies of the witnesses holds that there are sufficent evidence to convince the Court that the stolen items were in the possession of defendant during the night of September 15, 1989.


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     This Court does not believe the fact that defendant at anytime here relevant had occassion to meet George Cline nor victim to borrow their cassettes. During trial defendant decided not to take stand to offer his testimony for this Court to consider. The inferences drawn from the testimonies clearly convince me that the tapes found in the possession of defendant were indeed the stolen tapes owned by victim. The evidence established during the trial overwhelmingly supports the charge of Larceny from dwelling place, KC 13.407.

KC 13.407

     Kosrae code section 13.407 provides:

[L] arceny from a dwelling place is stealing, taking, or carrying away the personal property of another, without the consent of the owner of dwelling place as the owner of the personal property, and with the intent to convict the personal property to one's own use".


     The facts submitted before me truly convince me that the burglary occured on the date specified in this complaint. There were seventeen VHS tapes were stolen and carried away from the victim's house. The tapes were discovered on the same night in possession of defendant. No discussion took place between victim and defendant on the borrowing of the tapes.

     The stolen tapes have the initial "L.T" on them and not "G .C."; if they were George's tape and were borrowed by defendant there would likely be initials to indicate that they were George's tapes. If they were George Cline's tapes, surely they


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would reflect George's name and not victim's name.

ANALYSIS

     The fact that victim's property (cassettes) were stolen from his house was not disputed. Defendant Mixson argued that government failed to establish its case to warrant conviction on both charges; trespass and larceny from dwelling place.

     During trial, victim testified that on the following morning, September 16th, he reported the matter to Public Safety for investigation. On the same date, September 16, at the police station he identified the stolen items which bore his initials "L .T.". Durin direct and cross examination, victim testified that these were the stolen items. Officer Ittu on the stand, testified that the cassettes that were authenticated on the 16th of September are those that he brought to the station on the night of the incident. These were taken from defendant on the previous night and those were the items defendant claimed that he borrowed from George Cline.

     Authentication is a special aspect of relevancy and its purpose is to show that the offered evidence is truly what its proponent claims is to be, as in this case at bar; When Officer Ittu met defendant on the night of September 15th, he took seventeen cassettes from defendant which had the initial "L.T." and placed them in the evidence room with a tag attached to it. On the 16th of September, victim appeared at the police station and identified the stolen items with his initial written on the tapes. There can be no doubt that these are the items stolen from his house n the previous night. Defendant claims that the


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government failed to prove the exact time that the incident occurred. In the informations the time specified was 2:00 a.m. on September 15, officer's testimony's during cross-examination reflects that it was approximately 1:00 a.m. on the same night. The Court, although, considers the discrepancy in the exact time of the incident merely matter of minutes, having less probative value than the remainder of the evidence considered in this matter.


CONCLUSION

     Based upon the evidence submitted before me, I have concluded that defendant, on September 15, 1989 committed the crime of Larceny from dwelling place when defendant stole, took, and carried away the personal property of another; to wit, seventeen VHS cassettes tape without the knowledge and consent of victim. Such act warrants conviction as a violation of KC 13.407. Count one is ORDERED dismissed.


     ORDERED that sentencing should be imposed on December 20th, 1989 at 9:00 a.m.


     SO ORDERED this 20th day of December, 1989.

                                              /s/             
                                   Harry H.Skilling
                                   Chief Jusice

Entered this 10th day of January, 1989.


                                        /s/               
                              Chief Clerk of Court, Kosrae



                                                                                                                                                                                                                                                                                                           
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