KOSRAE STATE COURT
FEDERATED STATES OF MICRONESIA
Cite as Kosrae State v. Osteen,Palik,Nedlic. (Kosrae 1992)
 
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KOSRAE STATE
Plaintiff,

vs.

SAM OSTEEN,
BILLY PALIK ,
NEDLIC M. NEDLIC .
Defendants,

  CRIMINAL CASE NO. 46-92

JUDGMENT OF CONVICTION

     Defendant Nedlic Nedlic pleaded guilty to Obstructing Justice (KC Section 13.611) in return for the government to dismiss Assault and Battery (KC Section 13.303) and Assault (KC Section 13.302). Court accepted the plea agreement which was orally submitted on the trial date. Defendant Nedlic was found guilty on Obstructing Justice, and the Assault and Battery and Assault charges were dismissed. That leaves the other two named defendants to be tried.

     As with defendant Sam Osteen, he had all five charges against him went to trial and was acquitted from Driving Under the Influence for lack of evidence to establish proof beyond a reasonable doubt. Defendant Osteen with four charges against him and they are (1)  03 Violating Rules of the Road (KC Section 13.7(14), (2) Obstructing Justice (KC Section 13.611), (3) Assault and Battery (KC Section 13.303), and (4) Assault (KC Section 13.302).

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     Defendant Billy W. Palik was charged with all five charges as appeared in the Information. As the plaintiff rested his case-in-chief, defendant Palik moved for acquittal on all counts but was denied.

     Defendant Osteen had one witness, Elwel Palik, who took the stand whose testimony primarily focused on the charge of violating rules of the road, (KC Section 13.703(14)) and to attack the credibility of the plaintiff's witnesses as to overspeeding.

 Factual Background

On or about June 22, 1992 between 8:30 p.m. and 10:00 p.m in Lelu Municipality, there were two white cars with black stripes driven on the Lelu road at a high speed, and were pursuit by Chief of Police which resulted in obstructing justice, assault and assault and battery. All three defendants were arrested.

     Chief of Police heard of vehicles overspeeding in Lelu and he went out to investigate. As he was parked at an intersection by an orange /tangerine tree at Jerson Freddy's place there were two cars coming from the Lelu Municipal office going to the Church building. Prior to the coming of the two vehicles, the Chief of Police met Casey Freddy who related that he met them (defendants) before that night and he recognized the cars, white color with three black stripes and they were overspeeding. As the two cars coming from the Lelu Municipal building to the church building, Casey was with the Chief of Police at said intersection and he was about two feet from the road where he saw the drivers for the second time. He didn't see the passenger. But he recognized the two drivers because they were on the side to where he

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was. Two drivers identified were defendants Sam Osteen and Billy Palik.

     Chief of Police parked his car with his engine off opposite to the direction where the two cars were coming and he noticed that they (drivers) were coming too fast. The Chief turned around his car and followed the cars and as he observed his speedometer it was at 35 mph, over at Senator Phillips residence. Behind the two cars, the Chief observed that the visibility on the road was so bad because of dirt stirred by the two speeding cars.

     As the Chief continued to follow them he noticed the cars signaled to the causeway. The Chief overtook them and blocked the entrance to the causeway. Billy Palik's came first and Sam Osteen came second. The Chief could see them clearly because their cars were so close to Chief's car and because of the street light and the fight reflected on chief's car. When the defendants were blocked by the Chief of Police, they turned to Lelu side. Within few hundred feet from the causeway they (defendants) turned right to Kathleen William's place and were blocked by the Chief of Police on one driveway and another police officer who drove by and noticed the Chief was following and blocking the two cars, he then blocked the other driveway. The defendants were unable to exit.

     It was at this juncture that all three defendants were charged with assault, assault and battery, and obstructing justice along with violating rules of the road and driving under the influence.

     Chief of Police approached defendant Osteen to arrest him for violating rules of the road. First, as the Chief of Police was trying to

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arrest defendant Osteen, the other two defendants grabbed the Chief and the Chief let lose of defendant Osteen. Then as the Chief attempted again to subdue defendant Osteen, defendant Osteen grabbed the Chief's T-shirt and pulled his right hand or arm. After being subdued, defendant Osteen hit the Chief's nose and forehead twice with the back of his head. Defendant Osteen also kicked the Chief's right shoulder after he was arrested and put on the police vehicle.

     Defendant Billy Palik was arrested by two other officers for obstructing or interfering with the arrest of Sam Osteen when he and Nedlic first grabbed the Chief and for the second time Billy grabbed the Chief's t-shirt.

     The defendants had liquor in their cars. The Chief smelled alcoholic drinks on them and he also testified that they were aggressive, rowdy, and uttering profane language. Officer Joel testified that Billy Palik had heavy alcoholic smell on him. All defendants were assaulting the Chief of Police while he was arresting Sam Osteen.

     Defendant Sam Osteen put up a witness, Elwel Palik, who is the investigator for the FSM Public Defender's Office. He testified on the distance in which the alleged overspeeding occurred. Mr. Palik testified that he measured a tenth of a mile from Jerson Freddy's place to Senator Phillips residence.

DISCUSSIONS

     Discussions of each defendant will be discussed separately beginning with defendant Sam Osteen, and followed by Billy Palik and Nedlic Nedlic.

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     As to defendant Osteen, the charge of driving under the influence was dismissed at trial. And as to the charge of violating rules of the road (overspeeding) KC Section 13.703(14), one must be the driver of a vehicle, driving at a speed greater than twenty miles per hour in any area used primarily for either businesses or residences. It was the testimony of the chief of police that he clocked the speed of the driver Osteen at 35 mph. Defendant was challenging the speed noticed by the chief based on witness Elwel Palik's testimony. He further argued that it is impossible to reach 35 mph at a tenth of a mile at the distance from Freddy's place to Senator Phillips residence. Court rejected that argument because there was no evidence by the defendant to overcome the speed at such a distance., There was evidence, however, on the distance. Defendant Osteen is therefore found guilty of violating KC Section 13.703(14).

     Defendant Osteen was charged with obstructing justice (KC Section 13.611). Before one can be found guilty of obstructing justice, there must be interfering or resisting by the defendant with a police officer in the lawful pursuit of his duties ....Defendant Osteen had resisted the arrest and after the arrest when he grabbed the chief's Tshirt and pulled his right arm off. Defendant Osteen, after he was arrested, he hit the chief on his nose and forehead with the back of his head. Defendant Osteen after he was arrested and placed on the police vehicle, he again kicked the right shouldqf the chief. There is clearly overwhelming evidence to find the defendant guilty for there was resistance and interference by the defendant of the police chief as he was pursuing his duties on June 22, 1992.

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     As to the charge of assault and battery (KC Section 13.303), defendant Osteen laid his forehead and hands on the chief of police. One is found guilty of assault and battery, if there is striking, beating, wounding, or otherwise doing bodily harm to another. There is clearly evidence to find the defendant guilty as charged.

     As to the charge of Assault (KC 13.302) one is guilty if there is offering or attempting, with force or violence to strike, beat, or wound, or to do bodily harm to another. Defendant Osteen grabbed the chief's shirt, hit him on his nose and forehead, grabbed his right arm and later kicked his shoulder. These clearly are acts of force and violence on another namely the chief of police while pursuing his duties. Defendant Osteen is found guilty as charged.

     Defendant Billy W. Palik was charged with all five counts, namely: Violating rules of the road, driving under the influence, obstructing justice, assault and battery, and assault.

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     Testimonies adduced at trial that defendant Palik was driving along with others at a speed greater than 20 mph in the residential area in Lelu on June 22, 1992. The pertinent law (KC Section 13.703(14) prohibits driving at a speed greater than 20 mph in any area use primarily for business or residences. Defendant Palik was at the residence area in Lelu specifically from Jerson Freddy's residence to Senator Phillips residence. The chief of police clocked defendant Palik at 35 mph. This is clearly in violation of the law.
As to the charge of driving under the influence, defendant Palik at his arrest, officer Joel smelled heavy liquor odor on him. Budweiser beer cans were found in defendant's car. Defendant Palik was driving at

a speed (35mph) greater than the law imposed. Defendant Palik was rowdy, aggressive, and uttering profane language in addition to resisting fought back with the arrest by the chief of police. There was influence and possession of alcoholic drinks and defendant Palik was identified. as the driver of one white car with black three stripes on it. Defendant Palik is guilty as charged.

     On the obstructing justice, evidence at trial showed that defendant Palik interfered with the arrest of defendant Osteen when the chief of police was arresting defendant Osteen. First defendant Palik, along with defendant Nedlic, grabbed the chief of police as he was arresting defendant Osteen. The second time around defendant Palik grabbed the chief's t-shirt. All these acts carried out by the defendants while the arrest of defendant Osteen was in progress. See Kosrae State v. Osteen. Defendant Palik is guilty as charged.
As to the charge of assault and battery, defendant Palik in accordance with the testimony, laid his hands on the chief when he grabbed the chief to interfere with the arrest and again grabbed the chief's t-shirt. These acts were not carried out in a friendly or playful manner, however, it was apparent that these acts were intentional in order to free his friend, defendant Osteen, from being arrested. One is guilty of assault and battery if there is striking, beating, wounding, or otherwise doing bodily harm to another. Evidence point to conviction due to the acts of defendant Palik.

     Defendant Palik was also charged with assault as alleged to take f\ place on June 22, 1992 in Lelu. In order for one to be convicted of assault, there must be offer or attempt, with force of violence, to

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strike, beat, wound, or to do bodily harm to another. At trial, there was showing of evidence that defendant Palik approached the chief of police on more than one attempt with force to strike the chief as the chief was arresting defendant Osteen. Defendant Palik's acts were not nonviolent or by words alone but he attempted with force when he laid his hands on the chief when he grabbed the chief. These acts by defendant Palik constitute assault.

     Defendant Nedlic M. Nedlic on trial date pleaded guilty to obstructing justice in return for the dismissal of the assault, and assault and battery. Court accepted the guilty plea of obstructing justice and dismissed the assault, and assault and battery.

 CONCLUSION

     Based on the foregoing, defendant Osteen is guilty on all four counts and is acquitted on driving under the influence. Defendant Palik is guilty on all five counts, while defendant Nedlic is guilty on obstructing justice and the two other charges against him are dismissed.

     So ORDERED the 27th day of November, 1992.

/s/
Lyndon L. Cornelius
Chief Justice

Entered this 30th day of November, 1992.

/s/
Chief Clerk of Court, Kosrae



                                                                                                                                                                                                                                                                                                           
ained, and for not more than 30 days thereafter. Notice of each such commitment for observation shall be sent by the court making the commitment to the Director of the Department of Health Services by the quickest means practicable. Source: TTC 331 (1966), 63 TTC 403 (1970); 63 TTC 403 (1980) 7-104. Transfers. ( Any person committed under this chapter may be transferred to any institution deemed suitable for his care by order of the Director of the Department of Health Services. Source: TTC 332 (1966); 63 TTC 404 (1970); 63 TTC 404 (1980) 7-105. Release. ( (1) By the court. The husband, wife, parent or child, or any of the next of kin, as determined by local custom, of any person committed for observation or as insane under this chapter, may petition, at any time, the Trial Division of the Pohnpei Supreme Court requesting that the commitment be terminated or the patient paroled, and the court, after notice to the Department of Health Services and to the person in charge of the hospital or other place where the patient is detained, and after public hearing, may make such order for the release of the patient or his parole under limited supervision or under specified conditions, if any, as it deems appropriate. (2) By medical authorities. The doctor in charge of any hospital for the insane in the state of Pohnpei may discharge or parole, on such conditions as he deems best, any patient, except one held on order of a court having criminal jurisdiction in a proceeding arising out of a criminal offense, as follows: (a) Upon filing with the Clerk of the Pohnpei Supreme Court a written certificate by the doctor in charge that such patient is considered to be recovered, and airmailing a copy of this certificate, postage prepaid, to the clerk of the highest court of the state from which the patient was committed, if he was committed in another state; (b) Upon filing with the Clerk of the Pohnpei Supreme Court a written certificate by the doctor in charge that such patient, while not recovered, is considered in remission and is not deemed dangerous to himself or others and is not likely to become a public charge, and airmailing a copy of this certificate, postage prepaid, to the clerk of the highest court of the state from which the patient was committed, if he was committed in another state; or (c) Upon transfer of such patient to an institution for care of mental cases outside of the state of Pohnpei. (3) Temporary leave of absence. The doctor in charge of any hospital for the insane in the state of Pohnpei may permit leave of absence for a stated period to any of his hospital patients, under conditions that are satisfactory to the doctor, when in his judgment absence on leave will not be detrimental to the public welfare and will be of benefit to such patient. The doctor in charge of the hospital for the insane from which a patient is absent on leave may, even before the period stated in the leave has expired, terminate the leave and authorize and direct the physical return of such patient to the hospital whene