Cite as Alfons v. FSM,
5 FSM Intrm. 402 (App. 1992)

[5 FSM Intrm. 402]




FSM App. No. P5-1991
(from Crim. Case No. 1990-512)


Oral Argument:  waived
Decided:  December 9, 1992

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

For the Appellant:     Shirley Paiz, Esq.
                                    FSM Public Defender
                                    Pohnpei State
                                    Kolonia, Pohnpei  96941

For the Appellee:      Matthew Phelan, Esq.
                                    Assistant Attorney General
                                    Pohnpei State
                                     Kolonia, Pohnpei  96941

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[5 FSM Intrm. 403]

Constitutional Law - Judicial Guidance Clause
     Article XI, section 11 of the FSM Constitution mandates that the Court look first to Micronesian sources of law - which includes the FSM Code and rules of the Court - in reaching decisions.  Alfons v. FSM, 5 FSM Intrm. 402, 404-05 (App. 1992).

Appeal and Certiorari
     An issue not raised at trial cannot be introduced for the first time on appeal.  Alfons v. FSM, 5 FSM Intrm. 402, 404 (App. 1992).

Appeal and Certiorari - Standard of Review
     The proper standard of appellate review for a criminal conviction challenged for insufficiency of evidence is whether the appellate panel, in considering the evidence in the light most favorable to the trial court's findings of fact, determines that a reasonable trier of fact could be convinced of the defendant's guilt beyond a reasonable doubt.  Alfons v. FSM, 5 FSM Intrm. 402, 405 (App. 1992).

Civil Procedure - Service
     The acts of hand-delivering a subpoena to a deponent, reading its relevant portions in English and translating it into Pohnpeian, informing the deponent of the date, time and location of his appearance, and stating that the order was signed by the Court satisfy the requirement of Rule 45(c) of the FSM Rules of Civil Procedure that reasonable attempts be made to explain the subpoena to the person served.  Alfons v. FSM, 5 FSM Intrm. 402, 405 (App. 1992).

     Criminal contempt under the FSM Code results from intentional disregard of a court order; the fact that defendant was not specifically informed that he would be subject to punishment for disobedience does not negate a finding of requisite intent.  Alfons v. FSM, 5 FSM Intrm. 402, 406 (App. 1992).
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MARTIN YINUG, Associate Justice:

     The defendant appeals his conviction for criminal contempt on the grounds that there was insufficient evidence in the record to sustain a finding of guilty beyond a reasonable doubt.  Defendant also claims that the trial court misapplied or failed to apply relevant law, and that the court violated defendant's constitutional rights by ignoring the judicial guidance clause in rendering its decision.  Applying the appropriate standard of review to this case we find none of the appellant's charges persuasive and thus affirm the judgment of conviction.

[5 FSM Intrm. 404]

I.  Factual Background
     Appellant Benito Alfons was served with a subpoena on September 18, 1991 to appear for a deposition on September 20, 1991. (Trial Transcript, hereinafter "TT", 45:20-46:1-2.)  The process server testified that he "read the document in English and tried to translate it into Pohnpeian."  (TT 46:6-7.)  He told Mr. Alfons the document was "signed by the Supreme Court," and that Mr. Alfons was to go to the process server's law firm.  (TT 46:12-14.)  Mr. Alfons refused to accept the subpoena and handed it back to the process server, stating that he did not wish to "get involved in the deposition or Court" because he was related to the plaintiff in the underlying civil suit.  (TT 48:8-9, 51:12-15.)  The process server then tried to return the document to Mr. Alfons, and left it on the floor in front of him when he would not take it back.  (TT 51:19-52:6.)

     Mr. Alfons did not appear for the deposition two days later.  He was charged with criminal contempt of court and found guilty of intentionally disobeying the subpoena to appear for the September 20th deposition.

II.  Legal Analysis
     The main issues on appeal are whether there was sufficient evidence to support Mr. Alfons' contempt conviction, whether the trial court erred in its application or failure to apply relevant law, and whether the Court violated Mr. Alfons' constitutional rights by allegedly ignoring the judicial guidance clause of the FSM Constitution.  We will consider these issues in reverse order.

A.  Judicial Guidance Clause
     Appellant's argument concerning his constitutional rights is that the trial court failed to assess whether he acted as a "reasonably intelligent Micronesian" would act in not responding to the deposition subpoena.  The trial court was bound to make this determination, according to appellant, by the Judicial Guidance Clause of section 11, article XI of the Constitution.

     Appellant's argument fails for two simple reasons.  First, as the government notes, Mr. Alfons did not raise any constitutional rights claim at trial when he had the proper opportunity to do so.  If the appellant wished to argue that an average Micronesian would not have understood or attached the same importance to a court document as an average American and that the Court should take this into account, he should have brought customary evidence on this point to the attention of the Court at trial or asked for specific findings from the Court pursuant to FSM Crim. R. 23.  An issue not raised at trial cannot be introduced for the first time on appeal.  Jonah v. FSM, 5 FSM Intrm. 308, 312, 313 (App. 1992); Loney v. FSM, 3 FSM Intrm. 151, 154 (App. 1987).

     Second, appellant misjudges application of the Judicial Guidance Clause. Article XI, 11 of the Constitution mandates that the Court look

[5 FSM Intrm. 405]

first to Micronesian sources of law in reaching decisions.  This is precisely what the trial court did in applying FSM law, namely the criminal contempt statute of the FSM Code and FSM Rules of Civil Procedure, to the facts of the case. Furthermore, even without having the issue raised before it at trial, the lower court took into consideration appellant's reluctance based on customary reasons for becoming involved in court affairs in its imposition of penalty.

B.  Applicable Law
    There are two specific legal provisions that govern this case.  One is the criminal contempt statute, 4 F.S.M.C. 119(1), which defines contempt of court as "any intentional disobedience or resistance to the Court's lawful writ, process, order, rule, decree, or command."  The other is FSM Civ. R. 45(c), which states in regard to serving subpoenas that "[r]easonable attempts shall be made to explain the meaning of the subpoena and what the person is required to do."

    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." Kimoul v. FSM, 5 FSM Intrm. 53, 55 (App. 1991) (citing Engichy v. FSM, 1 FSM Intrm. 532, 546 (App. 1984)).  In addition, the appellate court must "review the evidence in the light most favorable to the trial court's factual determination."  Id. at 55.

C.  Service of Process
    Appellant argues that he was not properly served because no one explained the meaning of the subpoena and what he was to do pursuant to FSM Civ. R. 45(c), and therefore he could not be guilty of intentionally disobeying a court order under 4 F.S.M.C. 119(1) since he didn't know he was receiving a court order.  A preliminary question is thus, was the service of the subpoena in this case sufficient to put the appellant on notice as to its content and import?

    To comply with Rule 45(c), only "reasonable attempts" to explain the subpoena need be made; it is not a part of the rule that every possible manner of presentation be attempted.  The trial testimony showed that the process server hand-delivered the subpoena to Mr. Alfons, read the relevant portions of it in English and translated it into Pohnpeian, told him it was signed by the Supreme Court, and that he was to appear at a law office on a certain day and time to answer questions.  Surely these actions qualify as "reasonable attempts" under the rule.  All were conducted toward impressing upon the appellant exactly what he was required to do, when, and by whom.

D.  Intentional Disobedience
    We note that the definition of the word "intentional" in the FSM Code is

[5 FSM Intrm. 406]

consistent with the ordinary meaning of the word, i.e. "done by intention or design...a determination to act in a certain way."  In re Tarpley, 3 FSM Intrm. 145, 149 (App. 1987).  Logically, it follows that one cannot intentionally disobey a command unless one understands that there is a command and a choice of action whether to comply or not.

    Appellant contends that because he was not told specifically that he would be punished by the court for failure to obey the subpoena, he could not be guilty of willfully violating a court order.  The plain meaning of the criminal contempt statute indicates that when a person is presented with a court "writ, process, order, rule, decree or command" and knows it to be such, a refusal to comply with the court document constitutes "intentional disobedience" punishable as contempt.  It is not part of the statute, nor of Rule 45(c) regarding service of process, that the perpetrator understand that he will be subject to sanctions for his disobedience.

    Reviewing the facts in the light most favorable to the trial court's findings, we conclude that there is sufficient evidence for a reasonable trier of fact to find beyond a reasonable doubt that the appellant knew he was being served with a court order on September 18, 1991 and understood he was commanded to appear.  The trial court determined that Benito Alfons received instructions in Pohnpeian and English as to the language of the subpoena and that it was signed by the court; that Mr. Alfons was told it was important for him to attend the deposition, and that he could infer the document was significant from the fact that the process server went to considerable lengths to deliver it to him.  Moreover, by his own admission appellant did not wish to appear for the deposition.  He attempted to repel service by handing back the subpoena to the process server after hearing what it contained.  Whether or not he understood he would be liable for criminal contempt for ignoring the subpoena is immaterial.

III.  Conclusion
    The trial court could properly conclude on the evidence presented that "reasonable attempts" to explain the nature and substance of the subpoena were made so as to satisfy Rule 45(c), and that as a result of these attempts Mr. Alfons knew he was under a court order and yet willfully disobeyed it, in violation of 4 F.S.M.C. 119(1). Accordingly, the judgment of conviction is affirmed.

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