Cite as Machuo v. FSM, 6 FSM Intrm. 40 (App. 1993)

[6 FSM Intrm. 40]






Argued:  February 2, 1993
Decided: April 13, 1993

     Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court
     Hon. Martin Yinug, Associate Justice, FSM Supreme Court
     Hon. Keske Marar, Temporary Justice, FSM Supreme Court*

     *Associate Justice, Chuuk State Supreme Court, Weno, Chuuk

For the Appellant:     Robert Diemer (argued)
                                    Office of the Public Defender
                                    P.O. Box 245
                                    Tofol, Kosrae  96944

                                    Shirley Paiz (brief)
                                    Office of the Public Defender
                                    Kolonia, Pohnpei  96941
For the Appellee:      Douglas Juergens (argued)
                                    Chief of Litigation
                                     Office of the FSM Attorney General
                                    P.O. Box PS-105
                                    Palikir, Pohnpei FM  96941

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Criminal Law and Procedure ) Aggravated Assault
     A person is guilty of acting recklessly with extreme indifference to the value of human life under the aggravated assault statute, 11 F.S.M.C. 916, if he voluntarily creates conditions or acts
[6 FSM Intrm. 41]
in such manner that a reasonable person would deem likely to result in serious injury to another. Machuo v. FSM, 6 FSM Intrm. 40, 43 (App. 1993).

Criminal Law and Procedure ) Aggravated Assault
     A defendant who holds a knife in his hands, engages in a fight while extremely drunk and knowing that at least one other person is in the immediate vicinity, and who strikes another with the knife causing serious physical harm is guilty of aggravated assault.  Machuo v. FSM, 6 FSM Intrm. 40, 44 (App. 1993).

Criminal and Procedure ) Intoxication
     Voluntary intoxication does not excuse a defendant from awareness of the risk of causing serious bodily injury to another through recklessly dangerous behavior.  Machuo v. FSM, 6 FSM Intrm. 40, 44 (App. 1993).

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MARTIN YINUG, Associate Justice:
     Appellant Teichy Machuo appeals his conviction for the crime of aggravated assault under 11 F.S.M.C. 916 on two grounds.  Appellant contends the trial court applied the incorrect legal standard in interpreting the statute, and relied on insufficient evidence to support its ruling.

     We conclude that the trial court correctly interpreted and applied the aggravated assault statute to the circumstances of this case.  We find also ample evidence to support the trial court's findings and conclusion of guilt.

     The following is a summary of uncontested facts of the case presented at trial.

     Teichy Machuo attended a party on New Year's Eve, 1989 with Ricky Sam, his brother-in-law.  Machuo and others drank a considerable amount of alcohol while sitting in a dark area some distance from a meeting hall, talking and eating dog meat.  Machuo held a knife with a four to six inch blade, which he used to carve up the dog meat.  While intoxicated and still clenching the knife in his hands, Machuo got into a fight with one Solomon Stephen.  During the fight Ricky Sam approached Machuo from behind.  Machuo struck Sam with the knife as he swung his arm around in Sam's direction.  Sam was rushed to the hospital and was treated for severe internal injuries.  He remained in Chuuk Hospital for several months, and required further medical treatment in Hawaii.

     The trial court found that Machuo had caused serious bodily injury to Ricky Sam through actions evincing recklessness with extreme indifference to the value of human life, and returned a conviction for aggravated assault.

     This case requires us to interpret for the first time the statutory clause, "recklessly under circumstances showing extreme indifference to the value of human life."  11 F.S.M.C. 916 [hereinafter referred to as "extreme indifference recklessness"].  The National Criminal Code
[6 FSM Intrm. 42]
defines only "recklessness."1   We find this definition unhelpful as applied to the aggravated assault statute for the reason that the term "recklessly" in 11 F.S.M.C. 916 stands not in isolation but is modified by the extreme indifference clause.  Had the drafters intended 11 F.S.M.C. 104(9) to apply to section 916, there would be no need for the additional clause.

     Legislative history offers no clarification of the clause, and we have not found any customary equivalent of extreme indifference recklessness to offer guidance by analogy.  Therefore we are left with reference to sources of law from other jurisdictions for interpretative insight.  It is particularly appropriate to refer to the Model Penal Code of the American Law Institute in this regard since the FSM statute in question matches almost verbatim the Model Penal Code provision on aggravated assault. 2

     Appellant alleges that the trial court applied the wrong standard of recklessness in that a mental state equivalent to intent to harm is required under 11 F.S.M.C. 916. He relies on testimony before the trial court showing that he was extremely intoxicated before the incident; was related to and on good terms with the victim; and took immediate steps to assist the victim after the stabbing.  These facts, according to appellants, negate any inference that he intended to harm the victim. The trial court agreed with this assessment, but stated that Machuo's conviction was not based on intent (Trial Transcript 209:23-25; 210:1).

     We agree with the trial court that extreme indifference recklessness does not require intent to inflict serious bodily injury either in general or against a particular individual.  Under norms of statutory construction words of a statute are presumed to have a purpose and not exist as mere surplusage.  If the clause "recklessly under circumstances showing extreme indifference to the value of human life" was indistinguishable in meaning from intent to cause harm, the statutory provision would be needlessly repetitive.  Common sense dictates that we interpret extreme indifference recklessness to mean something other than intent.

     At the same time we agree with appellant's argument that extreme indifference recklessness implies a higher standard than ordinary recklessness, for the reason stated earlier regarding the definition of recklessness at 11 F.S.M.C. 104(9).  The commentary notes to the Model Penal Code suggest that "inadvertent risk creation" can never rise to the level of extreme indifference recklessness.  1 Model Penal Code and Commentaries, Part II, 210.2, at 27 (ALI 1980).3   We are thus faced with a question of degree, and must interpret extreme indifference recklessness as meaning more than mere recklessness or criminal negligence but less than clear intent or criminal design.

[6 FSM Intrm. 43]

     The common law has furnished some examples of extreme indifference recklessness, sometimes formulated as conduct evincing a "depraved heart" or creating conditions of "imminent danger."  Id. at 22.  The classic examples include shooting a loaded gun into a crowd of people or into a house or into a moving car, and playing Russian roulette.  Id.  Other examples have included throwing a heavy object at someone carrying a lit oil lamp, Mayes v. People, 106 Ill. 306, 46 Am. Rep. 698 (1883); driving an automobile on a heavily traveled road while extremely intoxicated, Edwards v. State, 304 S.W.2d 500 (Tenn. 1957); and setting fire to a couch in an abandoned building, People v. Arzan, 401 N.Y.S.2d 156 (1978).

     These and other examples are instructive in attempting to draw the distinction between ordinary recklessness and extreme indifference recklessness.  The court in the arson case, People v. Arzan, in which a fireman responding to the blaze sustained injuries and died, reasoned that the defendant's conduct "need not be the sole and exclusive factor in a victim's death, but that an individual is criminally liable if his conduct is a sufficiently direct cause of the death, and if the ultimate harm is something which he should have foreseen as being reasonably related to his acts." Dale R. Agthe, Annotation, Validity and Construction of Statute Defining Homicide by Conduct Manifesting "Depraved Indifference", 25 A.L.R.4th 311, 330 (1983). The court in State v. Crocker, 435 A.2d 58 (Me. 1981), defined depraved indifference homicide as when "the accused must have consciously engaged in conduct that he should have known would create a very high degree of risk of death or serious bodily injury and it must also under the circumstances have been unjustifiable for him to take the risk."  Agthe, 25 A.L.R.4th at 328.

     Case law and the Model Penal Code suggest that the emphasis of statutory provisions including extreme or depraved indifference recklessness is "not upon the state of the defendant's mind, but upon the circumstances of the conduct."  Id. at 326.  The type of conduct that evinces extreme indifference recklessness must be shown from the totality of the circumstances and actions of the accused.  It can be inferred from:

                 an act that is not merely negligent, but so reckless or wanton as to show
            an utter disregard of the safety of others, [and as such] render the defendant
            liable for aggravated assault, although he had no intent to inflict an injury.

6 Am. Jur. 2d Assault and Battery 48, at 47 (1963).

     As stated previously we have had to turn to outside sources construing similar statutory language in the absence of specific guidance from the FSM Constitution, legislative history, case law or custom and tradition.  On the basis of the sources and examples discussed herein, we conclude that a defendant is guilty of extreme indifference recklessness under the aggravated assault statute when he or she voluntarily creates conditions or engages in behavior that a reasonable person would consider likely to result in serious injury to another.

     We must apply the statutory interpretation we have enunciated to the facts of this case, mindful of the proper standard of review on appeal regarding sufficiency of evidence supporting a criminal conviction.  See Engichy v. FSM, 1 FSM Intrm. 532, 545-46 (App. 1984).  We find the record adequately supports a conclusion of extreme indifference recklessness.  The trial court's factual findings (Trial Transcript 203:1-10) were that Machuo knew the victim, Ricky Sam, was nearby and knew his approximate location.  He had a knife with a blade several inches in length in his hands, and he was moving this knife in some fashion in balled fists in front of him while fighting
[6 FSM Intrm. 44]
with a third party.  While the record reflects contradictory testimony concerning details of Machuo's exact actions with the knife, our own independent review of the record reveals no basis on which to find error in the trial court's findings.

     We deem these findings to support beyond a reasonable doubt the trial court's conclusion that under the circumstances as shown by the evidence, Machuo did act recklessly without regard to the safety of others in that he knew or should have known his actions carried a significant risk of serious injury to those around him. Brandishing a knife in a fight with the knowledge that others are within striking distance should alert the person of average sensibilities that someone is liable to get hurt; disregarding this risk evinces a callous indifference to the well-being of others.

     Although not specifically raised as a defense, we feel it necessary to address the suggested role of voluntary intoxication in this case.  At trial appellant vigorously denied any intent to use the knife on anyone, any recollection while fighting with Solomon that he still held the knife, and any awareness of stabbing the victim until he (Sam) cried out in pain.  The only logical explanation for appellant's alleged unawareness of all these circumstances is his state of extreme inebriation at the time.  An implied threshold question is whether appellant was not aware of the risk his actions created because of his intoxication, and consequently not criminally culpable since he would be incapable of disregarding something of which he had no knowledge.

     The answer to this from case and statutory law is clearly no.  It is well settled that voluntary intoxication does not negate risk awareness to defeat a charge of recklessness:

           If the crime charged requires recklessness, intoxication is ordinarily not a
           defense.  The intoxication may be so extreme as to prevent defendant from
           being aware of the pertinent risk.  Nevertheless, it is commonly provided that
           if the defendant, as a result of voluntary intoxication, is unaware of a risk of
           which he would have been aware had he been sober, such unawareness is
2 Wharton's Criminal Law 108 (14th ed. 1979) (citations omitted).  FSM statutory law itself makes the same point:  "When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial."  11 F.S.M.C. 306(3).  See also Model Penal Code and Commentaries, Part I, 2.08, at 349 (ALI 1980).

     There are several policy reasons commending this stance.  Exonerating criminal culpability every time a perpetrator was drunk and unaware of his actions or the consequences would provide an easy escape from the criminal laws of this nation. Our courts would have a difficult, nigh impossible task to determine in each such case the actual state of intoxication of the accused and the extent to which his perceptions were dulled at the time of the acts at issue.  Most importantly, allowing voluntary intoxication to stand in the place of unawareness of the risks of one's conduct would send a dangerous signal to potential offenders, with the likely result being an escalation of alcohol-induced crime in the Federated States of Micronesia.

     For all of the above reasons, we affirm the decision of the trial court and the appeal is dismissed.

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1.  11 F.S.M.C. 104(9) states that recklessness "means to act with willful disregard to the attendant circumstances, or if unaware of the circumstances, to act in such a manner that constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation."
2.  The only difference between the two is that the Model Penal Code provision, section 211.1(2)(a), uses the word "purposely" instead of "intentionally."  This distinction is immaterial for purposes of our analysis in this case.
3.  The Model Penal Code's discussion of extreme indifference recklessness comes under the section defining murder; the aggravated assault provision, section 211, refers to this section for interpreting the same phrase.