SLIP OPINIONS
 
OF THE
 
APPELLATE DIVISION
 
OF THE
 
HIGH COURT OF AMERICAN SAMOA
 
(2013)

MICHAEL AGASIVA,
Appellant,
 
v.
 
AMERICAN SAMOA GOVERNMENT,
Appellee.
 
High Court of American Samoa
Appellate Division
 
AP No. 06-12

July 11, 2013
 
 [1] A constitutional error is harmless when it looks beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.  Where the error is non-constitutional, it is harmless unless it is more probable than not that it did not materially affect the verdict.   
 
[2] A trial court‘s choice between two permissible views of the weight of evidence is not clearly erroneous where the evidence would support a conclusion either way.  The question that must be determined is whether the trial court‘s findings of fact were illogical, implausible, or lack support in the record.   
 
[3] A dangerous instrument is any instrument, article, or substance, which under the circumstances in which it is used, is readily capable of causing death or serious physical injury.   
 
[4] A serious physical injury is defined as a physical injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.   
 
[5] Whether an instrument is a "dangerous instrument" within the meaning of the statute does not require that the actor concurrently intend to cause actual serious physical injury while wielding the instrument.   
 
[6] Striking an individual with an 18-inch blade, which is designed to cut through wood or tough vegetation can potentially cause serious bodily injury or death.   
 
[7] It is well-established that in a bench trial, a trial judge, as the trier of fact, will disregard any inadmissible evidence and improper argument. 

[8] The U.S. Supreme Court two-prong standard that a petitioner must show in order to prevail on a claim for ineffective assistance of counsel is: (1) the defendant must show that counsel‘s performance was deficient; (2) the defendant must show that the deficient performance prejudiced the defense. 
 
[9] Under prong one of the test for ineffective assistance of counsel, the court must take into account the "strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance. 
 
[10] It is well-settled that a party may not raise an issue for the first time in a motion for new trial that could have been properly raised at trial.   
 
[11] In criminal cases, a motion for new trial shall be filed within 10 days after the announcement of judgment or sentence.  Thus, errors of law not raised within 10 days of judgment or sentence are waived, at least insofar as they concern the right to appeal.   
 
[12] The statute of limitations is not a jurisdictional prerequisite; but rather, it is an affirmative defense and the failure to assert the statute before or at trial will constitute a waiver.   
 
Before KRUSE, Chief Justice; PATEA, Acting Associate Justice; SU‘APAIA, Associate Judge; and SATELE, Associate Judge.
 
Counsel:   For Appellant, Sharron I. Rancourt 
  For Appellee, Camille Philippe, Assistant Attorney General 
 
PATEA, Acting Associate Justice: 
 
OPINION AND ORDER
 
Background
 
On September 29, 2009, Sea Seafa, also known as "Lomi" ("Seafa"), Amuia Foma‘i ("Foma‘I"), and Pakalike Mate ("Pakalike"), got together to drink beer under a tree in the village of Amaluia.  Appellant Michael Agasiva ("Appellant") joined the group of men and later directed Pakalike to retrieve fish from his house, which he intended to cook for the group.  Appellant instructed Foma‘i to retrieve a cooking pot from his house.  Appellant and Seafa were then alone.  Seafa was sitting [**2**] on a large rock facing the ocean while Appellant was standing to Seafa‘s right side.  The trial court found that Appellant struck Seafa‘s bare chest several times with the flat side of the approximately 18-inch blade of a machete, leaving bloodied marks.  The court also found that Appellant then punched Seafa in the face several times and knocked him unconscious.  The attack was stopped when Foma‘i and Pakalike returned and intervened.   
 
On September 30, 2010, a criminal complaint was filed against Appellant for Assault in the Second Degree, in violation of A.S.C.A. § 46.3521(a)(1), and Public Peace Disturbance, in violation of A.S.C.A. § 46.4501.  A bench trial was held on September 6 and 7, 2011, where Appellant testified that he punched Seafa three times, but denied hitting Seafa with a machete.  On September 15, 2011, the trial court entered a guilty verdict against Appellant for committing the crimes of Assault in the Second Degree and Public Peace Disturbance. 
 
After Appellant was sentenced on December 6, 2011, he timely filed a Motion for Reconsideration or New Trial.  At the hearing on the Motion on January 6, 2012, Appellant was represented by appellate counsel.  Appellant argued that (1) there was insufficient evidence to convict Appellant, and the court erred in determining that the machete was used in a manner that rendered it a "dangerous instrument"; (2) the prosecutor [**3**] made improper comments during closing argument that amounted to burden shifting; (3) the court abused its discretion by imposing upon Appellant an excessive sentence under the circumstances; (4) counsel was ineffective because critical witnesses were not subpoenaed for trial; and (5) cumulative errors during trial resulted in a prejudicial and fundamentally unfair trial. 
 
On April 4, 2012, the trial court issued an Order denying Appellant‘s Motion for Reconsideration or New Trial.  The court determined that (1) a machete is a dangerous instrument when a person uses it to strike another individual, whether or not the broad side of the machete is used; (2) the prosecutor‘s comments may have been improper, however, the court did not impose any burden upon the Appellant to prove that a third-party committed the crime; (3) Appellant‘s sentence was not excessive based on the charges that were brought against him and his criminal history; (4) Appellant‘s trial counsel adequately defended him at trial; and (5) Appellant failed to list any errors that rendered his trial prejudicial or fundamentally unfair.  This appeal followed.    
 
Standard of Review

[1] "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."  T.C.R.Cr.P. 52(a).  "This rule preserves convictions from being set aside for small errors or defects, which have little chance, if any, [**4**] in changing the result of the trial."  Samatua v. Am. Samoa Gov’t, AP No. 06-10 and 15-10, slip op. (App. Div. Sept. 21, 2012) (citing Chapman v. California, 386 U.S. 18, 22 (1967)).  There may be constitutional errors that are so minor and insignificant that they may be deemed harmless, not requiring automatic reversal of the conviction.  Chapman, 386 U.S. at 22.  When it looks "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained," the constitutional error is harmless.  Id. at 23-24.  Where the error is non-constitutional, the error is deemed harmless unless "it is more probable than not that the error did not materially affect the verdict."  United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002). 
 
Discussion
 
On appeal, Appellant argues that (1) there was insufficient evidence that he hit the victim with a machete, and that the machete was used in a manner that rendered it a dangerous instrument; (2) the prosecutor made improper comments that amounted to burden shifting; (3) trial counsel was ineffective for failing to request a continuance, and failing to cross examine the government‘s witnesses concerning the defense theory; (4) the court lacked jurisdiction over the Public Peace Disturbance ("PPD") charge because the prosecution on PPD was [**5**] commenced beyond the applicable limitations period; and (5) cumulative errors rendered Appellant‘s trial unfair. 
 
I. Sufficiency of the Evidence 

A. Assault in the Second Degree 

Appellant argues that the testimonies of the government witnesses were inconsistent, that one other witness‘s testimony supported Appellant‘s version of events, and that there was no corroboration that the marks on the victim‘s chest were from a machete.  Appellant essentially urges this Court to reweigh the evidence, with the balance of credibility in favor of the Appellant and one other witness. 
 
[2] It is well-settled that the weight of the evidence and the credibility of witnesses is a determination primarily for the trier of fact because the trier of fact is in the best position to observe the character and demeanor of each witness‘s testimony.  Chatman v. Warden, Ross Corr. Inst., 2013 U.S. Dist. LEXIS 42425, *14-16 (S.D.Oh. 2013); People v. Koch, 248 Ill.App.3d 584, 592, (Ill. App. Ct. 1993) ("In a bench trial, the court has the responsibility of weighing the credibility of the witnesses.").  Furthermore, "[f]indings of fact may not be set aside by the appellate division unless clearly erroneous."  A.S.C.A. § 46.2403(b).  Notably, a "trial court‘s choice between two permissible views of the weight of evidence is not clearly erroneous where the evidence would support a conclusion either [**6**] way."  United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009).  Thus, the question that must be determined is whether the trial court‘s findings of fact were illogical, implausible, or lack support in the record.  Id. at 1264.   
 
Here, despite some inconsistencies with the witness testimonies, the trial court believed them and not Appellant.  In addition, photographs of Seafa‘s injuries were introduced into evidence and the trial court was able to observe the nature of the injuries depicted.  We have reviewed the entire record, and we hold that the record amply supports the trial court‘s findings.  Accordingly, such findings were not clearly erroneous. 
 
B. Dangerous Instrument 

Furthermore, Appellant argues that there was insufficient evidence that the machete was used in a manner that rendered it a dangerous instrument.  Appellant argues that the individual who used the machete, used it in a manner deliberately intended not to cause serious physical injury.   
 
[3]-[5] Under A.S.C.A. § 46.3111(7), a dangerous instrument is "any instrument, article, or substance, which under the circumstances in which it is used, is readily capable of causing death or serious physical injury."  A serious physical injury is defined as a "physical injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted [**7**] loss or impairment of the function of any bodily member or organ."  A.S.C.A. § 46.3111(24).  Therefore, the determination of whether an instrument is a "dangerous instrument" within the meaning of the statute does not require that the actor concurrently intend to cause actual serious physical injury while wielding the instrument.  Rather, the proper inquiry is whether, under the circumstances in which the machete was used (hitting the victim across the chest), the machete was readily capable of causing death or serious bodily injury. 
 
[6] Here, Appellant struck Seafa across his chest with the broad side of a machete.  Striking an individual with an 18-inch blade, which is designed to cut through wood or tough vegetation—whether it is old, new, sharp, or dull—can potentially cause serious bodily injury. 

Although Appellant used the broad side of the machete to whack Seafa across his bare chest, a slight turn of the wrist or a sudden jolt in movement by either the Appellant or Seafa could have caused the blade of the machete to deeply puncture Seafa‘s body, including vital organs, resulting in grave injuries.  After a review of the record, we hold that the trial court did not err in finding that under the circumstances that the machete was used, it was readily capable of causing death or serious physical injury. [**8**] 
 
II. Prosecutor’s Comments 

Appellant asserts that the prosecutor improperly commented during closing argument upon Appellant‘s failure to call a witness to testify, which thereby impermissibly shifted the burden of proof to Appellant: 
 
None of them [the witnesses] are related to Pakalike Mate, and it‘s very convenient that the one person that was off-island is the one who‘s getting the finger pointed at.  He was here and while the defense was never required to put on any testimony, they have the same subpoena power that the people or the government does, and he was here and has been here on this island.   
 
(Trial Tr. 31, Sept 7, 2011.) 
 
[7] This appeal involves a bench trial. It is well-established in such circumstances that a trial judge, as the trier of fact, "will disregard any inadmissible evidence and improper argument." Moore v. United States, 609 A.2d 1133, 1136 (D.C. 1992) (citing Singletary v. United States, 519 A.2d 701, 702 (D.C. Cir. 1987)); Koch, 248 Ill.App.3d at 592 ("the trial judge, as the trier of fact, is presumed to know the law and to have considered only competent evidence in reaching its determination on the merits in a bench trial."); Johnson v. United States, 636 A.2d 978, 981 (D.C. App. 1994) ("a trial judge is presumed to know of the proper use of evidence."); see Harris v. Rivera, 454 U.S. 339, 346 (1981). 
 
[**9**] Here, the trial court considered the evidence and determined that it was convinced beyond a reasonable doubt that Appellant was guilty of committing the crimes for which he was charged.  Furthermore, the trial court made clear that it did not shift the burden of proof to the Appellant.  Based on our review of the record, there is no error. 
 
III.  Ineffective Assistance of Counsel 

Appellant argues that defense counsel at trial was ineffective for failing to subpoena Pakalike and another individual for trial, failing to cross examine government witnesses concerning whether Pakalike hit Seafa with the machete, and failing to request a continuance to properly serve Pakalike with a subpoena.   
 
[8] "The accused is entitled to a reasonably competent attorney whose advice is within the range of competence demanded of attorneys in criminal cases."  United States v. Cronic, 466 U.S. 648, 655 (1984).  The Supreme Court articulated a two-prong standard that a petitioner must show in order to prevail on a claim for ineffective assistance of counsel:   
 
First, the defendant must show that counsel‘s performance was deficient.  This requires showing that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.  Second, the defendant must show that the deficient performance prejudiced the defense.  This requires showing that the counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   
[**10**] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064 (1984). 
 
A. Defense Counsel‘s Performance 

[9] The first prong focuses on the reasonableness of counsel‘s challenged conduct, considering all the circumstances.  Id. at 2066.  To determine the reasonableness of defense counsel‘s conduct, we must take into account the "strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance."  Id.   
 
Defense counsel‘s decision to continue with trial despite being unable to subpoena Pakalike and one other person cannot constitute ineffective assistance of counsel where there is nothing in the record to indicate the substance of the absent witnesses‘ testimony.  It is pure conjecture that these individuals would have offered favorable testimony for Appellant.  The record, on the other hand, clearly shows that Appellant has failed to overcome the strong presumption in favor of trial counsel‘s conduct falling within the wide range of reasonable professional assistance.  Accordingly, we hold that trial counsel‘s performance was not deficient. [**11**] 

B. Prejudice 

The second prong requires that the defendant "show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the results of the proceeding would have been different."  Strickland, 104 S. Ct. at 2068.  Having held that trial counsel‘s performance was not deficient, we need not address whether any prejudice resulted. 
 
IV.  Statute of Limitations Defense 

Appellant argues that the trial court lacked jurisdiction to try the Public Peace Disturbance charge because ASG filed the charge beyond the one year statute of limitations.  Notably, Appellant did not raise the statute of limitations defense in a pretrial motion to dismiss or during trial on September 6 and 7, 2011.  The statute of limitations defense was first raised orally on December 6, 2011, during sentencing.  Moreover, although Appellant subsequently filed a motion for reconsideration or new trial, he did not raise the issue in his written motion.   
 
[10]-[11] It is well-settled that a party may not raise an issue for the first time in a motion for new trial that could have been properly raised at trial.  Am. Samoa Gov’t v. Falefatu, 17 A.S.R.2d 114, 119 (Trial Div. 1990); see Am. Samoa Gov’t v. Pearson, 2 A.S.R.3d 102, 104 (Trial Div. 1998).  In criminal cases, "a motion for new trial shall be filed within 10 days [**12**] after the announcement of judgment or sentence."  A.S.C.A. § 46.2402(a).  Thus, "errors of law not raised within ten days of judgment or sentence are waived, at least insofar as they concern the right to appeal."  See A.S.C.A. § 46.2402(a); Falefatu, 17 A.S.R.2d at 119. 
 
Here, the statute of limitations defense was not raised either before or at trial, nor in the statutorily-required motion for new trial.  Therefore, the issue was not adequately preserved for appellate review.

V.  Cumulative Errors 

Appellant asserts perfunctorily that the cumulative effect of errors rendered his trial unfair, but failed to identify any errors for our review.  Therefore, we discern no cumulative error requiring reversal.  [**13**] 
 
Order
 
Based on the foregoing, we affirm the Trial Division‘s judgment of conviction.  It is so ordered.