FSM SUPREME COURT APPELLATE DIVISION

APPEAL CASE NO. C3-2007

RAKOFICH KASMIRO,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

______________________________________

OPINION

Argued: September 2, 2008
Decided: January 5, 2009

BEFORE:

Hon. Andon L. Amaraich, Chief Justice, FSM Supreme Court
Hon. Martin G. Yinug, Associate Justice, FSM Supreme Court
Hon. Aliksa B. Aliksa, Temporary Justice, FSM Supreme Court*

*Chief Justice, Kosrae State Court, Tofol, Kosrae

APPEARANCE:

 For the Appellant: Steven V. Finnen, Esq.
 P.O. Box 1450
 Kolonia, Pohnpei FM 96941

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HEADNOTES

Appellate Review  Briefs, Record, and Oral Argument
 An appellee will not be allowed to participate in oral argument when it failed to file a brief. Kasmiro v. FSM, 16 FSM Intrm. 243, 244 (App. 2009).

Appellate Review  Standard of Review  Criminal Cases
 Whether, as a matter of law, a variance between the FSM's allegations and the evidence adduced at trial and relied upon by the trial court in its findings unfairly prejudiced the accused, is an issue reviewed de novo. Kasmiro v. FSM, 16 FSM Intrm. 243, 245 (App. 2009).

Criminal Law and Procedure  Standard of Proof
 A variance is a discrepancy or disagreement between the allegations of the charging instrument and the proof adduced at trial. Kasmiro v. FSM, 16 FSM Intrm. 243, 245 (App. 2009).

Constitutional Law  Due Process; Criminal Law and Procedure  Standard of Proof
 When considering whether a variance warrants relief, the court must examine whether the variance was material or prejudicial, that is, whether it affected the substantial rights of the accused.

[16 FSM Intrm 244] 

Any error, defect, irregularity or variance which does not affect substantial rights is disregarded. The issue is whether the accused is given sufficient notice of the charges against him so as to be able to present his defense and not be taken by surprise by the evidence offered at the trial and also to be protected against another prosecution for the same offense. Kasmiro v. FSM, 16 FSM Intrm. 243, 245 (App. 2009).

Constitutional Law  Due Process; Criminal Law and Procedure  Standard of Proof
 When the prosecution failed to incorporate the accused's alleged possession of a rifle into its prosecution even after witness testimony, choosing instead to remain within the parameters of its original allegations all the way through closing argument, namely that the accused's presence in the boat alone supported conviction, it is reasonable to conclude that the accused was never given proper notice of his alleged conduct, and, even if the accused was given notice of the conduct underlying the violation after the witness testimony, such notice coming midway through the FSM's case-in-chief is not sufficient notice for the accused to prepare his defense against the factual allegations ultimately used to convict him. Kasmiro v. FSM, 16 FSM Intrm. 243, 246 (App. 2009).

Constitutional Law  Due Process; Criminal Law and Procedure  Standard of Proof
 Allegations in the information alleging a criminal violation must be proven in order to obtain a conviction. It is not sufficient that the evidence show a violation of the statute specified in the information if the actual violation is different from the one alleged. Kasmiro v. FSM, 16 FSM Intrm. 243, 247 (App. 2009).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

 Rakofich Kasmiro's criminal trial commenced on June 13, 2007 in the FSM Supreme Court Trial Division in Chuuk. On June 28, 2007, the trial court announced the verdict in open court, finding Kasmiro guilty of aiding and abetting the possession of an illegal firearm, in violation of 11 F.S.M.C. 1023(5) and 11 F.S.M.C. 301(1)(d), and finding Kasmiro guilty of aiding and abetting the illegal possession of ammunition, in violation of 11 F.S.M.C. 1002 and 11 F.S.M.C. 301(1)(d). Kasmiro filed his notice of appeal to this Court on July 5, 2007. The trial court entered its judgment of conviction on August 29, 2007. Oral argument was held on September 2, 2008 in Chuuk, at which the FSM was not allowed to participate for failure to file a brief.

I. Issues on Appeal

A. Did the trial court err as a matter of law in convicting Kasmiro of the crimes charged, or was he tried and convicted for the wrong crime?

B. Was the evidence presented sufficient to convict Kasmiro of the crimes charged?

C. Did the trial court err as a matter of law in not granting the motion to acquit made at the beginning of trial and after the FSM closed its case?

D. Did the trial court err by not following its own motion in limine and allowing evidence of other crimes that prejudiced Kasmiro?

E. Did the trial court err by admitting into evidence the statement given by Kasmiro?

[16 FSM Intrm 245]

II. Summary of Factual Background

 On January 14, 2006, Kasmiro joined Mason Karen and three other men in a dynamite fishing expedition in Karen's boat. At approximately 4:00 p.m., a second boat approached Karen's boat; onboard the second boat were Officer Iaichy Weia and his relative, Kurata Weia. At this same time, a third boat occupied by Martino Yasinto followed the Weias' and likewise approached Karen's boat. The Weias' boat was pulled up to one side of Karen's boat, and Yasinto's boat was pulled upon the other side, both boats touching Karen's. Officer Weia boarded Karen's boat, at which point Karen and Officer Weia engaged in a struggle lasting approximately thirty seconds. During this struggle, Karen was holding a handgun, and the gun was fired. While the struggle ensued between Officer Weia and Karen, Kasmiro was identified as standing in the boat. Yasinto testified that Kasmiro was standing and doing nothing else. Kurata Weia testified that Kasmiro was standing with a rifle in his hands. Officer Weia's dead body was later recovered.

III. Discussion

A. Did the trial court err as a matter of law in convicting Kasmiro of the crimes charged, or was he tried and convicted for the wrong crime?

 Kasmiro argues that a variance between the FSM's allegations and the evidence adduced at trial and relied upon by the trial court in its findings unfairly prejudiced him and is grounds for overturning the conviction as a matter of law, an issue reviewed de novo. Tulensru v. Kosrae, 15 FSM Intrm. 122, 125 (App. 2007). We agree with Kasmiro.

 A variance is a discrepancy or disagreement between the allegations of the charging instrument and the proof adduced at trial. Otto v. Kosrae, 5 FSM Intrm. 218, 221-22 (App. 1991).

 When considering whether a variance warrants relief, the court must examine whether the variance was material or prejudicial, that is, whether it affected the substantial rights of the accused. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. The issue is whether the accused is given sufficient notice of the charges against him so as to be able to present his defense and not be taken by surprise by the evidence offered at the trial and also to be protected against another prosecution for the same offense. Otto v. Kosrae, 5 FSM Intrm. at 221-22.

 The charging instrument in the present matter consists of Counts I and II of the Amended Information filed by the FSM on July 20, 2006. The factual allegations in the Amended Information are scant at best, nonexistent at worst. The only factual details included in the Amended Information are the date, time and location of the allegation; there is no alleged conduct to support the charges other than an implied allegation of Kasmiro's presence at the scene. Through examination of the charging instrument alone, it is unclear if a variance exists between it and the evidence adduced at trial and relied upon by the trial court, essentially because the charging instrument fails to allege any particular facts from which the proof could vary. For this reason, Kasmiro's variance argument extends beyond the charging instrument and encompasses the FSM's original information, which ultimately was replaced, as well as the FSM's opening statement, case-in-chief and closing argument at trial.

 The original information, filed January 19, 2006, included more specific factual allegations than its successor on which the case was ultimately tried. The original information alleged that Kasmiro had a legal duty to prevent the commission of the principal crime, possession of a handgun and ammunition, and failed to take proper efforts to fulfill this legal duty. Although this information was ultimately replaced, it was the original charging instrument and the primary source of Kasmiro's notice of the allegations being made against him.

[16 FSM Intrm 246]

 Furthermore, the FSM elaborated on the theory espoused in its original information at trial; the FSM's theory of the case was that Kasmiro's participation in the fishing trip and his mere presence on the boat during the principal crime constituted the conduct underlying the aiding and abetting charge as well as formed the requisite criminal intent. The FSM's opening statement, the evidence it proffered in its case-in-chief and its closing argument were all narrowly presented to fit this theory of guilt.

 Between the charging instruments in this case and the legal and factual arguments made by the FSM at trial, Kasmiro could reasonably anticipate that he was being charged and tried because his participation in the fishing trip and his mere presence on Karen's boat created a legal duty to attempt to prevent the principal crime and that he failed to satisfy this duty.

 The testimony of the police officers did not add facts outside of the FSM's theory of the case. One eyewitness, Yasinto, testified that Kasmiro was doing nothing other than standing on Karen's boat during the commission of the principal crime. However, another eyewitness, Kurata Weia, testified that Kasmiro was holding a rifle while standing on Karen's boat during the commission of the principal crime. No other evidence, testimonial or otherwise, corroborates that Kasmiro was holding a rifle or any firearm; a review of the trial transcript indicates that the FSM made no attempt to introduce corroborating evidence and did not mention the rifle in its closing argument. Under these circumstances, it is reasonable to conclude that Kasmiro's alleged possession of a rifle was not part of the FSM's case against Kasmiro. Indeed, if the FSM had intended to allege that Kasmiro was holding a rifle of unknown caliber it is reasonable to conclude that Kasmiro would have been charged as the principal in a firearms violation in addition to, or instead of, the aiding and abetting charges. Furthermore, because Kasmiro was charged with aiding and abetting the possession of a firearm and not actual possession, he could reasonably believe that his possession of a firearm was not being alleged.

 In convicting Kasmiro, the trial court explicitly rejected the FSM's theory of the case, finding that Kasmiro's presence in the boat was not the basis for conviction. Rather, the trial court found:

The defendant Kasmiro's presence standing and holding the rifle on Karen's boat assisted Karen in his possession of the .45 handgun by allowing Karen to more effectively struggle against officer Weia by preventing interference in the struggle between Karen and Officer Weia by inhibiting others from aiding Officer Weia's attempt to disarm Karen.

Furthermore, the trial court found:

It is this act [standing and holding the rifle on Karen's boat] and not Kasmiro's presence in the boat up until then that constitutes the aiding and abetting.

Under these circumstances, the question arises as to whether Kasmiro was given sufficient notice of the charges against him so as to be able to present his defense and not be taken by surprise by the evidence offered at trial. Otto, 5 FSM Intrm. at 221-22. Kasmiro was entitled to notice of the alleged conduct underlying the alleged violation. The FSM failed to incorporate Kasmiro's alleged possession of the rifle into its prosecution even after Weia's testimony, choosing instead to remain within the parameters of its original allegations all the way through closing argument, namely that Kasmiro's presence in the boat alone supported conviction. Under these circumstances, it is reasonable to conclude that Kasmiro was never given notice of the alleged conduct as contemplated by Otto. However, even if Kasmiro was given notice of the conduct underlying the violation after Weia's testimony, such notice coming midway through the FSM's case-in-chief is not sufficient to pass the Otto test. Furthermore, there is little doubt that Kasmiro was surprised by the crucial incriminating testimony against him; the record supports that both parties were surprised by Weia's testimony.

[16 FSM Intrm 247]

Kasmiro was not given sufficient notice to prepare his defense against the factual allegations ultimately used to convict him. Allegations in the information alleging a criminal violation must be proven in order to obtain a conviction. It is not sufficient that the evidence show a violation of the statute specified in the Information if the actual violation is different from the one alleged. Buekea v. FSM, 1 FSM Intrm. 487, 493-94 (App. 1984).

 In Otto, the defendant was charged with damaging a police vehicle by pounding his fists on it. The evidence adduced at trial and relied upon for conviction was that he threw a can at the police vehicle as opposed to pounding his fists on it. The trial court found that the variance was not prejudicial. However, essential to this finding was the pre-trial production of a police report to the defendant, in which the officer indicated that the defendant used a can to damage the car. In the present matter, no such previous notice of the underlying conduct was given.

 For these reasons, we find that a variance occurred in this conviction. The variance was material and was prejudicial to Kasmiro. Kasmiro's conviction is overturned. The remaining issues on appeal are moot in light of our disposition of this primary issue, and we therefore will not address them.

IV. Conclusion

 There is a material and prejudicial variance between the FSM's allegations and the evidence relied upon by the trial court in its conviction. Accordingly, Kasmiro's conviction is overturned.

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