FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2016-536

FEDERATED STATES OF MICRONESIA,	)					
)
Plaintiff,			)
)
vs.					)
)
DAVID WOLPHAGEN,				)
)
Defendant.			)
__________________________________________	)

	ORDER GRANTING DEFENDANT’S MOTION IN LIMINE TO SUPPRESS

	Dennis K. Yamase
	Chief Justice

	Decided:  April 17, 2017

APPEARANCES:

For the Plaintiff:	Robert P. Nakasone, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant:	David C. Angyal, Esq.
Ramp & Mida Law Firm
P.O. Box 1480
Kolonia, Pohnpei FM 96941

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	HEADNOTES

Criminal Law and Procedure  Motions  Unopposed
When no response is filed to a motion, the non-response is deemed consent to the granting of the motion.  A basis in law and fact must nevertheless exist to grant the motion.  FSM v. Wolphagen, 21 FSM R. 247, 249 (Pon. 2017).

Evidence  Relevant
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the action's determination more probable or less probable than it would be without the evidence.  All relevant evidence is admissible, except for the specific exceptions set out in the FSM Rules of Evidence.  FSM v. Wolphagen, 21 FSM R. 247, 249 (Pon. 2017).

Evidence  Relevant

A state court accusation of harassment and disorderly conduct against the defendant has no bearing on the current FSM court charges of obstruction, retaliation, and tampering since the state court case’s contents would not make the pending charges more or less probable because of the different facts and circumstances surrounding each case and, since the state court charges were later dropped, those accusations are no longer relevant because it will be construed as though those allegations were never filed.  FSM v. Wolphagen, 21 FSM R. 247, 249 (Pon. 2017).

Evidence
A judge is required to engage in a conscious balancing of the proffered evidence’s probative value against the harms likely to result from its introduction into evidence.  FSM v. Wolphagen, 21 FSM R. 247, 249 (Pon. 2017).

Evidence  Relevant
Irrelevant evidence that will be extremely prejudicial towards the defendant, should be excluded from the record.  FSM v. Wolphagen, 21 FSM R. 247, 249 (Pon. 2017).

Evidence  Relevant
Generally, evidence of other crimes, wrongs, or acts is not admissible to prove a person’s character in order to show that he acted in conformity therewith, but such evidence is admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  FSM v. Wolphagen, 21 FSM R. 247, 250 (Pon. 2017).

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	COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

	I.  Background

An Information filed in this matter on December 21, 2016 charged the defendant, David Wolphagen (herein "Wolphagen") with: (1) Obstructing Administration of Law and Other Government Function in violation of 11 F.S.M.C. 501(1); (2) Retaliation for Past Official Action in violation of 11 F.S.M.C. 518; and (3) Tampering with Public Records or Information in violation of 11 F.S.M.C. 529.

On March 17, 2017, Wolphagen entered a Motion in Limine to Suppress Plaintiff’s Exhibit "I."  The motion seeks to suppress Case No. 07-16-81, which is a criminal case filed against Wolphagen in the Pohnpei Supreme Court.  Based on the arguments presented before the court and there being no opposition to the motion, the defendant’s motion is granted.

	II.  Facts

The following facts are as alleged by the defendant.  On January 30, 2017, the plaintiff, Federated States of Micronesia(herein "the Government"), responded to discovery requests made by Wolphagen.  Included in the response is "Exhibit I," which was a criminal background check on the defendant.  The exhibit showed a police report and criminal complaint filed against Wolphagen at the Pohnpei Supreme Court, docketed as Case No. 07-16-81.

The complaint filed in the State court, entered on July 18, 2016, accuses the defendant of telephone harassment and disorderly conduct against Meriana Pablo.  The charges were dropped on August 25, 2016.  No other criminal charges were found against Wolphagen through discovery.

In the defendant’s pending motion, Wolphagen argues that the above-mentioned evidence should be suppressed pursuant to FSM Evidence Rules 402, 403, and 404(b).  No response to the motion was filed by the Government.  When no response was filed to a motion, the non-response is deemed consent to the granting of the motion.  A basis in law and fact must nevertheless exist to grant the motion.  RRG (FSM) Ltd. v. Maezoto, 15 FSM R. 243, 244 (Pon. 2007); Clarence v. FSM Social Sec. Admin., 13 FSM R. 34, 35 (Kos. 2004).

	III.  Discussion

FSM Evidence Rule 402

In support of his motion, Wolphagen argues that the evidence of Case No. 07-16-81 is not relevant, pursuant to FSM Evid. R. 402.1  Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the action's determination more probable or less probable than it would be without the evidence, and all relevant evidence is admissible, except for the specific exceptions set out in the FSM Rules of Evidence.  Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 466, 473 (Pon. 2001).

Here, the accusation of harassment and disorderly conduct against Wolphagen has no bearing on the current charges of obstruction, retaliation and tampering.  The contents of Case No. 07-16-81 would not make the pending charges more or less probable because of the different facts and circumstances surrounding each case.  Further, because the charges in the initial case were later dropped, the accusations are no longer relevant because it will be construed as though those allegations were never filed.

Balancing Test under FSM Evid. R. 403

Wolphagen claims that if the criminal matter filed in the Pohnpei Supreme Court is found to be relevant, it nevertheless should be inadmissible under FSM Evidence Rule 403.2  Rule 403 and the cases require the judge to engage in a conscious balancing of the probative value of the proffered evidence against the harms likely to result from its introduction into evidence.  22A Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure § 5214 (2d ed. 2014).

In applying the balancing test to the present matter, because the Pohnpei Supreme Court criminal matter is found to be irrelevant, and the fact that the charges have been dropped against Wolphagen, its admission as evidence in the pending case will be extremely prejudicial towards the defendant.  Accordingly, the evidence of Case No. 07-16-81 should be excluded from the record.

FSM Evidence Rule 404(b)

Finally, the defendant argues that the police report and complaint should be excluded under FSM Evid. R. 404 (b).3  Generally, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, but such evidence is admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.  FSM v. Wainit, 11 FSM R. 1, 5 (Chk. 2002).

Here, the allegations of harassment and disorderly conduct could not be used to show that Wolphagen committed any of the crimes as alleged in the present matter, or that the previous crimes show that the defendant has the character or propensity to commit the latest crimes.  Also, no evidence is presented before the court to show that any of the exceptions of admissibility under 404(b) applies.

	IV.  Conclusion

Therefore, the defendant’s Motion to Suppress Plaintiff’s Exhibit I is hereby granted.  Plaintiff’s Exhibit I is suppressed and stricken from the record in this matter.

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