THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Joker v. FSM, 2 FSM Intrm. 38 (App. 1985)

[2 FSM Intrm. 38]

CLINDON JOKER,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL T5-1983
(From FSM v. Joker, Crim. No. 1983-1501, Benson, J.,
Decided November 7, 1983)

Decided: March 13, 1985
Argued: December 20, 1984

Before:
Hon. Edward C. King, Chief Justice, FSM Supreme Court;
Hon. Mamoru Nakamura, Chief Justice, Republic of Palau Supreme
Court;*
Hon. Herbert D. Soll, Judge, Commonwealth Trial Court, Northern
Mariana Islands*

*Designated Temporary Justices for the FSM Supreme Court

APPEARANCES:
For the Appellant:			Michael K. Powell
Public Defender
Office of the Public Defender
Moen, Truk 96942

For the Appellee:			Carl V. Ullman
Chief, Division of Litigation
Office of the Attorney General
Federated States of Micronesia
Kolonia, Pohnpei 96941

[2 FSM Intrm. 39]

HEADNOTES

Statutes; Major Crimes; Criminal Law & Procedures-weapons
The Weapons Control Act violations punishable by imprisonment of three or more years are national crimes. Joker v. FSM, 2 FSM Intrm. 38, 41 (App. 1985).

Transition of Authority; Weapons
The Transition Clause of the FSM Constitution effectively adopts statutes of the Trust Territory, including the Weapons Control Act, and serves as the original enactment of a body of law, criminal as well as civil, for the new constitutional government. Further action by the FSM Congress is not necessary to establish that violations of the Weapons Control Act are prohibited within the FSM. Joker V. FSM, 2 FSM Intrm. 38, 43 (App. 1985).

Major Crimes; Statutes
In light of the Constitution's Transition Clause, action by the FSM Congress is not necessary in order to establish that violations of the Weapons Control Act are prohibited within the Federated States of Micronesia. The only question is whether those are state or national law prohibitions or both. If the definition of major crimes in the National Criminal Code bears upon the Weapons Control Act at all, it is only for that purpose of allocating between state and national law. Joker v. FSM, 2 FSM Intrm. 38, 43 (App. 1985).

Statutes; Transition of Authority
Public Law No. 2-48, promulgating the codification of the FSM statutes and speaking only of "all enacted law of the Interim Congress of Micronesia ... and all enacted law of the Congress law of the Congress of the Federated States of Micronesia" as "readopted and reenacted as positive law of the Federated States of Micronesia," may not be interpreted as an attempt to repeal or purge the Trust Territory law from the law of the Federated States of Micronesia. Joker v. FSM, 2 FSM Intrm. 38, 43 (App. 1985).

Federalism; Statutes; Weapons
There is nothing absurd about a weapons control scheme that recognizes that both the national and the state governments have an interest in controlling the possession, use and sale of weapons. While Congress and the states may eventually wish to allocate their respective roles with more precision, the current Weapons Control Act appears to provide a workable system during these early years of transition and constitutional self‑government. Joker v. FSM, 2 FSM Intrm. 38, 44 (App. 1985).

Federalism; Statutes
The Weapons Control Act seems well attuned to the recognition of shared national - state interest in maintaining an orderly society and the goal of cooperation in law enforcement as reflected in the major crimes clause, Article IX, Section 2(p) of the constitution as well as the joint Law Enforcement Act. 12 F.S.M.C. 1201. Joker v. FSM, 2 FSM Intrm. 38, 44 (App. 1985).

[2 FSM Intrm. 40]

Constitutional Law-due process-vagueness; Weapons
"Dangerous device" as defined under the Weapons Control Act is not unconstitutionally vague. The language, properly interpreted, affords sufficient notice so that conscientious citizens may avoid inadvertent violations, and constructs sufficiently definite standards to prevent arbitrary law enforcement. Joker v. FSM, 2 FSM Intrm. 38, 45 (App. 1985).

Weapons
Three categories of devices are identified in the definition of "dangerous device" under the Weapons Control Act and the standards of proof for each differ slightly. Joker v. FSM, 2 FSM Intrm. 38, 45 (App. 1985).

Weapons
The second category of "dangerous device" under the Weapons Control Act requires demonstration by the government that the item in question was designed or redesigned as a weapon and that the person whose possession is at issue is aware that the instrument was created or modified for that purpose. The intent and knowledge normally might be inferred from the nature of the instrument itself. It does not appear necessary that the possessor be shown to have actually intended to use the instrument as a weapon or for a wrongful purpose. Joker v. FSM, 2 FSM Intrm. 38, 45 (App. 1985).

Weapons
For the last category of "dangerous device" under the Weapons Control Act, the forbidden instrument in question must not only be capable of causing bodily injury but it must also be possessed without any "lawful purpose." A violation occurs only when the possession is coupled with a wrongful purpose, that is, a purpose to use the instrument to cause bodily injury, or a complete absence of any lawful purpose, shown through statements or overt conduct of the possessor manifesting wrongful purpose. Joker v. FSM, 2 FSM Intrm. 38, 45 (App. 1985).

Evidence
Rule 901(a) of this Court's Rules of Evidence provides that the requirement of authentication "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Testimony of two witnesses supporting such a claim is fully adequate to justify the action of the trial court in accepting that matter as evidence. Joker v. FSM, 2 FSM Intrm. 38, 46 (App. 1985).

Evidence
If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court has broad discretion to admit merely on the basis of testimony that the item is the one in question and is in substantially unchanged condition. Joker v. FSM, 2 FSM Intrm. 38, 46 (App. 1985).

Evidence
This Court's Rules of Evidence for identification, authentication and

[2 FSM Intrm. 41]

admissibility of evidence do not require that exhibits relate,., to an essential element of the crime, may be admitted into evidence only if identified beyond a reasonable doubt. Joker v. FSM, 2 FSM Intrm. 38, 47 (App. 1985).

Evidence
Each item of evidence is merely a building block. The standard of proof beyond a reasonable doubt is not applied to any specific item of evidence to determine admissibility but to all of the evidence collectively to determine whether all elements of the crime have been established beyond a reasonable doubt. Joker v. FSM, 2 FSM Intrm. 38, 47 (App. 1985).

Evidence
FSM Evidence Rule 103 contemplates timely objection and statement of reasons in support of evidentiary objections. Failure to offer reasons in timely fashion, especially when coupled with pointed avoidance by counsel of inquiry into the matters at issue, places a party in a poor position for mounting an effective challenge to an evidentiary ruling. Joker v. FSM, 2 FSM Intrm. 38, 47 (App. 1985).

* * * *

COURT'S OPINION

EDWARD C. KING, Chief Justice:

Clindon Joker, convicted for possession of a dangerous device in violation of the Weapons Control Act, 11 F.S.M.C. 1202, contends that this Court's Trial Division has no jurisdiction over prosecutions under that Act.

His appeal contends that the blanket definition of major crimes in the National Criminal Code, 11 F.S.M.C. 902, as crimes punishable by three or more years of imprisonment, may not properly be applied to make violations of the Weapons Control Act crimes against the national government, since the Congress has not specifically declared those violations of that Act to be national crimes.

He also makes the constitutional argument that the Weapons Control Act's prohibition against possession of "any ... instrument which can be used for the purpose of inflicting bodily harm and which under the circumstances of its possession serves no lawful purpose," 11 F.S.M.C. 1204(3), is too vague to serve as the basis for a criminal prosecution and is therefore unconstitutional.

We find that Weapons Control Act violations punishable by imprisonment of three or more years are national crimes. We further conclude that the contested provision, 11 F.S.M.C. 1204(3), of the Weapons Control Act, when properly interpreted and applied, does meet constitutional standards. However, because we are unable to determine from the record whether tile trial court applied the provision in accordance with our interpretation, the conviction is set aside and the case is remanded for further findings.

[2 FSM Intrm. 42]

Background

There is evidence in the record of the following facts. During New Year's Eve, about 2:00 a.m. on the first day of 1983, Clindon Joker was riding in the back of a pickup truck on Moen Island in Truk State. As the truck approached a group of people standing near a store, he aimed a slingshot and propelled a twelve inch long, thin metal dartlike object in their direction. The dart missed the people but embedded itself in the tin wall of the store just behind them.

The slingshot and dart were confiscated and became the focus of the prosecution's case against Joker in the Court's Trial Division for possession of a dangerous device in violation of 11 F.S.M.C. 1202. Joker appeals from his conviction in that trial.

Jurisdiction

This case was initiated at the trial level by an attorney of the office of the Truk State attorney general. 1 The case was filed with the Trial Division of the FSM Supreme Court on the apparent theory that violation of 11 F.S.M.C. 1202 is a major crime as defined in the National Criminal Code, 11 F.S.M.C. 902, because punishable by imprisonment of up to five years, 2 and therefore is a national crime prosecutable in a national court.

Joker's arguments against that analysis are not constitutional ones. He concedes that Congress has the constitutional "power and the duty to define major crimes" under Article IX, Section 2(p) of the Constitution. App. Br. at 12. He also apparently does not question the reasonableness of congressional action in defining major crimes as those subject to imprisonment of three years or more. 11 F.S.M.C. 902(1). Finally, he does not assert that Congress is without power to declare possession of a weapon to be a national crime.

Rather, Joker's arguments are ones of statutory construction. Invoking the fundamental proposition that criminal prohibitions may be established only by the specific actions of a lawmaking body and noting that the Weapons Control Act was enacted by the former Congress of Micronesia, he concludes that the mere prescription of a generalized three year penalty standard is not a sufficient act of the FSM Congress to transform prohibitions described in the Weapons Control Act into crimes against the national government.

[2 FSM Intrm. 43]

Joker's argument overlooks the Transition Clause of the Constitution which effectively adopts statutes of the Trust Territory, including the Weapons Control Act: "A statute of the Trust Territory continues in effect except to the extent it is inconsistent with this Constitution, or is amended or repealed." FSM Const. art. XV, § 1. This constitutional provision itself serves as the original enactment of a body of law, criminal as well as civil, for the new constitutional government.

In light of the Transition Clause, action by the FSM Congress is not necessary to establish that violations of the Weapons Control Act are prohibited within the Federated States of Micronesia. The only question is whether those are state or national law prohibitions, or both. If the definition of major crimes in the National Criminal Code bears upon the Weapons Control Act at all, it is only for that purpose of allocating between state and national law.

Joker gives two reasons why he says we should conclude that Congress did not intend for the National Criminal Code definition of major crime to have the effect of making violations of the Weapons Control Act national crimes.

First, he points out that Public Law No. 2-48, promulgating the codification of the FSM statutes and set out at page v of the first volume of the Code, speaks only of "All enacted law of the Interim Congress of the Federated States of Micronesia... and all enacted law of the Congress of the Federated States of Micronesia" as "readopted and reenacted as positive law of the Federated States of Micronesia." Id. § 3.

As already discussed, the constitution's Transition clause obviates the need for congressional reenactment or adoption of unrepealed and unamended Trust Territory law. The language Joker quotes from Public Law 2-48 would be significant only if it could be interpreted as an attempt to repeal or purge the Trust Territory law from the law of the Federated States of Micronesia. The Congressional Committee Report on Pub. L. No. 2-48 specifically disavows any intent to have such an effect on carried-over Trust Territory statutes.

The bill gives congressional reenactment only to those laws enacted by the Interim Congress and the Congress of the Federated States of Micronesia and merely republishes applicable Trust Territory laws, leaving them with the same legal effect as they had prior to this publication (see section 3).

The code committee took great care to include only those Trust Territory laws having National application and omitted from the new code those laws which are clearly State matters or which have been repealed or superseded by congressional legislation.

SCREP No. 2-171, J. of 2nd Cong. 219, 3rd Reg. Sess. (1982).

Joker further argues that we must not construe the definition of major crimes set forth in 11 F.S.M.C. 902 as applicable to the Weapons Control Act

[2 FSM Intrm. 44]

because of the potential "absurd" result that the national and state governments would both have enforcement powers under the Weapons Control Act and because the states would be unable to enforce "purely state offenses" that carry penalties of more than three years.

We are unpersuaded by these arguments. We see nothing particularly absurd about a weapons control scheme that recognizes that both the national and the state governments have an interest in controlling the possession, use and sale of weapons. 3 While Congress and the states may eventually wish to allocate their respective roles with more precision, the current Weapons Control Act appears to provide a workable system during these early years of transition and constitutional self-government. The Act seems well attuned to the recognition of shared national-state interests in maintaining an orderly society and the goal of cooperation in law enforcement reflected in the Major Crimes Clause, Article IX, Section 2(p) of the Constitution as well as the Joint Law Enforcement Act. 12 F.S.M.C. 1201.

Joker's expressed concern that general application of the major crimes definition to other statutes could hinder attempts of the states to enforce "purely state offenses" is not well-placed in this case. He does not contend that weapons control violations should be considered "purely state offenses."

He nowhere explains which forms of misconduct he would consider purely state offenses and the only example he gives is violation of an hypothetical State Financial Management Act providing penalties in excess of three years imprisonment. We need not here consider whether Congress intended for its major crimes definition and assertion of national jurisdiction to extend to state statutes enacted to preserve the internal administrative integrity of state government. Suffice it to say here that weapons control is not such an internal administrative matter.

Dangerous Device

Joker was convicted for possession of a "dangerous device," defined in the Weapons Control Act, 11 F.S.M.C. 1204(3), as follows:

"Dangerous device" means any explosive, incendiary, or poison gas bomb, grenade, mine, or similar device, switch or gravity blade knife, blackjack, sandbag, metal, wooden or shark's tooth knuckles, dagger, any instrument designed or redesigned for use as a weapon, or any other instrument which can be used for the purpose of inflicting bodily harm and which under the circumstances of its possession serves 

[2 FSM Intrm. 45]

We cannot accept Joker's argument that this language is unconstitutionally vague. We conclude the language, properly interpreted, affords sufficient notice so that conscientious citizens may avoid inadvertent violations, and constructs sufficiently definite standards to prevent arbitrary law enforcement.

Three categories of devices are identified in the definition. The standards of proof for each differ slightly.

The first category is a list of specifically identified items. Citizens may read this list and be fairly warned of, the forbidden items. To protect against violation of the Act, one may simply avoid possession of these items. Similarly, law officers are given definite guidance by this itemization so arbitrary enforcement is unlikely. For this category, mere knowing possession of a forbidden item, even without a showing of wrongful purpose or an intention to use the item as a weapon, is sufficient for a conviction.

For the second category it must be demonstrated by the government that the item in question was designed or redesigned as a weapon and that the person whose possession is at issue is aware that the instrument was created or modified for that purpose. This intent and knowledge normally might be inferred from the nature of the instrument itself. It does not appear necessary that the possessor be shown to have actually intended to use the instrument as a weapon or for a wrongful purpose.

Thus, for the first two categories knowing possession is a per se violation unless the possession is permitted by one of the exceptions specified in the Act.

The last category is the one emphasized by Joker as being unduly vague. He points out that even a finger or a pen can be used to cause bodily injury. He concludes from this that almost any person at any time could be arrested and accused of possessing a dangerous device under this definition. Joker's reading of the language, however, ignores the requirement of intent for this type of dangerous device.

To come within the third category of dangerous device the instrument in question must not only be capable of causing bodily injury but it must also be possessed without any "lawful purpose." This requires an affirmative showing by the government of the absence of a lawful purpose. Since devices that come within this category will not have been designed or redesigned as a weapon, presumably all such devices will have at least some potential lawful purpose. Joker's example of a pen is apt. Joker is correct in saying that a pen could conceivably be used as a jabbing weapon, but it also has a lawful use as a writing device. Mere possession of a pen normally could not be the basis for prosecution under the Act. Only if the government could show, through conduct or statements of the accused or in some other manner, that the purpose of the possession was not the lawful one of writing but instead was to cause bodily injury wrongfully, would the pen fall within the third category of dangerous devices.

[2 FSM Intrm. 46]

Under this interpretation, the innocent citizen in possession of items not specifically named in the Act or specially designed as weapons runs no risk of violating the law inadvertently or being subjected to arbitrary law enforcement. A violation occurs only when the possession is coupled with a wrongful purpose, that is, a purpose to use the instrument to cause bodily injury, or a complete absence of any lawful purpose. In turn, this normally can be shown only through statements or overt conduct of the possessor manifesting wrongful purpose. We therefore conclude that the statute, as properly interpreted, is not violative of due process.

Admissibility

Joker also argues that the slingshot-dart device was not sufficiently identified to be admissible as evidence. We find this contention lacking in merit. Rule 901(a) of this Court's Rules of Evidence provides that the requirement of authentication "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The "dart" here is a unique-looking handhewn object, a thin metal rod approximately twelve inches long, and one-seventh of an inch in diameter. The front part of the rod has been whittled, ground and flattened into the shape of an arrowhead. The back four inches of the rod are covered by a shredded fiber, probably hibiscus, evidently designed to serve as a stabilizer, like a feather on an arrow.

Two persons identified this exhibit. The first was Nick Amen, one of the persons standing in the area toward which the dart was shot. He testified that he saw the dart being aimed. He also saw it strike, and become imbedded in, the wall or roof of the store. 4 In the trial he identified Exhibit 2 as the same dart. The second witness, police officer Kerio Walliby, identified Exhibit 2 as the dart given to the officers by "a boy named Nick" at the store. Tr. at 35 and 37. This testimony was fully adequate to justify the action of the Trial Court in accepting this distinctive dart as evidence.

If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion to admit merely on the basis of testimony that the item is the one in question and is in a substantially unchanged condition.

McCormick on Evidence § 212, at 667 (3d ed. 1984).

[2 FSM Intrm. 47]

We specifically reject Joker's contention that, because the exhibit related to an essential element of the crime, it may be admitted into evidence only if it is identified beyond a reasonable doubt. The rules for identification, authentication and admissibility of evidence are set forth in this Court's Rules of Evidence. No particular exhibit, and no evidence, is required by the rules to be persuasive beyond a reasonable doubt in order to gain admission into the record.

Each item of evidence is merely a building block. The standard of proof beyond a reasonable doubt is not applied to any specific items of evidence to determine admissibility but to all of the evidence collectively to determine whether all elements of the crime have been established beyond a reasonable doubt.

Finally, we note that counsel for the defense gave no reason for objecting to admission of exhibit 2 when it was offered and did not cross‑examine either identifying witness concerning opportunity to observe the dart or ability to identify it. The point is not crucial here for we find the identifying testimony sufficient to have upheld the admission of exhibit 2 even in the face of a timely objection. However, Rule 103 of our Rules of Evidence contemplates timely statement of reasons in support of evidentiary objections. Failure to offer reasons in timely fashion, especially when coupled with pointed avoidance by counsel of inquiry into the matters at issue, places a party in a poor position for mounting an effective challenge to an evidentiary ruling.

Findings Needed

We are unable to determine from the record before us whether the statute has been properly interpreted and applied. No findings concerning the requirements discussed above are set forth and there is no indication of how the trial court interpreted the statute.

Indeed, we are uncertain whether the slingshot-dart was considered by the trial court to be a dangerous device because it was designed as a weapon or because it had the potential of inflicting bodily harm and under the circumstances its possession served no lawful purpose.

The government argued that the requirements for both categories had been fulfilled. The record does not indicate a choice between the categories or a finding that the standards for both had been met. The trial court's determination of guilt is restricted to the bare statement that the defendant was found "guilty as accused." Tr. at 41. While Rule 23 of our Rules of Criminal Procedure does not require specific findings of fact and conclusions of law unless requested by a party, we wish to emphasize that some explanation by the trial court of the legal reasoning and grounds for deciding factual issues is highly desirable if not essential. This is so, not only because an explanation may help the defendant and other citizens understand and accept the decision but also to assist the appellate court in reviewing the decision.

[2 FSM Intrm. 48]

Conclusion

We cannot determine whether the trial court interpreted the statute correctly and we are uncertain whether that court would have concluded beyond a reasonable doubt from the evidence before it that the requisite elements set forth in this opinion had been established. The conviction is set aside and the case is remanded for further findings and proceedings consistent with this opinion.

* * * *

Footnotes:
1. State attorneys and state law enforcement officials are authorized to enforce national law under national state joint law enforcement agreements executed pursuant to 12 F.S.M.C. §§ 1201-1203.

2. 11 F.S.M.C. 1231(1).

3. The Weapons Control Act in its present form goes even further and recognizes a third interest, that of municipalities, in restricting or preventing the transfer, possession or use of weapons. 11 F.S.M.C. 1228.

4. The witness repeatedly referred to the spear or dart in the roof. However he then explained, "They use the roof for wall. They cover the wall with roof." Tr. at 30. We infer then that the dart hit the side of the building, but the material was corrugated metal which the witness thinks of as "roof" material.