FSM SUPREME COURT
APPELLATE DIVISION

APPEAL CASE NO. K4-1992

MOSES ALIK and JOSELA ALIK,
Appellants,

vs.

STATE OF KOSRAE,
Appellee.
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OPINION

Hearing: February 3, 1994
Decided: August 17, 1994

BEFORE:

Hon. Andon L. Amaraich, Associate Justice, FSM Supreme Court
Hon. Martin Yinug, Associate Justice, FSM Supreme Court
Hon. Richard H. Benson, Associate Justice, FSM Supreme Court

APPEARANCES:

For the Appellant:	Robert Diemer, Esq.
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae, FM 96944

For the Appellee:	Timothy Stumpff, Esq.
Assistant Attorney General
Office of the Kosrae Attorney General
P.O. Box AG
Tofol, Kosrae, FM 96944

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HEADNOTES

Criminal Law and Procedure - Trespass
Where there is consent to enter another's property for certain purposes, but a person enters the property with the intent to commit an assault therein a conviction for trespass can be maintained because no consent can be implied to enter for an unlawful purpose. Lawful entry, followed by a later unlawful act is not trespass. Alik v. Kosrae, 6 FSM Intrm. 469, 472 (App. 1994).

Criminal Law and Procedure - Self-defense
A claim of self-defense is meritless when the only provocation is an insulting gesture and there is no imminent threat of bodily harm. Alik v. Kosrae, 6 FSM Intrm. 469, 472 (App. 1994).

Criminal Law and Procedure - Self-defense
There are two different standards used when reviewing a claim of self-defense. When one is threatened with imminent serious bodily harm or death by another he may justifiably use deadly force if necessary to protect himself from great bodily harm or death. When one is threatened with imminent unlawful bodily harm (but not serious bodily harm or death) he may justifiably use nondeadly force if force is necessary to prevent the unlawful bodily harm. Where there is no threat of deadly force the correct standard is that the unlawful force must at least constitute imminent threat of an assault before one may defend oneself by force. The force employed must be reasonable in the light of the amount, degree and kind of force being used by the aggressor. Alik v. Kosrae, 6 FSM Intrm. 469, 473 (App. 1994).

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COURT'S OPINION

RICHARD H. BENSON, Associate Justice:

This is a direct appeal from the Kosrae State Court pursuant to Kosrae State Constitution article VI, section 6 and as authorized by the FSM Constitution article XI, section 7. The appellants, defendants below, appeal their convictions of trespass, KC 13.412, and assault and battery, KC 13.303.

We are presented with these issues of law:

1. May a person (Josela Alik in this case) be convicted of trespass, who, prior to the alleged offense, had implied consent to enter the victim's property, but who, on the day of the alleged offense entered the property with a rock, threw the rock so that it hit the victim's knee, and then fought with the victim?

We concluded that the person may be convicted of trespass.

2. May a person (Moses Alik in this case) be convicted of trespass, who, prior to the alleged offense, had implied consent to enter the property of the alleged victim, who, on the day of the alleged offense, entered the property to intervene and stop a fight, and who after intervening hit the victim and his daughter, and failed to leave the property when told to do so by a police officer-relative?

We conclude that these facts do not constitute trespass.

3. Is self-defense to a charge of assault and battery raised at trial (by Josela Alik in this case) when testimony existed that a fight began by the defendant first throwing and hitting the alleged victim with a rock, when some evidence of the alleged victim's quarrelsome nature, and specific incidents thereof, were excluded, when the counsel for the defendant in his opening statement said that the victim had started the fight?

We conclude that self-defense was not before the trial court.

4. What degree of unlawful bodily force must exist before the person attacked is entitled to act in self-defense?

We hold that the unlawful force must at least constitute an imminent threat of assault.

I.

This case involves close family members who are neighbors. The defendants Josela Alik (Josela) and Moses Alik (Moses) are husband and wife. The alleged victims are Sepe Benjamin (Sepe), first cousin of Moses and Kun Benjamin (Kun), Sepe's father.

One house is between the houses of the victims and the defendants. Because of the close relationship of these people, before the incident members of each family often visited the houses of the others.

Prior to March 5, 1992, the date of the offenses, there had been a quarrel between Josela and Sepe, which created tension in their relationship and this affected other members of the families of both. On March 5, 1992, Josela entered the Benjamin property carrying a rock which she threw at Sepe. The rock hit Sepe's knee and the two began fighting. Moses entered the Benjamin property. His purpose was to stop the fighting. At an early point in the fight Moses got between the two fighters and was facing his wife. Very shortly after this Kun and perhaps others involved themselves. Moses punched Kun and Sepe.

The parties were separated by others, including a police officer who is a relative. There is testimony that Moses then pursued Sepe, still on the Benjamin property, and struck her.

II.

A. Trespass

The statute under which the defendants were convicted provides in pertinent part,

Section 13.412. Trespass. Trespass is entering, or causing an object to enter, the dwelling place, premises, or property of another without his express or implied consent, or entering with his consent and, following withdrawal of the consent, refusing to leave the dwelling place, premises, or property.

1. Josela contends that through the course of normal inter-family visits shown by the testimony, consent can be implied for her to enter the Benjamin property. We agree that the trial court could have concluded that such implied consent existed. The government does not dispute this.

Josela's contention is that there is no proof of lack of consent. Thus, she says, an element necessary in order to sustain a conviction is absent. We do not agree.

The government, correctly we believe, points to testimony that the trial court could have believed, that Josela had a rock in her hand as she entered the property which she threw and struck Sepe. A fight ensued immediately. The trial court was entitled to infer that Josela entered with the intent to assault. The government then contends that although one may have consent to enter for certain purposes, no consent can be implied to enter for an unlawful purpose. This proposition is not surprising. The authority cited supports it. 87 C.J.S. Trespass § 49, at 1003 (1954); 75 Am. Jur. 2d Trespass § 84, at 64 (1991); 25 Am. Jur. 2d Easements and Licenses § 125, at 528 (1966).

2. There is no evidence that Moses, who had the same implied consent to enter as Josela, entered with an unlawful intent. His stated intent, and his acts conformed to that intent, was to separate the two fighters and to end the fight. Lawful entry, followed by a later unlawful act, in this case assault, is not trespass. 87 C.J.S. Trespass § 49, at 1003 (1954).

The government contends in the alternative that the consent Moses had when he entered was withdrawn. The government relies for this position on the testimony of the police officer who said that after Kun was struck and he took Kun into his house, he told everybody to leave the area.

The government's contention is that either the withdrawal of the consent was effected by the police officer or that he had that power as a relative. No legal authority is given for either proposition. We note that the officer's testimony is to the effect that he was at the site as a police officer. The trial court made no reference in his findings that there had been a withdrawal. The information charging the defendants with trespass only specified entering without consent.

B. Assault and Battery

The Kosrae statute under which the defendants were convicted provides:

Section 13.303. Assault and battery. Assault and battery is striking, beating, wounding, or otherwise doing bodily harm to another.

The information accuses Josela and Moses of assault and battery against Sepe and Kun.

1. Josela's assignment of error is that the court excluded proffered testimony of Sepe's quarrelsome nature and specific instances of her aggressive conduct, and that such exclusion prevented her from presenting her justification of self-defense. The claim of self-defense is found only in counsel's opening and closing statements. In the former he said Sepe was the aggressor and in the latter he said Sepe lured Josela into attacking. Testimony as to events on the day of the incident show that Sepe's only provocation was an insulting gesture (lowering her dress) at a time when she was on her property and Josela was on hers. Josela then entered the Benjamin property as described. The testimony is barren of any indication that Josela was not the aggressor. No testimony was given that she believed herself to be in imminent danger of bodily harm.

The assignment of error is entirely without merit.

2. The information accuses Moses of assault and battery against Sepe and Kun. He does not dispute hitting each, but claims he was acting in self-defense. He assigns as error the standard the court expressed in its findings. In part, the court said that there was no evidence that Moses was in peril; that it was not a matter of life and death, and that no gun or ax was involved, and concluded that self-defense was not available to Moses.

The trial court also described circumstances that were present: the victims were a female and an old man; the ability of the old man to inflict injury on Moses was questionable; that Moses showed no anxiety (fear of injury to himself); and that Moses overpowered both victims.

We cannot say that the statement about threat of a weapon or great bodily harm or death being necessary before one may defend oneself is harmless error. There are two different standards used when reviewing a claim of self-defense. When one is threatened with imminent serious bodily harm or death by another he may justifiably use deadly force if necessary to protect himself from great bodily harm or death. Wayne R. La Fave & Austin W. Scott, Jr., Handbook on Criminal Law § 53, at 393 (1972). When one is threatened with imminent unlawful bodily harm (but not serious bodily harm or death) he may justifiably use nondeadly force if force is necessary to prevent the unlawful bodily harm. Id. at 392. Because there was no threat of deadly force in this case the correct standard is that the unlawful force must at least constitute imminent threat of an assault before one may defend oneself by force. The force employed must be reasonable in the light of the amount, degree and kind of force being used by the aggressor. Id. at 392-93.

We conclude that the conviction of Moses for assault and battery must be reversed and the matter remanded to the trial court for its findings, based on the present record and on the trial judge's own memory of the credibility of the witnesses, as to the assault and battery accusations against Moses in light of the rule stated.

In remanding, we do not indicate what finding the court should make.

For the reasons stated the convictions of Josela Alik are affirmed; the conviction of Moses Alik of trespass is reversed and that charge remanded to the trial court for dismissal; the conviction of Moses Alik of assault and battery is reversed and the matter remanded to the trial court for a finding on the charge based on the rule of self-defense set forth in this opinion.

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