1 MILR (Rev.) 39

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CRIM. No. 85-02
(High Ct. Crim. No. 1984-023)

REPUBLIC OF THE MARSHALL ISLANDS,
Appellee,

-v-

LEJOLAN KABUA,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

JULY 5, 1986

BURNETT, C.J.
TENNEKONE, A.J., and KONDO, A.J. (sitting by designation)

SUMMARY:

The Supreme Court set aside a conviction for sodomy and affirmed convictions on kidnapping and assault and battery with a dangerous weapon. Also, the Court ruled the High Court is not authorized to suspend sentence on one count until the sentence on another has been served; the High Court erred in finding the defendant guilty of multiple offenses from what was a single act; and sodomy, as defined in 11 TTC § 1303, does not include digital manipulation.

DIGEST:

1. CRIMINAL LAW AND PROCEDURE – sodomy: The Sodomy statute, 11 TTC § 1303, which defines sodomy as "sexual relations of an unnatural manner" and proscribes, as included within the term sodomy, "any and all parts of the sometimes abominable and detestable crime against nature" is sufficient to withstand constitutional challenge.

2. CRIMINAL LAW AND PROCEDURE – Sentencing: The High Court is not authorized to suspend sentence on one count until the sentence on another count is served.

3. CRIMINAL LAW AND PROCEDURE – Convictions: The High Court erred in finding the defendant guilty of multiple offenses, Sodomy and Assault and Battery, from what was, in fact, a single act.

4. APPEAL AND ERROR – Questions Reviewable – Questions of Law: The Supreme Court is free to consider questions of law not considered in briefs or argument. The Court is free to recognize clear error.

5. CRIMINAL LAW AND PROCEDURE – sodomy: The Sodomy statute, 11 TTC § 1303, which defines sodomy as "sexual relations of an unnatural manner" and proscribes, as included within the term sodomy, "any and all parts of the sometimes abominable and detestable crime against nature" does not include digital manipulation.

OPINION OF THE COURT BY BURNETT, C.J.

This appeal is taken from judgment in the High Court, following a jury trial finding Appellant Lejolan Kabua guilty of Kidnapping, 11 TTC 801, Sodomy, 11 TTC 1303, and Assault and Battery with a Dangerous Weapon, 11 TTC 204. He was sentenced to a term of imprisonment of ten (10) years on the Kidnapping charge. The court suspended imposition of sentence on the remaining counts until the full ten (10) years imposed had been served.

Notice of appeal was filed, asserting seven statements of error; of these only two were briefed or argued – a third was briefed, though not included in the questions submitted.

[1] We consider, briefly, the question not included in the statement of error, that of the constitutionality of the Sodomy statute, 11 TTC § 1303. The Statute refers to "sexual relations of an unnatural manner," and later, proscribes, as included within the term of Sodomy, "any and all parts of the sometimes abominable and detestable crime against nature."

All reported challenges to the language, as unconstitutional, have been regularly rejected, 70 Am Jur 2d, Sodomy § 11, the description being accepted as constitutionally sufficient in terms of due process.

We find that the description of the offense, in terms known to the Common Law, 70 Am Jur 2d, is sufficient to withstand constitutional challenge.

The facts of the case are relatively simple.

Appellant was observed, by two prosecution witnesses, as he arrived at the Lanwi residential area. Both of these recognized, and identified, Appellant, who went to the house, asked for George Lanwi (Pr. witness # 1), and was told he was not available. A second inquiry brought the same response.

Shortly thereafter, both Lanwi and the second Prosecution witness, Atra Lang, observed Appellant carrying the victim away. After sending a boy to the house to check on whether the girl was there, both Lanwi and Atra gave chase. She was found alone on the beach, some distance away, naked and bleeding from her privates.

The child was medically examined, and found to have a "superficial tear and a bruise in her vaginal area." The only suggestion as to what caused the injury was medical testimony that it was caused by an object "thin enough to enter the vaginal tract."

The child's mother was permitted to testify as to what the child had told her, identifying Appellant, and saying that he had done it with this hand."

This testimony was objected to, upon the principal ground that the trial court refused to examine the child to determine her competency as a witness. The trial court held that it was admissible as an "excited utterance," and that no test of competency as a witness was required. We agree.

Even if we did not agree with the trial court's view, we would necessarily say that, if it were error, such error was harmless. Appellant was fully identified by two witnesses (their credibility unchallenged).

We must address further issues, not spoken to in either Appellant's nor Appellee's submissions.

[2] We first consider whether the court was authorized to suspend sentence at the counts charging Sodomy and Assault and Battery with a Dangerous Weapon, until all time sentenced on Count I (ten years) had been served.

The only authorization given, by law, for suspended imposition of sentence, is found in 11 TTC § 1460. The clear import is that suspended imposition is for the purpose of granting probation for a period of time, following which the defendant may be discharged with vacation of his conviction.

"§ 1460 Probation - (1) ... the court ... may suspend the imposition of sentence ... for a period of time, not exceeding the maximum term of sentence which may be imposed ... and shall place the person on probation ...." (emphasis added)

The maximum sentence for Sodomy is ten years, thus even in an appropriate situation, the suspension of imposition (had probation been granted) could not have exceeded that term.

This is obviously not the situation here. We can only speculate as to the court's reason for deferring sentence. The only reason that comes to mind is that he wished to insure that Appellant be precluded from any possibility of parole. This is not a proper objective – the court's responsibility, and jurisdiction, ends when sentence is pronounced, (or should be pronounced) See 5 Wharton's Cr. Law and Proc., Sec. 2179.

[3] Next, it seems clear that both Sodomy and Assault and Battery charges arise from a single act, that is, from whatever the instrument was used to produce harm to the victim. It was, we think, error to charge, and find guilt, of "multiple offense" for what was, in fact, a single act. 5 Wharton's Cr. Law and Proc., Sec. 2189. 22 C.J.S. Criminal Law § 9(1). See also, Bell v. U.S., 349 U.S. 81 (S. Ct. 1955) "Several criminal offenses cannot be carved out of what is, in fact, one transaction."

It follows that Appellant could not properly have been convicted of two different crimes, both arising from the same act; one of the two counts must fall.

[4] We should note that both the prior question, and that which follows, while not considered in briefs or argument, may still be considered by this court. We are necessarily free to recognize clear error. As to the multiplication of charges, we have no doubt that this was wrong, and that we should correct it.

[5] Appellant's contention, as to the unconstitutionality of the Sodomy charge, might better have been directed to question whether the act charged was, in fact, Sodomy.

The most that can be said, in this case, is that accused/appellant used his finger on this little girl. Abhorrent as it may be, the question remains – is that Sodomy?

There is little light to be found in the "variations" found in state statutes as to what constitutes "Sodomy." Beginning with original definitions, we start with Black's, which defines, first, "an unnatural offense": the infamous crime against nature, i.e., Sodomy or buggery. And then; "Sodomy. A carnal copulation by human beings with each other against nature ...."

The varied interpretations of state statutes have turned on whether "Sodomy" has been, by court interpretation, extended to include per os acts in addition to the Common Law per annum. Neither of these concern us here.

"In the absence of statute, there is a conflict of authority whether a penetration other than per anum constitutes the crime of Sodomy ...." Wharton's Cr. Law and Proc., Sec. 752.

There is nothing in our statute which would extend the offense beyond the common law. To prohibit "sexual relations of an unnatural manner ...." says no more than to prohibit an "abominable and detestable crime against nature."

Our statute is, unfortunately, limited. Where the common law has been extended, by statute, it has been done so by explicit prohibition. Other Jurisdictions have been more solicitous of innocent victims. Digital manipulation, however decried, has never been found to be within the definition of 'Sodomy,' unless specifically made so by statute. Nor has the use of a foreign object (i.e., "non body" intrusion), been so held.

In State v. Anthony, (Ore.) 169 P.2d 587, the defendant was charged with having used a "foreign" object. The act was found not to be within those parts of a statute prohibiting Sodomy or the crime against nature. The portion of the statute which prohibited "acts of sexual perversity," was made applicable. Our statute contains no language appropriate to this situation. We conclude that Appellant's conduct did not constitute Sodomy, within the terms of 11 TTC § 1303. Accordingly, the Sodomy convictions most fall. We then consider the charge of Kidnapping (11 TTC 801). The primary claim by Appellant is that there was not a sufficient period of restraint to support the charge, i.e., that there was not a physical restraint for an appreciable period; citing Chatwin v. United States, 326 U.S. 455 (1946).

Appellant misses the main point, that what is an appreciable period is not the same in all cases. The primary question is whether the restraint is of such duration as to increase the threat of harm to the victim – here it obviously was. We find nothing to suggest that the Kidnapping was merely "incidental" to another offense, and thus subsumed. See, for example, Yescas v. People, 593 P2d 358 (Colo. 1979). Also, Beck v. United States, 402 A. 2d 418 (1979 D.C. App).

We, therefore, affirm the conviction of Kidnapping (on which sentence was passed); reverse and set aside conviction of Sodomy; and affirm conviction of Assault and Battery with a Dangerous Weapon.

Since sentence must be pronounce in open court, we remand so that the Appellant may be sentenced on his finding of guilt of Assault and Battery with a Dangerous weapon in accord with 11 TTC 204.