Series: 6ASR3d | Year: 2002 | 6ASR3d5
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High Court of American Samoa
Trial Division
CR No. 30-02
October 21, 2002


[1] To find a child competent to testify, court must evaluate child’s voir
dire examination to find that, based on child’s demeanor and answers as
whole, child understood obligation to testify truthfully and had mental
capacity to accurately perceive events at issue when they occurred, to
recollect those events at time of trial, and to understand and answer
questions about those events.
[2] Report of emergency medical technician was inadmissible as
evidence where it had not been certified as public record in accordance
with T.C.R.Ev. 902(4).
[3] Defendant’s matai status in village and status of child victim’s
family, standing alone, did not establish basis for reasonable inference
that defendant had disciplinary authority over child victim. It was not
error to reject proposed jury instructions amounting to defense of
justification as person entrusted with care, discipline, or safety of minor
because defense was not fairly raised by evidence.
[4] Concepts of “normal parental discipline” (A.S.C.A. § 45.0103(20))
and “accepted child-rearing practices of culture” (A.S.C.A. §
44.2001(a)(2)) do not have direct application to prosecutions under
criminal code.
[5] Where victim was struck by defendant, jury instruction on third
degree assault committed when actor attempts to cause physical injury to
another person (A.S.C.A. § 46.3522(a)(1)) was only appropriate
instruction for lesser included offense of third degree assault. Offenses
under A.S.C.A. § 46.3522(a)(3), (4), and (5) focus more on mental
effects that result when victim is put in fear or at risk of injury, or
experiences offensive or provocative contact.
[6] Disturbing private peace is not lesser-included offense of second
degree assault in that commission of second degree assault does not
require finding on nature of location of incident.
[7] Second degree assault is always class D felony regardless of
circumstances constituting offense set forth in A.S.C.A. § 46.3521(a).
Before RICHMOND, Associate Justice, MAMEA, Associate Judge, and
TUPUIVAO, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Asst. Attorney General
For Defendant, Bentley C. Adams III, Asst. Public Defender
On August 22, 2002, defendant was convicted by jury of the crimes of
trespass, a class A misdemeanor, and assault in the second degree, a
class D felony. On September 4, 2002, defendant was adjudicated guilty
of the two offenses and sentenced to concurrent terms of imprisonment
of one year for the misdemeanor conviction and five years for the felony
conviction. On September 10, 2002, defendant moved for a new trial.
The Court heard and took under advisement the motion on October 11,
2002. Both counsel were present and submitted the motion on their
written arguments.
Defendant alleges as error entitling him to a new trial: (1) incompetent
children were allowed to testify; (2) the report of the attending
emergency medical technician was not admitted into evidence; (3)
proposed defense instructions were not given to the jury; (4) the sentence
exceeded the statutorily authorized period; and (5) the evidence was
insufficient to sustain beyond a reasonable doubt the jury’s verdict of
defendant’s guilt.
A. Child Witness Competency
[1] Three children, ages 9, 10 and 11, were allowed to testify. Outside
the jury’s presence, each child was questioned on voir dire examination,
which included cross-examination by defendant’s counsel. The Court
evaluated each child’s examination, using the standard recently
enunciated in American Samoa Government v. Va`ai, 6 A.S.R.3d 223
(Trial Div. 2002). Based on each child’s answers as a whole and witness
demeanor, we found that each child understood the obligation to testify
truthfully, and had the mental capacity to accurately perceive the events
at issue when they occurred, to recollect those events at the time of trial,
and to understand questions about those events and express in words
from memories of them. Defendant has not provided any persuasive
challenge to our findings that each child was competent to testify.
B. The Emergency Medical Technician’s Report
[2] We did not disallow as evidence the report of the emergency medical
technician because, as defendant claims, of its hearsay content. Rather,
the report was inadmissible as evidence because it was not certified as a
public record in accordance with T.C.R.Ev. 902(4). Moreover, the
emergency medical technician was available but was not called to testify.
We stand by our ruling that the report was inadmissible without a proper
C. The Proposed Defense Jury Instructions
Defense of Justification and Use of Force by Persons
Responsible for Another’s Care, Discipline, or Safety—
Requested Instruction No. 3 (A.S.C.A. § 46.3311 in part)
Definition of “Normal Parental Discipline”—Requested
Instruction No. 11 (A.S.C.A. § 45.0103(20))
Cultural Child Rearing Practices—Requested Instruction No.
12 (A.S.C.A. § 44.2001(a)(2))
[3] Defendant sought to interject with these three instructions the defense
of justification as a person entrusted with the care, discipline, or safety of
a minor. We rejected these instructions principally because this defense
was not fairly raised by the evidence. Defendant’s matai status in the
village and the child victim’s family standing alone did not establish any
basis for a reasonable inference that he had any disciplinary authority
with respect to the child victim. No other evidence was presented of any
such entrustment in his matai capacity.
[4] Proffered instruction No. 3 also omitted the statutory restraints in
A.S.C.A. § 46.3311(a)(2) on the acceptable extent of force imposed.
Furthermore, the concepts of “normal parental discipline” and “accepted
child-rearing practices of the culture” are expressly applicable to child
abuse or neglect proceedings under the juvenile code for the guidance to
authorities handling such matters. They do not, at face value, have direct
application to prosecutions under the criminal code. Besides, defendant
was not the child victim’s parent. Finally and most importantly, the
instructions on the second and third degree assaults adequately informed
the jury on the standards for their factual findings at issue.
Lesser Included Offense of Assault in the Third Degree—
Requested Instruction No. 6 (A.S.C.A. § 46.3522(a)(1), (3),
(4), and (5))
[5] Defendant sought to interject, as lesser-included offenses of second
degree assault, several alternative means of committing third degree
assault. The jury was instructed on the lesser offense of third degree
assault committed when the actor attempts to cause physical injury to
another person, as set forth in A.S.C.A. § 46.3522(a)(1). Under the
evidence, defendant clearly struck the child victim. The evidence fit this
means of committing third degree assault as a lesser-included offense of
second degree assault, alleged as attempting to cause physical injury to
another person by means of a dangerous weapon. The element of using
a dangerous weapon, a bamboo stick in this case, was the difference
between the two degrees of assault. Thus, under the evidence, the
instruction given was the only appropriate third degree assault lesserincluded
offense instruction.
The evidence was not in keeping with assault in the third degree under
A.S.C.A. § 46.3522(a)(3), (4), and (5). Those offenses focus more on
the mental rather than physical effects that result when the victim is put
in fear or at risk of injury, or experiences offensive or provocative
contact. Defendant’s conduct in this case went substantially beyond the
commission of a third degree assault in any of these three ways. None of
these ways was raised by the evidence.
Lesser Included Offense of Disturbing Private Peace—
Requested Instruction No. 8 (A.S.C.A. § 46.4502(a)(1) and
[6] Defendant also sought to interject private peace disturbance as a
lesser offense of second degree assault. This offense does not appear to
be a lesser-included offense. The commission of second degree assault
does not require any finding on the nature of the location of the incident.
The element of location on “private property” makes second degree
assault and private peace disturbance apparently distinct offenses rather
than greater and lesser included offenses.
In any event, as worded, the instruction included fighting on private
property, which in no sense occurred in this case. The incident did not
involve any fight between an adult male and nine-year-old female.
Again, the emphasis in the offense of private peace disturbance is on the
mental effect of causing the alarm, not the actual physical contact shown
by the evidence in this case. This proffered instruction was clearly
inapplicable under the evidence.
D. The Authorized Sentence
[7] Defendant asserts that the sentences of imprisonment, totaling five
years, imposed on him exceeded statutory authority. He points out that
the accusation in the information of second degree assault solely charges
that he “attempted to cause physical injury” to the child victim by means
of using a bamboo stick as a dangerous weapon. Second degree assault
is a class D felony carrying a maximum punishment of five years’
imprisonment and a $5,000 fine. See A.S.C.A. §§ 46.3521(c),
46.2301(4), 46.2101(a)(1). Defendant argues, however, that the word
“attempt” necessarily brings into play the statutes that reduce an attempt
to commit a class D felony to a class A misdemeanor carrying the
maximum punishment of one year’s imprisonment and a $1,000 fine.
A.S.C.A. §§ 46.3401, 46.3404(3), 46.2301(5), 46.2102(a)(1).
Defendant disregards the “[u]nless otherwise provided” introductory
language in A.S.C.A. § 46.3404. Second degree assault is always a class
D felony, as provided in A.S.C.A. § 46.3521(c), regardless of the
circumstances constituting the offense set forth in A.S.C.A. §
46.3521(a). The sentence imposed on defendant simply did not exceed
statutory authority.
E. Sufficiency of the Evidence
Defendant claims that the evidence was insufficient to convict him
beyond a reasonable doubt. He bases this claim on his assertion that the
child witnesses, who were the only eyewitnesses to the incident, were
incompetent to testify and testified contradictorily.
As discussed above, we found, and still find, the three child witnesses
competent to testify. The jury, as the trier of the facts, could believe
their testimony, and the testimony of other witnesses, entirely, partially,
or not at all. In doing so, the jury could resolve any contradictions in the
testimony. The jury clearly believed the child witnesses’ testimony and
resolved any contradictions in their testimony. On the basis of the
evidence, the jury could, and clearly, did find beyond a reasonable doubt
each and every element of the crimes of trespass as a lesser included
offense of burglary in the second degree and assault in the second
degree, and therefore defendant’s guilt of committing those crimes. The
evidence was sufficient to sustain defendant’s convictions.
Defendant’s motion for a new trial is denied. It is so ordered.