AMERICAN SAMOA GOVERNMENT,v.MATAIO VAAI
MATAIO VAAI, Defendant.
High Court of American Samoa
CR No. 12-02
September 6, 2002
 Any given witness is presumed competent to testify. However, the
presumption is a rebuttable one.
 In determining whether a child is competent to testify, there is no
precise cut-off age. Instead, the court determines whether the child has:
(1) an understanding of the obligation to speak the truth on the witness
stand; (2) the mental capacity at the time of the occurrence concerning
which he is to testify to receive an accurate impression of it; (3) a
memory sufficient to retain an independent recollection of the
occurrence; (4) the capacity to express in words his memory of the
occurrence; and (5) the capacity to understand simple questions about it.
 The court must determine the competency of witnesses, and such
decision will not be disturbed unless it is clear the judge abused his or
 Inconsistencies in a child’s testimony do not speak to the child’s
competency but, instead, go to her credibility.
 Matters of credibility are within the exclusive function of the jury.
 A lesser-included offense is one whose elements are a subset of the
 When there are overlapping statutes providing different penalties no
lesser offense instruction need be given.
 When some statutory provisions expressly mention a requirement,
the omission of that requirement from other statutory provisions implies
that the legislature intended both the inclusion of the requirement and the
exclusion of the requirement.
 The language of American Samoa’s penal statutes evidences an
intent not to punish “sexual contact” with a child under 12 as severely as
“deviate sexual intercourse” or “sexual intercourse” with a child under
Before RICHMOND, Associate Justice, LOGOAI, Chief Associate
Judge, and MAMEA, Associate Judge.
Counsel: For Plaintiff, Frederick J. O’Brien, Assistant Attorney General
For Defendant, Curtis E. Sherwood and Bentley C. Adams III,
Assistant Public Defenders
ORDER DENYING MOTION FOR
RECONSIDERATION OR NEW TRIAL
On May 14, 2002, the jury in this action convicted defendant Mataio
Vaai (“Vaai”) of three counts of child molesting, in violation of
A.S.C.A. § 46.3618, each a class A felony punishable by a minimum
term of imprisonment of 10 years, without probation or parole. On June
14, 2002, the Court adjudicated Vaai guilty of the three offenses and
sentenced him to 10 years’ imprisonment on each count, the counts 2 and
3 terms of imprisonment to be served concurrently with each other and
consecutively to the count 1 term of imprisonment.
Vaai moved for reconsideration or new trial on June 24, 2002. The
Court heard the motion on July 18, 2002. Vaai was present with
counsel. Plaintiff American Samoa Government’s counsel was also
present. The Court, having considered counsel’s argument, will deny the
motion, with the following comments on two of the issues raised by the
A. Admissibility of the Child Witness Testimony
The victim was eight years of age when she testified at the trial about
events that occurred when she was five years of age and again when she
was seven. Vaai now claims that the victim was incompetent because of
certain flaws in her testimony.
[1-6] Generally, “[e]very person is competent to be a witness.”
T.C.R.Ev. 601. This rule raises a presumption of competence that,
nonetheless, can be rebutted. Vaai tried doing so at trial, and we held a
voir dire to determine whether the child could testify.1 When
determining a child’s competency, there is no precise cut-off age.
Instead, we determine whether the child has:
(1) an understanding of the obligation to speak the truth on the
witness stand; (2) the mental capacity at the time of the
occurrence concerning which he is to testify to receive an
accurate impression of it; (3) a memory sufficient to retain an
independent recollection of the occurrence; (4) the capacity to
express in words his memory of the occurrence; and (5) the
capacity to understand simple questions about it.
Jenkins v. Snohomish County Pub. Util., 713 P.2d 79, 81 (Wash. 1986).
This determination is a matter of law, for the trial judge, and will not be
disturbed unless it is clear the judge abused his discretion. See State v.
Stewart, 641 So.2d 1086, 1089 (La. Ct. App. 1994). After reviewing the
record, we affirm that our ruling was proper. Inconsistencies in the
child’s testimony do not speak to the child’s competency but, instead, go
to her credibility. See Feleke v. State, 620 A.2d 222, 226 (Del. 1993);
Hesler v. State, 431 S.E.2d 139, 140 (Ga. Ct. App. 1993); People v. Dist.
Court, 791 P.2d 682, 685 (Colo. 1990) (under state statute, child need
not be able to understand what it means to take an oath and tell the truth
to be declared competent). Matters of credibility, of course, are within
the exclusive function of the jury. Am. Samoa Gov’t v. Tauala, 25
A.S.R.2d 179, 180 (Trial Div. 1994).
1 A second child witness, age nine, testified during the trial. Vaai is not
challenging this witness’ competency in his present motion. However,
we note that we followed the same voir dire procedure and found this
child was also competent to testify under the applicable standards.
B. Jury Instruction on Sexual Abuse in the First Degree
At trial, Vaai requested an instruction on sexual abuse in the first degree
as a lesser-included offense of child molesting. We refused to give such
an instruction. Vaai now claims that it was reversible error.2 Vaai’s
contention, however, hinges on his argument that we should infer that
the crime of child molestation implicitly requires an intent to gratify
sexual desire.3 That language, in turn, comes from the statutory
definition of “sexual contact.”4 Sexual abuse in the first and second
degree are the only offenses to date that include sexual contact as an
2 Indeed, a “Court has no discretion to refuse to give a lesser-included
instruction if the evidence warrants the instruction and the defendant
requests it.” United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993).
See also A.S.C.A. § 46.3108.
3 That language is not found within the statute, A.S.C.A. § 46.3618,
46.3618 Child molesting
(a) Notwithstanding any other provision of this chapter, a person
commits the crime of child molesting if he engages in sexual
intercourse or deviate sexual intercourse with a minor of the age of
12 years or under.
4 The statute, A.S.C.A. § 46.4601, reads:
(b) “Sexual contact” means any touching of the genitals or
anus of any person, or the breast of any female person, or any
such touching through the clothing, for the purpose of
arousing or gratifying sexual desire of any person.
5 The statutes, A.S.C.A. §§ 46.3615 and 46.2616, read:
§ 46.3615 Sexual abuse in the first degree.
(a) A person commits the crime of sexual abuse in the first
(1) he subjects another person to whom he is not married
to sexual contact without that person’s consent or by the
use of forcible compulsion; or
(2) he subjects another person who is 14 years of age or
less to sexual contact.
§ 46.3616 Sexual Abuse in the second degree.
(a) A person commits the crime of sexual abuse in the second
degree if he subjects another person to whom he is not married
to sexual contact without that person’s consent.
 Vaai’s argument is illogical. Were we to infer such an intent, sexual
abuse in the first degree would still not be a lesser-included offense of
child molestation. A lesser-included offense is one whose elements are a
subset of the charged offense. See Schmuck v. United States, 489 U.S.
705, 716 (1989); A.S.C.A. § 46.3108. Under Vaai’s argument, sexual
abuse in the first degree would not be a subset but, rather, it would be an
independent offense with its own penalty provision. Granted, there
would be substantial overlap between the two statutes; but we have
upheld such overlap in the past. See generally Am. Samoa Gov’t v.
Whitney, 20 A.S.R.2d 29 (Trial Div. 1991) (finding that the sodomy,
A.S.C.A. § 46.3611, and deviate sexual assault, A.S.C.A. § 46.3612,
statutes did not violate due process even though they both punished
identical conduct); Am. Samoa Gov’t v. Macomber, 8 A.S.R.2d 182
(Trial Div. 1988); see also United States v. Stanley, 928 F.2d 575, 581
(2d Cir. 1991) (government can choose between different statutory
penalty schemes applicable to the same conduct).
 In such a situation, when “there are overlapping statutes providing
different penalties . . . no lesser offense instruction need be given.” 26
JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 631.10(4)(c)
(3rd ed. 1999) (citing Sansone v. United States, 380 U.S. 343, 351-353
(1965)); see also Schmuck, 489 U.S. at 716 n.8 (lesser included offense
instruction only given if facts of case allow jury to find defendant guilty
of lesser included offense but acquit him of the greater). “To hold
otherwise would invite the jury to pick between the two offenses in order
to determine the punishment to be imposed, a duty traditionally left to
the judge.” 3 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND
PROCEDURE § 515 (1982).
[9-10] Nonetheless, in any event, we will not infer such an intent
requirement in the face of legislative clarity. See Whitney, 20 A.S.R.2d
at 32 (no ambiguity in statutory language of very similarly worded
criminal provisions). “When some statutory provisions expressly
mention a requirement, the omission of that requirement from other
statutory provisions implies that Congress intended both the inclusion of
the requirement and the exclusion of the requirement.” West Coast
Truck Lines v. Arcata Comm, Recycling, 846 F.2d 1239, 1244 (9th Cir.
1988) (emphasis in original). Clearly the Legislature intended the
exclusion of “sexual contact” as an element of child molesting as
evidenced by their inclusion of “sexual contact” as an element of other
offenses. See Am. Samoa Gov’t v. Masaniai, 4 A.S.R.2d 156, 159 (Trial
Div. 1989) (refusing to infer intent to sexually gratify into sodomy
statute, A.S.C.A. § 46.3611). The language also reflects a rational
decision to not punish “sexual contact” of a child under 12 as severely as
“deviate sexual intercourse” or “sexual intercourse” with a child under
Additionally, we find no merit to Vaai’s argument that without the
element of “sexual contact,” the child molestation statute is
unconstitutionally broad. Vaai argues that it will lead to prosecutions of
parents who, for any reason, touch the genitals of their child while
exercising their constitutionally protected right of caring for that child.
This rhetoric sweeps too broadly. Child molesting is limited to
situations where an adult engages in “deviate sexual intercourse” or
“sexual intercourse” with a minor of 12 years or under. Deviate sexual
intercourse is defined as any “sexual act involving the genitals of one
person and the mouth, tongue, hand, or anus of another person.”
A.S.C.A, § 46.3601 (emphasis added). Sexual Intercourse is defined as
“any penetration, however slight, of the female sex organ by the male
sex organ, whether or not an emission results.” Id. Clearly these
definitions do not apply, for example, when a parent changes his child’s
diaper or when a doctor performs a gynecological examination. See
Masaniai, 4 A.S.R.2d at 159. Indeed, they would never apply to
ordinary, everyday parent/child or doctor/child interactions.
The motion for reconsideration or new trial is denied.
It is so ordered.