[29ASR2d176]
v.
DALLACE SEIULI,
Defendant
High Court of
Trial Division
CR No. 7-95
[1] For purposes of determining
criminal culpability under a possession statute, a person need not own the
illegal thing but may still have possession of it if the person knows of its
presence and has physical control of it, or has the power and intention to
control it. The court may reasonably
infer that a defendant knew of the presence and had physical control of a gun
where the gun was found in a residence that defendant lived in as evidence by
his presence in and familiarity with the residence.
Before
Counsel:
For Plaintiff, Frederick J.
O'Brien, Assistant Attorney General
For Defendant, Reginald E.
Gates, Public Defender
Opinion and
Order:
On
A person commits
the offense of unlawful possession of a firearm or firearm ammunition if:[29ASR2d177]
(1)
the person has any firearm or firearm ammunition in
his possession; and
(2)
during the five-year period immediately preceding the
date of that possession, either in
On December 7, 1994, Officer Paulo Leuma and three other police officers of the Department of
Public Safety ("DPS") of plaintiff American Samoa Government
("ASG") went to a residence in Ili`ili,
American Samoa. The officers possessed a
search warrant duly issued by an Acting Associate Justice of this court to
search the residence and, if found, seize a machine gun ("the gun").
Leuma and Sgt. Terry Letuli
went to the back door of the residence.
The other two officers went to the front door. Leuma knocked on
the back door, which consisted only of a screen door and provided immediate
entry to the kitchen. After about one
minute, Seuili came to the back door from the
direction of another room in the residence.
Leuma asked Seuili to step outside.
Seiuli untied a rope fastening the door and
went outside. Leuma
identified himself and Letuli as police officers and
told Seiuli that two other officers were at the front
door. Leuma
explained to Seuili that the officers has a search
warrant to search the residence and seize the gun if found there. He gave Seuili a
copy of the search warrant.
Leuma, Letuli and Seuili then entered
the kitchen. Inside, they conversed a short while longer. Leuma asked Seuili if he had the gun.
Seiuli pointed to the room near which Leuma had first observed him and said the gun was on a
chair in that room.
Leuma, Letuli and Seiuli than went
inside this room, a bedroom, and the officers saw the gun on a chair next to a
bed. Letuli
examined the gun. He found and removed a
magazine from it. He retained the gun,
while the four officers carried on a further search of the residence for
approximately 15 minutes. Leuma did not physically see the gun during this search,
but Letuli was in his immediate presence throughout
this procedure. After completing the
search, and while in the living room of the residence, Leuma
inventoried and tagged all items seized and took possession of the gun and
magazine. [29ASR2d178]
Seiuli was the only
person inside the residence, other than the officers, while the officers were
there.
Leuma transported all
items seized at the residence to DPS headquarters in Fagatogo. There the officers removed seven rounds of
ammunition from the gun's magazine. The
gun was loaded with ammunition when it was seized.
Seiuli was convicted
in the Superior Court of the State of
DISCUSSION AND
CONCLUSIONS
1.
Possession.
"'Machine gun' means any firearm
that is capable of firing more than two shots automatically, without manual
reloading, by a single function of the trigger." A.S.C.A. § 46.4201(j). The gun seized under the search warrant is a
machine gun. Since Leuma
did not have the gun in actual sight during the search after the gun was
seized, Seiuli questioned whether the gun in evidence
is the same one seized. During this
search of about 15 minutes, Letuli physically
possessed the gun and was in Leuma's immediate
presence. We have no doubt that the gun
in evidence was the gun seized.
[1] Seiuli protested that his ownership of the gun
was not shown. However, possession, not
ownership, is the issue. "A person
has possession of something if the person knows of its presence and has
physical control of it, or has the power and intention to control it." 9th Cir. Crim. Jury Instr. 3.16 (West
1992). We excluded as hearsay Leuma's direct testimony that Seiuli
lived at the residence and was married to the owners' daughter, and that the
owners were off-island at the time of the search. However, we can reasonably infer from Seiuli's presence and familiarity with the residence and
the things within the structure that he lived there. Clearly, his connection with the gun was
neither casual nor coincidental. He then
knew the gun was there and had physical control of it.
Thus, we conclude that beyond a
reasonable doubt, Seuili was in possession of the gun
at the time of the search.[29ASR2d179]
2.
Conviction or Confinement.
The facts found above regarding Seiuli's conviction and confinement in
Under
We did not admit into evidence the last
two pages attached to the
Therefore, we conclude that beyond a
reasonable doubt, Seiuli was confined for the
conviction of a dangerous felony within five years immediately preceding his
possession of the gun on
Decision
Seuili is guilty of
unlawful possession of a firearm or firearm ammunition, as charged in Count IV
of the information.[29ASR2d180]
Seiuli's bail is
revoked, and he is remanded to custody at the DPS correctional facility at Tafuna, pending sentencing.
He shall report to the correctional facility no later than
Sentencing is scheduled on
It is so ordered.