Commonwealth v. Pua

IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. FRANCISCO AGUON PUA, Defendant-Appellant. SUPREME COURT NO. 06-0045-GA SUPERIOR COURT NO. 05-0132D Cite as: 2009 MP 21 Decided December 31, 2009 Edward C. Arriola, Saipan, Northern Mariana Islands, for Appellant. Gregory Baka, Assistant Attorney General, Commonwealth Attorney General’s Office, for Appellee. BEFORE: MIGUEL S. DEMAPAN, Chief Justice; JOHN A. MANGLONA, Associate Justice; JESUS C. BORJA, Justice Pro Tem.  MANGLONA, J.: ¶1 Defendant Francisco Aguon Pua (“Pua”) appeals the trial court’s denial of his motion to suppress a pouch that was seized during the execution of a search warrant. Pua also appeals the trial court’s denial of his motion to acquit and motion to set aside the jury verdict. The jury found Pua guilty of first degree felony murder and acquitted him of the underlying robbery charge. We affirm the trial court’s ruling on Pua’s motion to suppress because the seizure of the pouch was justified under the “plain view” exception to Article 1, Section 3 of the Commonwealth Constitution. In addition, we hold that the trial court did not err in denying Pua’s motion to acquit because there was sufficient evidence to sustain the charges against him. We also find that the trial court did not err in denying Pua’s motion to set aside the verdict as the jury’s verdict finding him guilty of first degree felony murder and acquitting of the underlying robbery charge was not inconsistent. Accordingly, we AFFIRM Pua’s first degree murder conviction. I Factual Background ¶2 On May 22, 2002, Hong Kyun Kim (“Kim”), manager of Candi’s Poker, discovered the body of cashier Mostofa Faruk Parves (“Parves”), in a pool of blood, with multiple stab wounds. Appellant’s Excerpts of Record (“ER”) at 1. ¶3 Detectives at the scene noticed surveillance cameras installed on the grounds of Tanapag Market, a market adjacent to Candi’s Poker. Id. at 2. The surveillance tapes, recorded in the early morning of May 22, 2002, revealed a man walking in the direction of Candi’s Poker and carrying in his right hand what appeared to be a long knife. Id. The man disappeared from the camera’s sight and re-appeared on the videotape approximately thirteen minutes later walking away from Candi’s Poker towards Tanapag Market. Supp. ER1 at 180-81. The man wore a light colored t-shirt with logo prints on the front and back, dark colored short pants, and a light colored pair of slippers. ER at 2. That same day, police discovered a knife in the wooded area behind the Market. Id. ¶4 The next day, several Tanapag residents viewed the surveillance videotape and identified the man as Pua, who was then brought in to the Criminal Investigations Office for questioning. Id. Pua told police that he had been fishing the evening of May 22nd and had arrived home between 11:00 p.m. and 11:30 p.m. Id. While at the station, police officers noticed a red spot on Pua’s right slipper and, with Pua’s consent, confiscated the slippers. Id. ¶5 On May 24, 2002, Detective Sylvan Rangamar (“Rangamar”) executed an affidavit for a search warrant of Pua’s residence. ER at 1-3. The affidavit listed for seizure a brightly colored t-shirt with logo prints and a pair of dark colored short pants. Id. A search warrant was issued that same day which, in 1 We requested the submission of supplemental excerpts of record. To avoid confusion, facts drawn from this source will be referenced to as “Supp. ER.”  addition to the t-shirt and short pants, authorized the search for and seizure of any United States currency, coin wrappers, photos of Pua, hair fibers, and any contraband or instrument relating to the alleged crime. ER at 6. Police executed the search warrant the following morning and seized items including five dark short pants and a light brown and yellow logo printed t-shirt. ER at 7-8. During the execution of the warrant, Officer Jeffrey F. Olopai (“Olopai”) also found and seized a waist pouch located in a garbage bin outside of Pua’s home. Supp. ER at 191. ¶6 Three years later, in May 2005, Detective Juan Santos (“Santos”) executed a declaration for Pua’s arrest. ER at 9-12. Santos’ declaration included his observation from the surveillance tape that Pua was wearing a dark colored pouch around his waist. Id. at 10. Santos also stated that samples from the t-shirt, waist pouch, and slippers were sent to an FBI laboratory for forensic examination. Id. at 11. The DNA results from the t-shirt and slippers were inconclusive, but DNA from blood detected on the pouch matched Parves’ DNA profile. Id. Pua was subsequently charged with robbery2 and murder during the perpetration of a robbery.3 ¶7 Prior to trial, Pua filed a motion to suppress the waist pouch on the ground that its seizure was not within the scope of the search warrant. The trial court denied Pua’s motion. ¶8 At trial, Kim testified that on May 22, 2002, at approximately 1:00 a.m., he made a partial collection of money from the cash register at Candi’s Poker and that Parves was his employee and worked as the cashier. ER at 44, 47, 54-55. Officer Olopai testified that he viewed the surveillance videotape before executing the search warrant and that although he did not see the pouch at the time, he did notice a bulge under the shirt.4 He also testified that he found the pouch during the execution of the search warrant and observed “some red stains” that “he wasn’t sure [were] blood.” Supp. ER at 203. Officer Aldan testified that upon arriving at Candi’s Poker, he saw the cash register drawer pulled out and empty. Id. at 225. ¶9 After the Commonwealth rested its case, Pua moved for a judgment of acquittal, arguing that there was no evidence that a robbery was committed. In addition, Pua moved for dismissal of the felony- 2 “(a) A person commits the offense of robbery if he or she takes property from the person of another, or from the immediate control of another, by use or threatened use of immediate force or violence. (b) A person convicted under this section may be punished: (1) By imprisonment for not more than 10 years; or (2) If the defendant or an accomplice uses a dangerous weapon to obtain the property or inflicts serious bodily injury, the term of imprisonment may not be more than 20 years.” 6 CMC § 1411. 3 “Murder is the unlawful killing of a human being by another human being with malice aforethought. (a) First Degree Murder. First degree murder is a murder which is: (1) Willful, premeditated, and deliberated; (2) Perpetrated by poison, lying in wait, torture, or bombing; or (3) One that occurs during the perpetration or attempted perpetration of arson, rape, burglary, robbery, or any sexual abuse of a child.” 6 CMC § 1101. 4 Olopai pointed the pouch out to the jury when they viewed the surveillance videotape, but testified to only noticing a bulge under the shirt when he first viewed the surveillance video, before the search warrant was executed. ER at 182, 299.  murder charge predicated on the robbery charge. The trial court denied both motions. Although Pua was not charged with attempted robbery, the trial court instructed the jury that either robbery or attempted robbery could satisfy the underlying felony requirement of 6 CMC § 1101.5 ¶ 10 At the conclusion of the trial, the jury acquitted Pua of robbery, but found him guilty of murder under the felony-murder statute. Pua filed a timely motion to set aside the verdict on the ground that the jury returned an inconsistent and repugnant verdict. The trial court denied his motion. Pua now appeals the trial court’s denial of his motion to suppress evidence of the seized pouch, motion for judgment of acquittal, and motion to set aside the verdict.6 II Motion to Suppress ¶ 11 Pua argues that the trial court erred in denying the pre-trial motion to suppress the waist pouch because the officers executing the warrant failed to comply with the warrant’s limitations and violated Article I, Section 3 of the Commonwealth Constitution. We review a trial court's ruling on a motion to suppress evidence de novo. Commonwealth v. Ramangmau, 4 NMI 227, 235 (1995) (citing United States v. Khan, 993 F.2d 1368, 1375 (9th Cir. 1993)). ¶ 12 Before we can consider the merits of Pua’s claim, we must first determine whether the facts we may consider on review include the entire record or only that proof offered at the pre-trial hearing on the motion to suppress. While this Court has previously addressed motions to suppress, we have not fully explored what evidence an appellate court may consider when reviewing a pretrial ruling on such motions. ¶ 13 The United States Supreme Court has stated that if the “evidence given [at] trial was sufficient . . . to sustain the introduction of the [proffered evidence], it is immaterial that there was an inadequacy of evidence when application was made for its return. A conviction on adequate and admissible evidence should not be set aside on such a ground.” Carroll v. United States, 267 U.S. 132, 162 (1925). In Carroll, the defendant argued that the evidence presented on a motion to suppress was insufficient to establish probable cause to seize liquor. More evidence, however, had been presented at trial. Id. The Court held that because “the whole matter was gone into at the trial, [no] right of the defendant’s was infringed.” Id. ¶ 14 Relying on Carroll, a majority of federal and state courts have held that an appellate court may consider evidence first produced at trial when reviewing a trial court's denial of a motion to suppress. See 5 The trial court instructed the jury as follows: “In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: First the defendant unlawfully killed Mostofa Faruk Parves; Second, the defendant killed Mostofa Faruk Parves with malice aforethought; Third, the killing occurred during the perpetration or attempted perpetration of robbery; and Fourth, the killing occurred in Tanapag, Saipan. To kill with malice aforethought means to kill either deliberately and intentionally or recklessly with extreme disregard for human life.” ER at 72. 6 The Commonwealth failed to submit a response brief.  generally State v. Henning, 975 S.W.2d. 290, 297-98 (Tenn. 1998) (analyzing the court split and concluding that a majority of United States jurisdictions rely on Carroll); See, e.g., State v. Washburne, 574 N.W.2d 261, 263-64 (Iowa 1997) (relying on federal authorities and holding that evidence adduced in later trial testimony may be considered when determining whether the court erred in denying a motion to suppress). “In determining whether a district court erred in admitting evidence claimed to have been seized as the result of an unreasonable search, an appellate court will not ordinarily limit itself to the testimony received at a pretrial motion to suppress, but will also consider pertinent testimony given at the trial.” Rocha v. United States, 387 F.2d 1019, 1021 (9th Cir. 1967). The reasoning for these decisions is grounded in the exclusionary rule,7 which is justified only to the extent that it “deter[s] police from violations of constitutional and statutory protections” and prevents “the prosecution [from being] put in a better position than it would have been in if no illegality had transpired.” Nix v. Williams, 467 U.S. 431, 442-43 (1984). We agree with the majority of federal and state courts and will consider evidence produced at trial in determining whether the trial court erred in denying Pua's motion to suppress. ¶ 15 Pua argues that the pouch was seized in violation of his Fourth Amendment8 rights and that the trial court improperly denied his motion to suppress. He claims that the trial court confused the declaration of probable cause in support of the arrest warrant dated May 2005 with the affidavit for the search warrant dated May 2002 in concluding that the illegally seized pouch was within the scope of the search warrant.9 He also asserts that the trial court’s reasoning is based on an incorrect application of Nix v. Williams, supra, the seminal United States Supreme Court case addressing the “inevitable discovery” exception to the exclusionary rule. However, Pua is mistaken because the trial court based its decision on an “inevitable seizure”10 rule, and only utilized the rationale of police deterrence referenced in Nix. ¶ 16 The trial court reasoned that Pua’s residence was sufficiently described in the warrant and, under the inevitable seizure doctrine, the seizure of the pouch was justified as “it was conceivable that the clothing described in the warrant could have been found in the trash bin.” Order Granting Motion to Suppress Recorded Evidence and Denying Motion to Suppress Physical Evidence (“Order Granting 7 Courts ordinarily suppress evidence obtained during an unreasonable search or seizure and offered against the accused. See Mapp v. Ohio, 367 U.S. 643 (1961). 8 The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. 9 The affidavit for the search warrant dated May 2002 did not state that a pouch was visible in the surveillance videotape whereas this was stated in the declaration of probable cause dated May 2005. 10 The trial court noted that Connecticut is the only United States jurisdiction that has examined this doctrine in detail, while a few other states have relied on it with little explanation. Order Granting Motion to Suppress Recorded Evidence and Denying Motion to Suppress Physical Evidence at 9.  Motion to Suppress”) at 6. The trial court also stated that even though the pouch was not particularly described in the warrant, and it did not fall within the broad definitions of “contraband” or “instrumentality of the crime,” it was nonetheless admissible because it was discovered during the execution of a lawful warrant and its seizure was appropriate and inevitable. Id. at 8. It reasoned that all warrantless searches are presumed illegal until an established exception is proven, and then premised its decision on an “inevitable seizure” exception, a variation of the doctrine of “inevitable discovery.” Id. at 9. ¶ 17 The requirements needed to invoke the “inevitable discovery” exception are articulated in Nix, in which the United States Supreme Court held that in order for this exception to be asserted, the government had to prove by a preponderance of the evidence that (1) the illegally seized evidence would have been discovered by lawful means; (2) a systematic and specific search of the illegally seized evidence was ongoing; and (3) the record shows that discovery would have been inevitable. Nix, 467 U.S. at 444. The Nix Court reasoned that the inevitable discovery doctrine balances society's interest in deterring improper police conduct by putting the police in the same position they would have been in if no police error or misconduct had occurred. Id. at 447. In the case at hand, the trial court rejected the Commonwealth’s argument that the doctrine of “inevitable discovery” applied to the pouch, and instead relied on the Nix rationale holding that excluding the pouch would have no utility in deterring improper police conduct. It explained that “the discovery of the bag in the instant case was inevitable. Technically speaking, its seizure was the product of illegal governmental activity, since the bag was not among the list of items authorized for seizure.” Order Granting Motion to Suppress at 10. “No leap of faith on the part of the officer was needed to determine that the bag constituted relevant evidence” and since it was “within the scope of the Declaration of Probable Cause in Support of the Warrant, an amendment to the warrant would have assuredly been allowed had the officers secured the premises and then returned to Court to amend the warrant.” Id. at 11. ¶ 18 We agree with Pua that the trial court confused the May 2002 affidavit in support of the search warrant executed by Rangamar with the May 2005 declaration of probable cause in support of the arrest warrant executed by Santos. The declaration of probable cause in support of the arrest warrant was the only declaration that mentioned the pouch. However, we deem the error to be inconsequential, as the trial court made only a cursory reference to the declaration and it was not crucial to its analysis. We also agree with the trial court’s reasoning that “the premises to be searched were sufficiently described by the warrant and the seizure of the pouch was justified as it was conceivable that the items described in the warrant could have been found in the trash bin.” Order Granting Motion to Suppress at 6. A warrant sufficiently describing the premises to be searched will justify a search of property belonging to the person occupying the premises if those effects might contain items described in the warrant. United States  v. Gomez-Soto, 723 F.2d 649, 655 (9th Cir. 1984). In the instant case, the officer had a lawful search warrant11 and it was reasonable for him to look in the garbage bin while searching for the items authorized for seizure. However, we are wary of the trial court’s reliance on an “inevitable seizure” rule. While we acknowledge that Connecticut has adopted an “inevitable seizure” variation of the “inevitable discovery” doctrine, we decline to explore this theory when the facts in the instant case implore the invocation of the “plain view”12 exception to the Fourth Amendment. Coolidge v. New Hampshire, 403 U.S. 443 (1971).13 ¶ 19 The Commonwealth Constitution states that “the right of the people to be secure in their persons, house, papers and belongings against unreasonable search and seizure shall not be violated.” NMI Const., art I, § 3. It further provides that “no warrants shall issue except upon probable cause supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.”14 11 Pua does not appeal the particularity and validity of the search warrant itself. He only states in his supporting affidavit that the search warrant went beyond the scope of what was requested to be searched and seized. 12 We note the distinction between the “open view” and “plain view” doctrines. “Plain view” was mentioned at the suppression hearing but appears to have been confused with “open view.” This is evidenced by Pua’s argument that the pouch “is not in plain view because it was --- it was wrapped up in a, you know, big trash bag and it was placed inside the garbage --- garbage can. It was not exposed to public view.” Motion to Suppress Evidence at 21-22. "[T]he hardest conceptual problem attending the plain view doctrine is to grasp that it is not a universal statement of the right of a policeman to seize after seeing something in open view; it is rather a limited statement of the right in one of several instances – following a valid intrusion.” Cauls v. Commonwealth, 683 S.E.2d 847, 851 (Va. Ct. App. 2009) (internal citation omitted). In the “open view” situation, “the observation takes place from a non-intrusive vantage point. The governmental agent is either on the outside looking outside or on the outside looking inside [at] that which is knowingly exposed to the public. The object under observation is not within the scope of the constitution.” State v. Meyer, 78 Haw. 308, 313 (1995) (quoting State v. Kaaheena, 59 Haw. 23, 28 (1978)). The plain view doctrine “does not authorize an officer to enter a dwelling without a warrant to seize contraband merely because the contraband is visible from outside the dwelling.” Washington v. Chrisman, 455 U.S. 1, 11 (1982). “His observation, [however], may provide probable cause for the issuance of a search warrant.” Id. at 12. See generally Meyer, 78 Haw. at 312-15 (1995) (discussing the difference between “open view” and “plain view”). The plain view doctrine is discussed further in ¶ 21 below. 13 We are aware of United States v. Greenwood, 486 U.S. 35 (1988), and the privacy implications of garbage bin searches within the “curtilage” of a home or otherwise. In Greenwood, the United States Supreme Court held that a warrant is not required for the search and seizure of garbage because no reasonable expectation of privacy exists in garbage which has been left on the curbside for collection. 486 U.S. at 41. The majority of United States jurisdictions have interpreted their respective state constitutions in accordance with Greenwood. Some states, however, have rejected Greenwood and preclude warrantless searches and seizures of one’s garbage. See, e.g., State v. Tanaka, 701 P.2d 1274 (Haw. 1985); State v. Goss, 834 A.2d 316 (N.H. 2003); State v. Hempele, 576 A.2d 793 (N.J. 1990); State v. Morris, 680 A.2d 90 (Vt. 1996); State v. Boland, 800 P.2d 1112 (Wash. 1990). This issue has yet to be explored and settled in the Commonwealth and is not argued by counsel. For purposes of this appeal, we are of the view that issues arising from the distinction between Fourth Amendment protection extending to the “curtilage” of a home and the potential privacy interest in garbage are important in the absence of a search warrant. However, the police officers in this case had a valid search warrant that authorized them to search Pua’s entire residence, including the trash bins outside, for seizure of the items listed in the warrant. 14 Article I, Section 3 of the Commonwealth Constitution is modeled after the Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, which, in turn, is made ¶ 20 “The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” This mandates a protection against unwarranted intrusion by the State. Commonwealth v. Taitano, 3 CR 604, 605 (N. Mar. I 1988). The United States Supreme Court has explained that “a ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. [Whereas] a ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). The Fourth Amendment’s requirement “that warrants shall particularly describe the things to be seized makes general searches under them impossible . . . .” Guam v. Camacho, 2004 Guam 6 ¶ 16 (2004) (quoting Marron v. United States, 275 U.S. 192, 196 (1927)). The scope of the search “extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.” United States v. Ross, 456 U.S. 798, 820-21 (1982). Furthermore, the particularity requirement ensures that “as to what is to be taken, nothing is left to the discretion of the officer executing the warrant.” Id. The general rule is that searches and seizures “conducted outside the judicial process” – that is, without a warrant – “are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372 (1993) (citations omitted). ¶ 21 One of the exceptions to the Fourth Amendment’s warrant requirement allows warrantless seizures under the “plain view” doctrine. Coolidge, 403 U.S. at 443; see also Dickerson, 508 US. at 366; Horton v. California, 496 U.S. 128 (1990). The plain view doctrine allows police officers to seize an item without a warrant if: (1) they are lawfully in a position from which they view an object; (2) its incriminating character is immediately apparent; and (3) the officers have a lawful right of access to the object. Dickerson, 508 U.S. at 375. It is best understood “not as an independent ‘exception’ to the [Fourth Amendment’s] warrant clause, but simply as an extension of whatever the prior justification for an officer's ‘access to an object’ may be.” Texas v. Brown, 460 U.S. 730, 738-39 (1983) (plurality opinion). To lawfully seize an item under the plain view exception to the warrant requirement, the officer must have probable cause to believe that the item in question is evidence of a crime or contraband. Commonwealth v. Crisostimo, 3 CR 946, 953 (N. Mar. I. 1989); see also Arizona v. Hicks, 480 U.S. 321, 326 (1987). Probable cause exists when “the facts and circumstances within [an officer’s] knowledge and of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” the object is evidence of a crime. Safford Unified Sch. Dist. #1 v. Redding, ___ U.S. ___, 129 S. Ct. 2633, 2639, 174 L. Ed. 2d 354, 361 (2009) (quoting Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (citing Carroll v. United States, 267 U.S. 132, 162 (1925))). applicable to the Commonwealth by section 501 of the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, 48 U.S.C. § 1801 note. ¶ 22 Officer Olopai was authorized to look inside the garbage bin because he did so while executing a valid search warrant15 and the scope of the search “[extended] to the entire area in which the object of the search may [have been] found.” Ross, 456 U.S. at 820. The warrant contained a list of items to be seized. See supra ¶ 5. The first Dickerson prong is satisfied because the search warrant authorized him to look within the garbage bin for the items authorized for seizure. Accordingly, Olopai was in a lawful position when he discovered the pouch. The second prong of the Dickerson test requires the incriminating character of the pouch to be immediately apparent. Dickerson, 508 U.S. at 375. A stain discovered on a pouch during the execution of a search warrant in a homicide investigation “warrant[s] a man of reasonable caution in the belief that” the stain might be blood and evidence of the crime. For example, in State v. Lara, the New Mexico Court of Appeals held that an officer investigating a battery complaint had probable cause to believe that some stains he found were blood incriminating the suspect. 797 P.2d 296, 303 (N.M. Ct. App. 1990). Here, probable cause to associate the pouch with criminal activity was triggered when Olopai picked it up and saw the red stains on it that “he wasn’t sure [were] blood.” ER at 203. With regard to the third Dickerson prong, Olopai had a “lawful right of access” to the pouch. He testified that when he opened the trash bag which contained the pouch, he was searching for the items authorized for seizure in the search warrant. As previously stated, his search for the items listed in the search warrant permissibly extended to the garbage bin outside of his home. Because all three Dickerson prongs were met, the plain view exception validated the warrantless seizure of the pouch. III Motion for Judgment of Acquittal ¶ 23 Pua argues that evidence presented at trial failed to establish an essential element of robbery – a showing that money was taken from Candi’s Poker or from Parves’ person or control. Pua reasons that because the jury acquitted him of robbery, the evidence must have been insufficient to uphold a robbery conviction – the offense which he argues served as the predicate felony for the felony murder charge – and therefore the trial court should have granted his motion for judgment of acquittal under Rule 29(a) of the Commonwealth Rules of Criminal Procedure. Pua further argues that at the time the motion for acquittal was made, there was no attempted robbery charge pending against him and the charge of felony 15 We are not determining whether warrantless searches of garbage bins are protected under the Commonwealth Constitution. See supra note 13. Even if we were to afford constitutional protection to garbage bins – an issue we decline to address in this case – this does not prevent the application of established exceptions to the Fourth Amendment. See, e.g., State v. Granville, 142 P.3d 933, 944 (N.M. Ct. App. 2006) (holding that “a search of an individual’s garbage must be supported by probable cause and a warrant, unless exigent circumstances exist or another doctrine, such as plain view, negates the individual’s expectation of privacy”); State v. Boland, 800 P.2d 1112, 1116 (Wash. 1990) (recognizing that “the usual exceptions to the warrant requirement, such as plain view and exigency, also apply to garbage cans”).  murder should therefore have been dismissed. Denial of a motion for judgment of acquittal is reviewed de novo. Ramangmau, 4 NMI at 237. ¶ 24 In relevant part, Rule 29(a) of the Commonwealth Rules of Criminal Procedure states that, “the court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal . . . if the evidence is insufficient to sustain a conviction of such offense or offenses.” A motion for acquittal must be denied if any “rational trier of fact could have found the essential elements of the crime in question beyond a reasonable doubt.” Ramangmau, 4 NMI at 237. This assessment takes into account “all of the evidence, direct or circumstantial, viewed in the light most favorable to the government.” Id. Circumstantial evidence is “[evidence] which establishes the fact to be proved only through inference based on human experience that a certain circumstance is usually present when another certain circumstance or set of circumstances is present.” Radomsky v. United States, 180 F.2d 781, 783 (9th Cir. 1950). Circumstantial evidence may be admitted if it “tend[s] even somewhat remotely to show that a fact in controversy did or did not exist.” Ramangmau, 4 NMI at 237 (internal citation omitted). Material facts can ordinarily be proven by circumstantial evidence in criminal proceedings. Commonwealth v. Scragg, 2000 MP 4 ¶ 15 (citing Commonwealth v. Oden, 3 NMI 186, 192 (1992)). ¶ 25 After reviewing the evidence in the light most favorable to the Commonwealth, we find that the evidence at trial was sufficient to support a reasonable inference that the offense of robbery had been committed. The offense of robbery is committed if a person “takes property from the person of another, or from the immediate control of another, by use or threatened use of immediate force or violence.” 6 CMC § 1411. Kim testified that Parves was working as the cashier at Candi’s Poker the night of his murder and that money was in his control or possession. Parves’ body was found near the cashier’s booth and Kim also testified that he made a partial collection of the money that was inside the cash register at 1:00 a.m. In addition, Officer Aldan testified that upon arriving at Candi’s Poker, the cash register drawer was pulled out and empty. While the absence of direct testimony that money was missing may have been enough to create a reasonable doubt in the jurors’ minds, the circumstances and evidence surrounding the murder were sufficient to meet the standard that a reasonable mind could have found that a robbery occurred. There is also sufficient evidence establishing an inference of Pua’s presence near the scene of the crime. Surveillance tapes taken from Tanapag Market show a man, later identified as Pua, walking towards Candi’s Poker holding a knife. Additionally, DNA samples taken from the pouch matched Parves’ DNA profile. The testimony alluding to missing money from the cashier’s register, Pua’s presence around the scene of the crime and the positive DNA match lead to a finding that a “rational trier of fact could have found the essential elements of the crime in question beyond a reasonable doubt.” Ramangmau, 4 NMI at 237. ¶ 26 For the purpose of the motion for judgment of acquittal, Pua’s argument that attempted robbery was not charged becomes irrelevant in light of our finding that there was sufficient evidence to support a finding of guilt on the charged crime of robbery. ¶ 27 We hold that the trial court did not err in denying Pua’s motion for judgment of acquittal. IV Motion to Set Aside the Verdict ¶ 28 Pua next claims that the trial court erred by not setting aside the verdict convicting him of first degree felony murder when the jury had already acquitted him of robbery. Specifically, Pua claims that he was neither charged with attempted robbery nor was there legally sufficient evidence presented that he either robbed or attempted to rob Parves. As such, he argues that the verdict was inconsistent and repugnant and should be vacated. ¶ 29 Inconsistent verdicts are generally defined as follows: Where an accused is charged with separate and distinct crimes, although of a similar character, in two or more counts, a verdict of acquittal on one or more counts and of conviction on the others is not ordinarily or necessarily inconsistent, at least where each offense requires different evidence or involves factual variations. When an accused is convicted on one count and is acquitted on another count, the test is whether the essential elements in the count wherein accused is acquitted are identical and necessary to proof of conviction on the guilty count. Hence, where the elements of the two offenses are identical, a verdict of not guilty on one count is inconsistent with a verdict of guilty on the other count. Also, a verdict which acquits [an] accused of a crime which includes acts necessary to the commission of another crime for which he is found guilty is inconsistent. State v. Beach, 67 P.3d 121, 130-31 (Kan. 2003) (quoting 23A C.J.S., Criminal Law § 1407, pp. 347-48). The United States Supreme Court first addressed the issue of inconsistent verdicts in Dunn v. United States, 284 U.S. 390 (1932). In Dunn, the jury convicted the defendant of maintaining a nuisance for the sale of alcoholic beverages, but acquitted him of the unlawful possession of alcoholic beverages and the unlawful sale of alcoholic beverages. Id. at 391-92. The defendant appealed his conviction claiming that the verdicts were inconsistent. In upholding the conviction, the Court stated: Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it were a separate indictment. [Citation omitted]. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold. As we stated in Steckler v. United States, 7 F.2d 59, 60 (1925): ‘The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as  no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.’ 284 U.S. at 393. ¶ 30 In United States v. Powell, the Supreme Court reaffirmed its ruling in Dunn. In Powell, the jury found the defendant guilty of facilitation of a conspiracy to possess cocaine with intent to distribute and possessing cocaine with intent to distribute, but acquitted her of conspiracy to possess and possession charges. 469 U.S. 57, 60 (1984). On appeal, the defendant argued that the verdicts were inconsistent, and she therefore was entitled to reversal of the conspiracy facilitation convictions. Id. In a unanimous decision, the Supreme Court held that: Inconsistent verdicts -- even verdicts that acquit on a predicate offense while convicting