Full Opinion

E-FILED CNMI SUPREME COURT E-filed: Jan 30 2015 05:04PM Notice: This slip opinion has not been certified by the Clerk of the Clerk Review: Jan 30 2015 05:04PM Case No.: 2013-SCC-0002-CRM Until certified, it is subject to revision or withdrawal. In any event Deanna M Ogo of discrepancies between this slip opinion and the opinion certified for publication, the certified opinion controls. Readers are requested to bring errors to the attention of the Clerk of the Supreme Court, PO Box 502165 Saipan, MP 96950, phone (670) 236-9715, fax (670) 236-9702, e-mail SupremeCourtClerk@justice.gov.mp. IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. CARMELITA M. GUIAO, Defendant-Appellant. SUPREME COURT NO. 2013-SCC-0002-CRM SUPERIOR COURT NO. 12-0001 SLIP OPINION Cite as: 2015 MP 1 Decided January 30, 2015 Eden L. Schwartz, Assistant Public Defender, Office of the Public Defender, Saipan, MP, for Defendant- Appellant Carmelita M. Guiao Joey P. San Nicolas, Attorney General, and James B. McAllister, Assistant Attorney General, Office of the Attorney General, Saipan, MP, for Plaintiff-Appellee Commonwealth of the Northern Mariana Islands1 1 Before the case was submitted on the briefs, Joey P. San Nicolas resigned as the Commonwealth Attorney General, and this matter was reassigned to Chief Prosecutor Brian P. Flaherty. BEFORE: ALEXANDRO C. CASTRO, Chief Justice; JOHN A. MANGLONA, Associate Justice; JOSEPH N. CAMACHO, Justice Pro Tem. CASTRO, C.J.: ¶1 Defendant Carmelita M. Guiao (“Guiao”) appeals her convictions for assault and assault with a dangerous weapon. Guiao contends: (1) the trial court violated her federal due process rights by failing to instruct the jury on the lesser-included offenses of assault with a dangerous weapon: (a) assault and (b) assault and battery; and (2) her convictions for assault and assault with a dangerous weapon violate double jeopardy. For the following reasons, we AFFIRM Guiao’s conviction for assault with a dangerous weapon and REVERSE her assault conviction. I. Facts and Procedural Background ¶2 On the morning of December 31, 2011, Guiao and her then-boyfriend, John Saimon (“Saimon”), argued over a family matter in Guiao’s home. The conduct at the center of Guiao’s convictions occurred during the argument. The exact sequence of events on December 31, 2011, differs based on the testimonies of Saimon, preliminary responding Officer Jason Tarkong, and Detective Jonathan Decena. However, it is undisputed that after an argument between Guiao and Saimon, Guiao repeatedly hit Saimon with a hot frying pan.2 As Guiao swung the pan towards Saimon, he blocked the pan from targeting his head. He then took the pan away from Guiao. As a result of Guiao’s attack, Saimon sustained burns, blisters, slight bruising, and swelling. ¶3 After the parties rested at trial, Guiao requested an instruction on the lesser-included offenses of assault, and assault and battery. The trial court rejected the instruction based on Guiao’s failure to satisfy the second prong of the test to warrant a lesser-included instruction: that a rational juror could find the defendant guilty of the lesser-included offense, and not the greater.3 The trial court concluded the lesser- included instruction was unwarranted, and added that the defendant did not have a right to the lesser- included instruction because the trial court, rather than the jury, was responsible for deciding the lesser- included offenses. After the trial court rejected the instruction, Guiao did not object to the trial court’s failure to instruct on the lesser-included offenses. ¶4 The jury ultimately convicted Guiao of assault with a dangerous weapon, 6 CMC § 1204(a); and the trial court convicted her of assault, 6 CMC § 1201(a), criminal mischief, 6 CMC § 1803(a), and disturbing the peace, 6 CMC § 3101(a). Guiao appeals her convictions for assault and assault with a dangerous weapon. 2 Saimon testified to possibly being hit twice, but previously stated to Officer Jason Tarkong he was hit five times. 3 The trial court cited Commonwealth v. Camacho, 2002 MP 6, in reciting the requirements of the test. II. Jurisdiction ¶5 We have jurisdiction over final judgments and orders of the Superior Court. NMI CONST. art. IV, § 3; 1 CMC § 3102(a). Guiao timely appealed the Superior Court’s final judgment. We therefore have jurisdiction. 1 CMC § 3105; NMI SUP. CT. R. 4(b)(1)(A)(i). III. Standards of Review ¶6 We review de novo whether assault, and assault and battery are lesser-included offenses of assault with a dangerous weapon. Commonwealth v. Kaipat, 4 NMI 300, 303 & n.10 (1995). We review for plain error Guiao’s claim that the trial court violated her federal due process rights by declining to instruct the jury on the lesser-included offenses because she failed to preserve her claim of error. Commonwealth v. Ramangmau, 4 NMI 227, 234 (1995). We review de novo whether Guiao’s convictions for assault and assault with a dangerous weapon constitute double jeopardy. Commonwealth v. Quitano, 2014 MP 5 ¶ 9 (Slip Opinion, Apr. 4, 2014). IV. Discussion A. Jury Instruction on Lesser-Included Offenses ¶7 Guiao argues her due process rights were violated because the trial court declined to instruct the jury on the lesser-included offenses of assault, and assault and battery.4 An instruction on a lesser- included offense must be given “when warranted by the evidence,” Camacho, 2002 MP 6 ¶ 66, even if not requested, id. ¶ 63. We employ a two-prong test to decide the necessity of the instruction: (1) “whether the elements of the lesser offense are such that one cannot commit the greater offense without committing the lesser,” a legal inquiry; and (2) “whether a rational juror could find the defendant guilty of the lesser offense while acquitting him of the greater,” a factual inquiry. Id. ¶ 67; see also id. ¶ 66 (noting that there must be substantial evidence of the lesser-included offense to warrant an instruction). We will only reach the second prong if the answer to the first prong is affirmative. ¶8 Given this rule, Guiao asserts the trial court should have provided the jury instruction on assault, and assault and battery. As Kaipat articulated, assault with a dangerous weapon transpires when a person uses a dangerous weapon in the course of an assault,5 or assault and battery.6 4 NMI at 303–04. Because the elements of assault, and assault and battery are a subset of assault with a dangerous weapon, they are lesser-included offenses of assault with a dangerous weapon.7 Id. at 303 (“[Assault and assault and 4 The Commonwealth did not charge Guiao of assault and battery. 5 Assault requires that a person “unlawfully offers or attempts, with force or violence, to strike, beat, wound, or to do bodily harm to another.” 6 CMC § 1201(a). 6 Assault and battery occurs when a person “unlawfully strikes, beats, wounds, or otherwise does bodily harm to another.” 6 CMC § 1202(a). 7 The trial court acknowledged that assault was a lesser-included offense of assault with a dangerous weapon. A “dangerous weapon” is an “automatic weapon, dangerous device, firearm, gun, handgun, long gun, battery] contain[] a dispositive set of elements which is a subset of one of the alternative sets of elements of assault with a dangerous weapon.”). Thus, the first prong is satisfied, and the inquiry turns on the second prong: whether a rational juror could have found Guiao guilty of the assault, or assault and battery while acquitting her of assault with a dangerous weapon. ¶9 Even though Guiao proposed a lesser-included instruction and reviewed the instruction with the trial court, Guiao did not object to the trial court’s denial of the lesser-included instruction. Because Guiao failed to object, we review her claim that the trial court erred in declining to give a lesser-included instruction for plain error. Quitano, 2014 MP 5 ¶ 10 (applying the plain error standard in determining whether the trial court erred in failing to define a term in a jury instruction because the appellant did not object after the trial court reviewed the jury instructions); see also Ramangmau, 4 NMI at 234, 238 (similar). We will only correct egregious errors “that seriously affect the fairness, integrity or public reputation of judicial proceedings,” resulting in a miscarriage of justice. Commonwealth v. Saimon, 3 NMI 365 (1992) (citation omitted). The plain error standard requires that the appellant show: “(1) there was error; (2) the error was ‘plain’ or ‘obvious’; [and] (3) the error affected the appellant’s ‘substantial rights,’ or put differently, affected the outcome of the proceeding.” Commonwealth v. Hossain, 2010 MP 21 ¶ 29. ¶ 10 Thus, we consider whether the trial court’s failure to instruct on the lesser-included offenses constituted error. Merely failing to instruct on lesser-included offenses is not erroneous unless, after establishing the offenses are lesser-included, a rational juror could have found the evidence sufficient to acquit the defendant of the greater offense and guilty of a lesser-included offense. Camacho, 2002 MP 6 ¶ 67. ¶ 11 Here, the jury could not have convicted Guiao of the lesser-included offenses because it was not within their province: the jury was solely responsible for deciding the greater offense of assault with a dangerous weapon because the conviction resulted in “imprisonment for not more than 10 years.” 6 CMC § 1204(b); see 7 CMC § 3101(a) (requiring the jury to decide on “a felony punishable by more than five years imprisonment”). At the beginning of trial, the Commonwealth notified the jury that they were only to decide the assault with a dangerous weapon charge while the judge would determine the rest of the charges,8 which included the lesser-included charge of assault.9 Because the jury could not decide the semiautomatic weapon, knife, machete, or other thing by which a fatal wound or injury may be inflicted.” 6 CMC § 102(f) (emphasis added). 8 The jury was given the information with the list of charges against Guiao. 9 The trial court determined the assault charge because a maximum six-month imprisonment is imposed upon conviction of the offense. 6 CMC § 1201(b); cf. 7 CMC § 3101(a) (requiring only that a jury decide on “a felony punishable by more than five years imprisonment”). lesser-included offenses, it was not plain error for the trial court to decline to give the lesser-included instruction. B. Double Jeopardy ¶ 12 Guiao contends her convictions for assault and assault with a dangerous weapon violate double jeopardy. “Double jeopardy ‘protects an individual against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after convictions; and (3) multiple punishments for the same offense.’” Quitano, 2014 MP 5 ¶ 40 (quoting Commonwealth v. Peter, 2010 MP 15 ¶ 5). Under this standard, Guiao’s claim is properly construed as an assertion that her convictions violate double jeopardy because she incurred multiple punishments for the same offense. We review this claims under a two-part test. ¶ 13 We first consider whether there is clear legislative intent to impose multiple punishments for the same conduct. Peter, 2010 MP 15 ¶ 10. The legislative-intent inquiry begins by looking to the plain meaning of the statute, Commonwealth v. Jin Fu Lin, 2010 MP 2 ¶ 5, and determining “whether the legislature intended to impose multiple sanctions for the same conduct,” Peter, 2010 MP 15 ¶ 5. “This Court presumes that ‘where two statutory provisions proscribe the same offense, [the] legislature does not intend to impose two punishments for that offense.’” Peter, 2010 MP 15 ¶ 10 (quoting Rutledge v. United States, 517 U.S. 292, 297 (1996)) (alteration in original). If we do not find clear legislative intent to impose multiple punishments, we apply the Blockburger test. Peter, 2010 MP 15 ¶ 10. That is, where there is a violation of two statutes, the Court decides “whether each provision requires proof of fact which the other does not,” Blockburger v. United States, 284 U.S. 299, 304 (1932), by focusing on the elements that must be proven rather than the evidence adduced at trial, Peter, 2010 MP 15 ¶ 6. This statutory analysis “requires us to engage in a ‘textual comparison of the pertinent statutes’ to determine if the lesser-included elements are ‘a subset of the charged offense[s].’” Quitano, 2014 MP 5 ¶ 43 (quoting Kaipat, 4 NMI at 303) (alteration in original). ¶ 14 Here, the applicable statutes, 6 CMC §§ 1201 and 1204, are silent on cumulative punishments. Therefore, we presume that the Commonwealth Legislature did not intend to impose multiple punishments for the same assaultive conduct. Peter, 2010 MP 15 ¶ 10. ¶ 15 Because we find no legislative intent for multiple punishments, we turn to the second step: applying the Blockburger test. Kaipat, 4 NMI at 303. Where a defendant is convicted of a greater and lesser-included offense, a double-jeopardy violation exists. Quitano, 2014 MP 5 ¶¶ 41–43. Here, assault is a lesser-included offense of assault with a dangerous weapon.10 Supra ¶ 8. Thus, Guiao’s convictions for 10 The Commonwealth’s contention that the convictions arise from separate events is not compelling. First, the evidence demonstrates the continuous nature of the assault. Second, the Commonwealth failed to support its contention that a continuous attack in multiple locations of the house creates separate offenses. Third, the assault and assault with a dangerous weapon violate double jeopardy.11 Accordingly, we reverse Guiao’s assault conviction. See Quitano, 2014 MP 5 ¶ 44 (explaining the lesser-included conviction is reversed when it violates double jeopardy). V. Conclusion ¶ 16 For the preceding reasons, we hold (1) the trial court did not commit plain error by declining to give a lesser-included instruction; and (2) Guiao’s assault and assault with a dangerous weapon convictions violate double jeopardy. Accordingly, we AFFIRM Guiao’s assault with a dangerous weapon conviction and REVERSE her assault conviction. SO ORDERED this 30th day of January, 2015. /s/ ALEXANDRO C. CASTRO Chief Justice /s/ JOHN A. MANGLONA Associate Justice CAMACHO, J.P.T., concurring in part and dissenting in part12 Commonwealth, in its response brief, conceded that Guiao’s assault conviction arises from a single, continuous dispute. See Resp. Br. at 5 (indicating that Guiao’s assault conviction arises from a “single, ongoing altercation”). 11 Resentencing is unnecessary because Guiao’s sentence for assault and assault with a dangerous weapon run concurrently. See Commonwealth v. Milliondaga, 2007 MP 6 ¶ 8 (citing United States v. Chipps, 410 F.3d 438, 449 (8th Cir. 2005)). 12 A concurrence and dissent will be issued separately. E-FILED CNMI SUPREME COURT E-filed: Mar 23 2015 03:45PM Notice: This slip opinion has not been certified by the Clerk of the Clerk Review: Mar 23 2015 03:45PM Case No.: 2013-SCC-0002-CRM Until certified, it is subject to revision or withdrawal. In any event Deanna M Ogo of discrepancies between this slip opinion and the opinion certified for publication, the certified opinion controls. Readers are requested to bring errors to the attention of the Clerk of the Supreme Court, PO Box 502165 Saipan, MP 96950, phone (670) 236-9715, fax (670) 236-9702, e-mail SupremeCourtClerk@justice.gov.mp. IN THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Plaintiff-Appellee, v. CARMELITA M. GUIAO, Defendant-Appellant. SUPREME COURT NO. 2013-SCC-0002-CRM SUPERIOR COURT NO. 12-0001 SLIP OPINION Cite as: 2015 MP 1 Decided January 30, 2015 Concurred and Dissented March 23, 2015 Eden L. Schwartz, Assistant Public Defender, Office of the Public Defender, Saipan, MP, for Defendant- Appellant Carmelita M. Guiao Joey P. San Nicolas, Attorney General, and James B. McAllister, Assistant Attorney General, Office of the Attorney General, Saipan, MP, for Plaintiff-Appellee Commonwealth of the Northern Mariana Islands1 1 Before the case was submitted on the briefs, Joey P. San Nicolas resigned as the Commonwealth Attorney General, and this matter was reassigned to Chief Prosecutor Brian P. Flaherty. BEFORE: ALEXANDRO C. CASTRO, Chief Justice; JOHN A. MANGLONA, Associate Justice; JOSEPH N. CAMACHO, Justice Pro Tem. CASTRO, C.J.: ¶1 Defendant Carmelita M. Guiao (“Guiao”) appeals her convictions for assault and assault with a dangerous weapon. Guiao contends: (1) the trial court violated her federal due process rights by failing to instruct the jury on the lesser-included offenses of assault with a dangerous weapon: (a) assault and (b) assault and battery; and (2) her convictions for assault and assault with a dangerous weapon violate double jeopardy. For the following reasons, we AFFIRM Guiao’s conviction for assault with a dangerous weapon and REVERSE her assault conviction. I. Facts and Procedural Background ¶2 On the morning of December 31, 2011, Guiao and her then-boyfriend, John Saimon (“Saimon”), argued over a family matter in Guiao’s home. The conduct at the center of Guiao’s convictions occurred during the argument. The exact sequence of events on December 31, 2011, differs based on the testimonies of Saimon, preliminary responding Officer Jason Tarkong, and Detective Jonathan Decena. However, it is undisputed that after an argument between Guiao and Saimon, Guiao repeatedly hit Saimon with a hot frying pan.2 As Guiao swung the pan towards Saimon, he blocked the pan from targeting his head. He then took the pan away from Guiao. As a result of Guiao’s attack, Saimon sustained burns, blisters, slight bruising, and swelling. ¶3 After the parties rested at trial, Guiao requested an instruction on the lesser-included offenses of assault, and assault and battery. The trial court rejected the instruction based on Guiao’s failure to satisfy the second prong of the test to warrant a lesser-included instruction: that a rational juror could find the defendant guilty of the lesser-included offense, and not the greater.3 The trial court concluded the lesser- included instruction was unwarranted, and added that the defendant did not have a right to the lesser- included instruction because the trial court, rather than the jury, was responsible for deciding the lesser- included offenses. After the trial court rejected the instruction, Guiao did not object to the trial court’s failure to instruct on the lesser-included offenses. ¶4 The jury ultimately convicted Guiao of assault with a dangerous weapon, 6 CMC § 1204(a); and the trial court convicted her of assault, 6 CMC § 1201(a), criminal mischief, 6 CMC § 1803(a), and disturbing the peace, 6 CMC § 3101(a). Guiao appeals her convictions for assault and assault with a dangerous weapon. 2 Saimon testified to possibly being hit twice, but previously stated to Officer Jason Tarkong he was hit five times. 3 The trial court cited Commonwealth v. Camacho, 2002 MP 6, in reciting the requirements of the test. II. Jurisdiction ¶5 We have jurisdiction over final judgments and orders of the Superior Court. NMI CONST. art. IV, § 3; 1 CMC § 3102(a). Guiao timely appealed the Superior Court’s final judgment. We therefore have jurisdiction. 1 CMC § 3105; NMI SUP. CT. R. 4(b)(1)(A)(i). III. Standards of Review ¶6 We review de novo whether assault, and assault and battery are lesser-included offenses of assault with a dangerous weapon. Commonwealth v. Kaipat, 4 NMI 300, 303 & n.10 (1995). We review for plain error Guiao’s claim that the trial court violated her federal due process rights by declining to instruct the jury on the lesser-included offenses because she failed to preserve her claim of error. Commonwealth v. Ramangmau, 4 NMI 227, 234 (1995). We review de novo whether Guiao’s convictions for assault and assault with a dangerous weapon constitute double jeopardy. Commonwealth v. Quitano, 2014 MP 5 ¶ 9 (Slip Opinion, Apr. 4, 2014). IV. Discussion A. Jury Instruction on Lesser-Included Offenses ¶7 Guiao argues her due process rights were violated because the trial court declined to instruct the jury on the lesser-included offenses of assault, and assault and battery.4 An instruction on a lesser- included offense must be given “when warranted by the evidence,” Camacho, 2002 MP 6 ¶ 66, even if not requested, id. ¶ 63. We employ a two-prong test to decide the necessity of the instruction: (1) “whether the elements of the lesser offense are such that one cannot commit the greater offense without committing the lesser,” a legal inquiry; and (2) “whether a rational juror could find the defendant guilty of the lesser offense while acquitting him of the greater,” a factual inquiry. Id. ¶ 67; see also id. ¶ 66 (noting that there must be substantial evidence of the lesser-included offense to warrant an instruction). We will only reach the second prong if the answer to the first prong is affirmative. ¶8 Given this rule, Guiao asserts the trial court should have provided the jury instruction on assault, and assault and battery. As Kaipat articulated, assault with a dangerous weapon transpires when a person uses a dangerous weapon in the course of an assault,5 or assault and battery.6 4 NMI at 303–04. Because the elements of assault, and assault and battery are a subset of assault with a dangerous weapon, they are lesser-included offenses of assault with a dangerous weapon.7 Id. at 303 (“[Assault and assault and 4 The Commonwealth did not charge Guiao of assault and battery. 5 Assault requires that a person “unlawfully offers or attempts, with force or violence, to strike, beat, wound, or to do bodily harm to another.” 6 CMC § 1201(a). 6 Assault and battery occurs when a person “unlawfully strikes, beats, wounds, or otherwise does bodily harm to another.” 6 CMC § 1202(a). 7 The trial court acknowledged that assault was a lesser-included offense of assault with a dangerous weapon. A “dangerous weapon” is an “automatic weapon, dangerous device, firearm, gun, handgun, long gun, battery] contain[] a dispositive set of elements which is a subset of one of the alternative sets of elements of assault with a dangerous weapon.”). Thus, the first prong is satisfied, and the inquiry turns on the second prong: whether a rational juror could have found Guiao guilty of the assault, or assault and battery while acquitting her of assault with a dangerous weapon. ¶9 Even though Guiao proposed a lesser-included instruction and reviewed the instruction with the trial court, Guiao did not object to the trial court’s denial of the lesser-included instruction. Because Guiao failed to object, we review her claim that the trial court erred in declining to give a lesser-included instruction for plain error. Quitano, 2014 MP 5 ¶ 10 (applying the plain error standard in determining whether the trial court erred in failing to define a term in a jury instruction because the appellant did not object after the trial court reviewed the jury instructions); see also Ramangmau, 4 NMI at 234, 238 (similar). We will only correct egregious errors “that seriously affect the fairness, integrity or public reputation of judicial proceedings,” resulting in a miscarriage of justice. Commonwealth v. Saimon, 3 NMI 365 (1992) (citation omitted). The plain error standard requires that the appellant show: “(1) there was error; (2) the error was ‘plain’ or ‘obvious’; [and] (3) the error affected the appellant’s ‘substantial rights,’ or put differently, affected the outcome of the proceeding.” Commonwealth v. Hossain, 2010 MP 21 ¶ 29. ¶ 10 Thus, we consider whether the trial court’s failure to instruct on the lesser-included offenses constituted error. Merely failing to instruct on lesser-included offenses is not erroneous unless, after establishing the offenses are lesser-included, a rational juror could have found the evidence sufficient to acquit the defendant of the greater offense and guilty of a lesser-included offense. Camacho, 2002 MP 6 ¶ 67. ¶ 11 Here, the jury could not have convicted Guiao of the lesser-included offenses because it was not within their province: the jury was solely responsible for deciding the greater offense of assault with a dangerous weapon because the conviction resulted in “imprisonment for not more than 10 years.” 6 CMC § 1204(b); see 7 CMC § 3101(a) (requiring the jury to decide on “a felony punishable by more than five years imprisonment”). At the beginning of trial, the Commonwealth notified the jury that they were only to decide the assault with a dangerous weapon charge while the judge would determine the rest of the charges,8 which included the lesser-included charge of assault.9 Because the jury could not decide the semiautomatic weapon, knife, machete, or other thing by which a fatal wound or injury may be inflicted.” 6 CMC § 102(f) (emphasis added). 8 The jury was given the information with the list of charges against Guiao. 9 The trial court determined the assault charge because a maximum six-month imprisonment is imposed upon conviction of the offense. 6 CMC § 1201(b); cf. 7 CMC § 3101(a) (requiring only that a jury decide on “a felony punishable by more than five years imprisonment”). lesser-included offenses, it was not plain error for the trial court to decline to give the lesser-included instruction. B. Double Jeopardy ¶ 12 Guiao contends her convictions for assault and assault with a dangerous weapon violate double jeopardy. “Double jeopardy ‘protects an individual against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after convictions; and (3) multiple punishments for the same offense.’” Quitano, 2014 MP 5 ¶ 40 (quoting Commonwealth v. Peter, 2010 MP 15 ¶ 5). Under this standard, Guiao’s claim is properly construed as an assertion that her convictions violate double jeopardy because she incurred multiple punishments for the same offense. We review this claims under a two-part test. ¶ 13 We first consider whether there is clear legislative intent to impose multiple punishments for the same conduct. Peter, 2010 MP 15 ¶ 10. The legislative-intent inquiry begins by looking to the plain meaning of the statute, Commonwealth v. Jin Fu Lin, 2010 MP 2 ¶ 5, and determining “whether the legislature intended to impose multiple sanctions for the same conduct,” Peter, 2010 MP 15 ¶ 5. “This Court presumes that ‘where two statutory provisions proscribe the same offense, [the] legislature does not intend to impose two punishments for that offense.’” Peter, 2010 MP 15 ¶ 10 (quoting Rutledge v. United States, 517 U.S. 292, 297 (1996)) (alteration in original). If we do not find clear legislative intent to impose multiple punishments, we apply the Blockburger test. Peter, 2010 MP 15 ¶ 10. That is, where there is a violation of two statutes, the Court decides “whether each provision requires proof of fact which the other does not,” Blockburger v. United States, 284 U.S. 299, 304 (1932), by focusing on the elements that must be proven rather than the evidence adduced at trial, Peter, 2010 MP 15 ¶ 6. This statutory analysis “requires us to engage in a ‘textual comparison of the pertinent statutes’ to determine if the lesser-included elements are ‘a subset of the charged offense[s].’” Quitano, 2014 MP 5 ¶ 43 (quoting Kaipat, 4 NMI at 303) (alteration in original). ¶ 14 Here, the applicable statutes, 6 CMC §§ 1201 and 1204, are silent on cumulative punishments. Therefore, we presume that the Commonwealth Legislature did not intend to impose multiple punishments for the same assaultive conduct. Peter, 2010 MP 15 ¶ 10. ¶ 15 Because we find no legislative intent for multiple punishments, we turn to the second step: applying the Blockburger test. Kaipat, 4 NMI at 303. Where a defendant is convicted of a greater and lesser-included offense, a double-jeopardy violation exists. Quitano, 2014 MP 5 ¶¶ 41–43. Here, assault is a lesser-included offense of assault with a dangerous weapon.10 Supra ¶ 8. Thus, Guiao’s convictions for 10 The Commonwealth’s contention that the convictions arise from separate events is not compelling. First, the evidence demonstrates the continuous nature of the assault. Second, the Commonwealth failed to support its contention that a continuous attack in multiple locations of the house creates separate offenses. Third, the assault and assault with a dangerous weapon violate double jeopardy.11 Accordingly, we reverse Guiao’s assault conviction. See Quitano, 2014 MP 5 ¶ 44 (explaining the lesser-included conviction is reversed when it violates double jeopardy). V. Conclusion ¶ 16 For the preceding reasons, we hold (1) the trial court did not commit plain error by declining to give a lesser-included instruction; and (2) Guiao’s assault and assault with a dangerous weapon convictions violate double jeopardy. Accordingly, we AFFIRM Guiao’s assault with a dangerous weapon conviction and REVERSE her assault conviction. SO ORDERED this 30th day of January, 2015. /s/ ALEXANDRO C. CASTRO Chief Justice /s/ JOHN A. MANGLONA Associate Justice CAMACHO, J.P.T., concurring in part and dissenting in part: ¶ 17 I concur with sections I-III and IV(B) of the majority’s opinion, but partially dissent from sections IV(A) and V. I would hold that the trial court should have given the lesser-included instruction on assault and battery because a rational jury could have found the evidence sufficient to support a conviction for the offense. ¶ 18 In determining whether to include jury instructions on lesser-included offenses, the Court applies Camacho’s two-prong test: (1) “whether the elements of the lesser offense are such that one cannot commit the greater offense without committing the lesser,” and (2) “whether a rational jury could find the Commonwealth, in its response brief, conceded that Guiao’s assault conviction arises from a single, continuous dispute. See Resp. Br. at 5 (indicating that Guiao’s assault conviction arises from a “single, ongoing altercation”). 11 Resentencing is unnecessary because Guiao’s sentence for assault and assault with a dangerous weapon run concurrently. See Commonwealth v. Milliondaga, 2007 MP 6 ¶ 8 (citing United States v. Chipps, 410 F.3d 438, 449 (8th Cir. 2005)). defendant guilty of the lesser offense while acquitting him of the greater.” 2002 MP 6 ¶ 67 (citing Kaipat, 4 NMI at 303). The trial court “must instruct on lesser[-]included offenses where there is evidence from which a rational jury could find the defendant guilty of the lesser offense and acquit him of the greater, regardless of whether such instruction has been requested.” Camacho, 2002 MP 6 ¶ 63. Instructions on lesser-included offenses are required “only when warranted by the evidence.” Id. ¶ 66 (citing Hopper v. Evans, 456 U.S. 605, 611 (1982)); see also United States v. Arnt, 474 F.3d 1159, 1164-65 (9th Cir. 2007) (“If there is some evidence to support the jury instruction, it is the jury’s province to determine which evidence it believed most accurately reflected the events.”). ¶ 19 Although the issue of assault was within the province of the trial court rather than the jury, the jury should have been instructed on assault and battery as a lesser-included offense of assault with a dangerous weapon.12 To warrant a lesser-included instruction, assault and battery must be a lesser- included offense of assault with a dangerous weapon. Kaipat, 4 NMI at 303. Both assault and battery and assault have “a dispositive set of elements which is a subset of one of the alternative sets of elements of assault with a dangerous weapon.” Id. The difference between assault and battery and assault with a dangerous weapon is “the use of a dangerous weapon.” Id. at 303-04. Therefore, Guiao meets the first prong of the Camacho test. Id. ¶ 67. ¶ 20 The second prong of Camacho—whether a rational jury could find Guiao guilty of the lesser- included offense of assault and battery, while acquitting her of assault with a dangerous weapon—is also met. Assault and battery is committed when an individual “unlawfully strikes, beats, wounds, or otherwise does bodily harm to another, or has sexual contact with another without the other person’s consent.” 6 CMC § 1202(a). Here, Guiao struck Saimon’s arm with a hot frying pan. A rational jury could find Guiao guilty of assault and battery by the nature of her physical contact with Saimon, regardless of whether she used her fists or a frying pan. Thus, a jury could convict Guiao of assault and battery. ¶ 21 Assault with a dangerous weapon is committed when an individual “threatens to cause, attempts to cause, or purposely causes bodily injury to another with a dangerous weapon.” 6 CMC § 1204(a). Whether a rational jury could acquit Guiao of assault with a dangerous weapon depends on whether a frying pan qualifies as a “dangerous weapon.” Under 6 CMC § 102(f), a “dangerous weapon” is “any automatic weapon, dangerous device, firearm, gun, handgun, long gun, semiautomatic weapon, knife, machete, or other thing by which a fatal wound or injury may be inflicted.” While a frying pan is not one of the enumerated weapons listed in the statute, it could still be deemed a dangerous weapon. 12 As Guiao was charged with assault under 6 CMC § 1201, it was properly within the trial court’s province. Guiao was not charged with assault and battery. [W]hat constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to endanger life or inflict great bodily harm. Factors relevant to this determination include the circumstances under which the object is used and the size and condition of the assaulting and assaulted persons. A dangerous weapon is an object capable of doing serious damage to the victim of the assault. United States v. Estrada-Fernandez, 150 F.3d 491, 497 (5th Cir. 1998) (citation omitted) (internal quotation marks omitted). Whether a frying pan is a dangerous weapon is a factual inquiry for the jury to determine based on the manner in which the frying pan was used and the surrounding circumstances. The jury was not given the lesser-included instruction on assault and battery, which was necessary to make this fac