IN THE SUPREME COURT OF GUAM
PEOPLE OF GUAM, Plaintiff-Appellee,
v.
JOHN DANIEL NEGO, Defendant-Appellant.
Supreme Court Case No.: CRA19-008 Superior Court Case No.: CF0014-19
OPINION
Appeal from the Superior Court of Guam Determined on the briefs submitted January 10, 2020 Hagåtña, Guam
Appearing for Defendant-Appellant: Appearing for Plaintiff-Appellee: Zachary C. Taimanglo, Esq. Courtney Leigh Scalice, Esq. Assistant Public Defender Assistant Attorney General Public Defender Service Corporation Office of the Attorney General 779 Rte. 4 Prosecution Division Sinajana, GU 96910 590 S. Marine Corps Dr. Tamuning, GU 96913 People v. Nego, 2021 Guam 3, Opinion Page 2 of 15
BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.
MARAMAN, J.:
[1] Defendant-Appellant John Daniel Nego appeals his convictions for: Theft of a Motor
Vehicle by Deception; Forgery; Impersonation; Terroristic Conduct; and two counts of
Attempted Violation of a Court Order. On appeal, Nego argues the trial court abused its
discretion in (1) admitting evidence belatedly disclosed; and (2) instructing the jury it could
convict on an attempt offense even if it concluded that the target crime was completed. For the
reasons below, we affirm the judgment of conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
[2] Nego was indicted for: Theft of a Motor Vehicle by Deception; Forgery; Impersonation;
two counts of Terroristic Conduct; two counts of Attempted Violation of a Court Order; Theft by
Deception; and Theft of Property. Nego asserted his right to a speedy trial, and the trial court
thereafter issued a scheduling order requiring that all mutual discovery be exchanged under 8
GCA §§ 70.10 and 70.25.
[3] Following his assertion, the trial court granted Nego’s motion to sever the charges in his
indictment. The trial court divided the charges in the indictment and grouped them according to
the dates of the alleged offenses. Trial for the charges of Theft of Property and Theft by
Deception (“October Offenses”) was scheduled first, followed by a trial for Forgery,
Impersonation, and Theft of a Motor Vehicle by Deception (“November Offenses”), and
concluding with a trial on the two counts of Terroristic Conduct and two counts of Attempted
Violation of a Court Order (“December Offenses”). Subsequently, on the People’s motion, the
October Offenses were dismissed without prejudice, along with one count of Terroristic
Conduct, which was part of the December Offenses. People v. Nego, 2021 Guam 3, Opinion Page 3 of 15
[4] Before the commencement of jury selection for the trial on the November Offenses, Nego
objected to using approximately 100 pages of discovery disclosed the previous day. The
disclosure was made after the discovery deadline. Rather than ruling on the admissibility of the
belated discovery materials, the trial court determined that it would consider the admissibility of
the materials as they arose with the evidence presented during trial.
[5] During the trial on the November Offenses, which included the charge of Theft of a
Motor Vehicle by Deception, the People sought to introduce five photographs into evidence.
The photographs, which were part of the belated discovery materials, depicted the state of a
vehicle (for the theft crime at issue) when it was discovered by law enforcement. In explaining
the reason for the belated disclosure, the prosecutor stated that a couple of days before jury
selection, the Office of the Attorney General (“OAG”) was informed by Detective Ricky
Camacho of a supplemental police report that had mistakenly not been uploaded to the Guam
Police Department’s (“GPD”) Law Enforcement Records Management System. The prosecutor
further explained the report referenced photographs of the vehicle, which the OAG never
received from GPD. According to the prosecutor, once the materials were obtained by the OAG,
including the photographic evidence from the Guam Crime Lab, they were immediately
disclosed to defense counsel. The trial court admitted the photographic evidence over defense
counsel’s objection. After trial on the November Offenses, Nego was found guilty of Forgery,
Impersonation, and Theft of a Motor Vehicle by Deception.
[6] The trial on the December Offenses concerned an attempt crime, specifically, Attempted
Violation of a Court Order. While finalizing jury instructions, the People sought to include
language in the instruction on the definition of attempt, which stated that a person may be guilty
of an attempt crime even if the jury concluded the target crime was completed. The trial court People v. Nego, 2021 Guam 3, Opinion Page 4 of 15
agreed with the People’s proposal and approved the following instruction over defense counsel’s
objection:
5H. “ATTEMPT” DEFINED
A person is guilty of an attempt to commit a crime when, with intent to engage in conduct which would constitute such a crime were the circumstances as he believes them to be, he performs or omits to perform an act which constitutes a substantial step toward commission of the crime. The Defendant may be guilty of attempt even if you conclude that he actually completed the crime.
Record on Appeal (“RA”), tab 60 at 46 (Jury Instrs., Apr. 3, 2019). The jury found Nego guilty
of Terroristic Conduct and two counts of Attempted Violation of a Court Order.
[7] Nego was sentenced to five-year terms of imprisonment for Forgery, Impersonation, and
Theft of a Motor Vehicle by Deception, and one-year terms for each count of Attempted
Violation of a Court Order, to be served concurrently. He was also sentenced to a five-year term
for Terroristic Conduct, to be served consecutively with his other convictions. Following entry
of judgment, Nego timely appealed.1
II. JURISDICTION
[8] We have jurisdiction over appeals from a final judgment of conviction rendered in the
Superior Court of Guam. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 117-12 (2021));
7 GCA §§ 3107(b), 3108(a) (2005); 8 GCA §§ 130.10, 130.15(a) (2005).
III. STANDARD OF REVIEW
[9] We review sanctions imposed for discovery violations for abuse of discretion. See
People v. Martinez, 2017 Guam 23 ¶ 13.
1 The briefings in this appeal by both parties contain errors that reference unrelated facts and circumstances. See Appellant’s Br. at 10 (Oct. 14, 2019) (referencing prejudicial evidence of robberies and “Instruction 3G,” which have no relation to this appeal); Appellee’s Br. at 1, 5 (Dec. 13, 2019) (referencing an unknown individual: “Morales claims”; “Morales guilty”). We warn counsels to proofread and correct errors in their briefs before filing; otherwise, they may be sanctioned for non-compliance with the Guam Rules of Appellate Procedure. See Guam R. App. P. 21.1. People v. Nego, 2021 Guam 3, Opinion Page 5 of 15
[10] When an objection to a particular jury instruction was made during trial, we “view the
instruction in the context of the delivered jury instructions as a whole and reverse only for an
abuse of discretion.” People v. Songeni, 2010 Guam 20 ¶ 9. “[W]e review jury instructions de
novo when they are challenged as a misstatement of the law.” People v. Diego, 2013 Guam 15 ¶
9 (alteration in original) (quoting Guam Top Builders, Inc. v. Tanota Partners, 2012 Guam 12 ¶
9).
IV. ANALYSIS
[11] Nego argues the trial court abused its discretion by admitting photographic evidence
belatedly disclosed to defense counsel. See Appellant’s Br. at 10 (Oct. 14, 2019). He further
maintains that it was reversible error for the trial court to instruct the jury it could convict on an
attempt charge even if it concluded that the target offense was completed. Id. at 16. We address
each of these arguments in turn.
A. The Trial Court Did Not Abuse its Discretion in Admitting Evidence that Arose from Belated Discovery Disclosures
[12] Nego contends the trial court abused its discretion in allowing photographic evidence
despite the prosecution’s failure to disclose such material in a timely matter. Id. at 10-11. He
further argues that the photographic evidence admitted by the trial court, which comprised five
photos of the vehicle that is the subject of the theft offense, caused him significant prejudice. Id.
at 14. Nego, however, does not explain in any significant way the prejudice he suffered because
of the belated disclosure. Given the factors we outlined in People v. Tuncap, 1998 Guam 13 ¶
25, for analyzing discovery violations, the trial court did not abuse its discretion in admitting the
photographic evidence.
[13] Discovery in criminal matters is governed by Chapter 70 of Title 8 of the Guam Code
Annotated. See 8 GCA §§ 70.10-70.80 (2005). Under 8 GCA § 70.10(a), the People must, upon People v. Nego, 2021 Guam 3, Opinion Page 6 of 15
the court’s order, disclose to defense counsel “material and information within [the People’s]
possession or control, the existence of which is known, or by the exercise of due diligence may
become known to the [People].” 8 GCA § 70.10(a). This material includes “any book, paper,
document, photograph or tangible object, which the [People] intend[] to use [at] trial.” Id. §
70.10(a)(4). The People’s obligation under our jurisdiction’s criminal discovery statute extends
“to any material information in the possession or control of members of [the prosecution’s] staff
and any other persons who have participated in the investigation or evaluation of the case and
who either regularly report or with reference to th[e] case have reported to [the OAG].” Id. §
70.10(b).
[14] Here, the trial court ordered that all mutual discovery be exchanged under 8 GCA § 70.10
at least a month before jury selection. The disputed discovery material, including the
photographic evidence used at trial, was not disclosed to defense counsel until the day before
jury selection for trial on the November Offenses. As these facts are undisputed, the materials
were disclosed in violation of the discovery obligations in the scheduling order.
[15] When there is a violation of the discovery obligations of the parties, “the court must
determine whether the sanction employed [by the trial court] to remedy the infraction was
appropriate.” Martinez, 2017 Guam 23 ¶ 14 (quoting Tuncap, 1998 Guam 13 ¶ 23). This
requires that the sanction chosen be “proportionate to the misconduct” and “affect the evidence
at trial and the merits of the case as little as possible.” Tuncap, 1998 Guam 13 ¶¶ 23-24
(citations omitted). A range of sanctions can be imposed for discovery violations, including
granting a continuance, prohibiting the party from introducing the belated disclosures as
evidence, holding counsels in contempt (including the Attorney General and/or Chief
Prosecutor), imposing fines, dismissing the indictment, or issuing any other order the trial court
considers just under the circumstances. See People v. Naich, 2013 Guam 7 ¶¶ 27-32. Because People v. Nego, 2021 Guam 3, Opinion Page 7 of 15
the goal of sanctions is to get “prompt and full compliance with the court’s discovery orders,”
the court should “impose the least severe sanction that will accomplish the desired result [of]
prompt and full compliance” with the parties’ discovery obligations. Tuncap, 1998 Guam 13 ¶
24 (quoting United States v. Sarcinelli, 667 F.2d 5, 7 (5th Cir. 1982)).
[16] We address the appropriateness of imposed sanctions for discovery violations using the
factors set forth by the Fifth Circuit in United States v. Sarcinelli, 667 F.2d 5 (5th Cir. 1982), and
adopted in Tuncap.2 See Martinez, 2017 Guam 23 ¶ 15. These factors are: (1) the reasons why
the disclosure was not made; (2) the extent of prejudice, if any, to the opposing party; (3) the
feasibility of rectifying that prejudice by a continuance; and (4) any other relevant circumstances.
Id. (citing Naich, 2013 Guam 7 ¶ 31). Upon application of these factors, the trial court did not
abuse its discretion in admitting the photographic evidence—which were a part of the belated
disclosures—over Nego’s objection. Rather, the trial court considered the Sarcinelli factors and
properly admitted the evidence.3
1. Reasons why disclosure was not made
[17] During trial, the prosecution explained to the court that the belated disclosures resulted
from a mistake by GPD in failing to upload a supplemental police report in its records
management system that referenced photographs the OAG never received. The prosecution
2 The factors we adopted in Tuncap are instructive here in determining whether the trial court abused its discretion in assessing violations of the discovery order because Nego raised the discovery violation prior to trial, and while the trial court imposed no sanction and admitted the disputed evidence, it reached its conclusion by applying the Tuncap factors. See People v. Martinez, 2017 Guam 23 ¶ 14 (“Where a discovery violation occurs, ‘the court must determine whether the sanction employed to remedy the infraction was appropriate.’” (quoting Tuncap, 1998 Guam 13 ¶ 23)). Furthermore, a trial court may consider a wide range of sanctions for proven discovery violations, including imposing no sanction at all. See People v. Ayala, 1 P.3d 3, 48-49 (Cal. 2000) (stating that “a trial court may, in the exercise of its discretion, ‘consider a wide range of sanctions’ in response to the prosecution’s violation of a discovery order,” but finding no abuse of discretion in trial court’s refusal to impose a sanction (quoting People v. Wimberly, 7 Cal. Rptr. 2d 152, 163 (Ct. App. 1992)). 3 The trial court, in admitting the photographic evidence, reserved the right to sanction the government at a later time for its belated disclosures. See Transcript (“Tr.”) at 84-85 (Jury Trial, Mar. 7, 2019) (“I . . . reserve for the Court to consider more fully what sanctions would be appropriate to discourage the failure of discovery [and encourage] compliance with discovery orders . . . .”). People v. Nego, 2021 Guam 3, Opinion Page 8 of 15
further stated that it had made a prior request for photographs to GPD but was told that none
existed. Once the photographs were recovered by the OAG, they were immediately disclosed to
defense counsel. The reasons for the belated disclosure were also explained in the People’s
brief. See Appellee’s Br. at 9, 17 (Dec. 13, 2019). After considering the reasons proffered by
the prosecution, the trial court determined there was no bad faith by the People in their belated
disclosure of discovery materials. See Transcript (“Tr.”) at 84-91 (Jury Trial, Mar. 7, 2019)
(“[T]here is no bad faith found by the Court . . . .”). This finding was not an abuse of discretion.
[18] In both Naich and Martinez, similar mistakes were made by GPD in failing to provide the
OAG with complete files and records. In Martinez, the court determined there was no bad faith
by the prosecutor for the discovery violation when GPD failed to provide the OAG with
discovery related to a previously undisclosed fingerprint analysis when such items were
immediately disclosed to defense counsel upon receipt. 2017 Guam 23 ¶ 17. And in Naich, we
concluded there was no bad faith when GPD failed to notify the OAG of new information added
to the defendant’s file and when the prosecutor in charge did not periodically check with GPD
for new disclosures due to military duty. 2013 Guam 7 ¶ 35.
[19] Similarly, nothing in the record here suggests the belated disclosures resulted from bad
faith by the prosecution. Nego also does not contend, nor does the record show, that there was
any purposeful decision by the prosecution to withhold evidence, to hide the belated disclosures,
or to willfully violate or evade the trial court’s scheduling order by waiting to provide the belated
disclosures. Rather, the reason for the belated disclosures arose from a mistake by GPD in
failing to upload a supplemental police report to its records management system. Nego did not
dispute or challenge the reasons for the belated disclosure, only suggesting the belated disclosure
resulted from discovery problems that plague GPD and the OAG, without articulating those
problems specifically. See Appellant’s Br. at 13. Based on the record, the errors here were not People v. Nego, 2021 Guam 3, Opinion Page 9 of 15
made in bad faith, and the prosecution immediately alerted counsel and turned over the belated
disclosures as soon as they knew of their existence.
2. Extent of prejudice
[20] Though not stated explicitly, Nego suggests that he suffered prejudice to his right to a fair
trial because of the belated disclosures. See Appellant’s Br. at 14. Without explaining any
specific prejudice he would suffer, Nego states he was “forced to choose from among his rights:
the right to a speedy trial, the right to counsel, and the right to be apprised of the evidence
against him” because of the belated discovery disclosures. Id. at 15. The argument that Nego
was forced to choose among certain rights afforded to a defendant is baseless, and Nego does not
sufficiently articulate the harm or prejudice which impacted the specific rights he suggests were
affected.
[21] Here, the trial court asked Nego about the prejudice he would suffer and determined there
was “no demonstration of prejudice to [Nego] that cannot otherwise already have existed.” Tr. at
81, 84 (Jury Trial, Mar. 7, 2019). Such a finding was reasonable and valid as the photographic
evidence admitted during trial was inconsequential. The trial court held that the disputed
photographs of the vehicle were supported by testimony already before the jury. Additionally,
the photographs provided only visual context as to how the vehicle appeared when it was
discovered by law enforcement after the vehicle had already been described by witnesses in prior
trial testimony.
[22] Nego’s argument he suffered prejudice from admission of the photographic evidence is
also cursory, as he articulates no specific arguments or reasons as to why the photographic
evidence was prejudicial and affected his rights. Rather, the photographic evidence constituted a
small part of Nego’s trial given the other evidence that explained the vehicle and linked Nego to
the crime, including testimony by law enforcement officials who saw the vehicle when People v. Nego, 2021 Guam 3, Opinion Page 10 of 15
discovered and testimony from the owner of the vehicle. Even if the photos were consequential
or had some exculpatory value, Nego does not suggest any different strategic actions he might
have taken had he been given time to prepare and use the photographic evidence. As Nego fails
to articulate how he believes he was prejudiced and because there was other significant
inculpatory evidence at trial, we cannot say that the admission of the photographic evidence was
prejudicial.
3. Feasibility of rectifying any prejudice by a continuance
[23] The trial court could have granted a continuance to rectify any prejudice Nego might
have suffered as a result of the belated disclosures. The record shows that Nego asserted his
right to speedy trial under 8 GCA § 80.60 (2005). The trial court set trial three days before the
expiration of the statutory speedy trial time limit. Nego appears to concede that a continuance
would not have cured the prejudice because it “would have given rise to dismissal pursuant to
Guam’s speedy trial statute.” Appellant’s Br. at 15. This is not necessarily true; the court could
have granted a short continuance while still respecting Nego’s speedy trial rights. However,
nothing in the record indicates that Nego requested additional time to review the belated
disclosures. Cf. Appellant’s Reply Br. at 3 (Jan. 10, 2020) (“Nego had no desire for a
continuance of trial and therefore did not seek a continuance.”).
4. Other relevant circumstances
[24] In citing to Martinez, Naich, and Tuncap, Nego asks that we rule in his favor “to shore up
the strength of Guam’s criminal discovery statute and correct the still-endemic issues related to
late disclosure of discovery.” Appellant’s Br. at 15-16. Though the court is mindful of the
problems regarding discovery violations in this jurisdiction, it is not the court’s place to impose
sanctions or policies on GPD or the OAG to rectify “cumulative” issues relative to discovery
violations. The inquiry over the appropriateness of a sanction imposed by a trial court for a People v. Nego, 2021 Guam 3, Opinion Page 11 of 15
discovery violation and whether that sanction amounts to an abuse of discretion is case-specific.
The question before the court is whether the trial court, under the circumstances, abused its
discretion in admitting the belated discovery material. Applying the factors in Tuncap, the trial
court did not abuse its discretion.
[25] While “it is imperative that the People be more diligent in seeking to comply with
discovery requests and orders, even if this requires proactive efforts,” Naich, 2013 Guam 7 ¶ 36,
it would be outside our jurisdiction to fashion a remedy to resolve the “endemic” problems of
discovery violations Nego refers to, especially when those problems are not in the record before
us, see id. ¶¶ 43-45. And as we have stated in Naich, the trial courts are the more appropriate
venue to rectify and impose sanctions for specific and/or endemic discovery violations. See id. ¶
44 (“Trial courts are in the best position to judge whether discovery violations are in fact
systematic and all-too-common.”).
[26] Though the trial court did not abuse its discretion in admitting the belated discovery
materials, we again remind the prosecution of their statutory obligation to timely disclose
materials covered under our criminal discovery statutes. See 8 GCA §§ 70.10-70.80; see also
Martinez, 2017 Guam 23 ¶ 17; Naich, 2013 Guam 7 ¶ 36; Tuncap, 1998 Guam 13 ¶ 32. Such
disclosures “extend to any material information in the possession or control of members of [the
prosecution’s] staff and any other persons who have participated in the investigation or
evaluation of the case and who either regularly report or with reference to th[e] case have
reported to [the OAG].” 8 GCA § 70.10(b).
B. The Trial Court Did Not Abuse its Discretion in Instructing the Jury on the Definition of Attempt
[27] Nego argues the trial court abused its discretion and misstated the law when it instructed
the jury as to the definition of attempt by including language which read that “[t]he Defendant People v. Nego, 2021 Guam 3, Opinion Page 12 of 15
may be guilty of attempt even if you conclude that he actually completed the crime.” RA, tab 60
at 46 (Jury Instrs.). In permitting this instruction, Nego contends “the jury was instructed to
contemplate a method of proof for which Nego was never put on notice” and that such language
was “not contemplated in Guam law.” Appellant’s Br. at 17-18. Based on our review of the
instruction, the record, and relevant case authority, both arguments lack merit.
[28] The trial court instructed the jury on the following definition of attempt:
A person is guilty of an attempt to commit a crime when, with intent to engage in conduct which would constitute such a crime were the circumstances as he believes them to be, he performs or omits to perform an act which constitutes a substantial step toward commission of the crime. The Defendant may be guilty of attempt even if you conclude that he actually completed the crime.
RA, tab 60 at 46 (Jury Instrs.). This definition concerned the offense of Attempted Violation of a
Court Order, the elements of which were described to the jury. Id. at 48, 50. The elements for
Attempted Violation of a Court Order, as described in the jury instructions, also mirrored the
description of the offense in the indictment. RA, tab 6 at 3-4 (Indictment, Jan. 17, 2019). Thus,
the jury was not instructed, and the prosecution never asked, that the jury contemplate finding
Nego guilty of the completed offense related to the attempt crime. While the evidence developed
during trial may have led jurors to believe the attempt crime was completed, the jury was not
instructed, as Nego argues, on a different method of proof other than what he was put on notice
for in the indictment.
[29] Next, we consider the appropriateness of the disputed language in Instruction 5H, which
states that “[t]he Defendant may be guilty of attempt even if you conclude that he actually
completed the crime.” RA, tab 60 at 46 (Jury Instrs.). Nego’s argument that the language was a
misstatement of the law raises whether there could be a conviction of an attempt crime even People v. Nego, 2021 Guam 3, Opinion Page 13 of 15
when the target offense was shown to have been completed, an issue of first impression for the
court.
[30] Other jurisdictions have already resolved this question. The Ninth Circuit in United
States v. Rivera-Relle acknowledged that “[t]he vast majority of American jurisdictions reject the
position that a conviction for an attempt crime is precluded by evidence of a completed offense.”
333 F.3d 914, 920 (9th Cir. 2003). There, the court explained that it was nonsensical to adopt
the position that a defendant can avoid criminal sanction on an attempt crime when there is no
doubt that the individual engaged in criminal conduct by completing the target offense. Id. at
921. Such a scenario would produce the “anomalous situation of a defendant going free ‘not
because he was innocent, but for the very strange reason, that he was too guilty.’” United States
v. York, 578 F.2d 1036, 1039 (5th Cir. 1978) (quoting United States v. Fleming, 215 A.2d 839,
840-41 (D.C. 1966)). Accordingly, the Ninth Circuit held that “a person may be convicted of an
attempt to commit a crime even though that person may have actually completed the crime.”
Rivera-Relle, 333 F.3d at 921. This holding corresponds with the decisions of other courts. See
York, 578 F.2d at 1040 (“[P]roof that a crime had been completed does not absolve the
defendants of the attempt.”); United States v. Malasanos, 472 F.2d 642, 643 (7th Cir. 1973) (per
curiam) (“[N]either common sense nor precedent supports success as a defense to a charge of
attempt . . . .”).
[31] The proposition that a conviction for an attempt crime is precluded if there is evidence of
a completed offense has also been rejected by jurisdictions, like ours, which have adopted
portions of the Model Penal Code. See State v. Mathis, 221 A.2d 529, 533 (N.J. 1966) (“We can
understand that there may be situations in which a jury finding of an ‘attempt’ is palpably a
compromise verdict, but we see no sensible end to be served by the bald proposition that when
the State alleges only an ‘attempt,’ there must be an acquittal if the evidence shows that People v. Nego, 2021 Guam 3, Opinion Page 14 of 15
defendant went further than the State charged.”); People v. Williams, 465 N.Y.S.2d 648, 652
(Crim. Ct. 1983) (“[C]onviction for an attempt is no longer precluded by the fact that the crime
was completed.”).
[32] In support of his argument that Instruction 5H is a misstatement of law, Nego cites only
Lightfoot v. State, 360 A.2d 426, 427-28 (Md. 1976), a case from the Court of Appeals of
Maryland that listed authorities from those jurisdictions that adopted the position there can be no
conviction for attempt if there is uncontradicted evidence establishing the target offense. This
case does not help Nego as it eventually sided with the majority of jurisdictions in holding that
an attempt conviction may stand even if evidence establishes the target offense was completed.
Id. at 430. In Lightfoot, the court stated the following regarding attempt crimes:
In a sense the commission of an offense involves an attempt to commit it. It may not be a degree of the main offense, nor be . . . included therein, so as to require the court to charge with reference thereto in every case where the commission of an offense is charged. But, as the greater includes the less, it is manifest that in every case where an attempt is charged proof of the actual commission of the offense establishes the attempt. If the offender actually commits the offense, he necessarily attempted to do it . . . .
Id. at 428 (quoting State v Fox, 159 N.W.2d 492, 495 (Iowa 1968)). This description of the
interplay between an attempt crime and the completed offense aptly portrays why it would be
inconceivable for this court to adopt the position that the trial court erred when it instructed the
jury that Nego could be found guilty of the attempt offense charged even when overwhelming
evidence showed that the attempt offense was completed. The instruction to the jury that
“[Nego] may be guilty of attempt even if [it] conclude[d] that he actually completed the crime,”
RA, tab 60 at 46 (Jury Instrs.), provided the jury only a way to reconcile any confusion it may
have had if the evidence demonstrated that Nego completed the target crime even when he was
charged only as to attempt. People v. Nego, 2021 Guam 3, Opinion Page 15 of 15
[33] There being no misstatement of law, the trial court did not abuse its discretion in
instructing the jury that “[Nego] may be guilty of attempt even if [it] conclude[d] that he actually
completed the crime.” Id. And given the authorities cited above, we adopt the majority rule in
Rivera-Relle and hold that a person may be found guilty of an attempt crime even though the
evidence developed at trial demonstrates that the person may have actually completed the target
offense. See 333 F.3d at 921.
V. CONCLUSION
[34] We AFFIRM the judgment of conviction.
/s/ /s/ ROBERT J. TORRES KATHERINE A. MARAMAN Associate Justice Associate Justice
/s/ F. PHILIP CARBULLIDO Chief Justice