People of Guam v. Jordan Saul Rachulap

2022 Guam 9

• Court: Supreme Court of Guam
• Decided: December 9, 2022
• Docket: CRA21-013
• Status: Published

Opinion

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM, Plaintiff-Appellee

v.

JORDAN SAUL RACHULAP, Defendant-Appellant.

Supreme Court Case No. CRA21-013 Superior Court Case No. CF0322-19

OPINION

Appeal from the Superior Court of Guam Argued and submitted on May 11, 2022 Yigo, Guam

Appearing for Defendant-Appellant: Appearing for Plaintiff-Appellee: William Benjamin Pole, Esq. Marianne Woloschuk, Esq. Law Offices of Gumataotao & Pole, P.C. Assistant Attorney General 456 W. O’Brien Dr., Ste. 104 Office of the Attorney General Hagåtña, GU 96910 Prosecution Division 590 S. Marine Corps Dr. Tamuning, GU 96913 People v. Rachulap, 2022 Guam 9, Opinion Page 2 of 26

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice; and KATHERINE A. MARAMAN, Associate Justice.

TORRES, J.:

[1] Defendant-Appellant Jordan Saul Rachulap (“Jordan”) appeals from a criminal judgment

of conviction on two counts of Criminal Mischief (as a Third Degree Felony), two counts of

Terrorizing (as a Third Degree Felony), and four Special Allegations of Possession or Use of a

Deadly Weapon in the Commission of a Felony under 9 GCA § 80.37. On appeal, Jordan

challenges the sufficiency of the evidence supporting each of his eight convictions and alleges

prosecutorial misconduct. We affirm in part, reverse in part, and remand to the Superior Court for

further proceedings not inconsistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] In June 2019, Jordan and his brother, Emmanuel Reselap (“Emmanuel”), were arrested on

suspicion of attacking cars near the University of Guam. Jordan was indicted on seven counts of

Criminal Mischief (as a Third Degree Felony), seven counts of Terrorizing (as a Third Degree

Felony), one count of Aggravated Assault (as a Third Degree Felony), one count of Assault (as a

Misdemeanor), and fifteen Special Allegations of Possession or Use of a Deadly Weapon in the

Commission of a Felony under 9 GCA § 80.37 (hereafter, “Deadly Weapon allegation”).

Emmanuel was indicted on similar and additional charges. Emmanuel and Jordan were tried

together in August 2019.

[3] The following evidence was adduced at trial through the testimony of twenty witnesses,

authenticated photographs, and security camera footage. On the morning of the incident, Jordan,

Emmanuel, and two cousins (E.R. and T.R.) went to a beach in Mangilao and consumed alcohol.

The group then returned to the Mangilao apartment where E.R. and T.R. were staying. At the People v. Rachulap, 2022 Guam 9, Opinion Page 3 of 26

apartment, Emmanuel physically assaulted his girlfriend, which led to a broader altercation

between the family members present. Emmanuel and E.R. fought, resulting in Emmanuel striking

E.R. with a machete. E.R. was transported from the apartment for medical attention. After this

altercation, Emmanuel, Jordan, and T.R. began to attack cars stopped along the road outside.

[4] As relevant to this appeal, Plaintiff-Appellee People of Guam (“People”) presented

evidence regarding Jordan’s actions against three victims: Aurora Pastrana, Dean Sparks, and Dr.

Judith Guthertz. Aurora Pastrana was a visitor to Guam from Puerto Rico. Pastrana did not testify

at trial, but her story was conveyed through Guam Police Department (“GPD”) Officer Michael

A. Ramos and through Simichy Edmund, manager of Andy’s Rent-a-Car. Officer Ramos testified

that he met with Pastrana, and she informed him that her rented car—a blue Mazda—had been

damaged by members of the group. Simichy Edmund testified that Pastrana had rented the blue

Mazda from his company. Edmund authenticated photographs of the blue Mazda, which showed

damage to the vehicle’s exterior, and confirmed this damage was not present before Pastrana rented

the vehicle. The People presented video footage which showed portions of the incident. The video

footage appeared to show a man wearing a red shirt attacking a blue Mazda car with a machete.

The People showed the video to Mary Jane Reselap, Jordan’s cousin, and she identified the man

in the red shirt as Jordan.

[5] Dean Sparks, a resident of Guam, testified that he had been riding his bicycle by the scene

of the incident when someone threw rocks at him. Sparks then testified that a male individual

approached him and hit him in the leg with a machete, which knocked him off his bike and caused

a “superficial skin cut.” Transcript (“Tr.”) at 70-71 (Jury Trial, Aug. 27, 2019). The assailant

stood over Sparks in a menacing manner. Witness Frank C. Aguon testified that he saw this

incident occur, thought Sparks “looked like he was scared” by the assailant standing over him, and People v. Rachulap, 2022 Guam 9, Opinion Page 4 of 26

felt worried for Sparks’s well-being. Tr. at 183 (Jury Trial, Aug. 26, 2019). T.R., the third

participant in the incident, testified that he and Jordan perpetrated the attack on Sparks and that

Jordan was the individual who hit Sparks with the machete.

[6] Dr. Judith Guthertz, a professor at the University of Guam, testified that she was inside her

vehicle—a “little Fiat car” with a “soft top”—when individuals attacked the vehicle with rocks

and a machete. Id. at 119-20. Dr. Guthertz testified that the individuals significantly damaged the

vehicle’s exterior, and she then authenticated several photographs showing the damage. Dr.

Guthertz also testified that she was “stunned” and “terrified” during the attack. Id. at 119. Dr.

Guthertz expressed that she had worried “eventually [the assailants] were going to try to kill [her.]”

Id. at 130.

[7] At the close of evidence, the People amended the Indictment, which resulted in fewer base

charges and Special Allegations against Jordan. Jordan then orally moved for a judgment of

acquittal on all remaining charges, and this motion was partially granted, leaving seven base

charges and Special Allegations for the jury’s consideration. The jury returned guilty verdicts on

two counts of Terrorizing (as a Third Degree Felony) and two counts of Criminal Mischief (as a

Third Degree Felony) with their accompanying Special Allegations. Jordan was later sentenced

to twelve years’ imprisonment for his offenses.

[8] After the Superior Court entered its Judgment, Jordan filed two Notices of Appeal, which

resulted in Supreme Court Case No. CRA20-005. But both of Jordan’s initial Notices of Appeal

were untimely under Guam Rule of Appellate Procedure 4(b)(1)(A)(i), so this court dismissed

CRA20-005. Jordan then sought relief in the Superior Court through a habeas corpus petition,

which was granted. The Superior Court re-entered its Judgment on the docket, giving Jordan a People v. Rachulap, 2022 Guam 9, Opinion Page 5 of 26

second opportunity to timely file his appeal. Jordan availed himself of this opportunity and filed

this appeal.

II. JURISDICTION

[9] This court has jurisdiction over an appeal from a final judgment of conviction under 48

U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 117-214 (2022)); 7 GCA §§ 3107 and 3108(a)

(2005); and 8 GCA § 130.15(a) (2005).

III. STANDARD OF REVIEW

[10] “Where a defendant raise[d] the issue of sufficiency of the evidence by a motion for

judgment of acquittal, we review the trial court’s denial of the motion de novo.” People v.

Morales, 2022 Guam 1 ¶ 13 (alteration in original) (quoting People v. Song, 2021 Guam 14 ¶

16). And where a sufficiency of the evidence issue requires statutory interpretation, we perform

that statutory interpretation de novo. People v. Reselap, 2022 Guam 2 ¶ 14.

[11] When a defendant fails to object to alleged prosecutorial misconduct, we review the alleged

misconduct only for plain error. E.g., People v. Reyes, 2020 Guam 33 ¶ 16.

IV. ANALYSIS

A. Sufficient Evidence Exists to Sustain All Four Base Convictions

[12] Jordan first argues the evidence was insufficient to sustain any of his four base convictions:

two counts of Criminal Mischief and two counts of Terrorizing. Our review of evidentiary

sufficiency is de novo, but it is “highly deferential” to the findings of the trier of fact. Song, 2021

Guam 14 ¶ 18. “[W]e review the evidence in the light most favorable to the People and determine

whether any rational trier of fact could have found the essential elements of the crime[s] beyond a

reasonable doubt,” affording to the People “the strongest legitimate view of the evidence and all

reasonable inferences that may be drawn therefrom.” People v. Wia, 2020 Guam 17 ¶ 35 (quoting People v. Rachulap, 2022 Guam 9, Opinion Page 6 of 26

People v. Song, 2012 Guam 21 ¶ 28). We measure only the “existence or non-existence of

evidence, not its weight.” People v. Martin, 2018 Guam 7 ¶ 23 (quoting Song, 2012 Guam 21 ¶

29).

1. Charge Eight, Count One: Criminal Mischief relating to the blue Mazda

[13] A defendant commits Criminal Mischief, as charged, if he “intentionally damages the

motor vehicle of another.” 9 GCA § 34.50(d) (as amended by Guam Pub. L. 35-134:5 (Dec. 29,

2020)). Jordan focuses his challenge on three sub-issues: evidence of identity, evidence of intent,

and whether Guam’s Criminal Mischief statute requires that the victim of the offense also be the

registered owner of the vehicle.

[14] Jordan first argues the evidence was insufficient to prove he was the perpetrator of this

attack, asserting that “no one saw Jordan cause damage to this vehicle, no one was able to report

that he caused damage to this vehicle, and to complicate matters the Mazda in this count looks like

the Mazda driven by another victim.” Appellant’s Br. at 26-27 (Jan. 27, 2022). These assertions

appear to be true, but each goes to the weight—not the existence—of the evidence. Cf. People v.

Wusstig, 2015 Guam 21 ¶¶ 10-11 (distinguishing evidentiary weight versus evidentiary existence).

Regardless of the evidentiary deficiencies alleged by Jordan, the jury here received video footage

showing a man in a red shirt damaging vehicles, including a blue Mazda, with a machete. Jordan’s

cousin, Mary Jane Reselap, identified Jordan as the man in the red shirt with the machete. And

GPD Officer Ramos and Simichy Edmund each authenticated photographs of Pastrana’s blue

Mazda with significant exterior damage not inconsistent with what could be caused by a machete.

Drawing all inferences in favor of the People, a reasonable jury could have found the individual in

the video with the machete was Jordan, and the blue Mazda in the video was Pastrana’s. From

these findings, a reasonable jury therefore could have concluded that Jordan was the perpetrator People v. Rachulap, 2022 Guam 9, Opinion Page 7 of 26

of the attack even absent direct identification testimony. See People v. Cepeda, 2021 Guam 9 ¶

29 (rejecting argument that evidence was insufficient because of lack of direct evidence or

eyewitness accounts of crimes while in progress, and holding that circumstantial evidence alone is

sufficient to support a conviction). The evidence of identification was sufficient.

[15] Jordan next argues the evidence was insufficient to show that he intended to damage

Pastrana’s vehicle, asserting, “There is no indication that in Jordan’s intoxicated and excited state

that any alleged actions of his could have been shown to be done with intent to cause damage to

any vehicle or person.” Appellant’s Br. at 26. It is true the evidence suggests Jordan consumed

alcohol on the day of the incident; there was testimony he was drinking earlier in the day and

testimony from the arresting officer that Jordan seemed intoxicated at the time of arrest.

[16] Evidence of intoxication may negate the mens rea of a crime by showing the defendant

was too intoxicated to form the specific intent necessary for certain offenses. See, e.g., People v.

Nathan, 2018 Guam 13 ¶¶ 19-22. But “the mere fact a defendant may have been drinking prior to

the commission of a crime does not establish intoxication.” Reyes, 2020 Guam 33 ¶ 66 (quoting

Nathan, 2018 Guam 13 ¶ 21); see also State v. Cameron, 514 A.2d 1302, 1308-09 (N.J. 1986)

(holding that intoxication must be of an extremely high level to have caused “prostration of

faculties” of a defendant to qualify as a defense). Whether a defendant was so intoxicated that he

could not form the specific intent necessary to commit an offense is a question of fact, and

resolution of that question is properly committed to the trier of fact. See Saunders v. State, 10 So.

3d 53, 100 (Ala. Crim. App. 2007); Brooks v. State, 395 A.2d 1224, 1228 (Md. Ct. Spec. App.

1979). Though a reasonable jury could have found that Jordan was too intoxicated to form specific

intent, nothing in the record compelled that finding. A reasonable jury instead could have found—

and evidently did find—that Jordan was no longer intoxicated or was not intoxicated to the level People v. Rachulap, 2022 Guam 9, Opinion Page 8 of 26

where his faculties were compromised at the time of the attacks. Nothing in the record makes the

jury’s factual finding on this issue unreasonable; thus, we reject Jordan’s premise that his alleged

intoxication necessarily negated his intent to cause the vehicle damage.

[17] Jordan next argues his conviction for Criminal Mischief cannot stand because Pastrana did

not own the blue Mazda. Jordan appears to argue that the victim’s ownership of the vehicle is an

essential element of Criminal Mischief on a motor vehicle. See Appellant’s Br. at 25-26. A

defendant commits Criminal Mischief, as charged, if he or she “intentionally damages the motor

vehicle of another.” 9 GCA § 34.50(d) (emphasis added). The question is whether the statutory

phrase “the motor vehicle of another” must mean “a motor vehicle owned by the victim.”

[18] “In cases involving statutory construction, the plain language of a statute must be the

starting point.” Pangelinan v. Gutierrez, 2000 Guam 11 ¶ 23. Title 9 GCA § 34.50(d) does not

specify who must own the vehicle, only that the vehicle must be “of another.” We construe the

phrase “of another” by its ordinary, commonsense meaning: its purpose is to exclude from criminal

liability a defendant who intentionally damages his or her own property. Thus, when prosecuting

a defendant for Criminal Mischief on a motor vehicle, the People need only prove that the vehicle

belongs to “another,” i.e., to someone other than the defendant. Cf. People v. Tennessen, 2009

Guam 3 ¶ 24 (in the context of larceny or theft statutes, “the People need only prove that someone

other than the defendant has some possessory interest in the stolen property. The person need not

own the stolen items.”), overruled on other grounds by Barrett-Anderson v. Camacho, 2018 Guam

20. There is no requirement in 9 GCA § 34.50(d) that the victim own the damaged vehicle. The

only statutory requirement is that the motor vehicle be “of another,” and this prong of the statute

is met where the People adduce evidence that the defendant did not own that vehicle. Here, the

undisputed evidence shows that Andy’s Rent-a-Car—not Jordan—owned the blue Mazda operated People v. Rachulap, 2022 Guam 9, Opinion Page 9 of 26

by Pastrana. Thus, sufficient evidence showed that this blue Mazda was “the motor vehicle of

another”; no more proof of ownership is required by 9 GCA § 34.50(d).

[19] Jordan argues that vehicle ownership was an essential element here because of an anomaly

in the jury instructions. Jordan notes, correctly, that Jury Instruction 7AA, “Essential Elements of

Criminal Mischief,” instructed the jury it must find that Jordan “did intentionally . . . damage the

motor vehicle of Aurora Pastrana.” (emphasis added). See Tr. at 43 (Jury Trial, Sept. 30, 2019);

Appellant’s Br. at 25-26. Jordan argues that the language of this instruction creates a special

burden of proof that Pastrana owned the vehicle. We disagree; we do not construe the word “of”

as narrowly as Jordan does. While the instruction does demand a nexus between Pastrana and the

vehicle, we hold this nexus can be established through proof of the victim’s lawful use and

possession of a vehicle. See, e.g., State v. Russell, 585 N.E.2d 995, 997-98 (Ohio Ct. App. 1990);

People v. Schliesser, 671 P.2d 993, 995 (Colo. App. 1983); accord Tennessen, 2009 Guam 3 ¶ 24.

There was evidence from Simichy Edmund, manager of Andy’s Rent-a-Car, that Pastrana was a

lawful user and possessor of the vehicle when the damage occurred. Tr. at 198 (Jury Trial, Aug.

27, 2019). This evidence of possession satisfies the “of Aurora Pastrana” portion of Jury

Instruction 7AA. Thus, as 9 GCA § 34.50(d) does not require the named victim to be the owner

of the damaged vehicle, and Jury Instruction 7AA did not specially require Aurora Pastrana to own

the damaged vehicle, the evidence was sufficient to sustain this conviction.

2. Charge Eight, Count Three: Criminal Mischief relating to Dr. Guthertz’s vehicle

[20] Jordan next argues the evidence was insufficient to sustain the conviction of Criminal

Mischief relating to Dr. Guthertz’s vehicle for two reasons: first, because there was no evidence

he intended to commit Criminal Mischief; and second, because there was no evidence presented

of “Jordan having either a machete or rock.” Appellant’s Br. at 28, 29. People v. Rachulap, 2022 Guam 9, Opinion Page 10 of 26

[21] Jordan first argues there was no evidence he intended to damage Dr. Guthertz’s vehicle,

asserting that “[a]ny threat would have to [have] been inferred and no showing of intent other than

presence was provided.” Id. at 27. Jordan’s premise that intent “would have to [have] been

inferred” describes an unproblematic situation. This court has repeatedly held that circumstantial

evidence can sustain a conviction. See, e.g., People v. Jesus, 2009 Guam 2 ¶ 62 (“[E]vidence

sufficient to support a guilty verdict may be entirely circumstantial . . . .” (quoting United States

v. Boskic, 545 F.3d 69, 85 (1st Cir. 2008))); People v. McKinney, 2016 Guam 3 ¶ 22 (same); Song,

2012 Guam 21 ¶ 29. And appellate courts regularly affirm that a defendant’s intent may be inferred

from the circumstances of the offense. See, e.g., Jesus, 2009 Guam 2 ¶ 64; McKinney, 2016 Guam

3 ¶ 21; State v. Hoeffel, 1991-NMCA-070, ¶ 14, 112 N.M. 358, 815 P.2d 654 (“Intent can be

proved by circumstantial evidence.”); Rose v. Touchette, 2021 VT 77, ¶ 30, 264 A.3d 861

(“Generally, intent is a factual determination; in the absence of direct evidence, intent can be

proved by circumstantial evidence.”). Drawing all inferences in favor of the People, a reasonable

jury could have inferred that Jordan’s act of striking a car with a machete evinced an intent to

damage that car. See People v. Bryant, 787 N.Y.S.2d 540, 541-42 (App. Div. 2004) (in context of

criminal mischief, “[i]ntent can be inferred from the act itself” (quoting People v. Douglas, 737

N.Y.S.2d 545, 545 (App. Div. 2002))); Vines v. United States, 70 A.3d 1170, 1180 (D.C. 2013)

(“[A] finder of fact [may] infer the general intent to commit a crime from reckless conduct.”); see

also People v. Demapan, 2004 Guam 24 ¶ 25 (a “jury may infer specific intent from the

circumstances” of the crime). Thus, there was sufficient circumstantial evidence on which the jury

could conclude that Jordan intended to damage Dr. Guthertz’s vehicle when he struck it with a

machete. People v. Rachulap, 2022 Guam 9, Opinion Page 11 of 26

[22] Jordan also claims there was “no evidence presented that Jordan had either a machete or a

rock based upon the testimony of Dr. Guthertz.” Appellant’s Br. at 28. We read the record

differently. First, there was direct evidence that Jordan possessed a machete on that day—T.R.,

Jordan’s cousin and co-assailant, testified that Jordan possessed the machete during the incident

with Dean Sparks. See Tr. at 221 (Jury Trial, Aug. 26, 2019). And while Dr. Guthertz did not

directly testify that Jordan wielded a machete against her vehicle, she testified that the person who

attacked her car with a machete was wearing a red shirt. Id. at 126. Video footage showed a man

in a red shirt using a machete to attack cars, and witness Mary Jane Reselap identified the man in

the red shirt as Jordan. See Tr. at 18-19 (Jury Trial, Aug. 27, 2019). This is sufficient evidence

from which a reasonable jury could have inferred that Jordan was one of the men who attacked

Dr. Guthertz’s vehicle with a machete. The evidence was sufficient to sustain this conviction.

3. Charge Seven, Count Two: Terrorizing relating to Dr. Guthertz

[23] Jordan next argues the evidence was insufficient to sustain his conviction for Terrorizing

relating to Dr. Guthertz. A defendant is guilty of Terrorizing:

if he communicates to any person a threat to commit or to cause to be committed a crime of violence dangerous to human life, against the person to whom the communication is made or another, and the natural and probable consequence of such a threat, is to place the person to whom the threat is communicated or the person threatened in reasonable fear that crime will be committed.

9 GCA § 19.60(a) (2005). Jordan claims insufficiency here because there was no evidence that he

“knowingly communicated a threat dangerous to human life.” Appellant’s Br. at 28. Jordan

further argues that his “actions alleged if true would have been reckless,” rather than “knowing,”

which in his view means the proper charge was misdemeanor Assault under 9 GCA § 19.30(a)(3)

rather than felony Terrorizing under 9 GCA § 19.60. Id. at 29. People v. Rachulap, 2022 Guam 9, Opinion Page 12 of 26

[24] Guam’s Terrorizing statute does not specify that the communication of the threat must be

made “knowingly”; the statutory language does not prescribe a specific mens rea for the

communication element. See 9 GCA § 19.60; People v. Tfong, 2021 Guam 13 ¶ 19 (noting the

lack of express mens rea language in 9 GCA § 19.60). As Jordan notes, however, the jury

instruction here specifically charged the jury with finding he “knowingly communicated a threat”

to Dr. Guthertz. Tr. at 24 (Jury Trial, Aug. 30, 2019). The instruction applied the same mens rea

that was included in the indictment for this charge. See RA, tab 97 at 7 (Am. Indictment, Aug. 30,

2019) (“in that he did knowingly communicate a threat to another person”). This instruction was

not erroneous because it did not dilute the People’s burden of proof on this element. The lack of

express mens rea language in 9 GCA § 19.60 may bring it within the prescription of 9 GCA § 4.40,

which provides that “if the definition of a crime does not expressly prescribe a culpable mental

state, a culpable mental state is nonetheless required and is established only if a person acts

intentionally, knowingly or recklessly.” See 9 GCA § 4.40 (2005); Tfong, 2021 Guam 13 ¶ 19.1

Under 9 GCA § 4.35(b), “[w]hen recklessness suffices to establish a culpable mental state, it is

also established if a person acts intentionally or knowingly.” 9 GCA § 4.35(b) (2005). Thus, the

proof the People sought to present—that Jordan acted “knowingly”—would prove he acted

“recklessly” as well. We therefore proceed based on the trial court’s instruction: whether there

was sufficient evidence that Jordan knowingly communicated a threat.

1 In People v. Tfong, we declined to decide whether the catch-all provision of 9 GCA § 4.40 applies or whether no culpable mental state need be pleaded to convict under 9 GCA § 19.60, recognizing that in any event, “the lack of a mens rea does not render the terrorizing statute unconstitutionally vague because 9 GCA § 4.40 provides a mechanism in those situations.” 2021 Guam 13 ¶ 21. Later in the opinion, when reviewing the sufficiency of the evidence, we noted the jury instructions and indictment included the element of knowingly communicating a threat and recognized this as the trial court’s application of the catch-all provision of 9 GCA § 4.40. See id. ¶¶ 21 n.8, 29 & n.10. For future reference, we note a clerical error in footnote 10 of Tfong. The footnote erroneously cites to 9 GCA § 4.45; however, the quoted language is from 9 GCA § 4.40. People v. Rachulap, 2022 Guam 9, Opinion Page 13 of 26

[25] Under Guam law:

A person acts knowingly, or with knowledge, with respect to his conduct or to attendant circumstances when he is aware of the nature of his conduct or that those circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is practically certain to cause the result.

9 GCA § 4.30(b) (2005). The question is thus whether a reasonable jury could have inferred that

Jordan was aware of the nature of his conduct and was aware that this conduct was practically

certain to cause the result of Terrorizing.

[26] Terrorizing is measured under an objective standard. “[T]he recipient of the threat need

not be placed in actual fear,” People v. Camacho, 2015 Guam 37 ¶ 26, and the threat need not be

“imminent or even actual,” Tfong, 2021 Guam 13 ¶ 22. All that is required is that the “natural and

probable consequence” of the threatening communication is that the recipient will be placed “in

reasonable fear that crime will be committed.” See id. (quoting 9 GCA § 19.60(a)). In determining

whether the natural and probable consequence of a threat was to create reasonable fear, we have

considered “the substance and context of the threat.” See Camacho, 2015 Guam 37 ¶ 27.

[27] A reasonable jury could conclude that the natural and probable consequence of smashing

an occupied vehicle with a machete is that the vehicle’s occupant would reasonably fear death or

serious bodily injury. And while the victim’s “actual fear” is not an element of the crime, the jury

heard testimony from Dr. Guthertz that she was “stunned” and “terrified,” that she perceived the

defendants “would be able to use those machetes to get through the top [of her vehicle],” that the

individuals had “terror in their faces” and appeared to her to have “hate and concern or an interest

to hurt others,” and that she believed “eventually [her attackers] were going to try to kill [her.]”

Tr. at 119-23, 130 (Jury Trial, Aug. 26, 2019). The jury also saw photographs of, and heard

testimony about, the extensive damage caused to Dr. Guthertz’s vehicle because of this attack. A People v. Rachulap, 2022 Guam 9, Opinion Page 14 of 26

reasonable jury could infer from the attack that Jordan knew the natural and probable consequence

of his actions was to place Dr. Guthertz in reasonable fear that he would commit a crime of violence

dangerous to human life. Thus, there was sufficient evidence to sustain the Terrorizing conviction,

as instructed.

[28] Jordan also argues that the proper charge for his act was misdemeanor Assault under 9

GCA § 19.30(a)(3), rather than felony Terrorizing under 9 GCA § 19.60, because the evidence

showed he acted only recklessly, not knowingly. Appellant’s Br. at 29; Reply Br. at 3-5 (Mar. 28,

2022). Perhaps a misdemeanor Assault charge could have been viable here, but we disagree with

Jordan’s implication that the existence of this other theory of liability rendered Terrorizing an

improper charge. Where the evidence may suggest the commission of more than one offense, the

People may prosecute the defendant for each such offense. 9 GCA § 1.22 (2005); see also People

v. Afaisen, 2016 Guam 31 ¶ 32. Thus, the possibility of a viable Assault charge did not preclude

the People from pursuing a Terrorizing charge instead of, or together with, the Assault charge.

And here, the People proved their Terrorizing charge—including the higher “knowingly” mens

rea—and obtained that conviction through sufficient evidence. Because the Terrorizing

conviction was both properly charged and properly obtained, we need not analyze further the

merits of a hypothetical Assault offense.

4. Charge Seven, Count Three: Terrorizing relating to Sparks

[29] Jordan next argues the evidence showing he committed Terrorizing against Dean Sparks

was insufficient because Sparks misidentified Emmanuel as his attacker, and because the evidence

did not show that Jordan “knowingly” made a “threat dangerous to human life.” We disagree.

[30] Jordan first argues there was insufficient evidence of identity because Sparks visually

identified Emmanuel, not Jordan, as the attacker. Sparks testified that he “remember[ed] his People v. Rachulap, 2022 Guam 9, Opinion Page 15 of 26

[attacker’s] face” and then pointed to Emmanuel as the attacker in the courtroom. Tr. at 72 (Jury

Trial, Aug. 27, 2019). Yet T.R. also explicitly testified that Jordan was the person who attacked

Sparks. Tr. at 221 (Jury Trial, Aug. 26, 2019). T.R. testified that he participated in the attack and

that he “pulled [Sparks] off the bike.” Id. T.R. then testified that “Jordan hit [Sparks] with the

machete.” Id. And T.R. also clarified that Emmanuel was not part of this fight—he testified that

“[i]t was just me and Jordan” who attacked Sparks. Id. at 222. There was conflicting testimony

as to who attacked Sparks. Conflicting testimony goes to the weight, not the existence, of

evidence, and in instances where there is conflicting testimony, it is the trier of fact who must

decide which testimony was more credible. See People v. Finik, 2017 Guam 21 ¶ 22 (collecting

cases). A reasonable jury could have given more weight to T.R.’s identification of Jordan as the

perpetrator than to Sparks’s identification of Emmanuel as the perpetrator. T.R. is Jordan’s cousin

and knows him well; Sparks did not know these people before this brief incident and was asked to

identify Jordan based on a short memory he formed several months earlier. A reasonable jury

could have resolved, and presumably did resolve, any question of identification in favor of T.R.’s

testimony; thus, there was sufficient evidence to support the jury’s finding against Jordan’s

identification challenge.

[31] Jordan next argues there was insufficient evidence he “knowingly communicated” a threat

dangerous to human life because he did not verbally communicate a threat to Sparks. It is true

there was no evidence of a verbal communication, but in the context of Terrorizing, we have held

that “[n]onverbal acts satisfy the communication requirement if a threat can be gleaned from

context.” People v. Robert, 2019 Guam 2 ¶ 10 (quoting Camacho, 2015 Guam 37 ¶ 25). Thus, “a

threat may be made non-verbally by an expression of conduct or gestures.” Id. More recently, we People v. Rachulap, 2022 Guam 9, Opinion Page 16 of 26

also reaffirmed this holding from Robert in Emmanuel’s own appeal against his Terrorizing

convictions. See People v. Reselap, 2022 Guam 2 ¶¶ 42-46. In Robert, we held that the defendant:

communicated a threat by running toward [the victim], who was in his vehicle, while brandishing a machete and striking [the victim’s] vehicle several times. Importantly, he struck the tailgate of the vehicle twice while leaving the vehicle damaged with a display of dents and slash marks. He further communicated a threat by striking the driver’s side of the vehicle with the machete. This conduct communicated a threat to commit a crime of violence dangerous to human life.

Robert, 2019 Guam 2 ¶ 11. Likewise, in Reselap, we reasoned that a reasonable jury could

“perceive hitting a vehicle, slowly walking towards a vehicle while swinging a machete in the air,

and staring at the victim while wielding a machete as non-verbal communication of intent to

commit a crime of violence against a person.” Reselap, 2022 Guam 2 ¶ 50.

[32] Sparks testified that as he was riding his bicycle by the crime scene, an individual came up

and struck him in the leg with a machete. Although the machete was dull, the impact was enough

to knock Sparks off his bike. Sparks’s testimony was partially corroborated by another witness,

Frank C. Aguon, who testified that he saw this altercation from a distance. Aguon testified that he

saw the perpetrators “harassing a guy on a bicycle,” Tr. at 182 (Jury Trial, Aug. 26, 2019), that he

saw Sparks “on the ground,” id. at 184, and that it was “like [the perpetrators] knocked him over.

They’re on him pretty much,” id. From this evidence, a reasonable jury could have found that

Jordan knocked Sparks off his bike to the ground and stood above him with a machete. A

reasonable jury could have then found this act to be a non-verbal communication of a threat by

Jordan to commit a further violent offense. A reasonable jury likewise could have found that

Jordan acted knowingly, reasoning that Jordan knew the “natural and probable consequence” of

his actions was to place Sparks in reasonable fear. See supra Part IV(A)(3). Thus, there was

sufficient evidence for the jury to conclude that Jordan’s communication, though non-verbal, was

a “knowing communication” of a threat. People v. Rachulap, 2022 Guam 9, Opinion Page 17 of 26

[33] We therefore reject all of Jordan’s challenges to the sufficiency of evidence supporting his

four base convictions.

B. The Evidence Was Sufficient to Sustain Three of the Four Special Allegations

[34] Jordan next argues the evidence was insufficient to sustain any of his four convictions for

Special Allegations of Possession or Use of a Deadly Weapon in the Commission of a Felony

under 9 GCA § 80.37(a). This statute creates a sentence enhancement when a defendant

“unlawfully possesses or uses a deadly weapon in the commission of a felony punishable under

the laws of Guam.” 9 GCA § 80.37(a) (2005). Under Guam law, a deadly weapon is “any firearm,

or other weapon, device, instrument, material or substance, whether animate or inanimate, which

in the manner it is used or is intended to be used is known to the defendant to be capable of

producing death or serious bodily injury.” 9 GCA § 16.10(d) (2005).

[35] There was evidence that Jordan used and possessed a machete in the commission of the

four crimes above. Our inquiry is whether Jordan’s machete qualifies as a “deadly weapon” under

Guam law during each offense. We begin our analysis with the last clause of 9 GCA § 16.10(d):

to be considered a “deadly weapon,” an object must be known to the defendant to be “capable of

producing death or serious bodily injury.” There was significant evidence on which the jury could

infer that Jordan’s weapon was capable of causing death or serious bodily injury to a person. The

jury heard testimony from Dr. Guthertz about the damage that the machete caused to her vehicle

and saw photographs of machete damage to several vehicles. The jury also heard testimony from

Sparks that Jordan’s use of the machete was forceful enough to knock Sparks off his bike and

injure Sparks’s leg. And the jury heard testimony from E.R. that, before the vehicle attacks,

Emmanuel struck E.R. with presumably the same machete and caused a “major laceration” that People v. Rachulap, 2022 Guam 9, Opinion Page 18 of 26

sent E.R. to the hospital. Based on this evidence, a reasonable jury could infer that the machete

was capable of causing death or serious bodily injury when directed against a person.2

[36] Yet for an object to qualify as a deadly weapon under Guam law, the jury must also find

that the weapon is known to the defendant to be capable of causing death or serious bodily injury

in the manner it is used or is intended to be used. 9 GCA § 16.10(d). Thus, it is not sufficient that

an object be theoretically capable of causing death or serious bodily injury—the object must

actually be used, or must be intended to be used, in a manner that could cause those results.

1. Special Allegations attached to the Terrorizing convictions

[37] We have no trouble upholding the jury’s findings regarding the Deadly Weapon allegations

attached to the Terrorizing convictions: the jury could have found that Jordan used or intended to

use the machete in a manner he knew to be capable of causing death or serious bodily injury in

these instances. The record shows that Jordan actually struck Sparks with the machete and then

stood above him wielding the machete, non-verbally threatening further usage. The record also

shows that Jordan wielded the machete against Dr. Guthertz’s vehicle while she was still inside it,

causing serious damage to the vehicle’s exterior and placing Dr. Guthertz in reasonable fear that

Jordan might attack her directly. In both incidents, a reasonable jury could have concluded both

that the machete was capable of producing death or serious bodily injury to the victims, and that

Jordan used or intended to use the machete in such a manner to create a significant risk of death

or serious bodily injury. The evidence was therefore sufficient to sustain the Deadly Weapon

convictions attached to Charge Seven, Counts Two and Three.

2 This follows our holdings in several recent cases in which we affirmed jury findings that a machete was used as a “deadly weapon” under Guam law. See People v. Robert, 2019 Guam 2 ¶ 11; People v. Reselap, 2022 Guam 2 ¶¶ 34-35; People v. Nathan, 2018 Guam 13 ¶¶ 5, 7. People v. Rachulap, 2022 Guam 9, Opinion Page 19 of 26

2. Special Allegations attached to the Criminal Mischief convictions

[38] We distinguish the Special Allegations attached to the two Criminal Mischief convictions

based on the evidence, or lack thereof. We agree that the Deadly Weapon allegation properly

attached to the conviction for Criminal Mischief against Dr. Guthertz: Charge Eight, Count Three.

The same activity that supported the Special Allegation attached to the Terrorizing conviction

concerning Dr. Guthertz also supported the Special Allegation attached to the Criminal Mischief

conviction concerning her. The jury reasonably concluded, based on Dr. Guthertz’s testimony

about her “soft-top” vehicle and the extent of the damage caused, that Jordan’s act of attacking her

vehicle with the machete was capable of causing death or serious bodily injury to Dr. Guthertz.

Thus, the evidence was sufficient to prove that Jordan used or possessed a deadly weapon in the

commission of Criminal Mischief, Charge Eight, Count Three.3

[39] We agree with Jordan, however, that the evidence was insufficient to sustain the Deadly

Weapon allegation attached to Criminal Mischief, Charge Eight, Count One. As above, the Deadly

Weapon allegation properly attaches when the defendant “possesses or uses a deadly weapon,” 9

GCA § 80.37, and an object is considered a deadly weapon when “in the manner it is used or is

intended to be used,” it is known to the defendant to be “capable of producing death or serious

bodily injury.” 9 GCA § 16.10(d). Thus, for a Deadly Weapon allegation to properly attach to a

Criminal Mischief conviction, the defendant must use or intend to use the object in a manner he

knows could pose a risk of “death or serious bodily injury” to the victim—and to obtain a proper

3 We also reject Jordan’s argument that a Deadly Weapon allegation can never attach to the crime of Criminal Mischief because a car cannot suffer “death or serious bodily injury.” As we held in Reselap—involving this same criminal transaction—a Deadly Weapon allegation can properly attach when the vehicle is occupied. The relevant inquiry is not whether the vehicle is placed at risk of death or serious bodily injury, but whether the occupant of the vehicle was placed at risk by the damaging of the vehicle. See 2022 Guam 2 ¶¶ 34-41. People v. Rachulap, 2022 Guam 9, Opinion Page 20 of 26

conviction on this allegation, the People must produce evidence on which the jury could base that

finding.

[40] The evidence was insufficient to show that Pastrana faced a risk of death or serious bodily

injury from Jordan’s actions. Pastrana did not testify. Neither GPD Officer Ramos nor Simichy

Edmund testified that Pastrana either objectively was, or subjectively felt she was, at risk of injury

from the attack. And while there was video evidence on which a reasonable jury could conclude

that Jordan damaged Pastrana’s car, see supra Part IV(A)(1), that video does not show whether

Pastrana was inside her vehicle or otherwise in some position of danger relative to the attack on

her vehicle. The jury could not have convicted Jordan on this Special Allegation except by merely

assuming that because her car was damaged, Pastrana was also placed at risk of serious bodily

injury or death. Yet without some evidence to support that premise, “the evidence merely raises a

suspicion that the accused is guilty.” People v. Quintanilla, 2020 Guam 8 ¶ 11 (quoting Song,

2012 Guam 21 ¶ 29). Without more, the evidence was insufficient to sustain the Deadly Weapon

allegation attached to Charge Eight, Count One. We therefore reverse this conviction.

C. The Alleged Prosecutorial Misconduct Was Not Plainly Erroneous

[41] Jordan also argues that statements made by the prosecutor during his closing arguments

were misconduct amounting to reversible error.4 Jordan’s trial counsel did not object to the now-

challenged statements, so our review is for plain error. Reyes, 2020 Guam 33 ¶ 16. “Under plain

error review, [the] court ‘will not reverse unless (1) there was an error; (2) the error is clear or

obvious under current law; (3) the error affected substantial rights; and (4) reversal is necessary to

4 Jordan argues primarily under common law prosecutorial misconduct theories, but in the headers of his briefing, he also alludes to possible constitutional violations. See Appellant’s Br. at 34 (framing his argument in part as a Fifth Amendment claim). But Jordan does not advance any arguments directly addressing the Fifth Amendment in the body of his briefing. In failing to advance any specific argument in support of this claim, we consider the issue abandoned. Cf. People v. Blas, 2015 Guam 30 ¶ 28; see also Guam R. App. P. 13(a)(9)(A). People v. Rachulap, 2022 Guam 9, Opinion Page 21 of 26

prevent a miscarriage of justice or to maintain the integrity of the judicial process.’” Id. (alteration

in original) (quoting Nathan, 2018 Guam 13 ¶ 9).

[42] Jordan first draws the court’s attention to the following portion of the prosecutor’s closing

argument:

I strongly believe and I argue to you that because [Jordan and Emmanuel] both were at Ms. Guthertz [sic] car at the same time, one at the hood, one in the back, it was at that point they switch weapons. I don’t know why. I have a theory, I’m going to give you guys why.

They switch weapons at this point. We know they’re both there. How do we know they switched? Because Mr. Blas Atalig says a guy with no shirt now has a machete. . . .

....

Jordan and Emmanuel switch weapons. Jordan’s the older guy. He says, little brother I got you. Give me that. Go hide the murder weapon. They think they killed [E.R.]. They think they killed [E.R.], go hide the murder weapon. Why else would he come back? Why else would Emmanuel come back if they’re already gone? Because he already ditched it. That’s how we know they switched. So that’s very powerful.

Tr. at 98-100 (Jury Trial, Aug. 30, 2019). Jordan argues this portion of the prosecutor’s closing

argument constitutes prosecutorial misconduct on several grounds: that it amounted to both

vouching and bolstering, that it was not supported by the evidence adduced at trial, and that it was

erroneous because the prosecutor improperly gave his personal impression of the evidence when

he told the jury what he “strongly believe[d].” Appellant’s Br. at 34-39.

[43] We first address Jordan’s contention that this line of argument amounts to both vouching

and bolstering; it is neither. Under Guam law, “[v]ouching occurs when the government places

the ‘prestige of the government behind the witnesses through personal assurances of their veracity’

and is improper.” People v. Moses, 2007 Guam 5 ¶ 16 (quoting People v. Ueki, 1999 Guam 4 ¶

19). Thus, “the term ‘vouching’ is basically restricted to the concept of an attorney personally People v. Rachulap, 2022 Guam 9, Opinion Page 22 of 26

assuring the truthful nature of the testimony of a witness to the trier of fact.” Finik, 2017 Guam

21 ¶ 28 (quoting Nickell v. State, 885 P.2d 670, 677 (Okla. Crim. App. 1994) (Lumpkin, P.J.,

concurring)). The prosecutor did not assure the jury of the truthful nature of one witness, or even

all the witnesses collectively; he presented his own theory, which was not based on the testimony

of any particular witness. This tactic was erroneous, but it was not vouching, as no witness was

vouched for.

[44] Bolstering “‘constitutes nothing more than “preemptive rehabilitation” of a witness’

through the testimony of another witness.” Id. (quoting Nickell, 885 P.2d at 677 (Lumpkin, P.J.,

concurring)). Bolstering, as distinct from vouching, generally refers to using a witness—not the

prosecutor’s own theory—to strengthen the credibility of another witness. See People v.

Tedtaotao, 2016 Guam 9 ¶ 26. Here, the prosecutor’s statement did not preemptively rehabilitate

a witness through the testimony of another witness. The statement was not “preemptive” because

it was made during closing arguments, where no other witnesses were to be called. And the

statement did not rehabilitate a witness because it did not address, much less strengthen, the

testimony of any particular witness. Thus, the prosecutor’s tactic was similarly not bolstering.

[45] Jordan next argues, more compellingly, that the prosecutor’s tactic was erroneous because

it argued facts not in evidence. We have held that “arguing facts not in evidence constitutes

attorney misconduct.” Cepeda, 2021 Guam 9 ¶ 59 (collecting cases); HRC Guam Co. v. Bayview

II L.L.C., 2017 Guam 25 ¶ 103. An attorney “may ‘indulge in all fair arguments’ but ‘may not

assume facts not in evidence or invite the jury to speculate as to unsupported inferences.’” Cepeda,

2021 Guam 9 ¶ 59 (quoting HRC, 2017 Guam 25 ¶ 103). Here, we must distinguish separate

portions of the transcript quoted above. While Jordan argues broadly that the entire weapon-

trading theory was unsupported by the evidence, we disagree. The basic premise that the People v. Rachulap, 2022 Guam 9, Opinion Page 23 of 26

defendants may have traded weapons was a fair argument based on the evidence. Witness

testimony suggested there was only one machete in use, but also suggested that at different times

throughout the incident, Jordan and Emmanuel each possessed the machete. The prosecutor’s

theory that Jordan and Emmanuel traded the machete sometime during the altercation was not

unreasonable; it was a fair theory to tie together disparate testimonies.

[46] But the portion of the prosecutor’s argument above beginning with the phrase “little

brother, I got you” is problematic. Nothing in the record suggests such a conversation happened.

We assume the prosecutor intended his argument illustratively, not literally, but he did not clarify

his purpose. His presentation of this alleged conversation could therefore have misled the jury

into assuming there had been evidence this conversation happened; the jury then could have relied

on this non-existent evidence to resolve key ambiguities regarding when and how the machete was

wielded by both Jordan and Emmanuel. A closing argument that relies on evidence not in the

record is improper. See, e.g., State v. Pierce, 280 P.3d 1158, 1170 (Wash. Ct. App. 2012)

(reversing conviction based in part on prosecutor’s “fabricated and inflammatory account” of

offense); Coreas v. United States, 565 A.2d 594, 603-04 (D.C. 1989) (finding error in prosecutorial

theory far-attenuated from evidence presented).

[47] Yet while the “little brother, I got you” line of argument was erroneous, it did not amount

to plain error. Plain error requires the defendant to prove that the misconduct affected his

“substantial rights.” We have held that prosecutorial misconduct does not affect a defendant’s

substantial rights where “it is unlikely [that the] specific instance of [misconduct] affected the

outcome” of the trial. Reyes, 2020 Guam 33 ¶ 30; see also People v. Mendiola, 2010 Guam 5 ¶

24. In People v. Reyes, we also held that “substantial evidence of [the defendant’s] guilt” was a

factor that militates against finding that the defendant’s rights were substantially affected by an People v. Rachulap, 2022 Guam 9, Opinion Page 24 of 26

instance of prosecutorial misconduct. 2020 Guam 33 ¶ 30; see also People v. Kanistus, 2017

Guam 26 ¶ 28 (“[E]rrors do not affect substantial rights when the prosecution presented

overwhelming evidence of guilt regarding the issue or element affected by the claimed error.”).

Here, there was substantial evidence of Jordan’s guilt, including extensive testimony both by his

victims and other witnesses, several authenticated photographs of the damage he caused, and video

footage that appeared to show him committing at least one of the charged acts. Given this

extensive evidence of Jordan’s guilt, we find it unlikely that the jury would have acquitted him but

for the prosecutor’s erroneous line of argument. Cf. People v. Evaristo, 1999 Guam 22 ¶ 34

(defendant’s substantial rights were not harmed where “the jury was free to judge for itself the

weight of the evidence presented and the credibility of the testifying witnesses”). The “little

brother, I got you” argument was erroneous, but not plainly erroneous.

[48] Jordan next argues that the prosecutor committed misconduct by presenting his personal

belief in what occurred. The prosecutor began his weapon-trading theory by stating, “I strongly

believe” in the theory he then presented. Tr. at 98 (Jury Trial, Aug. 30, 2019). This was also

erroneous. We have reproved the practice of prosecutors imparting their personal belief into their

arguments, holding that “any insinuation of personal knowledge or belief of the defendant’s guilt

constitutes prosecutorial misconduct.” Cepeda, 2021 Guam 9 ¶ 59 (collecting cases). We have

similarly described the prosecutor’s use of the personal pronoun “I” as “problematic, as ‘a

prosecutor has no business telling the jury his individual impressions of the evidence.’” Reyes,

2020 Guam 33 ¶ 29 (quoting Moses, 2007 Guam 5 ¶ 31). The prosecutor therefore erred by telling

the jury he “strongly believe[d]” in the theory he was about to present.

[49] But this was not plain error for the same reason the previous line of argument was not: we

find it similarly unlikely that this error affected the outcome of the trial. Again, there was strong People v. Rachulap, 2022 Guam 9, Opinion Page 25 of 26

evidence of Jordan’s guilt from many sources; we do not think a reasonable jury would have

acquitted Jordan but for this instance of prosecutorial misconduct. It was erroneous for the

prosecutor to state what he “strongly believed,” but it was unlikely that Jordan’s substantial rights

were affected by the error. Cf. Reyes, 2020 Guam 33 ¶¶ 29-31 (declining to reverse on basis of

improper “personal pronoun” usage). As in Reyes, we decline to reverse here for the improper use

of a personal pronoun, though we again warn the People to avoid using this tactic before a jury.

[50] Additionally, Jordan argues that the prosecutor committed misconduct by arguing

punishment to the jury. The prosecutor urged the jury to find Jordan guilty in part because

“people’s lives are impacted by this.” Tr. at 100 (Jury Trial, Aug. 30, 2019). The People concede

error here, Appellee’s Br. at 30 (Mar. 17, 2022), but argue any error was harmless. We agree with

the People. Once again, we find it unlikely that Jordan’s substantial rights were affected by this

error. The evidence against Jordan was strong, and the prosecutor did not dwell on this erroneous

argument; this short phrase was the only instance in which the prosecutor argued punishment to

the jury, and then only indirectly through insinuation. Thus, while the prosecutor erred, this error

was too minor to affect the outcome of trial, and it therefore did not affect Jordan’s substantial

rights. We decline to reverse Jordan’s convictions based on prosecutorial misconduct.5

V. CONCLUSION

[51] The evidence was sufficient to sustain each of the four base convictions—namely, two

counts of Criminal Mischief (as a Third Degree Felony) and two counts of Terrorizing (as a Third

Degree Felony). The evidence was also sufficient to sustain three of the four Special Allegations

of Possession or Use of a Deadly Weapon in the Commission of a Felony—namely, Charge Seven,

5 Although we do not reverse Jordan’s convictions because of prosecutorial misconduct, we re-emphasize that misconduct of this nature poses a grave risk to the propriety of the convictions obtained. We warn the People that similar errors in a case when the evidence of guilt is not as strong could result in a reversal. People v. Rachulap, 2022 Guam 9, Opinion Page 26 of 26

Counts Two and Three; and Charge Eight, Count Three. We therefore affirm these convictions.

However, the evidence was insufficient to sustain the Special Allegation attached to Charge Eight,

Count One (Criminal Mischief against Aurora Pastrana), and we reverse the conviction for this

Special Allegation. Finally, the prosecutor’s challenged comments were not plainly erroneous and

thus do not merit reversal. We therefore AFFIRM in part, REVERSE in part, and REMAND to

the trial court for further proceedings not inconsistent with this opinion.

/s/ /s/ ROBERT J. TORRES KATHERINE A. MARAMAN Associate Justice Associate Justice

/s/ F. PHILIP CARBULLIDO Chief Justice