People v. Acosta, B.M.

Opinion

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6 IN THE SUPERIOR COURT OF GUAM 7

8 THE PEOPLE OF GUAM, CRIMINAL CASE no. CF0640-18 9 vs. 10 DECISION AND ORDER 11 BRANDON MICHAEL ACOSTA, 12 Defendant. 13

14 INTROD UC TION 15 This matter is before the Honorable Vernon P. Perez on Defendant Brandon Michael 16 Acosta's ("Defendant") Motion in Limine One: Criminal Sexual Charges Cannot as a Matter of 17 Law be Proven ("Motion in Limine One") andMotion in Limine Two: Aggravated Murder 18 Charges Two, Three and Four Cannot as a Matter of Law Be Proven ("Motion in Limine Two"), 19 filed March ll, 2020. Defendant is represented by Attorney William B. Pole, and the People of 20 Guam ("the Gove ent") are represented by Assistant Attorneys General LeonardoM. Rapadas 21 and Woodrow D. Pengelly. Having reviewed the pleadings, the arguments presented, and the 22 record, the Court now issues the following Decision and Order DENYING both Motions in 23 Limine. 24 BACKGROUND 25 Jury Selection and Trial in this matter began on February 24, 2020. Defendant is charged 26 with four counts of Aggravated Murder (As a First Degree Felony); two counts of First Degree 27 Criminal Sexual Conduct (As a First Degree Felony); two counts of Second Degree Criminal 28

People v. Acosta Case No. CF0640-l8 Decision and Order

Page1 of 6 1 Sexual Conduct (As a First Degree Felony), one count of Home Invasion (As a First Degree

2 Felony), one count of Burglary (As a First Degree Felony), one count of Aggravated Assault (As

3 a Second Degree Felony), and two counts of Third Degree Criminal Sexual Conduct (As a Second

4 Degree Felony). (Superseding Indictment, Jul. 12, 2019). Each felony charge also has an attached

5 Special Allegation: Possession or Use of a Deadly Weapon in the Commission of a Felony and

6 Notice: ComMission of a Felony While on Felony Release. Id. On March 10, 2020, the

7 Government rested.1 Defendant now moves the Court to dismiss the criminal sexual conduct 8 charges and three of the aggravated assault charges because they cannot as a matter of law be 9 proven? See generally, Mot. Limine One, Mar. 11, 2020 & Mot. Limine Two, Mar. 11, 2020. 10

11 1 Since the Government rested, because of public health concerns arising from the COVID-19 (coronavirus pandemic), I 12 Mega 'ha°gan Gudhan has issued several executive orders to stem the spread of thevirus: Executive Order No. 2020-03, declaring a State of Emergency, Executive Order No. 2020-04, closing non-essential government operations through March 30, 2020, 13 Executive Order No. 2020-05, prohibiting public gatherings and mandating social isolation; and Executive Order No. 2020-06, extending the suspension of non-essential government offices by an additional fourteen days. Pursuant to these orders, the 14 Supreme Court of Guam issued AdministrativeOrder No. ADM20-2 l0, closing the Judiciary of Guam for all but essential services until March 30, 2020, and Administrative Order No. ADM20-214, extending the closure until April 15, 2020. All civil and 15 criminal jury trials remained suspended without exception until April 15, 2020. On April 10, 2020, the Supreme Court of Guam issued Administrative Order No. ADM20-220, further extending the closure until May 6, 2020. 16 2 The charges at issue are reflected in the Superseding Indictment as follows: 17 CHARG E T WO 18 On or about June 16, 2018, in Guam, BRANDON MICHAEL ACOSTA did commit the offense of Aggravated Murder (As a 1st Degree Felony), in that he caused the death of another human being, that is, 19 Timicca Natta, during the coxmnission of or attempt to commit the felony of First Degree Criminal Sexual Conduct, in violation off GCA §§ 16.20(a), l6.30(a)(2), l6.30(b), 25.15(a)(1), and 13.10. 20 CHARGE T HREE 21 On or about June 16, 2018, in Guam, BRANDON MICHAEL ACOSTA did commit the offense of Aggravated Murder (As a let Degree Felony), in that he caused the death of another human being, that is, 22 TimiccaN at t a, during the commission of or attempt to commit the felony of Second Degree Criminal Sexual Conduct, in violation of 9 GCA §§ 16.20(a), 16.30(a)(2), 16.30(b), 25.20(a)(3), and 13.10. 23 CHARGE FOUR On or about June 16, 2018, in Guam, BRANDON MICHAEL ACOSTA did commit the offense of 24 Aggravated Murder (As a let Degree Felony), in that he caused the death of another human being, that is, timicca Nauta, during the commission of or attempt to commit the felony of Third Degree Criminal Sexual 25 Conduct, in violation of 9 GCA §§ 16.20(a), l6.30(a)(2), 16.30(b), 25.25(a)(1), and 13.10. 26 CHARGE SEVEN Count One 27 On or about June 16, 2018, in Guam, BRANDON MICHAEL ACOSTA did commit the offense of First Degree Criminal Sexual Conduct (As a 1st Degree Felony), when he intentionally engaged in sexual 28 penetration with another, to wit: sexual intercourse with Timicca Natta, and the sexual penetration occurred

People v. Acosta Case No. CF0640- 18 Decision and Order

Page 2 of 6 1 DISCUSSION

2 As an initial matter, the Court notes that the Government construes the Motions in Liming

3 as motions for judgments of acquittal on factual grounds. See Response at 3, Mar. 12, 2020.

4 Defendant, in reply, argues that the motions concern legal arguments that include factual

5 determinations but are not in of themselves motions for directed verdict or motions of judgment

6 of acquittal. (Reply at 2, Mar. 13, 2020). Defendant concedes, however, that when looking at

7 the evidence as it relates to the law, such evidence should be looked at in the light most favorable

8 to the Government. Id.

10 under circumstances involving another felony, namely, Aggravated Assaultpursuant to 9 GCA §19.20(a)(1), 11 in violation of 9 GCA §§25.15(a)(3) and (b).

Count Two 12 On or about June 16, 2018, in Guam, BRANDON MICHAEL ACOSTA did commit the offense of Firs t Degree Criminal Sexual Conduct (As a 1st Degree Felony), when he intentionally engaged in sexual 13 penetration with another, to wit: by engaging in anal intercourse withTimicca Natta,and the sexual penetration occurred under circumstances involving another felony, namely, Aggravated Assault pursuant to 9 GCA § 14 19.20(a)(1), in violation of 9 GCA §§25.l5(a)(3) and (b).

15 CHARG E EIG HT Count One 16 On or about June 16, 2018, in Guam, BRANDON MICHAEL ACOSTA did commit the offense of Second Degree Criminal Sexual Conduct (As a let Degree Felony), when he intentionally engaged in sexual 17 penetration with another, to wit: sexual intercourse with Tlmicca Natta, and the sexual penetration occurred under circumstances involving another felony, namely, Aggravated Assuultpursuant to 9 GCA § I9.20(a) (I), 18 in violation of 9 GCA §§25.l5(a)(3) and (b). Count Two 19 On or about June 16, 2018, in Guam, BRANDON MICHAEL ACOSTA did commit the offense of Second Degree Criminal Sexual Conduct (As a let Degree Felony), when he intentionally engaged in sexual 20 penetration with another, to wit: sexual intercourse with Timicca Nauta, and the sexual penetration occurred 21 under circumstances involving another felony, namely, Aggravated Assaultpursuant to 9 GCA §19.20(a) (1), in violation of 9 GCA §§25.15(a)(3) and (b). 22 QHARGE T WELVE Count One 23 On or about June 16, 2018, in Guam, BRANDON MICHAEL ACOSTA did commit the offense of Third Degree Criminal Sexual Conduct (As a 2nd Degree Felony), when he intentionally engaged in sexual 24 penetration with another, to wit: sexual intercourse with Timicca Nauto, a minor at least fourteen (14) years of age but less than sixteen (16) years of age, in violation of 9 GCA §§25.25(a)(l) and (b). 25 Count Two 26 O n or about June 16, 2018, in Guam, BRANDON MICHAEL ACOSTA did commit the offense of Third Degree Criminal Sexual Conduct (As a2nd Degree Felony), when he intentionally engaged in sexual 27 penetration with another, to wit: by engaging in anal intercourse with Timicea Natta, a minor at least fourteen (14) years of age but less than sixteen (16) years of age, in violation of 9 GCA §§25.25(a)(1) and (b). 28 (Superseding Indictment, Jul. 12, 2019).

People v. Acosta Case No. CF0640-18 Decision and Order

Page 3 of 6 1 In his first Motion in Limine, Defendant argues that the Government cannot show whether 2 the victim was alive at the time of any of the allegations of sexual assault, and that a defendant 3 cannot be charged with assault on a person who has passed away, as there is a separate charge for 4 such an offense, citing 9 G.C.A. § 61.50 (Disinterring a Corpse). See generally, Mot. Limine 5 One, Mar. 11, 2020. The Government opposes, arguing that such a determination of whether or 6 not the victim was alive at the time of the alleged criminal sexual conduct is for the jury as fact 7 finders to decide, and that time is not an element of criminal sexual conduct. (Response at 3, Mar. 8 12, 2020). Thus, the first issue before the Court is a legal determination as to whether a victim 9 must be alive at the time of the alleged sexual assault, for a defendant to be convicted of criminal 10 sexual assault. 11 Defendant cites to People v. Booker, 245 P.3d366 (Cal. 2011) and People v. Hunter, 530 12 N.W.2d 174 (Mich. App. 1995) for support. In Booker, the California Court held that "the crime 13 of rape requires a live victim, the intent to have sexual intercourse with a dead body is neither 14 rape or attempted rape." 245 P.3d at 398. In Hunter, the Michigan Court also concluded that the 15 crime of criminal sexual conduct requires a live victim at the time of penetration. 540 N.W.2d at 16 176. Cases interpreting Michigan law are persuasive because Guam's criminal sexual conduct 17 statutes were patterned after Michigan's. People v. Enlert, 2019 Guam 3 1120 (citing People v.

18 Cummins, 2010 Guam 19 1121). Accordingly, the Court will focus its review on Hunter. In its 19 analysis, the Michigan Court noted that: 20 [A] "victim is a "person alleging to have been subj ected to criminal sexual conduct." A dead body is not a person. It cannot allege anything. A dead body 21 has no will to overcome. It does not have the same potential to suffer physically or 22 mentally as a live or even an unconscious or dying victim. 23 Id. However, the Michigan Court also noted in the context of a felony murder charge that a felony 24 murder conviction may be sustained "where the victim dies during the attempt to perpetrate the 25 underlying crime." Id. at 177. The Court finds that this holding is inconsistent with the Michigan 26 Court's earlier rationale for its holding that criminal sexual conduct requires a live victim at the 27 time of penetration. Neither a criminal sexual conduct victim killed before penetration nor a 28 felony murder victim killed during a criminal sexual conduct attempt is capable of alleging

Page 4 of 6 l anything, yet in the latter instance a felony murder conviction will stand, while in the earlier 2 instance a criminal sexual conduct conviction will not under the Michigan Court's reasoning. 3 This Court declines to adopt a bright-line rule that a rape victim must be alive at the 4 moment of penetration. The Court finds that Guam's criminal sexual conduct statutes do not 5 preclude application to dead victims. Further, a live victim requirement could encourage rapists 6 to kill their victims. See, e.g., State v. Brobek,751 S.W.2d 828 (Tenn. 1988), State v. McLaughlin, 7 265 S.W.3d 257, 269 (Mo. 2008). The fact that death may have preceded the sexual act by an 8 instant should not negate commission of the crime of criminal sexual conduct and reduce it to a 9 relatively minor offense. The entirely of a defendant's conduct from the beginning of the criminal 10 assault through completion of the sexual act is to be considered. It is rape where a defendant both 11 kills and sexually assaults a victim in a single, continuous act, or in a series of closely related acts, 12 even if portions of the rape, including penetration, occur once the victim already has been killed. 13 Accordingly, the Court holds that a rape victim need not be alive at the time of penetration 14 provided the sexual assault is part of a continuous transaction. Here, the Superseding Indictment 15 alleges that the sexual assault occurred under circumstances involving another felony 16 Aggravated Assault. The Court, in review of evidence presented to the jury in a light most 17 favorable to the Government, finds that sufficient evidence exists where a rational trier of fact 18 could find the essential elements of each charge of criminal sexual conduct beyond a reasonable

19 doubt. See People v. Song, 2012 Guam 21 1127. Therefore, the Court denies Defendant's first

20 Motion in Limine.

21 Defendant also argues that the Second, Third, and Fourth Charges of Aggravated Murder

22 (As a First Degree Felony) cannot be proven as a matter of law, because they include the element

2.3 of criminal sexual conduct, and the criminal sexual conduct charges cannot stand pursuant to

24 Defendant's Motion in Lirnine One. See generally, Mot. L im ine Tw o, Mar . ll, 2 0 2 0 . The

25 Aggravated Murder charges referenced accuse Defendant of causing the death of another human

26 being during the commission of or attempt to commit each of the charged criminal sexual conduct

27 3 "The Court is concerned with the existence or nonexistence of evidence, not its weight." Song, 2012 Guam 21 1] 28 29.

People v. Aeosta CaseNo. CF0640-18 Decision and Order

Page 5 of 6 1 felonies. See Superseding Indictment, Jul. 12, 2019. Thus, the jury would have to find that

2 Defendant committed the underlying criminal sexual conduct charge to be able to convict him of

3 Aggravated Murder. As the Court found that the criminal sexual conduct charges still stand based

4 on the discussion above, the second Motion in Limine must also be denied.

5 CONCLUSION

6 For the foregoing reasons, the Court hereby DENIES Defendant's Motions in Limine.

7 The criminal sexual conduct charges and aggravated murder charges will go to the jury for their

8 deliberation. A Status Hearing will be set upon further guidance from the Supreme Court of

9 Guam as to the resumption of criminal jury trials and the reopening of the Guam Judicial Center

10 to the public in light of I Maga'h&gan Gucihan 's Executive Order No. 2020-09, extending the

11 public health emergency until May 5, 2020.

13 IT IS SO ORDERED this 25/*day of April, 2020. 14

16 N / BLE VERNON p. PEREZ Judge, Superior Court of Guam 17

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