4 IN THE SUPERIOR COURT OF GUAM 5
6 ) CRIMINAL CASE NO. CF263-12 PEOPLE OF GUAM, ) 7 ) vs. ) 8 ) ) DECISION AND ORDER 9 VANESSA MENO AGUERO, ) (Defendants' Motion to Dismiss RHONDA JEANILLE MENO AGUERO ) Indictment) 10 ) (aka RHONDA JAMES) and ) 11 JESSE OGO AGUERO, ) ) 12 ) Defendants. ) 13 ----------------------------
14 INTRODUCTION 15 This matter came before the Honorable Anita A. Sukola on July 10, 2012, for a hearing 16 on Vanessa Meno Aguero's, Rhonda Jeanille Meno Aguero's, and Jesse Ogo Aguero's 17
18 ("Defendants") Motion to Dismiss Indictment. Attorney Anthony R. Camacho appeared on
19 behalf of Defendant Rhonda Jeanille Meno Aguero. Attorney John C. Terlaje appeared on 20 behalf of Defendant Vanessa Meno Aguero. Attorney F. Randall Cunliffe appeared on behalf 21 of Defendant Jesse Ogo Aguero. Assistant Attorney General Nelson J. Werner appeared on 22 behalf of the People of Guam ("the People"). After the hearing, the Court took the matter under 23
24 advisement. Upon review of the oral and 'written arguments, and legal authorities presented by
25 the attorneys, the Court hereby issues this Decision and Order. 26 /1/ 27 1// 28
People of Guam v. Vanessa Aguero, Rhonda Aguero, and Jesse Aguero (CF0263-12) Page I of6 Decision and Order Motion to Dismiss Indictment BACKGROUND 1
2 A Magistrate's Complaint was filed on April 23, 2012, charging Defendant Vanessa
3 Meno Aguero with 2 Counts of Child Abuse (As a 3rd Degree Felony). Defendant Rhonda 4 rd Jeanille Meno Aguero was charged with Child Abuse (As a 3 Degree Felony) and Defendant 5 rd Jesse Ogo Aguero was charged with 2 Counts of Child Abuse (As a 3 Degree Felony). 6 Magistrate's Complaint (Apr. 23, 2012). On May 2, 2012, Defendants were indicted. The 7 rd 8 Indictment charges Defendant Vanessa Meno Aguero with 2 Counts of Child Abuse (As a 3
9 Degree Felony). Defendant Rhonda Jeanille Meno Aguero was charged with Child Abuse (As a 10 3rd Degree Felony) and Defendant Jesse Ogo Aguero was charged with 2 Counts of Child 11 Abuse (As a 3rd Degree Felony). Indictment (May 2,2012). 12
13 DISCUSSION
14 Defendants move the Court to dismiss the indictment on the basis of duplicity and
15 nonconformance to law. Def. Jesse Aguero's Mem. of Law in Support of Mot. Dismiss 16 Indictment (Jun 7, 2012). With respect to Defendant Jesse Aguero, he argues that "the 17 Government has charged so [many] different crimes in each Count." Id. at 2. Defendant 18
19 Rhonda Aguero argues that "[a]lthough the indictment tracks the language of the statute and it
20 also compiles into one charge multiple means of culpability, it does not afford sufficient detail 21 so as to give Defendant Rhonda Aguero the opportunity to defend the allegations against her." 22 Def. Rhonda Aguero's Mot. Dismiss Indictment at 6-7 (luI. 5, 2012). Defendant Vanessa 23 Aguero joins in co-defendant's Motion to Dismiss Indictment submitted by co-defendant Jesse 24
25 Ogo Aguero. See Joinder by Def. Vanessa Meno Aguero to Co-Defs Mot. Dismiss Indictment
26 (Jun. 13,2012). 27
People of Guam v. Vanessa Aguero, Rhonda Aguero, and Jesse Aguero (CF0263-12) Page 2 of6 Decision and Order Motion to Dismiss Indictment The People oppose Defendants' Motion for Dismissal of the Indictment. The People 1
2 argue that "[t]he elements charged in the indictment coupled with testimony presented to the
3 Grand Jury provide sufficient detail of the charged crimes, the incident dates, and the victim 4 involved. People's Opposition to Defense Mot. for Dismissal of the Indictment at 3 (Jul. 9, 5 2012). The People also contend that dismissal of an indictment is considered a drastic step and 6 th is generally disfavored as a remedy. Id. at 2 (citing People v. Muna, 999 F.2d 397,399 (9 Cir. 7
8 1993)(citing United
9 Generally, failure to object to an indictment prior to trial results in waiver. People v. 10 Diaz, 2007 Guam 3 ~ 23. See also 8 GCA § 65.15 (2005). The Court finds that Defendants' 11 motion filing in the instant case is timely. 12
13 Guam law sets forth standards for indicting as follows:
14 (a) An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a felony or a felony and a related 15 misdemeanor. 16 (b) The grand jury shall find an indictment when from the evidence presented there is reasonable cause to believe that an indictable offense has been 17 committed and that the defendant committed it. (c) Special Fictitious Name Indictment means an indictment of a person whose 18 name is unknown but whose identity is established to the satisfaction of a 19 grand jury by means of forensic Deoxyribonucleic Acid (DNA) testing of evidence. The caption of a special fictitious name indictment shall include a 20 fictitious name, such as "John Doe" or "Jane Doe", in place of the name of the defendant whose true name is unknown. 21
22 8 GCA § 50.54 (2005).
23 With respect to the form of an indictment or information, local statute requires: 24 (a) The indictment or the information shall be a plain, concise and definite written 25 statement of the essential facts constituting the offense charged and shall be signed by the prosecuting attorney. It need not contain a formal 26 commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference 27 in another count. It may be alleged in a single count that the means by which 28
People of Guam v. Vanessa Aguero, Rhonda Aguero, and Jesse Aguero (CF0263-12) Page 3 of6 Decision and Order Motion to Dismiss Indictment the defendant committed the offense are unknown or that he committed it by 1 one or more specified means. 2 (b) The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law 3 which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or 4 for reversal of a conviction if the error or omission did not mislead the 5 defendant to his prejudice.
6 8 GCA § 55.10 (2005). 7 The indictment in the case at bar charges the Defendants as follows: 8 FIRST CHARGE Count One 9 On or about the 21 st day of April 2012, in Guam, VANESSA MENO AGUERO, did commit the offense of Child Abuse when while having a child in her care or 10 custody or under her control, that is, A.M.A. (DOB: 06-18-1995), she 11 unreasonably caused or permitted the physical or, emotional health of that child to be endangered, under circumstances likely to result in death or serious bodily 12 injury in violation of9 GCA § 31.30(a)(2)(C) and (b). 13 Count Two 14 On or about the 21 st day of April 2012, in Guam, VANESSA MENO AGUERO, did commit the offense of Child Abuse when while having a child in her care or 15 custody or under her control, that is, V.C.A. (DOB: 08-12-2011), she 16 unreasonably caused or permitted the physical or, emotional health of that child to be endangered, under circumstances likely to result in death or serious bodily l7 injury in violation of 9 GCA §§ 31.30(a)(2)(C) and(b). 18 SECOND CHARGE 19 On or about the 21 st day of April 2012, in Guam, RHONDA JEANILLE MENO AGUERO (aka RHONDA JAMES), did commit the offense of Child Abuse 20 when while having a child in her care or custody or under her control, that is, K.K.A.J.
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4 IN THE SUPERIOR COURT OF GUAM 5
6 ) CRIMINAL CASE NO. CF263-12 PEOPLE OF GUAM, ) 7 ) vs. ) 8 ) ) DECISION AND ORDER 9 VANESSA MENO AGUERO, ) (Defendants' Motion to Dismiss RHONDA JEANILLE MENO AGUERO ) Indictment) 10 ) (aka RHONDA JAMES) and ) 11 JESSE OGO AGUERO, ) ) 12 ) Defendants. ) 13 ----------------------------
14 INTRODUCTION 15 This matter came before the Honorable Anita A. Sukola on July 10, 2012, for a hearing 16 on Vanessa Meno Aguero's, Rhonda Jeanille Meno Aguero's, and Jesse Ogo Aguero's 17
18 ("Defendants") Motion to Dismiss Indictment. Attorney Anthony R. Camacho appeared on
19 behalf of Defendant Rhonda Jeanille Meno Aguero. Attorney John C. Terlaje appeared on 20 behalf of Defendant Vanessa Meno Aguero. Attorney F. Randall Cunliffe appeared on behalf 21 of Defendant Jesse Ogo Aguero. Assistant Attorney General Nelson J. Werner appeared on 22 behalf of the People of Guam ("the People"). After the hearing, the Court took the matter under 23
24 advisement. Upon review of the oral and 'written arguments, and legal authorities presented by
25 the attorneys, the Court hereby issues this Decision and Order. 26 /1/ 27 1// 28
People of Guam v. Vanessa Aguero, Rhonda Aguero, and Jesse Aguero (CF0263-12) Page I of6 Decision and Order Motion to Dismiss Indictment BACKGROUND 1
2 A Magistrate's Complaint was filed on April 23, 2012, charging Defendant Vanessa
3 Meno Aguero with 2 Counts of Child Abuse (As a 3rd Degree Felony). Defendant Rhonda 4 rd Jeanille Meno Aguero was charged with Child Abuse (As a 3 Degree Felony) and Defendant 5 rd Jesse Ogo Aguero was charged with 2 Counts of Child Abuse (As a 3 Degree Felony). 6 Magistrate's Complaint (Apr. 23, 2012). On May 2, 2012, Defendants were indicted. The 7 rd 8 Indictment charges Defendant Vanessa Meno Aguero with 2 Counts of Child Abuse (As a 3
9 Degree Felony). Defendant Rhonda Jeanille Meno Aguero was charged with Child Abuse (As a 10 3rd Degree Felony) and Defendant Jesse Ogo Aguero was charged with 2 Counts of Child 11 Abuse (As a 3rd Degree Felony). Indictment (May 2,2012). 12
13 DISCUSSION
14 Defendants move the Court to dismiss the indictment on the basis of duplicity and
15 nonconformance to law. Def. Jesse Aguero's Mem. of Law in Support of Mot. Dismiss 16 Indictment (Jun 7, 2012). With respect to Defendant Jesse Aguero, he argues that "the 17 Government has charged so [many] different crimes in each Count." Id. at 2. Defendant 18
19 Rhonda Aguero argues that "[a]lthough the indictment tracks the language of the statute and it
20 also compiles into one charge multiple means of culpability, it does not afford sufficient detail 21 so as to give Defendant Rhonda Aguero the opportunity to defend the allegations against her." 22 Def. Rhonda Aguero's Mot. Dismiss Indictment at 6-7 (luI. 5, 2012). Defendant Vanessa 23 Aguero joins in co-defendant's Motion to Dismiss Indictment submitted by co-defendant Jesse 24
25 Ogo Aguero. See Joinder by Def. Vanessa Meno Aguero to Co-Defs Mot. Dismiss Indictment
26 (Jun. 13,2012). 27
People of Guam v. Vanessa Aguero, Rhonda Aguero, and Jesse Aguero (CF0263-12) Page 2 of6 Decision and Order Motion to Dismiss Indictment The People oppose Defendants' Motion for Dismissal of the Indictment. The People 1
2 argue that "[t]he elements charged in the indictment coupled with testimony presented to the
3 Grand Jury provide sufficient detail of the charged crimes, the incident dates, and the victim 4 involved. People's Opposition to Defense Mot. for Dismissal of the Indictment at 3 (Jul. 9, 5 2012). The People also contend that dismissal of an indictment is considered a drastic step and 6 th is generally disfavored as a remedy. Id. at 2 (citing People v. Muna, 999 F.2d 397,399 (9 Cir. 7
8 1993)(citing United
9 Generally, failure to object to an indictment prior to trial results in waiver. People v. 10 Diaz, 2007 Guam 3 ~ 23. See also 8 GCA § 65.15 (2005). The Court finds that Defendants' 11 motion filing in the instant case is timely. 12
13 Guam law sets forth standards for indicting as follows:
14 (a) An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a felony or a felony and a related 15 misdemeanor. 16 (b) The grand jury shall find an indictment when from the evidence presented there is reasonable cause to believe that an indictable offense has been 17 committed and that the defendant committed it. (c) Special Fictitious Name Indictment means an indictment of a person whose 18 name is unknown but whose identity is established to the satisfaction of a 19 grand jury by means of forensic Deoxyribonucleic Acid (DNA) testing of evidence. The caption of a special fictitious name indictment shall include a 20 fictitious name, such as "John Doe" or "Jane Doe", in place of the name of the defendant whose true name is unknown. 21
22 8 GCA § 50.54 (2005).
23 With respect to the form of an indictment or information, local statute requires: 24 (a) The indictment or the information shall be a plain, concise and definite written 25 statement of the essential facts constituting the offense charged and shall be signed by the prosecuting attorney. It need not contain a formal 26 commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference 27 in another count. It may be alleged in a single count that the means by which 28
People of Guam v. Vanessa Aguero, Rhonda Aguero, and Jesse Aguero (CF0263-12) Page 3 of6 Decision and Order Motion to Dismiss Indictment the defendant committed the offense are unknown or that he committed it by 1 one or more specified means. 2 (b) The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law 3 which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or 4 for reversal of a conviction if the error or omission did not mislead the 5 defendant to his prejudice.
6 8 GCA § 55.10 (2005). 7 The indictment in the case at bar charges the Defendants as follows: 8 FIRST CHARGE Count One 9 On or about the 21 st day of April 2012, in Guam, VANESSA MENO AGUERO, did commit the offense of Child Abuse when while having a child in her care or 10 custody or under her control, that is, A.M.A. (DOB: 06-18-1995), she 11 unreasonably caused or permitted the physical or, emotional health of that child to be endangered, under circumstances likely to result in death or serious bodily 12 injury in violation of9 GCA § 31.30(a)(2)(C) and (b). 13 Count Two 14 On or about the 21 st day of April 2012, in Guam, VANESSA MENO AGUERO, did commit the offense of Child Abuse when while having a child in her care or 15 custody or under her control, that is, V.C.A. (DOB: 08-12-2011), she 16 unreasonably caused or permitted the physical or, emotional health of that child to be endangered, under circumstances likely to result in death or serious bodily l7 injury in violation of 9 GCA §§ 31.30(a)(2)(C) and(b). 18 SECOND CHARGE 19 On or about the 21 st day of April 2012, in Guam, RHONDA JEANILLE MENO AGUERO (aka RHONDA JAMES), did commit the offense of Child Abuse 20 when while having a child in her care or custody or under her control, that is, K.K.A.J. (DOB: 1-10-10), she unreasonably caused or permitted the physical or, 21 emotional health of that child to be endangered, under circumstances likely to 22 result in death or serious bodily injury in violation of 9 GCA §§ 31.30(a)(2)(C) and (b). 23 THIRD CHARGE Count One 24 On or about the 21 st day of April 2012, in Guam, JESSE AGUERO, did commit 25 the offense of Child Abuse when while having a child in his care or custody or under his control, that is, A.M.A. (DOB: 06-18-1995), he unreasonably caused or 26 permitted the physical or, emotional health of that child to be endangered, under circumstances likely to result death or serious bodily injury in violation of 9 GCA 27 §§31.30(a)(2)(C) and (b). 28
People of Guam v. Vanessa Aguero. Rhonda Aguero, and Jesse Aguero (CF0263-12) Page 4 of6 Decision and Order Motion to Dismiss Indictment Count Two 1 On or about the 21 st day of April 2012, in Guam, JESSE AGUERO did commit 2 the offense of Child Abuse when while having a child in his care or custody or under his control, that is, V.C.A. (DOB: 08-12-2011), he unreasonably caused or 3 permitted the physical or, emotional health of that child to be endangered, under circumstances likely to result in death or serious bodily injury in violation of 9 4 GCA §§31.30 (a)(2)(C) and (b). 5 Indictment: CF263-12 (May 2,2012). 6 "It is a cardinal principal of our criminal law that an indictment is sufficient which 7
8 apprises a defendant of the crime with which he is charged so as to enable him to prepare his
9 defense and to plead judgment of acquittal or conviction as a plea to a subsequent prosecution 10 for the same offense." People v . Jones, 2006 Guam 13 ~ 12 (citing Portnoy v. United States, 316 11 F .2d 486, 488 (1 st Cir. 1963). It is also well established that an indictment "should be read in its 12 entirety, construed according to common sense, and interpreted to include facts which are 13 th 14 necessarily implied." Id. (citing U.S. v. Givens, 767 F.2d 574, 584 (9 Cir. 1985). Guam law is
15 in accordance with this view, holding an indictment to be sufficient where it contains the 16 elements of the crime alleged, adequately informs the defendant of the crime to allow him to 17 defend against the charges, and is stated with sufficient clarity to bar subsequent prosecution of 18
19 the same offense. Id.
20 In review of the Indictment, the Court notes that the statutory provision in Guam law is 21 tracked in the manner Defendants are charged for Child Abuse. "The essential facts of an 22 offense are the elements of the crime. See, e.g., United States v. Debrow, 346 U.S. 374, 376, 74 23 S.Ct. 113 (1953). Moreover, the exact wording in a criminal statute can be used in an 24
25 indictment in order to satisfy the essential facts requirement. !d. The Debrow Court also
26 opined that "[i]t is inconceivable to us how the defendants could possibly be misled as to the 27 offense with which they stood charged. The sufficiency of the indictment [was] not a question 28
People of Guam v. Vanessa Aguero, Rhonda Aguero, and Jesse Aguero (CF0263-12) Page 5 of6 Decision and Order Motion to Dismiss Indictment of whether it could have been more definite and certain [in that case]. Id. With the case at bar, 1
2 the Three charges against Defendants are all based on 9 GCA § 31.30 (a)(2)(C) and (b).
3 Consequently, as long as the elements of that statutory provision are stated in the Indictment, 4 the essential facts standard in 8 GCA §55.10 is satisfied. Accordingly, the Court does not find 5 duplicity in the charging document and the Indictment is sufficient. The criminal acts set forth 6 in the Indictment allege specific criminality and do not prejudice the defense. 7
8 Even assuming arguendo that the Indictment is duplicitous, the Court notes that rules
9 about duplicity are pleading rules, the violation of which is not fatal to an indictment. United 10 States v. Robinson, 651 F.2d 1188 (6 th Cir. 1981). A duplicitous indictment is remedial by the 11 court's instruction to the jury particularizing the distinct offense charged in each count in the 12
13 indictment.
14 CONCLUSION
15 By preponderance of the evidence and based on the foregoing reasons, the Court 16 DENIES Defendants' Motion to Dismiss Indictment. 17 A Continued Trial Setting is scheduled for September 10,2012, at 9 a.m. 18
19 SO ORDERED this~day of August, 2012.
24 SERVICE VIA COURT BO 25 lacknowledge that a copy of the 'Original hereto was,plao,d in the Judge, Superior Court of Guam rt box of: . 26 .Tee , 27 "r-. 28
People of Guam v. Vanessa Aguero, Rhonda Aguero, and Jesse Aguero (CF0263-12) Page 6 of6 Decision and Order Motion to Dismiss Indictment