People v. Akoma

Opinion

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IN THE SUPERIOR COURT COURT OF OF GUAM GUAM 13 p wma

EL Lai Ol',G.UU§?&T

if? '? ,nasan1»~r

PEOPLE OF GUAM, GUAM,

Criminal Case No. CM0363-22 Plaintiff, GPD Report No: No:21-26405 21-26405

vs. vs. DECISION DECISION AND AND ORDER DENYING DENYING PEOPLE'S MOTION MOTION TO TO INTRODUCE UGOCHUKWU ENYINNAYA AKOMA, 413 EVIDENCE 413 EVIDENCE DOB: DOB: 02/28/1972 02/28/1972

Defendant.

I. INTRODUCTION 1. INTRODUCTION This matter came before matter came before the the Honorable Honorable Alberto E. Tolentino Tolentino on on June June 22, 22, 2023, 2023, for an an

evidentiary hearingon evidentiary hearing onthe thePeople Peopleof ofGuam's Guam's("People") ("People") Notice Notice of ofIntent Intent to to Admit Admit 413 413 Evidence

and the resulting and the resulting motions motions from from the the respective respective parties. Assistant Attorney parties. Assistant Attorney General General Grant Grant Olan- Olan

represents thePeople represents the Peopleininthis thismatter, matter,and andthethe ARRIOLALAW ARRIOLA LAW FIRM, FIRM, by by Attorney Attorney Joaquin Joaquin C.

Arriola, Jr., Arriola, representsUgochukwu Jr., represents UgochukwuEnyinnaya EnyinnayaAkoma Akoma("Defendant"). ("Defendant"). Having Having duly duly considered considered the

parties' briefs, briefs, oral oral arguments, arguments, and the theapplicable applicable law, law, the theCourt Courtnow nowissues issuesthe thefollowing following Findings

of of Fact Fact and Conclusions Conclusionsof of Law. Law.

II. PRELIMINARY 11. PRELIMINARY MATTERS In In the interest of privacy, privacy, confidentiality, confidentiality,and andtotoavoid avoidunnecessary unnecessarytrauma traumaand and unwarranted

stigma from publicity, the Court acknowledges publicity, the thatthe acknowledges that the Guam GuamRules Rules of of Appellate Appellate Procedure Procedure

provides: that "[a]ll "[a]11motions, motions,briefs, briefs,opinions, opinions,and andorders ordersofofthe thecourt courtshall shall refertotoa a refer ...victim ... victim of of

a sex sex crime crime ... ... by by initials initials only." only."See See Guam Guam R. App. P. P. (e)(3)(B). (e)(3)(B).With Withrespect respectotothe thesealed sealednature nature

Page 1 of 11 of to herein, of the evidentiary hearings that are referred to will identify the witnesses by their herein, the Court will

initials.

III. FINDINGS 111. FINDINGS OF FACT Base on the testimony at the evidentiary adduced at testimony adduced hearing held evidentiary hearing on June held on 22, 2023, the Court June 22,

finds the following facts:: following facts

Witness No. Witness 1: T.1. No.1: T.].

1. T.J.identified 1. T.J. the Defendant, identifiedthe who was Defendant, who present in was present the cotutroom, in the as the man she alleged courtroom, as

had sexually assaulted her; her,

T.J.testified 2. T.J. that she testifiedthat was aa patient seeing the Defendant she was purposes; Defendant for medical purposes,

T.J.testified 3. T.J. that she testifiedthat saw the she saw Defendant on the Defendant two occasions on two purposes; occasions for medical purposes,

T.J.testified 4. T.J. that she testifiedthat was alone she was with the Defendant alone with at the time of Defendant at incident; of the alleged incident,

5. T.J. T.J. testified testified that that she was in she was examination room in an examination with the room with Defendant at the Defendant of the at the time of

alleged incident; incident,

6. T.J. testified that, theDefendant, visit, the first visit, her first on her that, on without consent, Defendant, without removed or consent, removed

attempted to remove articles of clothing from her body; body,

7. T.J. testified that made several inappropriate Defendant made the Defendant that the comments to her following inappropriate comments

removing or removing of clothing from her body; or attempting to remove articles of body,

T.J.testified 8. T.J. that, on testifiedthat, her second on her visit, the Defendant second visit, again made Defendant again several inappropriate made several

comments her; comments to her,

9. T.J. testifiedthat T.J.testified the Defendant that the placed his Defendant placed finger on his finger her middle on her thigh and middle thigh ran itit up her and ran

middle thigh; leg toward her upper middle thigh,

10. T.J. 10. testified that T.J. testified the Defendant that the so; Defendant told her to stand up, and she did so,

11. T.J. 11. testified that .J. testified the Defendant that the then twirled her around until her posterior was facing Defendant then

the Defendant; Defendant,

11 Page 2 of 11 12. T.J. testified 12. T.J. that Defendant testified that made aasound Defendant made like"mmm" soundlike her posterior was facing while her "mum" while

toward the Defendant; Defendant,

T.]. testified that 13. T.J. she then that she timed to face the Defendant directly; then turned directly,

T.J. testified that the 14. T.J. Defendant then tried to kiss her, the Defendant but she turned her her, but cheek away and her cheek

her, and the Defendant did not kiss her;

T.J. testified that she then left. 15. T.J.

Witness No.2: J.M. 1. J.M. J.M.was wasunable unwillingto orunwilling unableor identify the to identify Defendant, who the Defendant, was present in the who was

courtroom, courtroom;

2. J.M. J.M.testified thatshe testifiedthat visitedaa doctor shevisited once for doctor once issues; for ear issues,

3. ].M. J.M.was waspresented presentedwith withaapaper paperby by the that she could not identify; prosecutor that the prosecutor identify,

4. J.M. J.M.testified testifiedthat thatthe thedoctor doctor in in question had asked question had her to lay on asked her did; on her side, which she did,

and

5. J.M. J.M.testified thedoctor thatthe testifiedthat question had doctorininquestion then touched had then her breast touched her over the clothes. breast over

Iv. IV. CONCLUSIONS OF LAW Based upon the facts presented above, and with consideration for the arguments presented

by the People of of Guam and of conclusions of and the Defendant, the Court now makes the following conclusions

law:

ARGUMENTS PRESENTED BY DEFENDANT A. PRELIMINARY ARGUMENTS

IA. lA. Proper Proper Notice Under Rule 413 Defendant has argued that the People did not provide adequate notice under GRE 413.

Reply to Gov't's (Apr.21, Opp'n,22(Apr. Gov't'sOpp'n, 2023). The 21, 2023). relevant provision The relevant of Rule 413 states: provision of

11 Page 3 of 11

I In In a case inin which intends to the Government intends which the to offer under evidence under offer evidence this rule, the attorneyfor the attorney theGovernment for the shalldisclose Government shall the evidence disclose the evidence to the defendant, statements of defendant, including statements summary of of witnesses or a summary of substanceof the substance of any testimony that anytestimony expectedto thatisisexpected be offered, to be offered, at least fifteen fifteen days days before the scheduled beforethe date of scheduled date trialor oftrial atsuch orat later time such later as time as the court allow for mayallow courtmay for good cause. good cause.

6 G.C.A. §§ 413(b) 6 G.C.A. 413(b) (emphasis (emphasis added). added).

In In the instant theoriginal case,the instant case, trial date original trial was scheduled date was for April scheduledfor 2023. See Criminal 26, 2023. April 26,

Trial Scheduling 16, 2022). Scheduling Order (Dec. 16, Defendantsubsequently 2022). Defendant requested an subsequently requested the an extension of the

motion cut-off discovery motion and other cut-offand dates contained in the other dates trial scheduling the trial orderfor schedulingorder period of for a period of no

thanninety less than (90) days. ninety(90) Motion to SeeMotion days. See Dates In to Extend Time and Dates Trial Scheduling Order (Feb. In Trial

13, 2023). The 13, 2023). The People People did did not oppose the motion. not oppose Non-Opposition to See Non-Opposition motion. See Motion to Extend Time to Motion Time

and Dates Datesin inTrial Trial Scheduling Scheduling Order Order(Mar. (Mar. 13, 2023). The Defendant then 13, 2023). filed a Motion thenfiled Limine in Limine Motion in

to Exclude Exclude G.R.E. 404(b) 404(b) and Evidence and 413 Evidence and 413 Memorandum of Point and aa Memorandum and Authorities Point and in Authorities in

Support of the Support of the motion. Defendant's Motion See Defendant's motion. See in Liming Motion in 404(b) and to Exclude G.R.E. 404(b) Limine to 413 and 413

Evidence Evidence (Apr. (Apr. 14, 14, 2023). 2023). The The People submitted their Notice Peoplesubmitted ofIntent Notice of Admit Rule 413 Evidence Intent to Admit

on April17, on April 2023. 17,2023 l

Given Given the the fact fact that that the court did not act on the to extend motion to the Defendant's motion timeand extendtime dates and dates

but that thatitit continued continuedthe thepre-trial pre-tnlalconference conferencetotoaalater datetotoallow laterdate Defendant enough time allow Defendant to reply time to reply

to the People's People's motions, motions;the accepts that Courtaccepts theCourt this required that this was not required notice was submitted within not submitted the within the

time required in in its scheduling order. original trial scheduling its original However, the Court will not order. However, hold the confusion not hold

of oftrial trial dates dates against party and against any party thusfinds and thus good cause findsgood for the causefor delay in filing the the delay instant motion the instant

and will will proceed proceed to resolve resolve the instant motion. the instant

11 Page 4 of 11 lB. Evidence LB. Applicable Statute of Limitations The Applicable and The Convictions and Prior Convictions of Prior Evidence of

Defendant argues that the allegations made in the Rule 413 testimonies at the evidentiary the allegations

hearing are "stale" statute oflimitations. beyond the statute "stale" and beyond Reply to of limitations. Reply Govt's Opp'n, 7 (Apr. to Govt's 21, 2023). (Apr. 21, 2023).

Moreover, the Moreover, the Defendant Defendant argues argues that that similar have weighed cases have similar cases the time weighed the defendant's time of aa defendant's

conviction when measuring closeness when measuring in time. closeness in Apr. 21, Reply, Apr. time. Reply, 2023, (referencing 21, 2023, Chine!, 2013 (referencing Chined,

,r 42; CF0109-17, Guam 24 142, Iriarte); (J. Iriarte), 2018) (J. 22, 2018) (Feb. 22, 4-5 (Feb. D&Oatat4-5 Patterson, D&O v. R.L. Patterson, CF0109-l 7, People v.

CF0lOl-17, People CF0101-17, 4-5 (June o p l e vv.. Santos, D&O at 4-5 29, 2017) (J. Iriarte)). (June 29, Irialte)).

The Court disagrees. disagrees. While While many cases cases before before dealing with with the the admission of GRE 413 admission of

evidence have weighed weighed past past convictions, consider the nature of the evidence convictions, the Court can only consider

brought before before it. it. Moreover, Moreover, GRE GRE413 itself is clear that" is clear ... evidence of that "... defendant's commission of a defendant's ommissi

of offense or of another offense or offenses offenses of of criminal is admissible, sexual conduct is criminal sexual considered for admissible, and may be considered

its bearing on its bearing on any any matter matter to to which which itit isis relevant." relevant." 66 G.C.A. G.C.A. §§ 413 413 (emphasis (emphasis added). added). Commission Commission

is not conviction, and this court sees no interpretation from higher or similar courts that evidence from higher

admitted under GRE 413 must be of a conviction or that the statute limitations has any effect statute of limitations

on the analysis.

The Court agrees, however, with the Defendant's statement that in Chine!] the gap between Defendant's statement

prior and current alleged alleged acts was was four four years years and weighed in this weighed and this favor of in favor admissibility. See People of admissibility.

v. Chined, ,r In the instant case, the time between the prior and current alleged Chine!, 2013 Guam 24 1]42. alleged

acts is approximately one year, substantially substantially less than in Chine!, s l and as such Court finds no such the Court

issue in this regard.

v. GRE 413 V.GRE413

Generally, evidence of past crimes could Generally, evidence could be be admitted admitted for for certain such purposes, but such certain purposes,

evidence is barred barred ifif introduced to "prove the character of a person in order to show that he acted character of

Page 5 of 11 11 l

in conformity therewith." 2013 Guam Chine!, 2013 therewith." Chined, 24,i1]21 Guam24 21 (quoting (quotingGRE GRE 404(b)). The Supreme 404(b)). The Supreme Court

ofGuam of Guam noted in Chine! Chine! that in 1994, 1994, the the United States Congress made a fundamental fundamental exception exception

to this rule rule by by enacting enactingthe theFederal FederalRules Rulesof ofEvidence Evidence("FRE") Rule 413. ("FRE") Rule 413. Id. The purpose Id. The purpose of the

rule "was new rule to supersede "was to supersede Rule 404(lb)'s 404(b)'s prohibition prohibition on evidence evidence of like like conduct conduct showing showing

propensity in alleged sexual sexual assault assaultcases." Id (quoting cases."Id. v. Chui, 608 F.3d (quoting Martinezv. F.3d 54, 54,59 59(1st (let Cir.

In other words, the 2010)). In the purpose purposeof of Rule Rule 413 413"was "was to to specifically permit such specifically permit such evidence to show

propensity." ,i 28 at 1] propensity." Id. at 28 (emphasis added). In (emphasis added). In 2006, 2006, Guam Guamenacted enactedits itsown own GRE 413, which is GRE 413,

sourced from FRE FRE 413, 413, through a Supreme Supreme Court Court Promulgation Promulgation Order.Id at ,i 22; Re: Adoption Id at1[22, Adoption of of

the 2006 Guam Rules of of Evidence, Evidence, PRM06-001 (Jan. (Jan. 1, 1, 2006).

The Court Court has adopted adopted aa three-part three-partinquiry inquiryto to determine determineifif a prior offense or or conduct conduct is

admissible under under GRE GRE 413. atii,i1125-26 413. Id. at (citationomitted). iJ25-26 (citation omitted). First, First, the the defendant defendant in in the the present present

case must be case must be accused accusedof of sexual sexual assault; assault, second, second,the theevidence evidenceproffered proffered must must be evidence evidence of the

defendant's defendant's commission commission of another another past past act of ofsexual sexual assault, assault; and and third, third, the past past act must must be

relevant, meaning meaning that that its existence existence must must make any fact at issue more or less probable than if such such

evidence were excluded. Id. excluded. Id.

A. A. Defendant Defendant in in the the Present Case is Accused Accused of Sexual Assault

The Defendant here is charged with with two counts of of Fourth Degree Degree Criminal Sexual Conduct

(As aa Misdemeanor) (As Misdemeanor) in in violation violation of of99 GCA GCA§§25.30(a)(1) and(b). 25.30(a)(l)and (b).There Thereisisno nodispute disputethat that the the first first

requirement is satisfied. satisfied.

B. The The Evidence Evidence Proffered Must Must be be Evidence Evidence of the Defendant's Defendant's Commission of Another Past Past Act of of Sexual Sexual Assault the People Next, the People seek seek to to admit admit testimony of ofT.J. T.J. and and J.M. as evidence of the Defendant's

of another commission of another past past pact of ofsexual sexual assault. assault. Defendant Defendant argues argues that that these "second "second hand, hand,

Page 11 Page 6 of 11 uncharged, uncorroborated, uncharged, andunsubstantiated uncorroborated,and unsubstantiatedallegations" havenonorelevance. allegations"have Def's Opp'n, relevance.Def's Opp'n, 9

(Apr. 21, 2023).

admitted under Testimony admitted GRE 413 underGRE need not 413 need be evidence of not be past charged of aa past See charged crime. See

People Alert, 2019 Guam 3, ,r People v.v Ehlert, 115 sexual assault were accusations of an unreported sexual that accusations (holding that 5 (holding were

sufficiently similartotothe sufficientlysimilar acts charged theacts that the trial court charged that did not court did abuse its discretion in admitting not abuse

the testimony under the testimony GRE 413); under GRE also US. v_ see also 413), see LeMay, 260 F.3d 1018, v. LeMan, 1027 (9th Cir. 2001). 1018, 1027

Additionally, the court Additionally,the the witnesses' court finds the live testimony, given witnesses' live oath,sufficient given under oath, to overcome sufficient to overcome

the thattheir argument that the argument testimony is theirtestimony being "uncorroborated, is irrelevant due to being unsubstantiated, or "uncorroborated,unsubstantiated,

second hand."

The evidence evidence as as contained in T.J.'s's testimony contained in June 22, testimonyofofJune 2023, may 22, 2023, be summarized may be as summarized as

follows:: follows

1. 1. T.J. T.J.knew knewthe the Defendant as a doctor; Defendant as doctor, 2. T.J. T.J.and andthe the Defendant Defendant were were alone alone in in an an examination at the the time time of of the incident; the alleged incident,

3. T.J. T.J.was wastouched touchedon onthe themiddle middleand andupper upper thigh, thigh, and the waist. and later on the 4. The tried to Defendanttried TheDefendant kiss T.J. to kiss The incident involving involvingthe theother otherwitness, onthe J.M.,on witness, J.M., otherhand theother that: hand was that:

or may not have known the Defendant as a doctor; 1. J.M. may or doctor,

2. J.M. was in person; an unconfirmed person, with an in a room alone with 3. J.M. was touched breast. on the breast. touched on Both testimonies alone in involve being alone testimonies involve an examination in an doctor when examination room with aa doctor an when an

incident occurred. incident However, the occurred.However, testimony of the testimony not constitute of T.J. does not an allegation constitute an criminal allegation of criminal

sexual conductunder sexual conduct under99GCA GCA §§ 25 25.15-30. All degrees .15-3 0. All degrees of ofcriminal criminalsexual sexualconduct conduct under Law under Guam Law

require "sexual penetration" or "sexual penetration" or contact." "Sexual contact" is defined "sexual contact." as: defined as:

Page 7 of 11 11 Sexual Contact includes Sexual includes the the intentional intentionaltouching touchingof of the the victim's victim's or actor's intimateparts actor's intimate partsor or the the intentional intentional touching touchingof of the the clothing clothing covering the covering the immediate immediate area area of the victim's of the victim's or oractor's actor's intimate intimate parts, parts, ifthat if that intentional touching can reasonably be construed construed as asbeing being for for purpose of the purpose of sexual sexual arousal arousalor orgratification. gratification.

"Intimate pans" "Intimate parts" are as: The primary are defined as: primary genital genital area, groin, inner thigh, area, groin,

buttock, breastof buttock, or breast of a human humanbeing. being.99G.C.A. G.C.A. § § 25.10.

only alleges Since T.J. only allegesthat that the the Defendant Defendant touched touched her her middle middle thigh thigh and and attempted attempted to kiss

her, the her, the incident incident does does not not constitute constitutean anallegation allegation of criminal sexual of criminal sexual conduct. conduct. However, However, J.M. J.M.'s

testimony does seem to testimony to involve an allegation involve an ofsexual allegation of sexual assault. assault.

Therefore, only J.M.'s J.M.' sallegations allegations need need be further further examined examined for for relevancy relevancy under underGRE GRE413.

C. The The Past Act Must be be Relevant

"Relevant evidence" "Relevant evidence" means means evidence evidence having having any any tendency tendency to make make the existence existence of any any

fact that is of ofconsequence consequence to the determination of the the action action more probable or or less less probable probable than than

it it would would be be without the evidence. without the evidence. 66 G.C.A. G.C.A. §§ 401. 401. A A fact fact isis ofofconsequence consequence when when its its existence existence

would provide would provide the the faultfinder factfinder with with a basis basisfor making some inference, or chain of inferences, about for making about

an issue thatisisnecessary issue that necessaryto to aaverdict. verdict. United United States Begay, 497 F. Supp.3d States v. Began, Supp.3d 1025, 1025,1051 1051(D.N.M. (D.N.M.

2020). Generally, 2020). Generally, all relevant evidence all relevant evidence is admissible, admissible, except except as otherwise otherwise provided provided by the the

Constitution of the United States, States, by by the theOrganic Organic Act, Act, by the laws of Guam, by the Guam of Guam, Guam Rules Rules of of

or other Evidence, or other rules rules prescribed prescribed by by the the Supreme Supreme Court Court of ofGuam Guampursuant pursuant to to its its statutory statutory

authority. Irrelevant evidence authority. Irrelevant evidence is is not not admissible. admissible.66G.C.A. G.C.A. §§ 402.

"It isis generally "It generallyaccepted accepted that that aa defendant defendant with with the the propensity propensity to commit acts acts similar to

those charged those likelytotohave charged is more likely havecommitted committedthe thecharged chargedact actthan thananother another and and therefore therefore such such

evidence is relevant." relevant."People People uv. Chined, ,r 28 (emphasis added) Chine!, 2013 Guam 241]28 added) (quoting Doe ex rel. (quotingDoe

Page 8 of 11 11 Rudy-Glanzer v. Glanzer, 232 F.3d 1258, Rudy-Glanzer v. 1258, 1268 1268(9th (9thCir. Cir. 2000)). 2000)). Therefore, the the question question becomes

whether the the testimony testimony of the witnesses is relevant to prove prove the the charges charges against against Defendant in the

instant instant case. case.

In the instant instantcase, case,Defendant Defendantwas wasaccused accusedofoftwo twocounts countsofofFoulth Fourth Degree Degree Criminal Sexual

Conduct (As (As aa Misdemeanor) Misdemeanor) on on October October20, 20, 2022. 2022. The The complaint complaint states states that, that, according according to to a police police

filed on report filed on October October 26, 26, 2021, 2021, D.A.T. D.A.T. (DOB: 01/15/1992) stated that (DOB:01/15/1992) that she she had had been sexually

assaulted by assaulted by a male male doctor doctor on October 23, 2021, 2021, in his his clinic. The The report report states states that that D.A.T. told told an an

officer officershe she had had gone to her doctor's doctor's office officetotodiscuss discussanxiety anxietymedication medicationhe he had had prescribed to her,

and that that the the doctor doctor in question was the Defendant. In the the report, D.A.T. indicated that she was

alone with with the the Defendant Defendant in in an an examination examination room room at at the time of ofthe the incident, incident, and and that the Defendant

grabbed the the victim's victim's hand and forced hand and forced her her to to touch touch his hispenis penisover over his his clothing. clothing. The The report goes on

that D.A.T. claims to have have protested protested whereupon Defendant Defendant began began rubbing rubbing the the victim's victim's primary

genital area area with with his hand, despite repeated protestations hand, despite protestations from fromD.A.T.. .. The relevant portion of of the

report concludes concludes D.A.T. reported the Defendant reported the Defendant then then received received aa phone phone call, call, and and while the the

Defendant was thus occupied with thus occupied with the the phone phone call, call, D.A.T. ran out out from firm the the room room and and later filed a

police repofr. report.

As described As described earlier, the People People assert assert that J.M. J.M.'s testimony of ofthe the incident incident that that occurred occurred

with her, assuming assuming it was the Defendant, is relevant relevant because because itit demonstrates demonstrates that that the Defendant

sexually molested other otherpatients. patients. People's People's Opp'n Opp'n to Defendant's Motion in Liming Motion in Limine to to Exclude Exclude the

Introduction of of Rule 413 413 Evidence, Evidence,April 17, 2023. April 17, Theevents 2023. The events are are within within two two years years of ofthe the events

alleged in alleged in the the case, case, the case involves sexual conduct, involves sexual conduct, and and the the victim was aa patient who had gone victim was

to see Defendant Defendant for for medical treatment. Id. medical treatment. Theevidence Id The evidenceshows showsthat thatDefendant's Defendant's conduct conduct is is not

an accident, accident, and andthat thatDefendant Defendantintentionally intentionallyengages engagesin insexual conduct.Id sexualconduct. Id

Page 9 of 11 Page 11 even ififrelevant However, even relevantan ananalysis analysis pursuant pursuant to GRE 403 to GRE 403 to to determine determine whether whether the the

"evidence may "evidence may be excluded ififits be excluded its probative probative value value isis substantially substantially outweighed by the the danger danger of

unfair prejudice, prejudice, confusion of the issues, issues, or misleading the jury, or or by by considerations considerations of ofundue undue

waste of time, delay, waste time, or or needless needless presentation presentation of of cumulative cumulative evidence." evidence." See 403. See See GRE 403. See also also

Chine[, 2013 Guam 24 i!30. Chined, 1130.Furthermore, Furthermore,our ourSupreme SupremeCourt Courthas hasinstructed instructedGuam Guamtrial trial courts courts to

apply the test outlined by by the theNinth Ninth Circuit Circuit inUnited United States States v. v. LeMay, F.3d 1018, LeMan, 260 F.3d 1018, 1026-27 (9 th 1026-27 lath

Cir. 2001), to wit: "(1) "(1)the thesimilarity similarityofofthe theprior prioracts actsto tothe the acts acts charged, charged; (2) the the closeness closeness in time

of ofthe the prior acts to to the the acts actscharged; charged,(3) (3) the the frequency frequency of the acts, (4) the prior acts; (4) the presence presence or or lack of of

intervening circumstances, and(5) circumstances; and (5) the the necessity necessity of the evidence beyond beyond the the testimonies testimonies already already

offered offered at at trial." trial." Id. Id. at at 1[39 ,r3 9 ((citation omitted). omitted).

Here, regarding the testimony of ofJ.M., J.M., there there is is significant significantconcern concernthat that the the witness was not

competent to to testify about the the incident due dueto tomental mentalhealth healthissues. issues.Digital Digital Recording Recording at at 04:33 :00- 04:33:00-

05:00:05. 05:00:05. The The witness witness had had difficulty difficulty recalling recallingbasic basicfacts factssuch such as as the the year year she she graduated graduated high

school. Id J.M. did not recall Defendant's name but school. Id. but said saidthat thatthe thedoctor doctorwas was"a "abad badman". man". Id. Id.

J.M. also J.M. also could not recall the date date of her her medical appointment appointment with the the Defendant Defendant or or identify a

signature onaamedical signature on medicalexcuse excusenote. note. Id. Id J.M. J.M.refused refusedto to go gointo intofurther further detail detail when when prompted prompted to

explain the inappropriate touching, the inappropriate touching,becoming becomingvery very emotional emotional and and saying saying that that she she was was "getting "getting

mad". Id J.M.could Id.J.M. couldnot notrecall recallthe thedetails detailsgiven givenbybyher hersister sisterduring duringthe the police policereport reportand and became

belligerent during belligerent during questioning questioningbecause because"she "shewas was tired" and upset tired" and upset about about aa conflict she she was was

experiencing with a coworker. coworker. Id J.M.became Id.J.M. becameincreasingly increasinglyagitated agitatedduring duringexamination examination and and did

not seem to understand understandthat thatthe theattorney's attorney'squestioning questioningwas designedto wasdesigned toallow allow the the witness witness to to explain

events as as they they had hadoccurred. occurred. Id. Finally,the Id Finally, theemotional emotionalstate state of ofthe thewitness witness was was uncontrolled uncontrolled to

such aadegree such degreethat thatDefendant's Defendant'scounsel counselwas wasincapable ofof incapable effectively effectivelycross-examining cross-examiningher. her.Id.Id The

11 Page 10 of 11 mental limitations of the mental limitations the witness witness are such that that this this Court Court finds finds that that the the probative probative value value of her her

testimony does testimony does not outweigh the not outweigh the danger danger of of unfair unfair prejudice, prejudice, confusion confusion of the the issues, issues, and and

misleading the jury.

VI. CONCLUSION In accordance In accordance with these these Findings of Fact Fact and and Conclusions of Law, Law, and and having heard all

the briefs, motions, oral oral arguments, arguments, and considered the the applicable law, the Court hereby DENIES

the People's Motionto People's Motion to Admit AdmitRule Rule413 413 Evidence Evidenceas as ititrelates relates to to T.J. T.J. and and J.M.

NOV 1l H1 2023 NOV 2023 IT IS SO ORDERED

I Q j\... - I

)

HONORABLE HONORABLE ALBERTO E. TOLENTINO TOLENTINO Judge, Superior Superior Court of Guam

SERVICE VIA EMAIL I acknowledge that an electronic copy of the original was e-mailed e-mailed to: to:

A6, / l a wr H k f a la.w 1/r-r;,,[ea L a

Date: l l e: ¢1./{ '!D'ip1t,i Date: - iI m.Ame: 0 ' ¥ p »»»»

Anbnla A,..,tol'\;" f Crab Cr"'" z..- oeputy Clerk, Su Deputy ior Court of Guam 10r

Page 11 11 of of 11 11