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

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

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

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

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

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