People v. Aweny

Opinion

FILED s,upg'f~lOR COURT :Qf GUAM 1 202~ JAN -5 PM ~: 2.3 2 CLERK OF COURT 3

4 W(,~-

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7 IN THE SUPERIOR COURT OF GUAM 8

9 PEOPLE OF GUAM,

10 Plaintiff, Case No. CF0014-23 GPD Report No. 23-00397 11 vs.

12 ALEX AWENY et al.

13 DECISION AND ORDER (Motion to Dismiss Indictment)

14 Defendants. 15

16 INTRODUCTION 17

18 This matter came before the Honorable Alberto E. Tolentino on September 19, 2023, for 19 a Hearing on Alex Aweny's ("Defendant") Motion to Dismiss Indictment. Attorney F. Randall 20 Cunliffe, Esq. appeared for Defendant. Assistant Attorney General Kristine Borja appeared for 21

22 the People of Guam ("People"). Upon review of the evidence, oral and written arguments, and

23 legal authorities, the Court hereby DENIES Defendant's Motion to Dismiss Indictment.

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27 Decision and Order CF0014-23, People of Guam v. Alex Aweny et al.

1 BACKGROUND

2 On January 6, 2023, the Office of the Attorney General, filed a Magistrate's Complaint 3 charging Defendant with Attempted Home Invasion via Complicity (As a First Degree Felony), 4

5 and Attempted Burglary via Complicity (As a Second Degree Felony). Magistrate's Complaint,

6 January 6, 2023. On January 13, 2023, the Superior Court of Guam Grand Jury returned an

7 indictment alleging as follows that: (1) on or about January 4, 2023, Defendant, did attempt to 8 assist another to enter the habitable property of Gloria Paulino, with the intent to commit a 9 crime therein, at the time when the premises were neither open to the public nor the Defendant 10 licensed or privileged to so enter, in violation of 9 G.C.A. §§ 37.20(a) and 37.20 (b); and (2) on 11 or about January 4, 2023, Defendant did unlawfully commit a crime of burglary in a dwelling, 12 while a person other than a participant in the crime is actually present in such dwelling, with the 13

14 intent to commit a crime therein, and in doing so directly or indirectly caused mental or

15 emotional trauma, bodily injury, serious bodily injury, or the death of an occupant of the

16 dwelling who is not a participant in the burglary, in violation of 9 G.C.A. § 37.210. Indictment, 17 January 13, 2023. 18 _On June 8, 2023, Defendant filed a Motion to Dismiss Indictment. Defendant 19

20 essentially argues that the People failed to present sufficient evidence to the Grand Jury to

21 support the charges of Burglary via Complicity and Home Invasion via Complicity, and that the

22 Defendant should not have been charged. Motion to Dismiss Indictment, June 8, 2023. The 23 People failed to file a written opposition to Defendant's Motion to Dismiss Indictment. A 24 hearing on the Motion to Dismiss Indictment was held on September 19, 2023. Minute Entry, 25 September 19, 2023. The Court noted that the People failed to file an Opposition to the Motion 26

27 Decision and Order CF0014-23, People of Guam v. Alex Aweny et al.

'Page 2 of9

1 to Dismiss Indictment and made no request for leave of court to allow the filing of a written

2 opposition. As such, the Court disallowed the People from making an oral opposition and took 3 the matter under advisement.

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5 DISCUSSION

6 Defendant argued that there was no reasonable cause (also known as probable cause) for 7 the Grand Jury to indict the Defendant because there was no evidence presented that Defendant 8 .

was at the Victim's residence - where the alleged burglary and home invasion occurred.

9 Motion to Dismiss Indictment at 3. The United States Supreme Court has repeatedly held that 10

11 an indictment valid on its face is not subject to challenge on the grounds of insufficient

12 evidence. United States v. Williams, 504 U.S. 36, 54, 112 S.Ct. 1735 (1992); see also Bank of

13 Nova Scotia v. United States, 487 U.S. 250, 262, 108 S.Ct. 2369 (1988); United States v. 14 Calandra, 414 U.S. 338, 344-345, 94 S.Ct. 613 (1974); Costello v. United States, U.S. 359,363, 15 76 S.Ct. 406 (1956).

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17 Guam law requires that "[t]he grand jury shall receive only evidence presented to it by

18 the prosecuting attorney, but the prosecuting attorney shall submit any evidence in his

19 possession which would tend to negate guilt." 8 G.C.A § 50.46. The standard for determining 20 whether error in the grand jury proceedings justifies dismissal of the indictment prior to trial a 21 court must consider whether the defendant has been prejudiced by the error. People of Territory 22 of Guam v. Muna, 999 F.2d 397,399 (9 th Cir. 1993) (citing Bank ofNova Scotia, 487 U.S. 250 at 23 25, 108 S.Ct. 2369). Prejudice is established "if it is established that the violation substantially 24 influenced the grand jury's decision to indict, or if there is grave "doubt" that the decision to 25

26 indict was free from substantial influence of such violations." Bank of Nova Scotia, 487 U.S. at

27 Decision and Order CF0014-23, People of Guam v. Alex Aweny et al.

1 256, 108 S.Ct. at 2374. A Court may dismiss an indictment if the prosecutorial conduct was

2 "flagrant" and caused substantial prejudice to the defendant. United States v. Jacobs, 855 F.2d 3 652, 655 (9 th Cir. 1988). However, absent flagrant or prejudicial prosecutorial misconduct, 4 dismissal is an abuse of discretion. Id at 65. The Court finds the People's conduct was neither 5 flagrant nor did it cause substantial prejudice to the Defendant. Therefore, the Court will deny 6 Defendant's Motion to Dismiss the Indictment.

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8 Defendant argued that there was insufficient evidence for the Grand Jury to indict him 9 for the offenses alleged in the magistrate's complaint. The Court disagrees, and notes that in his

motion Defendant only challenged the information contained in the Magistrate's Complaint and 11 did not challenge any evidence presented to the Grand Jury.

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13 The grand jury "shall find an indictment when from the evidence presented there is

14 reasonable cause to believe that an indictable offense has been committed and that the defendant 15 committed it." 8 G.C.A. § 50.54. Reasonable cause, or probable cause, amounts to 16 "evidence such that a man of ordinary caution of prudence would be led to believe and 17 conscientiously entertain a strong suspicion of the guilt of the accused. People v. Grajo:.. 1987 18 WL 109393 at * 2 (D. Guam App. Div. 1987) (citations omitted). A reviewing court should 19

20 uphold an indictment "if there is some rational ground for assuming the possibility that an

21 offense has been committed and the accused is guilty of it." Id.

22 Defendant Aweny is charged by way of an indictment with two charges, Attempted 23 Home Invasion via Complicity (As a First Degree Felony) and Attempted Burglary via 24 Complicity (As a Second Degree Felony) in violation of 9 G.C.A. § 37.20 and 9 G.C.A. § 25

26 37.210. An "attempt" is defined as follows:

27 Decision and Order CF0014-23, People of Guam v. AlexAweny et al.

1 A _person is guilty of an attempt to commit a crime when, with intent to engage in conduct which would constitute such crime were the 2 circumstances as he believes them to be, he performs or omits to perform 3 an act which constitutes a substantial step toward commission of the crime.]

4 9 G.C.A § 13.10 5

6 Both charges against the Defendant are via Complicity, with Complicity being statutorily 7 defined in 9 G.C.A. § 4.60 as follows:

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9 A person is guilty of an offense if, with the intention of promoting or assisting in the commission of the offense, he induces or aids another person to commit the offense. If the definition of the offense includes lesser offenses, the offense of which each person shall be guilty shall be 11 determined according to his own culpable mental state and to those aggravating or mitigating factors which apply to him.

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13 9 G.C.A. § 4.60

14 Furthermore, for a person to be complicit in an offense, culpability must be established:

15 (a) A person acts intentionally, or with intent, with respect to his conduct 16 or to'a result thereof when it is his conscious purpose to engage in the conduct or cause the result.

17 9 G.C.A. § 4.30 18

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20 Therefore, the People must present facts that the Defendant, with conscious purpose, had the

21 intention of promoting or assisting in the commission of the offense by inducing or aiding

22 another person to commit the offense of Burglary. The offense of Burglary is statutorily 23 defined as follows:

24 (a) A person is guilty of burglary ifhe enters or surreptitiously remains in 25 any habitable property, building, or a separately secured or occupied 26 portion thereof, or if he enters or surreptitiously remains in any

27 Decision and Order CF0014-23, People of Guam v. Alex Aweny et al.

1 School as defined in § 37 .10(e) of this Chapter, with intent to commit a crime therein, unless the premises are at the time open to the public 2 or the defendant is licensed or privileged to enter, or a person is guilty of burglary if he enters or surreptitiously remains in any motor 3 vehicle, semi-trailer, trailer, truck tractor, vehicle combination, motor 4 bus, motor truck, or vehicle, with intent to commit a crime therein. It is an affirmative defense to prosecution for burglary that the property, 5 or building, or motor vehicle was abandoned.

6 9 G.C.A. § 37.20 7 In this case, the People must present facts that Defendant, with conscious purpose, had the 8 intention to assist others in entering habitable property. The Defendant has also been charged 9 with Attempted Home Invasion via Complicity, with Home Invasion statutorily defined as 10 follows:

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12 A person is guilty of home invasion when such person commits a crime of burglary, as defined by this Chapter, in a dwelling, while a person other than a 13 participant in the crime is actually present in such dwelling, with the intent to 14 commit a crime therein, and, in the course of committing the offense:

15 (a) acting either alone or with one or more persons, such person or another participant in the crime commits or attempts to commit a violent crime 16 against the person of another person other than a participant in the crime who is actually present in such dwelling;

17 (b) such person is armed with explosives or a deadly weapon or dangerous 18 instrument; or 19 (c) if any of the acts of a participant at any time during the burglary, or while 20 attempting a burglary, or while fleeing from a burglary/attempted burglary, directly or indirectly, cause mental or emotional trauma, bodily injury, 21 serious bodily injury, or the death of an occupant of the dwelling who is not a participant_in the burglary.

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23 9 G.C.A. § 37.210

24 Therefore, the People must present facts that the Defendant intended, with conscious purpose, to

25 assist others in the attempt to commit a crime against someone inside the habitable property

26 other than a participant in the crime, with either a dangerous instrument or in such a way that 27 Decision and Order CF0014-23, People a/Guam v. Alex Aweny et al.

1 the inhabitants experienced, directly or indirectly, mental or emotional trauma, bodily injury,

2 serious bodily injury, or death. 3 When Officer Baoagadia arrived, he spoke with one of the victims Gloria Paulino 4 ("Paulino"), who testified that the victims were awakened by a banging on the door, to find the 5 Defendants outside screaming angrily and demanding to speak to Paulina's boyfriend Martin 6 Blas ("Blas"). Grand Jury Proceedings at 3:34. Paulino told the officer that Defendant Onichy, 7

8 holding a metal object, struck a window causing glass to shatter, then struck several window in

9 an attempt to enter the habitation. Grand Jury Recording at 3:35. Paulino then observed

10 Defendant Aweny attempting to hold the door open by holding the doorknob at the same time

11 both co-Defendants tried to jump through the opening between the main door and security door 12 Grand Jury Recording at 3 :34. Blas later provided Officer Baoagadia a surveillance video 13 confirming the criminal activities of the Defendant outside of the victim's unit, including the 14 Defendant walking towards the door. Grand Jury Recording at 3:38 p.m. Finally, the Grand 15 Jury heard testimony regarding the confession of the Defendant, who when interviewed by 16

17 Officer Blas admitted to involvement in the offenses as they were communicated to the officers.

18 Grand Jury Recording at 3:46.

19 Having found probable cause to charge Defendant with the offenses, the court will next

20 address Defendant's argument that, because he is sixteen years of age and both charges contain 21 lesser included offenses which are neither first or second degree felonies, the People are 22 statutorily barred from charging Defendant as an adult. At the oral hearing, Defendant argues 23 that the potential for the conviction of lesser included charges at trial creates the possibility that 24 the Defendant will be charged as an adult for offenses that are not allowed by statute. As such, 25

26 Defendant's case must be remanded to juvenile court.

27 Decision and Order CF0014-23, People of Guam v. AlexAweny et al.

In the present case, Defendant (DOB: 10/21/2006) was a minor at the time the charges 2 occurred. Instances where a minor can be charged as an adult are covered by 19 G.C.A.

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4 §5106(a), which provides:

5 § 5106. Certification for Criminal Proceedings.

6 (a) If a child is sixteen (16) years of age or older at the time he committed 7 the offense for which he is charged, and if the conduct is a misdemeanor or a felony of the third degree, and if the court after full investigation 8 deems it contrary to the best interest of such child or of the public to 9 retain jurisdiction, the court may, in its discretion, certify such child for proper criminal proceedings to any court which would have trial jurisdiction of such offense if committed by an adult.

11 A child who is sixteen (16) years of age or older at the time he committed the offense for which he is charged shall automatically be 12 charged as an adult for any act which would constitute a felony of the 13 first or second degree along with any acts which are misdemeanors or felonies of the third degree which are part of the same scheme of 14 criminal activity as the felony. (emphasis added)

15 19 G.C.A. §5106(a) 16 Here, the Court finds that the Defendant has been properly charged as an adult because both 17 charges were first and second degree felonies. In addition, all other acts which are 18 misdemeanors or felonies of the third degree which are part of the same scheme are allowed by 19 statute. 19 G.C.A. §5106(a). As such, there is no basis for dismissal based on this argument.

20 In conclusion, the Court determines that there is enough evidence to support charging 21

22 Defendant with the offenses of Attempted Burglary via Complicity and Attempted Home

23 Invasion via Complicity, first and second degree felonies, respectively. Furthermore, the court

24 finds no basis for dismissal based on Defendant's status as a minor and the potential for the 25 conviction of lesser included offenses. Therefore, the Court denies Defendant's Motion to 26 Dismiss Indictment.

27 CF0014-23, People of Guam v. Alex Aweny et al.

6 CONCLUSION

7 By preponderance of the evidence and based on the foregoing reasons, the Court hereby

8 DENIES Defendant's Motion to Dismiss Indictment.

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11 SO ORDERED, this _ _ _ day of

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14 HONORABLE.ALBERT_Q,E'.::roLENTINO ~ • • - ~ .,, I - '

Judge, Supenor C~µ(1, of G1!_~m . ~;~· ~ 15

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26 27 Decision and Order CF0014-23, People of Guam v. Alex Aweny et al.