People v. Bamba

Opinion

mluial l.an U^\ 1

2 PEOPLE OF GUAM, 3

VS. 4 DESISION AND OR]DER '"(Motion to Dismiss) GLENN C. BAMBA, o Defendant. 7 The Defendant's Motion to Dismiss was heard on June 29, 2009 before the 8

HONORABLE ELIZABETH BARRETT-ANDERSON. Defendant was represented by 9

l0 Attorney F. Randall Cunliffe, and the People were represented by Special Prosecutor Mylene

lt Lopez. The Court having considered all the briefs and arguments this Court hereby DENIES in t2 part and GRANTS in part Defendant's Motion to Dismiss. TJ FACTUAL BACKGROUND l4 On March 3, 2009, Defendant was indicted on five counts of First Degree Criminal 15

16 Sexual Conduct (hereinafter "First Degree Charge") and eight counts of Second Degree

17 Criminal Sexual Conduct (hereinafter "second Degree Charge"). All of the First Degree l8 Criminal Sexual Conduct allegations relate to L.A.M.B., a minor under the age of fourteen at 19 the time of the alleged incidents. Six Second Degree Criminal Sexual Conduct allegations also 20

2l relate to L.A.M.B.

22 Counts One, Two, and Three of both First and Second Degree Charges are alleged to

23 have taken place between March 2I,2000 and March 20,2001, a one year timeframe. Count AA

Four of both First and Second Degree Charges as well as Count Six of the Second Degree 25

Charge are alleged to have taken place between March 21, 2001 and March 20, 2003, a two year 26

27 timeframe. Count Five of both First and Second Degree Charges is alleged to have taken place

28 between March 2I, 2003 and March 3I, 2003, a ten day timeframe. Count Seven of the Second

Page 1 of4 I Degree Charge is alleged to have taken place between April 13, 1997 and April 13, 2000, a 2 three year timeframe. Lastly, Count Eight of the Second Degree Charge is alleged to have taken 3 place between April 13, 2007 and April 13, 2008, a one year timeframe. A

Oral arguments focused on the timeframes of the alleged incidents relating to L.A.M.B.

6 and not on Count Seven and Eight of the Second Degree Charges, which allege incidents '7 involving B.G.C.B., a minor under the age of fourteen. 8 DISCUSSION c)

A. Incidents involving B.G.C.B. 10

11 Other than a Guam Police Department Case Report, no information was provided to this

l2 Court to determine what efforts the People made to pinpoint a more specific timeframe of the IJ alleged incidents from B.G.C.B.. The case report indicates that B.G.C.B. appeared incompetent l4 when asked to try and recall the months and days. The People claim that "the incident l5 involving B.G.C.B. is alleged to have occurred sometime during his 14th year." Opp'n to Def.'s 16

t"l Mot. to Dismiss Indictment (Jun 15, 2009) p. 13. Due to the discrepancy of dates of the alleged

18 incidents in the Indictment and the Opposition, Counts Seven and Eight of the Second Degree 19 Charge will be dismissed without prejudice. 20 B. Incidents involving L.A.M.B. 2l The People have provided the Defendant with a copy of the following documents 22

L) relating to its attempts to pinpoint a more specific timeframe and investigations of the alleged

24 incidents from L.A.M.B.: (1) Multi-Disciplinary Task Force team interview transcript, (2) 25 L.A.M.B.'s written statement to Guam Police Department ("GPD"), (3) investigator's notes of zo interview with L.A.M.B., and (4) GPD report. 27

Page 2 of 4 1 Guam law does not require the charging instrument to specify exact dates, and time is 2 not an element of the crimes alleged. 8 G.C.A. $ 55.10. In all cases involving young children it 3

is often difficult to provide more exact timeframes of alleged incidents. This Court agrees that 4

5 "in light of the nature of the charges, the ages of the victimfs], the evidence provided in the

6 minor's Multi-Disciplinary Task Force interview, and in the discovery presented to him, th[e]

7 argument fthat the periods of time specified in the indictment are so broad that he cannot 8 provide an adequate alibi defense] is without merit." Opp'n to Def.'s Mot to Dismiss 9

Indictment (Jun 15,2009)p.6. Similar to Peoplev. Cepeda, "[s]ince exacttimes anddates are t0

11 not required to be specifically pleaded in an indictment, it is sufficient that the People use good

12 faith efforts to pinpoint the time and dates of the alleged offense by whatever means possible 13 given the circumstances of the case." Criminal Case No. 0805-98, Decision and Order on 14 Motion to Dismiss (Apr.9, 1999), pp 7-8. Here the People used good faith efforts relating to l5 L.A.M.B. that are sufficient for both statutory requirements and constitutional mandates of due l6

17 process; however, as the People offered to provide Defendant with a bill of particulars in this

18 case to assist with Defendant's preparation of his defense, this Court will order a bill of 19 particulars be provided. 20 Regarding the Defendant's use of an alibi defense, this Court reaffirms its decision in 21

People v. Cepeda. Id. at p. 8, ln. 3-25. Further, the Court agrees that allowing a claim of alibi 22

z5 to necessitate a more definite date on the indictment would

24 too often preclude prosecution of crimes involving child victims... Leeway ts necessary in charging sexual abuse and sexual intercourse with minors because 25 children who are victims of abuse may find it difficult to recall precisely the 26 dates of the offenses against them...A defendant would simply have to make the assertion of alibi in order to escape prosecution. State v. Hoban,738 S.W.2d 27 536, 541 (Mo.App. 1987). 28

Page 3 of4 I CONCLUSION 2 Based on the Defendant's Motion to Dismiss is DENIED in part and GRANTED in part. 3

The People are ORDERED to provide a Bill of Particular to Defendant by July 24,2009. This A

case is set for criminal trial setting on August II,2009 at 9:30 a.m. 5

o so oRDERED, this July7,2009, 7

8 TT.ANDE Judge, Superior Court of Guam 9

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