People v. Camacho

Opinion

IN THE SUPERIOR COURT OF GUAM 2 ZJIII ti.:\R 3 I W 9: ~ 6 3 PEOPLE OF GUAM,

4 v. CRIMINAL CASE NO. CF0022-09

5 VINCENT PETER CAMACHO, DECISION AND ORDER

6 Defendant.

7

8 INTRODUCTION

9 This matter came before the Honorable Vernon P. Perez on March 25, 2014, for a hearit1~ 10 on the Defendant's Motion to Exclude Evidence under Guam Rules ofEvidence 404(b), 413, and II

12 403. The People were represented by Assistant Attorney General Elizabeth S. Vasiliades.

13 Attorney Stephen Hattori represented Vincent Peter Camacho ("Defendant"). After the Cour 14 indicated its inclination to allow for the Rule 413 evidence, Attorney Hattori requested a writtet IS decision on the motion. The Court now issues its written Decision and Order.

16

17 BACKGROUND

18 On January 22, 2009 Defendant was indicted on the following charges: 1) First Degree

19 Criminal Sexual Conduct (As a 1st Degree Felony); 2) Second Degree Criminal Sexual Conduct 20 (As a 1st Degree Felony); 3) Child Abuse (As a Misdemeanor); 4) First Degree Criminal Sexual 21 Conduct (As a 1st Degree Felony); 5) Second Degree Criminal Sexual Conduct (As a 1st Degree 22

23 Felony); 6) Terrorizing (As a 3rd Degree Felony); 7) Child Abuse (As a Misdemeanor); 8)

24 Intimidation of a Witness by Extortion (As a 3rd Degree Felony); and 9) Second Degree 25 Criminal Sexual Conduct (As a 1st Degree Felony). See Indictment (January 22, 2009).

26 On January 29, 2009, the Defendant filed a Motion in Limine to Exclude Evidence of 27 Defendant's Prior Arrests. The People then provided notice of their intention to use evidence of 28 similar crimes pursuant to GRE § 413. See Notice of Intent to Use Similar Crimes [GRE 413]

Decision and Order CF0022-09; People v. Camacho

(Feb. 10, 2009). These motions were not disposed of, and since that time, new counsels have

2 been assigned to this case. On March 18, 2014, the Court held a continued motion hearing.

3 There, the Court granted Attorney Hattori's request for time to brief the recent Guam Supreme 4 Court case, People v. Chine!, 2013 Guam 24, which dealt directly with the admission of Rule 5 413 evidence. As mentioned above, at the subsequent March 25, 2014 hearing, Attorney 6 Hattori then requested a written decision on the motion.

7

8 DISCUSSION

9 The People seek to introduce evidence that Defendant has previously sexually assaulted 10 another person for purpose of sexual gratification. People's Resp. to Defense Mot. to Suppress 11 Prior Sex Assault (Mar. 21, 2014). The Court is aware that the evidence the People seek to 12

13 admit deals with a case that was ultimately dismissed. Defendant opposes the People's motion

14 and argues that evidence of the allegations should be excluded under Rule 413 and 403. Defs. 15 Supp. Mem. (Mar. 21, 2014).

16 Traditionally, Rule 404(b) prohibits evidence of past cnmes if used to "prove the 17 character of a person in order to show that he acted in conformity therewith." GRE 404(b).

18

19 Congress, however, "made a fundamental exception to this rule by enacting Federal Rules of

20 Evidence ("FRE") Rules 413, 414, and 415." People v. Chine!, 2013 Guam 24 'If 21. "The 21 purpose of the new rules 'was to supersede Rule 404(b)'s prohibition on evidence of like 22 conduct showing propensity in sexual assault cases." !d. Guam then enacted its own GRE 413, 23 which is substantially similar to the FRE 413. !d. '1[22. GRE 413 provides:

24

25 In a criminal case in which the defendant is accused of an offense of criminal sexual conduct, evidence of the defendant's commission of another offense or 26 offenses of criminal sexual conduct is admissible, and may be considered for its bearing on any matter to which it is relevant.

27

28 GRE 413(a).

Decision and Order CF0022-09; People v. Camacho

In Chine!, the Supreme Court adopted three threshold rules for determining if a prio

2 offense or conduct is admissible under GRE 413. Chine!, 'lf25. The rules are as follows:

3 First, the defendant in the present case must be accused of sexual assault; Second, the evidence proffered must be evidence of the defendant's commission of 4 another past act of sexual assault; and Third, the past act must be relevant, 5 meaning that its existence must make any fact at issue more or less probable than if such evidence were excluded.

6

!d.

7 In the instant case, the first prong is easily satisfied. Under GRE 413, "criminal sexua 8 conduct" includes, among other things, any offense under Title 9 GCA, Chapter 25. G 9 413(d)(l). Defendant is charged, among other things, with violating 9 GCA §§ 25.15(a)(l) and 10

11 (b); 9 GCA §§ 25.20(a)(l) and (b). See Indictment (Jan. 22, 2009). Thus, the indictment mee

12 the first prong of the test. 13 The second prong is also satisfied. As mentioned above, the People seek to introduc 14 evidence that Defendant sexually assaulted another for sexual gratification. People's Resp. at 2.

15

16 Accordingly, the evidence would demonstrate past criminal sexual conduct.

17 Finally, the evidence is relevant. "[I]t is generally accepted that a defendant with 18 propensity to commit acts similar to those charged is more likely to have committed the charge 19 act than another and therefore such evidence is relevant." Chine!, 'If 28. The People seek t 20 admit Defendant's past conduct to show Defendant's propensity to engage in sexual assault fo 21

22 self-gratification. The Court finds Defendant's past conduct relevant to that matter.

23 Next, the Court must determine whether the evidence of past sexual assault may still b 24 admissible under Rule 403. Pursuant to GRE 413(c), "this rule shall not be construed to limit th 25 admission or consideration of evidence under any other rule." GRE 413(c). GRE 403 provides:

26 Although relevant, evidence may be excluded if its probative value is 27 substantially outweighed by danger of unfair prejudice, confusion of the issues, or 28 misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Decision and Order CF0022-09; People v. Camacho

GRE403.

2 When applying Rule 403 along with Rule 413, the Guam Supreme. Court held that trial

3 courts should apply the Ninth Circuit's test in US. v. LeMay, 260 F.3d 1018 (9th Cir. 2001). 4 Chine/, ~ 39. Lemay suggests that court's should examine: 1) the similarity of the prior acts t 5 the acts charged; 2) the closeness in time of the prior acts to the acts charged; 3) the frequency o 6 the prior acts; 4) the presence or lack of intervening circumstances; and 5) the necessity of th 7

8 evidence beyond the testimonies already offered at trial. LeMay, 260 F.3d at 1028. The list o

9 factors, however, are not exhaustive or mandatory and courts can consider other factors relevan 10 to the case before it. Id.

II At the hearing on March 25, the People expanded upon its written memoranda an I2

13 explained that the victims in the current case, as well as the victim in the past sex assault case

I4 are all relatives of Defendant. Thus, the People argued that the prior act and the charged acts ar I5 similar in that the Defendant took advantage of the trust afforded among family members when I6 he committed the prior act and the presently charged acts. The People further noted tha I7 although there was an eight year gap in the prior act and the charged act, courts have permitte 18

19 evidence of prior acts with larger windows of time in between.

20 Defendant argues that the evidence of the allegations contained in CF083-0l should b 2I excluded under Rule 413 and Rule 403. Defendant first urges the Court to consider the Tent 22 circuit's 403/413 analysis in US. v. Enjady, 134 F.3d 1427 (lOth Cir. 1998). Defs. Supp. Mem.

23 at 2. That analysis is different from the LeMay factors suggested by the Guam Supreme Court.

24

25 In Enjady, the court considered: "1) how clearly the prior act has been proved; 2) how probativ

26 the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material 27 fact is; and 4) whether the government can avail itself of any less prejudicial evidence." US. v.

28 Enjady, 134 F.3d 1427 (lOth Cir. 1998). When analyzing the probative dangers, the court als

Decision and Order CF0022-09; People v. Camacho considered: "1) how likely is it such evidence will contribute to an improperly-based ju

2 verdict; 2) the extent to which such evidence will distract the jury from the central issues of th

3 trial; and 3) how time consuming it will be to prove the prior conduct." !d. Applying the abov . 4 factors, Defendant points out that the prior case was dismissed and it would be difficult to prov · 5 the prior act due to unavailable witnesses, namely the alleged victim. Defs Supp. Mem. at 2.

6 Second, Defendant argues that the facts of the prior case and the current case are substantiall 7

8 different, highlighting that a 2001 forcible rape at gunpoint allegation is completely dissimilar t

9 the present fondling allegations. !d. Third, Defendant argues that the jurors would be confused 10 and could improperly convict him because of an unrelated and dissimilar crime. !d. at 3. 0 II those bases, Defendant argues that the factors outlined in Enjady have not been met, and 12

13 evidence of the prior case should be excluded.

14 Next, Defendant applied the LeMay factors, as suggested by the Guam Supreme Court i 15 Chine!. Applying those factors, Defendant again argues the dissimilarity of the prior case an 16 the present case. Defs. Supp. Mem. at 3. Second, Defendant argues that there is no closeness i1 17 proximity between the two crimes. Further, Defendant suggests that the long period of time i 18

19 between the allegations suggest an "intervening circumstance" that indicates Defendant is not

20 habitual offender. !d. Third, Defendant argues that because the government's case is purel 21 testimonial, the issues will become muddled by all valid defenses contained in the prio 22 allegation. !d. Lastly, Defendant argues that his intent can be proven through the introduction o .· 23 other less prejudicial evidence. !d. at 4.

24

25 Although Defendant urges the Court to consider the factors outlined in Enjady, the Cour

26 will begin its analysis with the LeMay factors suggested by the Guam Supreme Court in Chine!. 27 The Court finds that the cases are similar for purposes of allowing evidence of the prio 28 allegation. In Chine!, the Court found sufficient similarity between the two cases then at issue.

Decision and Order CF0022-09; People v. Camacho

Therein, the prior incident involved forced sexual intercourse with a 14-year old family member

2 while the subsequent incident involved touching and possible penetration of two adult tourists.

3 Chine!, ,-[ 8. The Supreme Court upheld the trial court's determination that both offenses wer 4 similar because both involved non-consent and consent was not otherwise proved. Id. ,-[ 41.

5 Here, the prior allegation involved forced sexual intercourse while the present case involve 6 touching, or fondling. Like the trial Court in Chine!, the Court refuses to make a dispositiv 7

8 distinction between the two incidents. Furthermore, the Government informed the Court tha

9 both allegations involve family members and, while the precise facts of each case may b 10 different, they both involve a breach of familial trust for Defendant to carry out his acts. I On II those bases, the Court concludes that the allegations are sufficiently similar under LeMay.

I2

13 Next, although the Court is aware of the eight year period in between the prior allegation

I4 and the current case, the Court points out that longer periods of time did not subject th I5 defendant to unfair prejudice. See Hollow Horn, 523 F.3d at 888-889 (noting 11 and 20 year • I6 gaps did not render evidence unfairly prejudicial). On that basis, the Court concludes that th I7 eight year period in this case is not unfairly prejudicial to Defendant.

I8

I9 The next LeMay factor deals with the frequency of the prior acts. In Chine!, the tria

20 court focused on the timing of the acts rather than the number of acts. Although the Suprem 2I Court held that trial courts should focus on the number of acts, it found that the trial court did no 22 abuse its discretion therein. Chine!,,-[ 43. Here, the Court is unaware of any other prior acts and 23 this factor would seem to weigh in favor of Defendant.

24

25 The Fourth LeMay factor involves the presence or lack of intervening circumstances.

26 noted above, Defendant argues that the eight year period is an intervening circumstance tha 27 suggests Defendant is not a habitual offender. Def.'s Supp. Mem. at 3. In Chine!, the Suprem 28

1 At the hearing, the Defendant did not object to or rebut this assertion.

Decision and Order CF0022-09; People v. Camacho

Court found that the primary intervening circumstance was that the Defendant was incarcerated

2 for a considerable amount of time between the offenses, which perhaps restricted his ability t

3 commit another one. Chine!, ~ 44. Here, the Court is unaware of any intervening circumstance 4 such as that in Chine!.

5 The final LeMay factor deals with the necessity of the evidence beyond the testimonie 6 already offered at trial. Both the Government and Defendant acknowledge that these types o 7

8 cases boil down to a "he said-she said" or a "swearing contest" between the Defendant and th

9 alleged victims, suggesting the absence of physical or corroborating evidence for the presen 10 case. People's Resp. at 4; Defs. Supp. Mem. at 3. In Chine/, the Supreme Court upheld th 11 trial court's allowing ofthe evidence "given the absence of physical evidence and reliance on th 12

13 testimony of one victim in particular." Chine/, ~ 45. On that basis, the Court finds this factor t

14 weigh in favor of the People. 15 Aside from the LeMay factors, Defendant points out that because the prior case wa 16 dismissed, any evidence relative to that case should be excluded. The Government, however 17 correctly points out that Rule 413 does not necessarily require a conviction of the prior act. Se 18

19 US. v. Guidry, 456 F.3d 493, 502 (holding that the plain language of Rule 413 does not require

20 conviction). 21 Defendant also argues that evidence of the prior case will confuse the jury. Defs. Supp.

22 Mem. at 3. The Court finds that the probative value of the evidence outweighs the potential tha 23 the evidence may confuse the jury. This finding is consistent with the spirit underlying Rut 24

25 413, which allows for propensity evidence in sexual assault cases.

26 II 27 II 28 II

Decision and Order CF0022-09; People v. Camacho

CONCLUSION

2 For the foregoing reasons, the Court finds that the evidence sought to be admitted by the

3 Government is proper under Rule 413. Therefore, the Court DENIES the Defendant's Motion 4 to Exclude Evidence under Rules 404(b), 413, and 403.

5

6 IT IS SO ORDERED this day ofMarch1l_, 2014.

7

8

9

10 Judge, Superior Court of Guam 11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Decision and Order CF0022-09; People v. Camacho

Page 8 of 8