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2823 NOV 13 PM 5: 52 CLERK OF COURT 2
6 IN THE SUPERIOR COURT OF GUAM 7 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0097-23 8 ) GPD Report No.: 23-02729 ) 9 vs. ) ) DECISION AND ORDER RE. ) DENYING DEFENDANT'S 11 ) MOTION OF ACQUITTAL BEN CASTRO CRISOSTOMO, ) AFTER GUILTY VERDICTS 12 DOB: 10/31/1983 ) AND ALTERNATIVE MOTION 13 ) FOR A MISTRIAL ) 14 Defendant. ) 15
16 INTRODUCTION
17 This matter came before the Honorable Judge Maria T. Cenzon on August 15, 2023, for a 18 hearing on Defendant Ben Castro Crisostomo's (the "Defendant) Motion for Judgment of 19 Acquittal Based on Insufficiency of the Evidence, or in the Alternative, Declaration of Mistrial 20 Based Upon Prosecutorial Misconduct (the "Motion"). Present at the hearing were Defendant, 21
22 Assistant Alternate Public Defender Peter Santos and Assistant Attorney General Leah Diaz-
23 Aguon. Following oral argument by the parties, the Court took the matter under advisement 24 pursuant to CVR 7.l(e)(6)(D) of the LOCAL RULES OF THE SUPERIOR COURT OF GUAM 25 and Administrative Rule Nos. 06-001. After considering the pleadings on file, the arguments at 26
27 People of Guam vs. Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acquittal Or for a Mistrial in the Alternative Page 1 of12 the hearing by both parties, and after reviewing the applicable statutes and case law, the Court
2 now issues this Decision and Order DENYING the Defendant's Motion on both asserted grounds.
3 FACTUAL & PROCEDURAL BACKGROUND 4 Defendant was charged via Indictment with Aggravated Assault (As a 3rd Degree Felony), 5 Terrorizing (As a 3rd Degree felony), Child Abuse (As a Misdemeanor) and Family Violence (As 6 a Misdemeanor). Indictment, Feb. 15, 2023. Defendant asserted his right to speedy trial and jury 7
8 selection began on April 5, 2023, and trial continued until April 25, 2023, when the jury returned
9 a unanimous verdict convicting Defendant of all charges. See Minute Entry Jury Trial 10 Deliberation at 1:59:39 PM to 2:01:09 PM (Apr. 25, 2023); Verdict Forms 1- 5. 11 On May 5, 2023, ten (10) days after the verdict was rendered, Defendant filed the instant 12
13 Motion arguing that the guilty verdicts were wholly unsupported and uncorroborated by the
14 evidence at trial. Defendant does not name the specific witness whose testimony was unsupported 15 by the evidence at trial, but merely identifies the witness as "the sole percipient witness that 16 testified (victim)". Motion at p. 3, 11. 3 -4 (May 5, 2023). In the alternative, the Defendant argues 17 that the Government committed prosecutorial misconduct "by vouching in his closing arguments 18
19 to the extreme prejudice of the Defendant's constitutional rights." Id. at p. 4, 111 - 3.
20 On May 8, 2023, the People filed their Opposition to Defendant's Motion for Judgment 21 of Acquittal or Mistrial, and an Amended Opposition on May 9, 2023, arguing first, that the 22 Defendant's Motion for a judgment of acquittal was untimely because the Defendant filed his 23 motion eleven (11) days after the jury was discharged, and second, the Defendant's Motion is 24
25 :frivolous and without merit because a) the Defendant acknowledged that there was sufficient
27 People of Guam vs. Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acqmttal Or for a Mistrial in the Alternative Page 2 of12 evidence to send the case to the jury and waived a sufficiency-of-the-evidence challenge, and b)
2 the People did not engage in vouching, and even if it had, its unobjected to statements did not
3 affect the Defendant's substantial rights. 4 LEGAL ANALYSIS 5 A. Defendant's Motion for Judgment of Acquittal Was Untimely. 6 A Motion made after a guilty verdict is provided for in Guam law. 8 GCA § 100.30 7
8 specifically provides:
9 If a jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within seven days after the jury is discharged or within such further time as the court 11 may fix during the seven-day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no 12 verdict is returned the court may enter judgment of acquittal. It shall not be 13 necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury. 14 8 GCA § 100.30 (emphasis added). 15
16 In this instant case, jury selection and trial date were set on April 5, 2023 in accordance
17 with the Defendant's asserted right to jury trial and request for a jury of twelve (12). The jury 18 returned with a unanimous verdict for all charges in the Indictment on April 25, 2023. Defendant's 19 Motion was filed on May 5, 2023. In view of this, the Court finds that the Defendant's Motion 20 , was filed outside of the seven-day period after a guilty verdict and, therefore, untimely. 21
22 In his opening pleading, the Defendant attempts to cure this defect by declaring that,
23 because defense counsel made an oral representation at the return of the verdict "that Defendant 24 intended to file a motion for Judgment of Acquittal," this somehow stops the ten-day clock 25 imposed on a defendant seeking a judgment of acquittal following a verdict without having filed 26
27 People of Guam vs. Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acquittal Or for a Mistnal in the Alternative Page 3 of12 a written Motion within the time provided under the statute. See Motion at 2, 11. 1 - 5. It does not.
2 Compliance with the Rules of Criminal Procedure is compulsory, not optional. Moreover, at no
3 time did the Defendant seek an extension oftime as may be permitted under Section 100.30. On 4 this basis alone, the Court may dismiss Defendant's Motion. However, given the importance of 5 the Motion to the Defendant, the Court shall consider the substantive merits of the Motion. 6 B. Defendant Failed to Establish His Burden of Establishing that Evidence was Legally 7 Insufficient to Sustain a Guilty Verdict. 8 A motion for judgment of acquittal should be granted "if the evidence is insufficient to 9
10 sustain a conviction of such offense or offenses." 8 GCA § 100.10. Under Guam law, "[t]he trial
11 court determines whether a motion for judgment of acquittal should be granted by applying the 12 same test used when the sufficiency of evidence is challenged." People v. George, 2012 Guam 13 22 ,i 47 (citing People v. Song, 2012 Guam 21 ,i 26). As Defendant correctly notes, "[i]n 14 determining whether there exists sufficient evidence to sustain a defendant's conviction, we 15
16 review the evidence presented at trial in the light most favorable to the People and determine
17 whether any rational trier of fact could have found the essential elements of the crime beyond a 18 reasonable doubt. 'This is a 'highly deferential standard of review."' People v. Martin, 2018 19 Guam 7 ,i 23 (June 14, 2018)(quoting Song at ,i 26) ). However, "it is not the province of the court 20 ... to resolve conflicts in the evidence, to pass upon the credibility of witnesses, to determine the 21
22 plausibility of explanations, or to weigh the evidence; such matters are for the jury." People v.
23 Taisacan, 2018 Guam 23 ,i 17 (omission in original)(quoting Song, 2012 Guam 21 ,i 29). 24 When ruling on a motion for judgment of acquittal, a court is only "concerned with the 25 existence or nonexistence, not its weight." People v. Quitugua, 2015 Guam 27 ,i 76 (citing 26
27 People of Guam vs. Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acquittal Or for a Mistrial in the Alternative Page 4 ofl2 George, 2012 Guam ,i 51); See also, People v. Kotto, 2020 Guam 4 (Apr. 7, 2020). Accordingly,
2 it is the role of the jury as the trier of fact, and not this court, to fairly "resolve conflicts in the
3 testimony, to weigh the evidence, and to draw reasonable inferences from the basic facts to 4 ultimate facts." People v. Quinata, 1999 Guam 6 ,i 14. Moreover, the burden is on the Defendant 5 to establish "that the evidence was legally insufficient to sustain a guilty verdict." People v. 6
Pinaula, 2023 Guam 2 ,i,i 60, 73 (citing Kotto at ,i 29 (citations omitted)). The Guam Supreme 7
8 Court has acknowledged that a defendant seeking a judgment of acquittal has a high burden to
9 meet before the Court may grant his Motion. Id 10 In support of his motion, Defendant submits a single conclusory paragraph for the Court's 11 consideration: 12
13 In the case at bar, there was testimonial evidence of the victim, presented by prosecution, that even in a light most favorable to the prosecution, was 14 uncorroborated by the physical evidence, and the sole percipient witness that testified (victim) had contradicted herself countless times on the witness stand and 15 was inconsistent in her story at least ten times when providing statements to 16 different authorities or service providers, to include a written declaration to the Superior Court under penalty of perjury. Given all this, there is no conceivable way 17 a rational trier of fact could have arrived at a conclusion of guilt without reasonable doubt. 18
19 Mot. at p. 2, 11. 1 -9. Defendant does not name the "sole percipient witness that testified (victim)"
20 but the Court can glean from the Indictment and the trial that he is referring to Jennifer Wisstig, 21 as the only other named victim is a minor under three years of age (Z.W. (DOB: 12.27.2020) and 22 did not testify at the trial of this matter. Unfortunately, Defendant's Motion fails to identify the 23
evidence which establishes the contradictory and inconsistent statements or to present the written 24
25 declaration or even the statements made therein which would have established the inconsistencies
27 People of Guam vs. Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acquittal Or for a Mistrial in the Alternative Page 5 of12 which were so glaring that "there is no conceivable way a rational trier of fact could have arrived
2 at a conclusion of guilt without reasonable doubt." The Defendant also fails to establish how the
3 People's burden was not met by the evidence presented at trial. In other words, merely reciting 4 the standard without applying the facts to the legal standard is insufficient to satisfy the 5 Defendant's burden of establishing that the evidence was legally insufficient to sustain the verdict. 6 Even if Defendant pointed out the portions of the Victim's testimony which were 7
8 supposedly inconsistent and collectively insufficient to establish guilt beyond a reasonable doubt,
9 the trial court does not act as the trier of fact to weigh the credibility of the witnesses - for that is
the job solely for the jury as the trier of fact. The trial court is only concerned with the existence 11 or nonexistence of the evidence, not the weight to give such evidence. Kotto at ,r 29 (citing Song, 12
13 2012 Guam 21 ,r 29). Ms. Wusstig testified before the jury over the course of three (3) separate
14 days: April 6, April 7, and April 18, 2023. Ms. Wusstig also testified about the content of several 15 exhibits which had been admitted into evidence for the jury's consideration, including: Exhibits 16 1 lA- 1 lM, 12, 13A- 13X, 14A - 14F, 15, and 16. 1 Defendant had the opportunity on April 7 17 and April 18, 2023, to cross-examine Ms. Wusstig regarding her testimony and to elicit any 18
19 inconsistencies about which he now argues.
20 In addition to Ms. Wusstig, eight (8) other witnesses testified at trial for the prosecution: 21 GPD Officer Tonilynn Villanueva, GPD Officer Restituto Guevara, GPD Officer Donald 22 Nakamura, GPG Officer MaryJane Raval, GPD Officer E.J. Orallo, Lorraine Wusstig, Emergency 23
25 1 Min. of Jury Trial of April 6, 2023; Min. of Jury Trial of April 7, 2023; Min. of Jury Trial of April 18, 2023. 26
27 People of Guam vs. Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acquittal Or for a Mistrial in the Alternative Page 6 of12 Medical Technician (EMT) Luke Camaco, and Dr. Carl Vontrampe. Finally, the jury heard the
2 Defendant's sworn testimony as he took the witness stand on April 9 and 21, 2023. Without more
3 in his Motion and during oral arguments, 2 the Defendant has failed to satisfy his burden of proving 4 that - despite the testimony and evidence produced at trial - the government has failed to sustain 5 its burden of proof. 6 Consequently, after crediting all the People's evidence and drawing every reasonable 7
8 inference from it in favor of the prosecution, the Court finds that a rational trier of fact could find
9 the Defendant guilty of the charges against him beyond a reasonable doubt. For these reasons, the
Court DENIES Defendant's Motion for Judgment of Acquittal. 11 C. Defendant's Request for a Mistrial Based Upon Prosecutorial Misconduct 12
13 1. Defendant's motion is noncompliant with CR 1.1.
14 Defendant also seeks an order from this Court declaring a mistrial due to prosecutorial 15 misconduct during closing arguments. Mot. at pp. 1, 2 and 3. In this regard, he submits: 16 In closing arguments, the prosecution asked the jury to ponder if Ms. Wusstig was 17 guilty of aggravated assault, why didn't the police arrest her? Why was it only Mr. Crisostomo that was arrested and charged? Improper vouching generally occurs in 18 two situations: (1) the prosecutor "suggests that the government is aware of 19 evidence not presented to the jury which would tend to support a particular witness' testimony"; or (2) the prosecutor "places the 'prestige of the government behind 20 the witnesses through personal assurances of their veracity . . . . " People vs. Meseral, Guam 2014 Guam 13 ~ 35. In this case, the prosecutor squarely placed 21 the prestige of the government behind Ms. Wusstig, whose statements and 22 testimony were the only evidence proffered to prove the defendant's guilt.
25 2 Defendant did not file a Reply in support of his Motion, although he had the opportunity to do so. 26
27 People of Guam vs Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acquittal Or for a Mistrial in the Alternative Page 7 of12 Mot. at p. 3, 11. 10 - 20. However, other than Meseral which is cited merely for the
2 definition of "improper vouching," the Defendant does not cite to any legal authority in
3 support of his motion for a mistrial. This is a violation of CR 1.1 of the Criminal Procedure 4 Rules which mandates as follows: 5 CR 1.1 Pleadings and Pretrial Motions 6
(a) Applicability. The provisions of this Rule shall apply to all criminal cases, 7 unless otherwise ordered by the court or provided by statute, or the Local Rules of 8 the Superior Court of Guam.
9 (b) Motions. (1) Required Pleadings. An application to the court for an order shall 10 be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state the grounds 11 upon which it is made and shall set forth the relief or order sought. It shall be supported hY !! memorandum containing citations of authority and may also be 12 supported by affidavit. The motion shall also include copies of all documentary 13 evidence that the moving party intends to submit in support of the motion. Additionally, all motions and each response or opposition thereto shall contain a 14 statement whether an evidentiary hearing is requested, and an estimate of the time required for the presentation of the evidence and/or arguments. The reply brief shall 15 contain a re-estimate of the time or a statement that the original estimate is 16 unchanged.
17 Defendant's alternative motion for a mistrial is unsupported by any legal authority within his 18 moving papers other than Meseral which, without a proper analysis from Defendant within the 19 context of the particular statements, provides the Court with nothing but speculation and 20 conjecture about what was objectionable within the alleged statements sufficient to warrant the 21
22 extreme relief of a mistrial. On this basis alone, this Court may disregard Defendant's Motion.
23 However, notwithstanding such failure to cite any legal authority as required under the Rules, the 24 Court shall consider the motion given its importance to the Defendant. 25
27 People of Guam vs. Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acquittal Or for a Mistrial in the Alternative Page 8 of12 2. The Prosecutor's statement was not "improper vouching."
2 The trial court has discretion "to decide whether a given incident merits a mistrial." People
3 v. Aguon, 2020 Guam 24 ,r 22 (quoting United States v. Nace, 561 F.2d 763, 768 (9 th Cir. 1977). 4 Granting a mistrial is an extraordinary measure reserved for "plain and obvious causes." Id. at ,r 5 27 (citing United States v. Gann, 732 F.2d 714, 725 (9 th Cir. 1984). "[I]n order for a prosecutorial 6 misconduct claim to succeed, the [defendant] must be able to show that the 'prosecutor's 7
8 comments so infected the trial with unfairness as to make the [possible] resulting conviction a
9 denial of due process."' People v. Joshua, 2015 Guam 32 ,r 25 (quoting People v. Evaristo, 1999 10 Guam 22 ,r 20). To warrant reversal, the Defendant must demonstrate that it is "more probable 11 than not that the misconduct affected the jury's verdict." Id., see Evaristo at ,r 18. Further, "a trial 12
13 judge may cure the effect of improper prosecutorial misconduct by giving appropriate curative
14 instructions to the jury." Id. Of course, whether a curative instruction could have been given to 15 the jury is irrelevant here, where Defendant did not object during the trial to the statements now 16 the subject of the mistrial motion. 17 Defendant claims that the objectionable statements made by the prosecution during his 18
19 closing arguments were as follows: " ... the prosecution asked the jury to ponder if Ms. Wusstig
20 was guilty of aggravated assault, why didn't the police arrest her? Why was it only Mr. 21 Crisostomo that was arrested and charged?" However, as the prosecution points out in his 22 Opposition, the comments that the People made were as follows: "It also should be noted that, 23 despite [Defendant] Ben's denials, the police arrested him, not [J.W.]. If [J.W.] was lying, why 24
25 didn't the police arrest her?" People's Amended Opp. at p. 11. The threshold question is whether
27 People of Guam vs. Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acquittal Or for a Mistrial in the Alternative Page 9 of12 the comments made by the prosecutor constitute improper vouching under Meseral, which
2 Defendant cites. The Court finds that the prosecutor's statements do not constitute improper
3 vouching under Meseral. 4 "Improper vouching generally occurs in two situations: (1) the prosecutor "suggests that 5 the government is aware of evidence not presented to the jury which would tend to support a 6
7 particular witness' testimony;" or (2) the prosecutor "places the 'prestige of the government
8 behind the witnesses through personal assurances of their veracity .... "' Guam v. Meseral, 2014
9 Guam 13, 35 (citing Guam v. Ueki, 1999 Guam 4, 19 (quoting United States v. Molina, 934
F.2d 1440, 1445 (9th Cir.1991)); see also Guam v. Evaristo, 1999 Guam 22, 29)). The Guam 11 Supreme Court in Meseral rejected the Defendant's complaint that statements made by the 12
13 prosecutor constituted improper vouching because the prosecutor merely referred to evidence that
14 had already been presented to the jury as facts testified to by the witnesses. Id at, 36. Similarly, 15 the Prosecutor during his closing argument in this case merely referred to evidence which had 16 been elicited during the testimony of other witnesses as to why Ms. Wusstig not arrested for 17 hitting Defendant with a hammer, as was testified to by many of the witnesses, including the 18
19 Victim, during the trial.
20 The People specifically cite the testimony of GPD Officer Arthur Diola who testified that 21 the Victim was not arrested "despite Defendant's denials of [the Victim's] statements and 22 testimony that J.W. had hit him with the hammer completely unprovoked. Accordingly, the 23
24 People's comments were based on testimony given at trial and not improper." People's Amended
25 Opp. at p. 11, 11. 20 -26. 26
27 People of Guam vs. Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acquittal Or for a Mistrial in the Alternative Page 10 of12 The Court finds that the Prosecutor's comment is not improper vouching under Meseral
2 because it neither "suggests that the government is aware of evidence not presented to the jury
3 which would tend to support a particular witness' testimony" nor "places the 'prestige of the 4 government behind the witnesses through personal assurances of their veracity .... "'. The 5 statement made by the Prosecution in this little snippet now objected to by Defendant was merely 6
7 a restatement of testimony by Officer Diola that the Victim was not arrested despite hitting the
8 Defendant on the head with a hammer and despite the Defendant's testimony that he had no idea
9 why he was hit by the Victim. Min. Jury Trial of April 24, 2023 at 10:46:00 AM to 10:47:04 AM. 10 This statement was also made in the context of the prosecution's closing argument urging the jury 11 to consider Ms. Wusstig's lack of a motive to lie and to apply common sense and experience to 12
13 determine whether Ms. Wusstig was testifying truthfully. This is permitted under Meseral.
14 The Court may end its inquiry here; however, the Court will apply the Guam Supreme 15 Court's analysis for determining whether allegations of vouching by the prosecution should result 16 in a mistrial in the instance the objection was not raised during trial. See People v. Roten, 2012 17 Guam 3, ,r 38 (citing United States v. Williams, 989 F.2d 1061 (9 th Cir. 1993)). Thus, this Court 18
19 considers the following factors in determining the effect of the prosecutor's vouching on the
20 outcome of the case: (1) the form of the vouching, (2) the extent of the personal opinion asserted, 21 (3) the extent to which a prosecutor's statements exhibited extra record knowledge supporting a 22 witness' veracity, and (4) the testimony's import viewed in the context of the case as a whole. Id. 23
24 (citing Evaristo ,r 32 (citing People v. Ueki, 1999 Guam 4 ,r 24 (citing Williams, 989 F.2d at
25 1072)). Where "[u]pon review of the record, it would appear that the jury was free to judge for
27 People of Guam vs Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re. Denying Defendant's Motion for Judgment of Acquittal Or for a Mistrial in the Alternative Page 11 of12 itself the weight of the evidence presented and the credibility of the testifying witnesses," then
2 there is no error affecting substantial rights. Evaristo, 1999 Guam 22 ,r 34.
3 Considering the singular statement which is the basis of Defendant's motion for a mistrial 4 and which the Court has found is not improper vouching by the prosecution, the Court finds that 5 applying the factors in Roten the extraordinary remedy of a mistrial is unjustified in this case: (1) 6
7 it was not improper vouching, but a restatement of testimony elicited during the trial, (2) no
8 personal opinion was exerted by the prosecutor, (3) the prosecutor's statements did not exhibit
9 extra record knowledge supporting a witness' veracity, but, as the Court has determined, was 10 merely a restatement of testimony at trial and (4) the testimony's import viewed in the context of 11 the case as a whole was of minimal effect, given that the statement was made in the context of 12
13 urging the jury to apply its common sense and life experience to determine whether Ms. Wusstig
14 had a motive to lie. Applying these factors, Defendant's Motion for a Mistrial in the alternative 15 is DENIED. 16 CONCLUSION 17 For the above reasons, the Defendant's Motion for Acquittal Based on Insufficiency of 18
19 the Evidence is DENIED. Moreover, Defendant's Motion in the Alternative for a Declaration of
20 Mistrial Based Upon Prosecutorial Miscondu9t is;J~~NIED. ~, ~ , ..r;-.:-:· l\ ;-,.. 21 ,'.i:-~ ,, ~ ··- so ORDERED this 13 th day ofNofemJ>eY;;-2oi:f~"., 22 /fl ., .7--: ·.. - ,::-•J 23 '•
24 HONE> Bj:E~MARIA T. CENZON 25 Juf!ge/Supe~oi- Court of Guam ~.,.,~-;-~~--' 26
27 People of Guam vs. Ben Castro Crisostomo Criminal Case No. CF0097-23 28 Decision and Order re Denying Defendant's Motion for Judgment of Acquittal Or for a Mistrial in the Alternative Page 12 ofl2