People v. Cruz

Superior Court of Guam

People v. Cruz

DecidedJuly 10, 2009

DocketCF0399-07

StatusUnknown

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People v. Cruz, (superctguam 2009).

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IN THE SUPERIOR COURT OF GUAM

PEOPLE OF GUAM ) Criminal Case No. CF 399-07

vs.

RUDOLPH JUNIOR CRUZ. DECISION AND ORDER RE POST TRIAL MOTIONS Defendant.

On August 30,2007 Defendant was indicted on tlree counts ofFirst Degree Criminal Sexual

Conduct, three counts of Second Degree Criminal Sexual Conduct and three counts of Third Degree

Criminal Sexual Conduct. Trial commenced on January 7,2009. At the conclusion of the trial the

jury returned verdicts of guilty for lesser included offenses for some charges, one count of third

degree criminal sexual conduct and did not reach verdicts for others. (See Chart attached as Exhibit

A.)

Defendant fi.led a laundry list of issues as a post trial motion for.a new trial. See pleadings

filed January 26,2009, February 3,2009 and April 1,2009. The People filed an Opposition on

February 12,2009. At the hearing held March 23,20091 the Defendant asked leave to file a

supplemental memorandum better stating his argument. A hearing on the various issues was held

Apil2,2009. Present for the People was J. Basil O'Mallen III, Assistant Attomey General, and

Stephen P. Hattori, Assistant Alternate Public Defender.

tAt trial Defendant was represented by Clyde Lemons, Jr. who filed the first two pleadings. Assistant Alternate Public Defender Hattori appeared for the Defendant at the March 23,2009 hearing and subsequantlybecause Lemons left the Alternate Public Defender's OfEce. People vs. Cruz Decision and Order

1. Acquittal Motion. Defendant axgues that his motion for acquittal at the close of the

People's case w.$ erroneously denied. Defendant did not refer to any of the evidence presented by

the People nor did he cite any case law in support of the motion. For the reasons stated by the Court

on January 14,2009 in its written Decision and Order the earlier decision is affinned.

2. Age of the Minor and Jury Instruction. Defendant refers to 9 GCA $25. I 0O) arguing that

the People must prove that "defendant did not reasonably believe that the victim herein was at least

sixteenyears of age"(Defendant'sMerroran $tmof ll24l09 atp. 1,I1.23) Subsection(b)provides

in pertinent part:

Whenever in this Chapter the criminality of conduct depends on a child's being below a specified age older than fourteen (14), it is an affi.rmative defense that the defendant reasonablybelieved the child to be of that age or above.

On January 13,2009 the victim testified that she would be 16 in a month. lal l:42:441 The

event occured on August 19,2007. At the time of the event the victim was 14 Yryeats old. In its

opposition the People point to testimony during the trial. The victim's mother said that the

Defendant married into the family and she knew the Defendant for approximately eight years. The

victim testified that she first met the Defendant when she was in middle school and that she was

friends with the Defendant's sister who was one year older than she.

Defendant does not point to any evidence indicating that anyone had any reason to believe

that at the time of the incident the victim was l6 years or older. Defendant first raised the victim's

age as an affirmative defense in his post tial motion. Defendant's counsel states that he erred in not

requesting a jury insfuction on the affirmative defense. Defendant's counsel does not submit any

case law supporting a new trial for failure to instruct the jury on the affirmative defense. Since there

Page2 People vs. Cruz Decision and Order

is no evidence supporting such an instruction the motion is denied on this point.

3. Deniat of Motion to Admit Victim's Prior Sexual History. The Court heard Defendant's

pre-hial motion to admit evidence regarding the victim's prior sexual history.2 The materials

relative to this hearing are sealed. After receiving testimony and reviewing other evidence this Court

heldonMarch24,2008 thatunder6 GuamCodeAnnotated,Section820TOXI) [Guam'srapeshield

law] that the defendant may not introduce evidence about the victim's alleged past sexual conduct

because no relevant evidence was produced at the hearing.

Defendant points to evidence received at trial that the victim's current boyfriend resides in

her household. However, Defendant does not explain how this evidence is related to his pre-trial

motion which involved the time period before August 19,2007 nor does the Defendant proffer

anything indicating that relevant evidence was not admitted. Defendant's counsel does not submit

any case law supporting his position. Since there is no new evidence supporting admission of the

victim's alleged prior sexual conduct, the motion is denied on this point.

4. Failure of Proof. Defendant argues that the jury's verdict was against the manifest weight

of the evidence and that the Defendant was not convicted by proof beyond a reasonable doubt.

Defendant did not refer to failure as to any particular element of any particular charge. Nor did

Defendant refer to any of the evidence presented by the People. Nor did Defendant cite any case law

in support of the motion. The jury found Defendant guilty on lesser included charges and one

original charge. Clearly the jury carefully weighed the evidence and presumably followed the

2At the motion defendant was represented by Assistant Public Defender Pablo Aglubat.

Page 3 People vs. Cruz Decision and Order

instructions glven for its deliberations. Absent argument by Defendant on how there was failure the

Court is unable to analyze this point and denies the motion with respect to it.

5. Lesser included offenses/degree of crime. Defendant argues that the govenrment charged

four different sexual acts: (l) digital penetration/contact, (2) tongue penetration/contact, (3) penile

penetration contact and (a) mouth to breast contact. Defendant further argues that since he was

found gurlty of the lesser included offense, harassment, charges should be merged and he should be

sentenced only for four counts of harassment pursuant to 8 GCA $90.25. Section 90.25 provides:

When it appears that the defendant has committed an offense, and there is reasonable grounds of doubt in which of two (2) or more degrees he is guilty, he can be convicted of the lowest of such degrees only.

Analysis of the indictment shows that the acts were charged under alternate theories of

culpability. In Charges 1 and 2 the indictnent charges that the Defendant acted with force and

coercion and caused personal injury to the victim. Defendant argues that the conviction of Third

Degree CSC for causing his finger to enter the vagina the minor is a lesser included offense of the

charges where the jury convicted him of harassment (Verdict forms 3,6 and 11) If there had been

a lesser included instruction for Third Degree CSC then it would have been under 9 GCA 525.25

(aX2) which includes this element: "force or coercion is used to accomplish the sexual penetation."

Lr Charge 3 the indicbnent charges that Defendant engaged in sexual conduct with a minor

over 1 4 years but under I 6 years under 9 GCA 525 .25 (aXl). With respect to Charge 3 use of force

or coercion or personal injury are not elements ofthe crime and in fact Third Degree Criminal Sexual

Conduct may be consensual

Thus, the sexual acts maybe the same for Charges I and 2 andCharge 3 but the offenses are

Page 4 People vs. Cruz Decision and Order

quite different.

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