People v. Cruz

Opinion

-F JI £8 .S.UPERiQR COURT GFGURM 1 ZQZ3 OCT l I PM 3: I 7 2 cl_ERi& oF CQURT 3

§;W=_ I 4 IN THE SUPERIOR COURT OF GUAM 5

6 THE PEOPLE OF GUAM, Case No. cF0120-21 7

8 vs. DECISION AND ORDER 9 RICKY SANTOS CRUZ, (Motion to Exclude)

Defendant. 11

13 INTRODUCTION 14 This matter came before the Honorable John C. Terlaje on September 23, 2023 for a 15 Motion Hearing on Ricky Santos Cnlz's ("Defendant") Motion in Limine to Exclude. Public 16 Defender Stephen Hattori appeared for Defendant. Assistant Attorney Christine Santos Tenorio 17

18 appeared for the People of Guam ("People'). Based on the relevant law and authorities the Court

19 now issues the following decision and order REJECTING Defendant's Motion to Exclude.

20 BACKGROUND

21 On February 28, 2021, the Office of the Attorney General charged Defendant with 22 Second Degree Criminal Sexual Conduct (As a First Degree Felony). Mag. Con pl., Feb. 28, 23 2021. Defendant filed a motion to exclude. Def.'s Mot. to Excl., Sept. 19, 2023. The People 24 filed a response. People's Resp. to Def's Mot. to Excl., Feb. 20, 2028. The Court held a Motion 25

27 Decision and Order Case No. CF0120-21, People v. Ricky Santos Cruz Page 1 of 4 1 Hearing. Minute Entry, Sept. 23, 2023. Upon considering the parties' arguments and the 2 applicable law, the Court denies Defendant's Motion to Dismiss. 3 DISCUSSION 4 Defendant moves to dismiss under the theory that "Guam Rules of Evidence 404(b) bars 5

6 the introduction of 'other crimes, wrong or acts' to prove that the accused acted in conformity

7 therewith 6 GCA Section 404(b)." Mot. to Exclude 1] 1 (September 20, 2023). The government

8 charged Mr. Cruz with several counts of criminal sexual conduct, "on or about the period

9 between January 1, 2015 and May 30, 2016, in Guam." Indict. (March 9, 2021). These allegations

10 involve a vulnerable victim, who was thirteen years old or younger when the alleged crimes took 11 . . . place. Id. Now, the government seeks to introduce testimony from the vlctlm regarding the same 12 acts, at the same location, but the victim claims they took place in 2012, 2013, and 2014. Reply 13 to Def. Mot. To Exclude (September 20, 2023). According to the defense, testimony of these 14 events should be excluded as "former bad acts" under Rule 404(b). Mot. to Exclude (September 15

16 20, 2023). Additionally, the defense argues that Rule 413 excludes the testimony, because

17 "notice was not provided fifteen days before the scheduled date of trial, as required by GRE

18 413(b)." Reply to Gov. Mot. to Exclude 1]2 (September 21, 2023).

19 A. The proposed testimony is not a material variance from the indictment 20

21 "The general rule [is] that allegations and proof must correspond..." Berger v. United

22 States, 295 U.S. 78, 82 (1935). A variance between an allegation and proof presented is a 3 2 "reversible error if it affects the substantial rights of a defendant by either: (1) taking them by 24 . surprise and hindering their ability to present a defense, or (2) exposing them to the risk of 25 another prosecution for the same offense." Taitano, 2015 Guam 33 'll 19, Campbell, 2006 14 11 26

27 Decision and Order Case No. CF0120-21, People v. Ricky Santos Cruz Page 2 of 4 1 12, Berger, 295 U.S. at 82. Further, "time is not considered an essential element of criminal 2 sexual conduct." Taitano, 2015 Guam 33 1]15-16, Campbell, 2006 Guam 14 1127. "Where time 3 is not an element of a crime, proof of any date before the return of the indictment and within the 4

statute of limitations is sufficient to support a conviction." People v. Taisacan, 2018 Guam 23 'H 5

6 28, Taitano, 2015 Guam 33 1] 16 quoting Peoplev. Atoigue 1992 WL 245628.

7 The facts in Atoigue are very similar to those before this court: a minor alleged criminal

8 sexual conduct, specific dates for the accusations were put into an indictment, and the minor's

9 memory of those dates changed. See People v. Atoigue 1992 WL 245628. Here, as in Atoigue, 10 cc . . . . . . . . proof of any date before the return of the indictment and wlthln the statute of llmltatlons is 11 sufficient to support a conviction." Id Given that the minor in this case plans to testify to acts 12 within the statute of limitations, no material variance exists. Further, in Serbian, the Guam 13 Supreme Court allowed testimony four years prior to the dates in the indictment. People v. 14 15 Serbian, 2023 Guam 4 1] 80. 111 this case, the testimony differs by, at most, three years.

16 B. The government's proposed testimony is not prior bad act evidence under 6 G.C.A ) 17 §404(b) and thus G.C.A §413 does not apply

18 The Defense cites Taitano in their § 404(b) motion to support their claims that this 19 testimony involves prior bad acts, however, "this is not a case like Taitano, wherein the facts 20 as presented at trial relate to a separate incident for which the People did not obtain an indictment. 21 22 People v. Serbian, 2023 Guam 41i 55. In the case currently before this Court, the victim plans to

23 testify to the exact same incidents in the indictment, involving the exact same police reports.

24 Reply to Def. Mot. To Exclude (September 20, 2023). Unlike in Taitano, the likelihood that the

25 defendant will be "convicted on evidence of an incident other than the one for which he was r

26 1 Cite Hattori Defense 27 Decision and Order Case No. CF0120-21, People v. Ricky Santos Cruz Page 3 of 4 1 charged is not substantial." People v. Serbian, 2023 Guam 4 1155. Given this precedent and the 2 lack of material variance from the indictment, the Court struggles to understand how the 3 testimony could be viewed as a "prior" act under § 404(b). Therefore, we do not believe that 4 §4l3 balancing is necessary here. 5

6 Even if the court treated this as prior bad act testimony, however, it would still pass the

7 §413 balancing in Chisel. See Campbell, 2006 Guam 7, People v. Sablan, 2023 Guam 4. The

8 proposed testimony involves: (1) events from only a few years before the dates on the indictment

9 and (2) the defendant was given notice of this testimony months ago. Reply to Def. Mot. To 10 Exclude (September 20, 2023). 11 K

CONCLUSION AND ORDER 12 For the above reasons, the Court REJECTS Defendant's Motion to Exclude. 13

15 SO ORDERED, this ll day of 00/rvlwf 3 2023. 16

18 1 & 19 HONORABLE JOHN c. TERLAJE 20 Julllge Superior Court of Guam 21

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27 Decision and Order Case No. CF0120-21, People v. Ricky Santos Cruz Page 4 of 4