FL L E D SUPER!OR COUR OF GUAM s 1
2 2022 FEB ..I PH (1: 26
3 CLERXOFCOURT 4 BY: 5 IN THE SUPERIOR COURT OF GUAM 6 PEOPLE OF GUAM, Criminal Case No. CF0190-21 7 GPD Report Nos. 21-01957 / 21-07160 / v. 21-07262 / 21-08741 8
9 ELIUD DULEI DECISION AND ORDER (aka Eliud Bulei) DENYING DEFENDANT'S MOTION 10 (aka Eliud Masao Dulei) TO SEVER AND BIFURCATE COUNTS (aka Dulei Eliud) FOR TRIAL 11 (aka Kelsie Masao Sakuma) 12 (aka Kelsi), DOB: 07/16/1986 13 Defendant. 14
15 IN .RQDUCT1ON 16 This matter came before the Honorable Alberto C. Lamorena, IH on November 30, 2021 for
17 hearing on Defendant Eliud Dulei's (aka Eliud Bulei's) (aka Eliud Masao Dulei's) (aka Dulei
18 Eliud's) (aka Kelsie Masao Sakuma's) (aka Kelsi's) ("Defendant's") Motion to Sever and Bifurcate
19 Counts for Trial ("Motion"). Assistant Attorney General Daphnis Le represents the People, and
20 Heather Zone represents Defendant. Having duly considered the parties' briefs and the applicable
21 law, the Court now issues the following Decision and Order and DENIES Defendant's Motion.
22 BACKGROUND 23 On April 14, 2021, Defendant was arrested and charged with Charge One: Home Invasion
24 (as a IS Degree Felony), with Special Allegation: Possession or Use of a Deadly Weapon in the
25 Commission of a Felony; Charge Two: Family Violence (as a 3rd Degree Felony), Charge Three:
26 Terrorizing (as a 3rd Degree Felony) (Six Counts), with Special Allegation: Possession or Use of a
27 Deadly Weapon in the Commission of a Felony (Six Counts), Charge Four: Terrorizing (as a 3rd
28 Degree Felony) (Two Counts), with Special Allegation: Possession or Use of a Deadly Weapon in
Decision and Order Denying Defendant's Motion to Sever and Bifurcate Counts for Trial CF0190-21, People of Guam v. Eliud Dulci Page 1 of 6 )
1 the Commission of a Felony (Two Counts), Charge Five: Criminal Mischief (as a 3I'd Degree
2 Felony), Charge Six: Simple Stalling (as a 3rd Degree Felony), Charge Seven: Assault (as a
3 Misdemeanor), Charge Eight: Criminal Mischief (as a Misdemeanor), Charge Nine: Resisting
4 Arrest (as a Misdemeanor), Charge Ten: Harassment (as a Petty Misdemeanor), and Charge Eleven:
5 Disorderly Conduct (as a Petty Misdemeanor). See Indictment (Apr. 22, 2021).
6 The charges stem from five incidents allegedly committed over a three-month period.
7 Specifically, Charges Two and Seven relate to a January 23, 2021 incident, Charges One, Three,
8 and Eight relate to a March 23, 2021 incident, Charges Six, Ten, and Eleven relate to a March 24,
9 2021 incident, Charges Four and Five relate to an April ll, 2021 incident, and Charge Nine relates
10 to an April 14, 2021 incident.
11 On August 20, 2021, Defendant tiled his Motion to Sever and Bifurcate Counts for Trial.
12 Defendant requested severing the charges into five separate trials, dependent of the date in which
13 each allegedly occurred. See Motion at 1 (Aug. 20, 2021). Defendant also requested bifurcating
14 the Special Allegations: Possession or Use of a Deadly Weapon in the Commission of a Felony
15 from their associated charges. at 1. Defendant claims severance is required because the acts
16 alleged do not constitute a common scheme or plan, and evidence of prior bad acts would unfairly
17 prejudice him. at 1. Defendant claimed bifurcation is required to avoid "prejudice of the jury
18 leaning on aggravating circumstances prior to making a finding of guilt." at 1-2.
19 On November 10, 2021, the People filed their Response to Defendant's Motions In Lintine
20 ("People's Response"). The People argued severance is not possible because Charge Six (Simple
21 Stalking, as a 3rd Degree Felony) requires evidence of the additional incidents. See People's
22 Response at 7 (Nov. 10, 2021).
23 On November 30, 2021, the parties stipulated to forgo oral arguments and agreed to let the
24 Court decide the matter on the briefs. The Court subsequently took the matter under advisement.
25 D1scUss1.Qn 26 1. Issue of Severance:
27 a. Joiner of the charges is appropriate because they are based on the same
28 conduct or arise from the same criminal episode.
Decision and Order Denying Defendant's Motion to Sever and Bifurcate Counts for Trial CF0190-21,People of Guam v. Eliud Dulci Page 2 of 6 1 »
1 Guam law favors and encourages jointer of offenses "based on the same
2 conduct or arising from the same criminal episode". See 9 G.C.A. § 65.30(b).
3 Offenses may qualify as being in the same course of conduct or criminal episode if
4 "prosecution of the offenses will involve substantially interrelated proof." See
5 People v. Rogers, 742 P.2d 912, 918 (Colo. 1987). Coults also look at whether the
6 charges share similar temporal proximities, physical locations, modes of operation,
7 and victim identities. See U.S. v. Jawara, 474 F.3d 565, 577 (9"' Cir. 2007). Charges
8 constitute a "common scheme or plan" if "commission of one of the offenses...
9 depended upon... commission of the others." at 574. 10 Here, despite occurring on five separate dates, the charges all relate to each
11 other factually and causally. Charges One through Eight, Ten, and Eleven all share
12 the same victim identities (Large Ikeda and her children). See Indictment (Apr. 22,
13 2021). Charges One through Eight, Ten, and Eleven also stem from conduct
14 allegedly occurring in/around the same physical location (Larue Ikeda's Dededo
15 residence). See Magistrate's Complaint (Apr. 15, 2021). The charges also share
16 similar modes of operation, with Defendant allegedly using verbal threats and
17 weapons (golf clubs, machetes, knives, etc.) to scare the victims. Charge Nine
18 (Resisting Arrest, as a lVlisdelneanor) stems from conduct during Defendant's arrest
19 following the April ll, 2021 incident.
20 Furthermore, "prosecution of the offenses will involve substantially
21 interrelated proof." See Rogers, 742 P.2d at 918. Charge Six (Simple Stalking, as a
22 3I'(1 Degree Felony) requires that the defendant"repeatedly" follow or harass another
23 person. See 9 G.C.A. § l9.70(a) (emphasis added). Proof of more than one incident
24 is required to prosecute this offense due to its cumulative definition. Therefore, the
25 People will necessarily have to introduce proof of the other incidents when proving
26 Charge Six.
27 The charges all share similar conduct characteristics laid out in Jawara.
28 Furthermore, Charge Six involves interrelated proof to the other charges when
Decision and Order Denying Defendant's Motion to Sever and Bifurcate Counts for Trial CF0190-21,People of Guam v. Eliud Dulci Page 3 of 6 1 prosecuting, and its commission depends upon the other charges. Therefore, jointer
2 is appropriate, and the charges will not be severed.
3 b. The probative value of admitting multiple offenses into evidence is not
4 substantially outweighed by a danger of unfair prejudice.
5 Even if jointer is otherwise permissible under 9 G.C.A. § 65.30, the court
6 may order severance "if it appears that a defendant... is prejudiced by a jointer of
7 offenses". See 9 G.C.A. § 65.35. To exclude relevant evidence, the probative value
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FL L E D SUPER!OR COUR OF GUAM s 1
2 2022 FEB ..I PH (1: 26
3 CLERXOFCOURT 4 BY: 5 IN THE SUPERIOR COURT OF GUAM 6 PEOPLE OF GUAM, Criminal Case No. CF0190-21 7 GPD Report Nos. 21-01957 / 21-07160 / v. 21-07262 / 21-08741 8
9 ELIUD DULEI DECISION AND ORDER (aka Eliud Bulei) DENYING DEFENDANT'S MOTION 10 (aka Eliud Masao Dulei) TO SEVER AND BIFURCATE COUNTS (aka Dulei Eliud) FOR TRIAL 11 (aka Kelsie Masao Sakuma) 12 (aka Kelsi), DOB: 07/16/1986 13 Defendant. 14
15 IN .RQDUCT1ON 16 This matter came before the Honorable Alberto C. Lamorena, IH on November 30, 2021 for
17 hearing on Defendant Eliud Dulei's (aka Eliud Bulei's) (aka Eliud Masao Dulei's) (aka Dulei
18 Eliud's) (aka Kelsie Masao Sakuma's) (aka Kelsi's) ("Defendant's") Motion to Sever and Bifurcate
19 Counts for Trial ("Motion"). Assistant Attorney General Daphnis Le represents the People, and
20 Heather Zone represents Defendant. Having duly considered the parties' briefs and the applicable
21 law, the Court now issues the following Decision and Order and DENIES Defendant's Motion.
22 BACKGROUND 23 On April 14, 2021, Defendant was arrested and charged with Charge One: Home Invasion
24 (as a IS Degree Felony), with Special Allegation: Possession or Use of a Deadly Weapon in the
25 Commission of a Felony; Charge Two: Family Violence (as a 3rd Degree Felony), Charge Three:
26 Terrorizing (as a 3rd Degree Felony) (Six Counts), with Special Allegation: Possession or Use of a
27 Deadly Weapon in the Commission of a Felony (Six Counts), Charge Four: Terrorizing (as a 3rd
28 Degree Felony) (Two Counts), with Special Allegation: Possession or Use of a Deadly Weapon in
Decision and Order Denying Defendant's Motion to Sever and Bifurcate Counts for Trial CF0190-21, People of Guam v. Eliud Dulci Page 1 of 6 )
1 the Commission of a Felony (Two Counts), Charge Five: Criminal Mischief (as a 3I'd Degree
2 Felony), Charge Six: Simple Stalling (as a 3rd Degree Felony), Charge Seven: Assault (as a
3 Misdemeanor), Charge Eight: Criminal Mischief (as a Misdemeanor), Charge Nine: Resisting
4 Arrest (as a Misdemeanor), Charge Ten: Harassment (as a Petty Misdemeanor), and Charge Eleven:
5 Disorderly Conduct (as a Petty Misdemeanor). See Indictment (Apr. 22, 2021).
6 The charges stem from five incidents allegedly committed over a three-month period.
7 Specifically, Charges Two and Seven relate to a January 23, 2021 incident, Charges One, Three,
8 and Eight relate to a March 23, 2021 incident, Charges Six, Ten, and Eleven relate to a March 24,
9 2021 incident, Charges Four and Five relate to an April ll, 2021 incident, and Charge Nine relates
10 to an April 14, 2021 incident.
11 On August 20, 2021, Defendant tiled his Motion to Sever and Bifurcate Counts for Trial.
12 Defendant requested severing the charges into five separate trials, dependent of the date in which
13 each allegedly occurred. See Motion at 1 (Aug. 20, 2021). Defendant also requested bifurcating
14 the Special Allegations: Possession or Use of a Deadly Weapon in the Commission of a Felony
15 from their associated charges. at 1. Defendant claims severance is required because the acts
16 alleged do not constitute a common scheme or plan, and evidence of prior bad acts would unfairly
17 prejudice him. at 1. Defendant claimed bifurcation is required to avoid "prejudice of the jury
18 leaning on aggravating circumstances prior to making a finding of guilt." at 1-2.
19 On November 10, 2021, the People filed their Response to Defendant's Motions In Lintine
20 ("People's Response"). The People argued severance is not possible because Charge Six (Simple
21 Stalking, as a 3rd Degree Felony) requires evidence of the additional incidents. See People's
22 Response at 7 (Nov. 10, 2021).
23 On November 30, 2021, the parties stipulated to forgo oral arguments and agreed to let the
24 Court decide the matter on the briefs. The Court subsequently took the matter under advisement.
25 D1scUss1.Qn 26 1. Issue of Severance:
27 a. Joiner of the charges is appropriate because they are based on the same
28 conduct or arise from the same criminal episode.
Decision and Order Denying Defendant's Motion to Sever and Bifurcate Counts for Trial CF0190-21,People of Guam v. Eliud Dulci Page 2 of 6 1 »
1 Guam law favors and encourages jointer of offenses "based on the same
2 conduct or arising from the same criminal episode". See 9 G.C.A. § 65.30(b).
3 Offenses may qualify as being in the same course of conduct or criminal episode if
4 "prosecution of the offenses will involve substantially interrelated proof." See
5 People v. Rogers, 742 P.2d 912, 918 (Colo. 1987). Coults also look at whether the
6 charges share similar temporal proximities, physical locations, modes of operation,
7 and victim identities. See U.S. v. Jawara, 474 F.3d 565, 577 (9"' Cir. 2007). Charges
8 constitute a "common scheme or plan" if "commission of one of the offenses...
9 depended upon... commission of the others." at 574. 10 Here, despite occurring on five separate dates, the charges all relate to each
11 other factually and causally. Charges One through Eight, Ten, and Eleven all share
12 the same victim identities (Large Ikeda and her children). See Indictment (Apr. 22,
13 2021). Charges One through Eight, Ten, and Eleven also stem from conduct
14 allegedly occurring in/around the same physical location (Larue Ikeda's Dededo
15 residence). See Magistrate's Complaint (Apr. 15, 2021). The charges also share
16 similar modes of operation, with Defendant allegedly using verbal threats and
17 weapons (golf clubs, machetes, knives, etc.) to scare the victims. Charge Nine
18 (Resisting Arrest, as a lVlisdelneanor) stems from conduct during Defendant's arrest
19 following the April ll, 2021 incident.
20 Furthermore, "prosecution of the offenses will involve substantially
21 interrelated proof." See Rogers, 742 P.2d at 918. Charge Six (Simple Stalking, as a
22 3I'(1 Degree Felony) requires that the defendant"repeatedly" follow or harass another
23 person. See 9 G.C.A. § l9.70(a) (emphasis added). Proof of more than one incident
24 is required to prosecute this offense due to its cumulative definition. Therefore, the
25 People will necessarily have to introduce proof of the other incidents when proving
26 Charge Six.
27 The charges all share similar conduct characteristics laid out in Jawara.
28 Furthermore, Charge Six involves interrelated proof to the other charges when
Decision and Order Denying Defendant's Motion to Sever and Bifurcate Counts for Trial CF0190-21,People of Guam v. Eliud Dulci Page 3 of 6 1 prosecuting, and its commission depends upon the other charges. Therefore, jointer
2 is appropriate, and the charges will not be severed.
3 b. The probative value of admitting multiple offenses into evidence is not
4 substantially outweighed by a danger of unfair prejudice.
5 Even if jointer is otherwise permissible under 9 G.C.A. § 65.30, the court
6 may order severance "if it appears that a defendant... is prejudiced by a jointer of
7 offenses". See 9 G.C.A. § 65.35. To exclude relevant evidence, the probative value
8 must be "substantially outweighed by the danger of unfair prejudice." See 6 G.C.A.
9 § 403 (emphasis added).
10 The probative value of admitting evidence surrounding multiple incidents is
11 clear. Charge Six (Simple Stalking, as a wIld Degree Felony) requires proof of
12 repeated harassment, and therefore evidence of the incidents preceding Ir.
13 The danger of unfair prejudice is also clear here. "Evidence of other crimes,
14 wrongs, or acts is not admissible to prove the character of a person in order to show
15 that he acted in conformity therewith." See 6 G.C.A. § 404(b). Although the People
16 attest they will not introduce past incidents as propensity evidence, there remains a
17 danger that jurors may interpret it as such. Furthermore, jurors may be unable to
18 distinguish evidence concerning charges occurring on one date from evidence
19 concerning charges on another. The Defendant's Fifth Amendment rights may also
20 be prejudiced. Defendant may wish to testify concerning one set of the events, but
21 not the others. However, if the charges are not severed, Defendant would be required
22 to choose between testifying in his own defense on all the charges or none at all.
23 However, 6 G.C.A. § 403 is a rule favoring inclusion of evidence, only
24 excluding relevant evidence if its prejudicial value .substantially outweighs its
25 probative value. Having balanced both the probative value and the prejudicial danger
26 of admitting evidence surrounding all the incidents, it's clear the prejudicial danger
27 does not rise to this level. The probative value of admitting evidence surrounding all
28 the incidents is extremely high, as Charge Six can only be prosecuted if evidence
Decision and Order Denying Defendant's Motion to Sever and Bifurcate Counts for Trial CF0190-21, People of Guam v. Eliud Dulci Page 4 of 6 I
1 surrounding the other incidents is admitted. Therefore, the Court will not sever the
2 charges under grounds of prejudice.
3 11. Bifurcation of the sentencing enhancements is not appropriate because they do not
4 prejudice Defendant.
5 Defendant also requests that the sentencing enhancements be bifurcated from the
6 remaining charges. See Motion at 5 (Aug. 20, 2021). The People do not oppose bifurcation
7 of the guilt and sentencing phases of trial in the event it is required by the People providing
8 notice of a felony while on felony release sentencing enhancement. See People's Response
9 at 7-8 (Nov. 10, 2021).
10 It is inherently prejudicial to apprise the jury of aggravating facts before a conviction
11 has been obtained. See People v. Quitugua, 2015 Guam 27 'll 39. "Other than the fact of a
12 prior conviction, any fact that increases the penalty for a crime beyond the prescribed
13 statutory minimum must be submitted to the jury and proven beyond a reasonable doubt."
14 See People v. Moses, 2016 Guam 17 '119 (quoting People v. Muritok, 2003 Guam 21 q143).
15 Here, the only sentencing enhancement Defendant faces is Special Allegation:
16 Possession or Use of a Deadly Weapon in the Commission of a Felony. See Indictment
17 (Apr. 22, 2021). Whether Defendant used a deadly weapon in the commission of a felony is
18 a factual issue that must be submitted to the jury. Unlike Commission of a Felony While on
19 Felony Release, Possession or Use of a Deadly Weapon in the Commission of a Felony
20 can't be improperly interpreted as propensity evidence because it does not suggest that
21 Defendant has committed like acts before. Therefore, bifurcation is unnecessary, and the
22 issue may be submitted to the jury before sentencing.
23 CONCLUSION
24 For the reasons stated above, the Court DENIES Defendant's Motion. The charges will not
25 be severed into separate trials, and the special allegations will not be bifurcated from the remaining
26 charges. February 1, 2022 27 IT IS SO ORDERED this
Decision and Order Denying Defendant's Motion to Sever and Bifurcate Counts for Trial CFOl90-21,People of Guan1 v. Eliud Dulci Page S of 6 | #
3 HONORABLE ALBERTO c. LAMORENA, III Presiding Judge, Superior Court of Guam 4
Decision and Order Denying Defendant's Motion to Sever and Bifurcate Counts for Trial CFOl90-21, People of Guam v. Eliud Dulei Page 6 of 6