People v. Frank James San Nicolas

• Court: Superior Court of Guam
• Decided: June 22, 2022
• Docket: CF0564-20
• Status: Unknown

Opinion

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'FI L ED SUPERIOR COURT OF GUAM l I 2022 JUN 22 AH B: oh 2 cLERK OF COURT

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IN THE SUPERIOR COURT OF GUAM 4

5 CRIMINAL CASE NO.: CF0564-20 PEOPLE OF GUAM,

6 I vs. 7 DECISION AND ORDER People's Motion in L;'nulne ro Exclude CertainEvidence Under GRE 4/2 and 408' 8 FRANK JAMES SAN NICOLAS, DOB: 06,»'21n970 9 I

10 Defendant.

11 INTRODUCTION 12 This matter came before the Honorable Arthur R. Barcinas on May 13, 2022, for a 13 hearing on the People's Motion in Liming to Exclude Certain Evidence Under GRE 412 and

14 403. Present at the hearing were: Defendant Frank San Nicolai ("Defendant") with Counsel

15 Joaquin Arriola Jr., and Assistant Attorney General Rochelle Y. Canto for the People. Having

I considered the arguments and the applicable law, the Court hereby DENIES the People's 16 I Motion to Exclude Certain Evidence Under GRE 412 and 403 . 17

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I BACKGROUND |I This case arises from an Indictment returned by the grand jury on October 29, 2020, 2 charging Defendant for the following: THIRD DEGREE CRIMINAL SEXUAL CONDUCT 3 (As a Second Degree Felony), and FOURTH DEGREE CRIMINAL SEXUAL CONDUCT 4 (As a Misdemeanor)2 counts.

5 On February 14, 2022, the People filed the subject Motion to exclude evidence of

6 A.S.'s (alleged victim hereinafter "Victim") consensual sexual intercourse with her boyfriend i I

7 after the alleged sexual assault, and Victim's place of employment at Club USA, under GRE

412 and 403. 8 Defendant filed his Opposition on May 12, 2022, wherein he argued that the evidence 9 indicated above would not be offered to prove Victim's sexual predisposition, but instead it

10 would be offered for impeachment and credibility of Victim as a witness. Moreover Defendant

11 pointed the Court's attention to persuasive authority, Olden v, Kentucky, 488 U.S. 227, for the

12 contention that evidence that is relevant to consent and a motive to lie is constitutionally

13 I required under Defendant's Sixth Amendment right to confrontation and Rule 412 is no bar. I I A hearing on the motion was held on May 13, 2022, where the People argued in 14 support of their motion and Defendant argued in opposition. Since Defendant's Opposition was 15 filed only a day before the oral arguments were held, the Court permitted the People to file

16 their Reply, limited to the scope of the Opposition, by May 23, 2022. The People tiled their

17 Reply on May 20, 2022, and the Court took the matter under advisement on May 24, 2022.

DISCUSSION 18 I

1. RELEVANCE (GRE 401 & 402) 19 The Coult's analysis of admissibility begins with whether the evidence is relevant. 20 I Evidence is relevant if it has "any tendency to make the existence of any fact that is of I I Page 2 of 9 I I I

l consequence to the determination of the action more probable or less probable than it would be

2 I without the evidence." People v. Perez, 2015 Guam 10 1i 40, quoting GRE 401. This threshold I

was intended to be minimally stringent. Id., see Unirea' States v. Amanda-Diaz, 31 F.Supp. ad 3 1285, 1289 (D.N.M. 2014). Further, a fact is of consequence when its existence would provide I the fact-finder wlth a basis for making some inference, or cham of inferences, about an Issue I 5 that is necessary to a verdict. United States v. Began, 497 F. Supp.3d 1025, 1051 (D.N.M.

6 2020). Generally, all relevant evidence is admissible, except as otherwise provided by the

| Constitution of the United States, by the Organic Act, by the laws of Guam, by these Rules or

other rules prescribed by the Supreme Court of Guam pursuant to statutory authority. Irrelevant 8 evidence is not admissible. GRE 402. The Court now Tums to the relevance of the purported 9I evidence. 10 a) Victim's consensual sexual intercourse with her boyfriend after the alleged sexual assault is relevant. 11 Courts have held that testimony about mental trauma following sexual assault is 12 relevant to prove the element of criminal sexual assault. Perez, 2015 Guam 10 1140, see State

13 v, Alexander, 401 S.E. ad 146, 148-49 (S.C. 1991). The Guam Supreme Court has recognized I 14 that such testimony is pertinent because evidence of personality changes tends to establish or

15 make a fact more or less probable that the offense occurred. Id., see also Parker v. State, 846

A.2d 485, 496 (MD. Ct. Spec. App. 2004) (evidence of a victim's conduct following sexual I 16 assault is permitted to "demonstrate that the attack did occur or to show lack of consent.") II 17 I I

Further, the Guam Supreme Court recognized two examples illustrating the same. First, in . I

18 , , u . I I State v. Cummings, the court held that the vlctlm's testimony that he was hospltallzed and

19 . attempted suicide following sexual assault by his Boy Scout leader was material because it

20 supported that the alleged incident took place because the defendant denied the sexual conduct.

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1 716 P.2d 45, 47-48 (AZ. Ct. App. 1985); see Perez, 2015 Guam 10 'H41. Second, in People v.

2 Perez, the Guam Supreme Court held that the victiln's testimony that she sought counseling

services was relevant because the defendant denied that the sexual assault occurred. 2015 3 Guam 10 1141 . 4 Here, without addressing the initial inquiry of whether the evidence is relevant, the

5 People advance the argument that the fact that Victim had consensual sexual intercourse with

6 her boyfriend after the alleged sexual assault is exactly the type of evidence that GRE 412 is

7 intended to exclude. People's Mot. p. 2 (Feb. 14, 2022). Being that the initial inquiry of

relevance is necessary to the Court's analysis, the Court begins there. Therefore, the question is 8 whether the purported evidence of Victim's consensual sexual intercourse with her boyfriend 9 after the alleged assault is relevant. The binding Supreme Court authority demonstrates that

10 . . . . . . . . . Vlctlm's conduct, in this case Vlctlm's consensual sexual Intercourse with her boyfriend after

ll the alleged sexual assault, is relevant and permitted to demonstrate the tendency to show that

12 the alleged assault did occur or to show the lack of consent. See Perez, 2015 Guam 10 1140;see

13 also Parker v. State, 846 A.2d 485, 496 (MD. Ct. Spec. App. 2004). Therefore, consistent with

the binding Supreme Court authority, this Court finds that the evidence of Victim's sexual 14 intercourse with her boyfriend after the alleged sexual assault is relevant. 15 b) Victim's employment at Club USA is relevant.

16 The next inquiry is whether evidence of Victim's place of employment, Club USA, is

17 relevant. Here, the People argue that Victim's place of employment is not relevant. See

People's Mot. p. 2 (Feb. 14, 2022). Defendant, on the other hand, argues that Victim's place of 18 I employment is relevant to Victim's credibility as a witness. Def's Mot. p. 4 (May 12, 2022), 19 Entry 2:45:00 (May 12, 2022). Generally, "the testimony of a victim need not be corroborated 20 in prosecution [of criminal sexual conduct cases specifically] under §§ 25.15 through 25.35."

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I I . I 1 People v, Ffnfk, 2017 Guam 21 1120. However, the Guam Supreme Court held that evidence of I | 2 a victim's credibility is relevant and admissible "when the only witness against the defendant is

the victim." People v. San Nicolai, 2020 Guam 9 11 15. When "the victim's testimony alone 3 I may sustain a conviction, [it] highlights the importance of the victim's credibility." Id. The trial ' I

4 | | | I I . court is concerned wlth the exlstence or nonexlstence of evidence, not its weight. Finfk, 2017

5 Guam 11 22. T he tasks of determining the weight of the evidence and inconsistencies of

6 testimony lies within the purview of the jury. Id. In other words, the question before the Court

7 here is only whether Victim's place of employment is relevant to her credibility as a witness. I

I The actual weight of Victim's employment at Club USA is a question reserved for the jury.

The Court finds that Victim's place of employment is relevant to her credibility for the 9 following reasons. First, Victim's place of employment makes the question of consent more or 10 less probable than it would be without the purported evidence. This satisfies the basic inquiry

11 of relevancy under GRE 401. Second, as the record stands, Victim is the only witness present

12 at the time of the alleged assault. This fact highlights the impedance of Victim's credibility in

13 determining Defendant's guilt. Finally, given the minimally stringent standard of GRE 401, the

Court finds that this purposed evidence is relevant. 14 11. GUAM'S RAPE SHIELD LAW (GRE 412(a)) 15 Having determined that the evidence is relevant under GRE 401, the question then

16 becomes whether GRE 412 bars the evidence firm being admitted. GRE 412 was adopted from

17 the Federal Rules of Evidence Rule 413, and it "aims to safeguard the alleged victim against

the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with 18 I

public disclosure of intimate sexual details." Peopale v, Patrick, 2016 Guam 2 11 28, quoting 19 Wilson v. City coDes Moines, 442 F.3d 637, 643-44 (8th Cir. 2006). It does so by "preclude[ing] 20 the routine use of evidence of specific instances of a rape victim's prior sexual behavior." Id.

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I I (emphasis added); UnitedStates v, Azure, 845 F.2d 1503, 1506 (Sth Cir. 1988). Guam's rape I shield law, GRE 412, provides: 2 (a) Evidence generally admissible. The following evidence is not admissible in any civil or 3 criminal proceeding involving alleged sexual misconduct except as provided in I subdivisions (b) and (c): l) Evidence offered to prove that any alleged victim engaged in other sexual 4 behavior, and 2) Evidence offered to prove any alleged victim's sexual predisposition. 5 San Nicolai, 2020 Guam 9 1] 8 (emphasis added), citing GRE 412(a). The Guam Supreme 6 Court views the purpose of GRE 412 as preventing evidence that is irrelevant or meant to be

harassing. It is not meant to deprive a defendant of the opportunity ro impeach or dzscredtt a

8 witness on credibility. Id. at 'll 12 (emphasis added).

I a) GRE 412 does not apply to Victim's consensual sexual intercourse with her 9 boyfriend after the alleged sexual assault. 10 I First, the People argue the evidence should be excluded under GRE 412 because the I

11 fact that Victim consented to sexual intercourse later with her boyfriend has no bearing on

12 whether she was sexually assaulted earlier that day. People's Mot. p. 2 (Feb. 14, 2022). The

13 People further argue that Rule 412 has been interpreted to bar all other activities that involve

sexual intercourse or contact such as contraceptives, illegitimate child, and evidence of 14 venereal disease. People's Reply p. 3 (May 20, 2022). The People's argument fails for two 15 reasons. First, the authority cited by the People is not persuasive. While other jurisdictions may

16 I have interpreted Rule 412 to bar all sexual activities, the Guam Supreme Court has interpreted I 17 GRE 412 to exclude evidence of specific instances of a rape victim's prior sexual behavior. I

18 | See Patrick, 2016 Guam 2 1] 28 (emphasis added). Here, the purposed evidence here involves

| Victim's sexual behavior ay?er the alleged assault. Therefore, the purported evidence falls I

19 outside the realm of GRE 412, and the analysis jumps to admissibility under GRE 403. Second, 20 I Defendant argues that the evidence will not be used to prove Victim's sexual predisposition,

Page 6 of 9 '| I l but instead be used for impeachment and Victim's credibility. Therefore, even if GRE 412 did

2 | apply to the purported evidence here, GRE 412 is not meant to deprive Defendant of the

opportunity to impeach or discredit Victim on credibility. See San Nico fas, 2020 Guam 9 1] 12. 3 I

In other words, GRE 412 does not apply, nor does it preclude evidence of Victim's consensual 4 sexual intercourse with her boyfriend after the alleged assault for impeachment and credibility

5 purposes. I I

6 b) GRE 412 does not apply to Victinl's place of employment at Club USA.

The Court yields a similar conclusion here. First, Victim's place of employment does 7 not fall within the purview of GRE 412(a)(1) as other sexual behavior that would trigger 8 preclusion. Victim indicated that she was a "waitress" at Club USA, which is not indicative of 9 I

sexual behavior. Second, Defendant argues that the evidence will not be offered to prove 10 Victim's predisposition under GRE 412 (a)(2), but instead for Victim's credibility. Def"s I 11 Opp'n p. 4 (May 12, 2022). The Court has held above that evidence of Victim's place of

12 employment is relevant, and the weight of that evidence is for the jury to decide. Further, GRE

13 I 412 was not meant to deprive Defendant of the opportunity to impeach or discredit Victim on I

credibility. See San Nicolai, 2020 Guam 9 1112. Since GRE 412 does not apply, the Court is 14 not prompted to analyze its exceptions. The Court now turns to GRE 403 . 15 III. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME (GRE 403) 16 Relevant evidence "may be excluded if its probative value is substantially outweighed 17 by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by I 18 . | I » | I consrderatlons of undue delay, waste of time, or needless presentation of cumulative evldenee.3)

19 Perez, 2015 Guam 10 1] 42, quoting GRE 403. "The tem 'unfair prejudice,' as to a criminal I I 20 defendant, speaks to the capacity of some concededly relevant evidence to lure the fact finder

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1 into declaring guilt on a ground different from proof specific to the offense charged." San

2 Nieolas, 2020 Guam 9 1] 13, citing Old Ch fef v. United Stares, 519 U.S. 172, 180 (1997). The

Court has concluded that the purposed evidence is relevant and admissible. Therefore, the final 3 inquiry is whether the probative value of the evidence, limited to the purpose of impeachment 4 and credibility, is substantially outweighed by unfair prejudice to Victim. The Guam Supreme I

5 Court has addressed this inquiry in the San Nicolai case.

6 In People v. San Nicolai, the Supreme Court found no substantial unfair prejudice from

an impeachment question asked to undermine a victim's credibility when the evidence is of a

recanted allegation of criminal sexual conduct involving similar circumstance. 2020 Guam 9 ii 8 15. The Supreme Court further found that because the only witness against the defendant was 9 the victim, and that the victim's testimony alone may sustain a conviction, the probative value

10 of the impeachment question asked to the victim was apparent. Id.

11 The Courl finds that the probative value of the evidence of Victim's consensual sexual

12 intercourse with her boyfriend after the alleged assault, and Victim's place of employment

13 | substantially outweigh the danger funfair prejudice to Victim. This holding is consistent with

the binding Supreme Court authority that when Victim's credibility alone may sustain a 14 conviction there is no unfair prejudice from an impeachment question related to the evidence. 15 See San Nicolai, 2020 Guam 9 11 15. As such, the Court finds that the evidence of Victim's

16 consensual sexual intercourse with her boyfriend after the alleged sexual assault, and Victim's

17 place of employment are relevant and admissible under 401 and 403 .

18 Iv. OLDEN v. KENTUCKY, 488 U.S. 227 (1988)

Defendant points the Court's attention to Olden v. Kentucky, 488 U.S. 227, for the 19 contention that the United States Supreme Court held that a trial court failed to afford a 20 defendant his Sixth Amendment right to confrontation by limiting his examination of an

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l alleged victim due to applicable rape shield law. 488 U.S. at 229-32. Having found that the

2 I GRE 412 rape shield law does not apply to the instant matter, the Court is not prompted to

entertain the cited persuasive authority. 3 I CONCLUSION 4 For the above reasons, the Court DENIES the People's Motion in Limine to Exclude

5 Certain Evidence Under GRE 412 and 403. The evidence will be admitted and subject to the

6 limited use set forth in Defendant's Opposition-impeachment and credibility.

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I IT IS SO ORDERED JUN 22 21122 8

HONORABLE KRTHUR R. BARCINAS 11 Judge, Superior Court of Guam

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