People v. Mora

Opinion

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6 IN THE SUPERIOR SUPERIOR COURT OF GUAM 7

8 PEOPLE OF GUAM, CRIMINAL CASE CASE NO. no. CF0023-23 CF0023-23 9 vs. 10 10 DECISION AND ORDER 11 11 JOELANDO PABLO MORA, 12 12 Defendant. 13 13

14 INTRODUCTION INTRODUCTION 15 This matter came before the Honorable Vernon Vemon P. Perez on August 13, 2024, for hearing 16 16 on Defendant Joelando Pablo Defendant Joelando Pablo Mora's Mora's ("Defendant") Motion to ("Defendant") Motion to Sever. Sever. Present Present were Assistant Assistant 17 17 Attorney General Christine S. S. Tenorio Tenorio on on behalf behalf of of the People of Guam ("the Government") and 18 18 Depu ty Public Deputy Pu bl i c Defender Defender John John P. P. Morrison Mori on behal Defendant. 1 Having behalf of Defendant' Having reviewed the the 19 pleadings, the arguments presented, and the record, the Court now now issues the the following following Decision 20 20 and Order. 21 BACKGROUND 22 22 On January January 20, 2023, Defendant was was indicted with the the following following charges: (1) First Degree Degree 23 23 Criminal nal Sexual Conduct ct (As a Fi rst Deg First Degree Felony); ony), (2 (2) Second Second Deg Degree Cri Criminal Sexu Sexual 24 24 Conduct (As a First Degree Degree Felony); Felony); (3) Third Degree Degree Criminal Criminal Sexual Conduct (As a Second 25 25 Degree g r e e Felony); l o n y ) , and n d (4) FFourth o h Degree r e e Criminal i n a l Sexual a l Conduct u c t (As A s aa TThird h i r DDegree egr 26 26

27 27

28 28 '1 Defense counsel counsel waived waived Defendant's Defendant's presence presence for for this this hearing. hearing.

People v. v. Mora Mora Case No. CF0023-23 CF0023-23 Decision Decision and and Order

Page 1 1 of of66 1 Felony). Felony). (Indictment, (Indictment,Jan. Jan. 20, 20, 2023). 2023). The TheFirst Firstand andSecond SecondCharges Charges allege allegesexual sexual penetration penetration 2 and sexual contact and sexual contact occurring occurring on or about January January2023 2023against againstK.J.C. K.J.C.(DOB: (DOB: 11/14/201 11/14/2011).l).Id. Id

3 The Third Third and and Fourth Fourth Charges allege allege sexual sexual penetration penetration and and sexual conduct occurring on on or or about 4 December December 2020 against againstN.M. N.M. (DOB: (DOB: 12/03/2004). Id 12/03/2004). Id. 5 On July July 19, 2024, Defendant 19, 2024, Defendantfiled tiled the the instant instantMotion, Motion, moving moving to sever sever the the charges charges into 6 two separate trials. On July separate trials. July 31, 31,2024, 2024,the theGovernment Governmentfiled filedits itsOpposition. Opposition.No NoReply Reply was was filed. filed.

7 On August August 13, 13, 2024, 2024, the Court heard arguments on the arguments on the Motion Motion and and subsequently subsequently placed 8 the matter under under advisement. advisement.

9 DISCUSSION

10 10 Under Guam law, law, two or more offenses offenses may may be be charged charged in the same indictment"if same indictment "if the

11 11 offenses offenses charged are of charged are ofthe the same same or or similar similarcharacter character or or based based on on the the same same act act or or transaction transaction or 12 12 on two or or more more acts acts or or transactions transactions occurring together together or or constituting parts of a common common scheme 13 13 or or plan." plan." 88G.C.A. G.C.A.§§55.35. 55.35.22 Severance Severance may may be be appropriate, however: appropriate, however: 14 If If itit appears appears that that a defendant or the defendant or the government governmentisis prejudiced prejudicedby byaajoinder jointer of offenses or of ofdefendants defendants in an indictment indictment oror information informationor or by by such suchjoinder jointer for 15 15 trial together, the court may order anan election election or or separate separate trials of ofcounts, counts, grant grant a 16 severance of defendants or provide whatever whatever other other relief reliefjustice justicerequires requires. 17 17 8 G.C.A. §§65.25. 8 G.C.A. 65.25. 33 18 18 In In this case, Defendant sets sets forth forth that thatthe the charges chargesshould shouldbe besevered severedbecause because"[s]ave "[s]ave for 19 the the nature of the allegations, nature of allegations, both events events involve different different complaining complaining witnesses, and will witnesses, and will 20 20

21 22 Section Section 55.35 55.35 is is substantially the same as Rule 8 of the Federal Rules Rules of of Criminal Procedure, Procedure, which which provides: 22 22 (a) Joiner ofofOffenses. (a) Joinder Offenses. The Theindictment indictmentororinformation informationmay maycharge chargeaadefendant defendant in in separate separate counts counts 23 with 2 or more offenses if if the offenses charged -. whether felonies felonies or or misdemeanors misdemeanors or or both both -- are 23 of of the same or or similar similar character, or are based on the same act or transaction, or are connected with or constitute parts parts of of aa common common scheme or plan. 24 Fed. R. Crirn. p. 8. Crim. P. 25 33 Section Section65.35 65.35isissubstantially substantially similar similar to Rule Rule 14 14 of of the the Federal Rules of Criminal Procedure, which provides: 26 26 If the If the joinder ofoffenses jointer of offenses or or defendants defendants in an indictment, an an information, information, or or aa consolidation consolidation for for trial trial appears to appears to prejudice a defendant or the government, the the court court may order separate separate trials trials of of counts, counts, 27 27 sever the defendants' defendants' trials, trials, or or provide provide any other relief relief that justice justice requires. 28 Crim. P. Fed. R. Crum. P. 14(a). 14(a).

People v. v. Mora Mora Case No. CF0023-23 Decision Decision and and Order

Page 2 of6 of 6 1 involve different different defenses." defenses." (Mot. (fylot.Sever Severatat1). 1).Defendant Defendantargues argues that that "[i]f "[i]fthe thematters matters persist persist 2 according to the according to currentjoinder the current jointer of of offenses, offenses, there there is is aa likelihood likelihood that that there will will be be confusion confusion as as 3 Mr. Mora's defense to each defense to eachgroup groupof ofallegations allegationsare are vastly vastly different."Id.Id The Government different." 4 opposes, arguing arguing that thatthis thismatter matter"involves "involves two different different minor minor victims victims in in their their adolescent adolescent years, 5 both of whom were close to the Defendant and andover over whom whom he hehad hadsupervision. supervision.The The victim victim from

6 2020 2020 would be a potential potential witness to the case involving involving the the victim victiminin2023, 2023,pursuant pursuant to Guam Guam 7 Rule of of Evidence 413.... 413 ....Because Becauseboth bothtrials trials would would involve involvethe the same same witnesses, jointer would witnesses, joinder 8 be convenient and andeconomical." economical." (Opp'n (Opp'n at at 5). 5). The TheGovernment Governmentalso also sets sets forth forth that "Defendant's "Defendant's

9 intent to engage in sexual penetration with with both of of the children would be proven by evidence evidence that that 10 10 it happened tomore happened to morethan thanone onechild childover overthe thecourse courseofofthree threeyears." years."Id. Id

11 "[T]he "[T]heprimary primarypurpose purpose of ofRule Rule8(a) 8(a)jointer joinderisistotoensure ensurethat thataa given giventransaction transaction need only 12 12 be proved once once.... ....Where Wherethere thereisissubstantial substantial overlap in evidence between between two two offenses, offenses,joinder jointer

13 13 eliminates the the need to to prove substantially thesame substantially the sameevidence evidencetwice twice over, over, thus thusrealizing realizing precisely

14 14 the kind kind of of economy economy envisaged envisagedby byRule Rule8(a)." 8(a)." Howerton v. v. United United States, States, 964 A.2d A.2d 1282, 1282, 1292 1292 15 (D.C. (D.C. 2009) 2009) (citations, (citations,internal internalquotation quotation marks, marks, and alterations alterations omitted). omitted). See See also United United States States 16 16 v. Terry, v. Terry, 911 F.2d 272,276 911 F.2d 272, 276(9th (9thCir. Cir.1990) 1990)("When ("When ... ... joined joinedoffenses offensesare arenot notconnected connected and and are 17 17 not provable provable by by the the same sameevidence, evidence,joinder jointer is is improper."). improper."). Rule Rule 8(a) 8(a) isis "construed "construed broadly broadly in 18 18 favor of initial jointer." United initial joinder." United States States v. v. Walser, Walser, 33 F.3d 380, 385 (11th 380, 385 (lath Cir. Cir. 1993) 1993) (citation (citation 19 19 omitted). omitted). 20 We consider consider itit appropriate appropriate toto consider consider factors factors such such asas the elements of ofthe the statutory statutory offenses, offenses, the the temporal proximity of ofthe the acts, the likelihood acts, the likelihood and extent extentofof evidentiary 21 overlap, overlap, the the physical physical location locationofofthe theacts, acts, the themodus modus operandi operandi ofofthe the crimes, crimes, and and the 22 identity identity of of the the victims victims ininassessing assessing whether whether an an indictment meets the indictment meets the "same "same or 23 similar character" character" prong prongof of Rule Rule 8(a). 8(a). The weight givengiven to to aa particular factor will particular factor will 23 depend on thethe specific specific context context of ofthe the case case and and the allegations in in the indictment. But 24 the the bottom bottom line is is that that the the similar similar character character of of the the joined offenses offenses should should be 25 25 ascertainable-either ascertainable-eitherreadily readilyapparent apparent oror reasonably reasonablyinferred-from inferred-from the the face of of the indictment. indictment. 26 26 United United States v.v. Jawara, Jawara, 474 F.3d 565, 565, 578 578 (9th (9th Cir. Cir. 2007). 27

People v. Mora Case No. cF0023-23 CF0023-23 Decision Decision and and Order

Page 3 of6 of 1 Here, although the Indictment although the Indictment identifies two separate separate victims, the Court Court finds finds that that the 2 charges are properly charges are properly joined. The charges charges are are similar similar in in nature: nature: Defendant Defendant is accused accused of 3 committing sexual penetrationand sexual penetration andsexual sexualcontact contactagainst againstboth bothvictims victimswho whowere wereminors. minors. The

4 alleged events events occurred roughly two years occurred roughly years apart apart (December 2020 2020 and January2023). and January 2023). Both

5 victims also have a familial familial relationship relationship to Defendant. Defendant. Further, Further, as as the the Government Government sets sets forth, forth, 6 even ififthe even the Court Court were to to sever sever the the counts asto counts as to each eachalleged allegedvictim, victim, each eachvictim victim may may still still testify

7 at the the other's other's severed severed trial trialpursuant pursuant to Rule 413. 4 See, Rule 413.4 See, e.g., e.g., People v. v. Gaines, Gaines, 856 N.W.2d 222, 8

9 4 Although thethe Court does not Court does not have have aa Rule Rule 413 Motion before it as 413 Motion as the the charges charges arearejoined, joined, the theCourt Courtwill will briefly address address thetheissue explainwhy issuetotoexplain why the theGovernment Governmentwould wouldbe beable ableto tocall call each victim victim to testify testify as as a witness at the theother's other's 10 trial if ifthe the chargers chargers were severed. severed. Guam's Guam's Rule Rule 413 413 isis substantially substantially similar toto the the Federal Federal Rules Rules of of Evidence 413, 11 which was enacted by Congress as a fundamental fundamentalexception exceptiontotoRule Rule 404(b). 404(b). People People v.v. Chined, Chine!, 2013 Guam24 ,r,r 24111121- 22. 22. Its Itspurpose purpose "was "was totosupersede supersede Rule 404(b)'s 404(b)'s prohibition prohibition on on evidence evidence of oflike likeconduct conduct showing showing propensity propensity in 12 sexual assaultcases." sexual assault cases." [al Id. at ,r 21. For at 1121. Forevidence evidencetotobe beadmissible admissible under under Rule 413,413, the following following elements elements must must be met: met: 13 13 First, the the defendant defendant inin the the present present case case must be accused accused of of sexual assault. Second, sexual assault. Second, the evidence evidence 14 14 proffered must proffered be evidence must be evidence of ofthe the defendant's defendant's commission commission of ofanother another past past act act of ofsexual sexual assault. assault. Third, Third, the the past past act act must be relevant, meaning that its its existence existence must must make make any fact atat issue issue more or 15 15 less probable probable than than if if such evidence were such evidence were excluded.

16 16 Chined, Chine!, 2013 Guam 24 2013 Guam ,r 25 (internal 241125 (internalcitations citationsomitted). omitted). TheThe first firstand and second second prongs are clearly met met as as Defendant is accused accused of of committing sexual assaultagainst sexual assault againstbothbothvictims. victims. The thirdthird prong is also met met asas the the evidence is relevant 17 17 because because it would present evidence of present evidence of past past criminal sexual sexual conduct which is usually usually probative probative of aa current allegation current allegation 18 18 of criminal sexual of criminal conduct. See id. at sexual conduct. ,r 28 (citing at 1128 (citing Doe ex rel. rel. Rue-Glanzer Rudy-Glanzer v. v. Glanzer, Glanzer, 232 F.3d 1258, 1258, 1268 (9th 2000)) ("it is generally accepted that a defendant with a propensity to commit acts similar to those charged is Cir. 2000)) ("it is generally accepted that a defendant with a propensity to commit acts similar to those charged 19 19 more likely likely toto have have committed committed the the act than anotherand than another andtherefore thereforesuchsuchevidence evidenceis isrelevant."). relevant."). Additionally, Additionally, Rule 413 413 simply simply states states "another "another offense or or offenses offenses of ofcriminal criminal sexual sexual conduct." conduct." ItItdoesdoesnot notcontain contain anyany "inherent "inherent 20 chronological limitation." chronological limitation." See, See, e.g., United States v. United States Sioux, Sioux, 362 F.3d 1241 (9th Cir. 2004) ("we have little doubt that 1241 (9th Cir. 2004) ("we have little doubt that the plain language the language of of the the rule rule permits permits admission admission of ofsubsequent subsequent acts acts evidence evidence to the the same same extent it it permits permits the the 21 introduction of evidence evidence tending tending to to demonstrate demonstrate prior acts acts of of sexual sexual misconduct."). 22 The Court then then turns Mrs to to aa Rule Rule 403 403 analysis. analysis. See See People People v. v. Wesen, Wes en, 2022 Guam Guam 18 ,r 4 7 ("even 181147 ("even when whenevidence evidence qualifies under under GRE 413, 413, Chine] Chine! requires requires courts to conduct conduct a GRE 403 403 analysis analysis using using framework as as provided in 23 United States United States v. LeMmy"). LeMay"). The TheCourt Court evaluates: evaluates: "(1) "(1)the similarity ofofthe thesimilarity theprior prioracts acts to to the the acts acts charged, charged; (2) the the closeness in timetime of the prior the prior acts to the acts charged, (3) the frequency to the acts charged; (3) the frequency of the of the prior acts, (4) acts; (4) the presence or lack presence or lack of of 24 intervening circumstances,and intervening circumstances; and(5) (5)the thenecessity necessityof of the the evidence evidence beyond beyond the the testimonies testimoniesalreadyalreadyoffered offered atat trial." trial."

25 Chanel, Chine!, 2013 Guam Guam24 ,r (citing United 241139 United States States v. LeMan, LeMay, 260 F.3d 1018, 1018, 1028 1028(9th(9thCir. Cir.2001)). 2001)). The CourtCourt does not have have toto specifically specificallyaddress address each each factor, factor, but but must must conduct conduct aa searching searching inquiry. Chined, Chine!, 2013 2013 Guam Guam 24 24 ,rii 39 26 (stating that that the LeMan LeMay factors are are not not exhaustive exhaustive or or mandatory mandatory and and that the the trial courts courts may consider consider additional additional factors or may ignore any any of the factors that that are areirrelevant). irrelevant). In In evaluating evaluating the factors, factors, thethe Court Courtnotes notesthe thefollowing: following: 27 Defendant Defendant is accused accused of of committing sexualsexual penetration penetrationand andsexual sexualcontact contactwith withboth bothvictims victimsroughly roughlytwenty-five twenty-five(25) (25) months apart. There are two specific instances of criminal sexual conduct months apart. There are two specific instances of criminal sexual conduct alleged for each victim. alleged for each victim. The Government Government 28 sets that "Defendant's "Defendant's intent to engage in sets forth that in sexual sexual penetration penetration withwith both both ofof the children would be proven by

People v. v. Mora Mora Case No. CF0023-23 Case No. CF0023-23 Decision Decision and and Order

Page 4 of6 of 6 1 236 (Mich. 2014) ("Because defendant's actions against each victim were admissible in each case

2 pursuant to to [Michigan's [Michigan's analogous Rule 413], 4l3], each victim would would have have been been required required to testify in 3 each trial if each trial the cases if the cases were Weretried triedseparately. separately.Joinder Joiner offered offered convenience convenience to to the the victims, victims, Who who had had 4 already suffered harassment harassment in in their their communities communitiesasasaaresult result of ofthese these cases.") cases.").. s 5 Even if if offenses offenses are are properly joined, the Court may grant severance of the offenses offenses if if 6 Defendant is prejudiced by by such such joinder. jointer. See United United States v. Whitworth, Whitworth, 856 F.2d 1268, 1268, 1277 1277 7 (9th Cir. 1988) (requiring a showing showing that "joinder binder was was so somanifestly manifestly prejudicial prejudicial that that itit outweighed outweighed

8 the dominant concern with judicial economy economy and and compelled compelled exercise exercise of ofthe the court's court's discretion discretion to 9 sever."). sever."). "The "The prime prime consideration consideration in in determining determining whether whether or or not not to to grant grant aa severance severance is the 10 10 possibility of prejudice possibility of prejudice toto the the defendant defendant in in conducting conductinghis his defense. defense. Weighing the danger danger of of 11 11 confusion and undue confusion and undue cumulative inference isis a matter cumulative inference for the trial matter for judge within his sound trial judge sound 12 12 discretion." Johnson v. United States, States, 356 F.2d 680, 682 (8th Cir. 1966), cert. denied, 385 U.S. cert. denied, 13 13 857 (1966). (1966). "It "It is not enough simply to show that suchjoinder such jointer makes it more difficult to to defend." defend."

14 14 Id. (citations ( citationsomitted) omitted). 1s 15 Here, Defendant Defendant argues that he will be prejudiced because "there is a likelihood that there

16 16 will be confusion as Mr. Mr. Mora's Mora's defense to each group of allegations allegations are are vastly vastly different." different." (Mot.

17 17 Sever at 1). ). At At the the Motion Motion Hearing, Hearing, Defendant DefendantMother further set forth that because because one of the alleged

18 18 victims has accused at least least five five family family members members of of committing committing criminal sexual conduct against

19 19 her, the jury jury may be confused as to to what what weight weight to to place place on on the the testimony testimony of each victim victim and may

20 misplace the issues issues before before it. it. The The Court Court acknowledges acknowledges Defendant's Defendant's argument argumentthat that he he may may suffer 21 some risk of of prejudice prejudi~_e if if the charges are not severed, however, the Court is not convinced at this 22 22 time that such prejudice rises to to a level requiring severance. See, See, Ag., e.g., United United States v. Begun, Begun, 23 23

24 evidence that it happened happenedto tomore morethan thanoneonechild childover overthe thecourse courseofofthree threeyears." years."(Opp'n (Opp'n at 5). 5). The Government also indicated indicated atat the the Motion Motion Hearing Hearing that that the the testimony testimony ofofDefendant's Defendant'sstep-daughter step-daughter would would help help rehabilitate rehabilitate the the 25 credibilityofofthe credibility theother othervictim victimwhowhomay maybe beaccused accused ofoflying lyingbecause becausesheshe has has accused multiple individuals accused multiple individuals of of sexually 26 assaulting her. "Prior assaulting her. acts evidence "Prior acts evidence need need not not be be absolutely absolutely necessary necessary to the the prosecution's prosecution's case case in order toto be be introduced, introduced; it must simply be helpful or practically must simply practically necessary." necessary." Leman, LeAfay, 260 260 F.3d F.3d at at 1029 (emphasisin 1029 (emphasis in original). original). 27 Thus, the Thus, the Court finds that K.J.C. (DOB: (DOB:11/14/2011) would be 11/14/2011) would be able able to to testify as to the testify as acts committed the acts committed against against her by her by Defendant inin trial for forN.M. N.M.(DOB: (DOB:12/03/2004) 12/03/2004) andand vice versa as the acts meet the threshold requirements vice versa as the acts meet the threshold requirements of Rule of Rule 28 413 and and Rule 403. 403.

People v. v. Mora Mora Case No. CF0023-23 Case No. Decision Decision and and Order

Page Page 5 of6 of 446 F.2d 32, 33 (9th Cir. 1971) ("an important factor in determining whether prejudice exists is 2 whether the evidence of one of the crimes would be admissible in a separate trial for the other 3 crime. If the answer is affirmative, the joinder of offenses, in most instances, will not be· 4 prejudicial."). "Even where there may be some risk of prejudice, if the possibility of prejudice 5 may be cured by a cautionary instruction severance is not required.'' United States v. Walser, 3 6 F.3d 380, 385 (11th Cir. 1993) (citation and quotation marks omitted). The Court finds that the 7 use of limiting instructions will prevent the jury's verdict on any one charge to affect the jury's 8 verdict on any other charge. "Juries are presumed to follow their instructions.'7 Zafiro v. United 9 States, 506 U.S. 534, 540 (1993) (citation omitted). Therefore, the Court denies Defendant's Motion to Sever. 11 CONCLUSION 12 For the foregoing reasons, the Court hereby DENIES Defendant's Motion to Sever. 13 · 11~~ 14 IT IS SO ORDERED this U day of October, 2024. 15

17 Judge, Superior Court of Guam 18

25 SERVICE VIA,E-MAlt I etknowledgl! that'1111 elettronit; ..,PYoflheon~')was.:nwr..iu,: 26 . 44,, f>5v, 27

People v. ,\fora Case No. CF0023-23 Decision and Order

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