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4 8U?E§§1§U§{ G'€8»URT
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5
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
28
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
16
17 Judge, Superior Court of Guam 18
19
20
21
22
23
24
25 SERVICE VIA,E-MAlt I etknowledgl! that'1111 elettronit; ..,PYoflheon~')was.:nwr..iu,:
26 . 44,, f>5v, 27
28
People v. ,\fora Case No. CF0023-23 Decision and Order
Page6 of6