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5 PEOPLE OF GUAM, ) CR1M1NAL CASE no. CF0346- 17 6 ) v. ) DECISION AND ORDER DENYING 7 ) DEFENDANT'S MOTION FOR JUDGMENT 8 KENNETH LEON GUERRERO NINETE, ) OF ACQUITTAL ) 9 DEFENDANT. ) 10 )
11 In tr o d u ctio n 12 This matter came before the Honorable Maria T. Cenzon on April 10, 2018 on Kenneth 13 Leon Guerrero Ninete's ("Defendant") Motion for Judgment of Acquittal following the close of 14 the People's case-in-chief. Defendant was present and represented by Assistant Puliiic Defender 15 William Bischoff. The People of Guam (the "People") were represented by Assistant Deputy 16 Attorney General .James Collins and Assistant Attorney General Terry VanEaton. Having 17 considered the parties' oral arguments, the record, and the relevant law, the Court ruled from the 18 bench DENYING Defendant's Motion for Judgment of Acquittal. The Court issues this Decision 19 and Order memorializing its decision. 20 Backg r o u n d 21 22 Defendant was charged by indictment with Two Counts of FIRST DEGREE
23 CRIMINAL SEXUAL CONDUCT (as a First Degree Felony) in violation of 9 G.C.A. §§
24 25.15(a)(1)1 and (b) and Three Counts of SECOND DEGREE CRIMINAL SEXUAL
26 27 1 The statute provides, "A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with the victim and if the victim is under fourteen (14) years of age." 28 People of Guam v. Kenneth Leon Guerrero Ninety, CF0346-17 D & O DenyingDefendant's Motion for Judgment of Acquittal Page 1of 4 \ \ ii
CONDUCT (as a First Degree Felony) in violation of 9 G.C.A. §§ 25.20(a)(l)2 and (b). 1 Indictment (Jun. 26, 2017). Jury trial was held April 4 - ll, 2018. On April 9, 2018, at the Close 2 of the People's case-in-chief, Defendant orally moved for Judgment of Acquittal. Defendant 3
4 argued the People failed to satisfy its burden of proof for both counts of Charge l, First Degree
5 Criminal Sexual Conduct. Defendant claims no evidence was presented to suggest a sexual
6 penetration occurred.3 Defendant cites to the testimony of the alleged victim ("R.S.") that her
7 underwear was never removed during the alleged incident.4 Additionally, Defendant reasons
8 there was no evidence of forced penetration, as testified by sexual assault nurse examiner Ann 9 Rios, which one would expect to find based on the allegations that R.S. was asleep during the 10. incident. 11 The People opposed the motion maintaining R.S. testified that she "woke up to the
12 Defendant penetrating her with his penis."5 Although R.S. testified that her underwear was never
13 removed, it is not impossible for a sexual penetration to occur. Further, that Defendant's
14 argument that no evidence of forced penetration was presented contradicts Guam law which does
15 not require corroboration in similar cases. Nonetheless, there was medical and scientific evidence
16 presented in this case. 17 Discussion 18 A motion for judgment of acquittal should be granted "if the evidence is insufficient to 19 sustain a conviction of such offense or offenses." 8 Guam Code Ann. § 100.10 (2005). Under 20 Guam law, "[t]he trial court determines whether a motion for judgment of acquittal should be 21 granted by applying the same test used when the sufficiency of evidence is challenged." People 22 v. George, 2012 Guam 22 'H 47 (citing People v. Song, 2012 Guam 21 *H 26). The Court, 23 therefore, conducts its review of the sufficiency of evidence by determining whether "crediting 24 all of the People's evidence and drawing every reasonable inference form it in favor of the 25
26 2 The statute provides, "A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if that other person is under fourteen (14) years of age." 27 3 Digital Recording at 10:22:02 (Jury Trial Day #4, Apr. 9, 2018). 4 Id. at 10122: 14. 28 old. a 10:23:IL People of Guam v. Kenneth Leon Guerrero Ninete,CF0346-17 D&O Denying Defendant's Motion for Judgment of Acquittal Page 2 of 4 \
1 prosecution, a rational trier of fact could find [the defendant] guilty beyond a reasonable doubt."
2 People v. Anastasia, 2010 Guam 18 'll 17 (citing People v. Maysho, 2005 Guam 4 'H 6, People v.
Guerrero, 2003 Guam 18 'H 13) 3
4 W hen ruling on a motion for judgment of acquittal, a court is only "concerned with the
5 existence or nonexistence of evidence, not its weight." People v. Quitugua, 2015 Guam 27 'il 76
6 (citing George, 2012 Guam 'll 51). Accordingly, it is the role of the trier of fact, and not this
7 court, to fairly 'resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
8 inferences from the basic facts to ultimate facts." People v. Qui rata, 1999 Guam 6 '][ 14.
9 The Court denied the Defendant's motion for judgment of acquittal because it found that
10 the .evidence presented required weighing the credibility of various witnesses, determining the
1.1 plausibility of conflicting explanations, and rnaddng inferences. Song, 2012 Guam 21 'H 18. After
12 weighing all of the evidence presented in this case, the jury returned a unanimous verdict that
13 Defendant was guilty of Charge 1, Count One First Degree Criminal Sexual Conduct (as a First
14 Degree Felony) and of Charge 2, Count One and Two Second Degree Criminal Sexual Conduct
15 (as a First Degree Felony). Defendant was acquitted of Charge 1, Count Two First Degree
16 Criminal Sexual Conduct (as a First Degree Felony) and Charge 2, Count Three Second Degree 17 Criminal Sexual Conduct (as a First Degree Felony). 18 The Court disagrees with Defendant that the People did not present evidence of sexual 19 penetration. As argued by the People, R.S. testified that she felt the Deflendant's penis and finger 20 enter her primary genital area.6 Further, the testimony of FBI Analyst Brandon McCollum 21 confirmed the Defendant was a source of the DNA found on a rape lat swab.7 Notwithstanding 22 that Guam law does not require a victim's testimony to be corroborated in a prosecution for this 23 case,8 the People presented corroborating evidence to allow the trier of fact to determine whether 24 sexual penetration occurred. Thus, crediting all of the People's evidence and drawing every 25
26 s Digital Recording at 10:20:11 (Jury Trial Day #2, Apr. 5, 2018). 27 7 Id. at 9:52:00 (Jury Trial Day #4, Apr. 9, 2018). s Title 9 of the Guam Code Annotated § 25.40, in its entirely provides, "The testimony of a victim need not be 28 corroborated in prosecutions under §§25.15 through 25.35." People of Guam v. Kenneth Lenz Guerrero Ninety; CF0346-17 D&O Denying Defendant's Motion for Judgment of Acquittal Page 3 of 4 . . I \
reasonable inference from it in favor of the prosecution, a rational trier of fact could End the 1 Defendant guilty beyond a reasonable doubt. 2 The Court also disagrees with Defendant's contention and finds that it misconstrues Rios' 3
4 testimony. Contrary to Defendant's argument, Rios testified that a lack of physical injuries do
5 not negate whether a sexual penetration occurred. 9 In fact, physical findings are only present in
6 20% of alleged sexual assault cases and that it is more common, in her experience, that a victim
7 does not have physical injuries. Rios specifically denied that an examination for an alleged
8 sexual assault would typically reveal bruising.10 Further, that there are "several factors" to
9 consider as to why there are no physical findings. Rios confirmed that her examination cannot
10 rule out an allegation of sexual assault, but her role is to perform medical care for a patient.
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5-"!Lg-jf) SUPERIGR COURT DF GUAH 1 zulsmlw -8 PH l=l49 2 CLERKOFCOURT 3 n- \ - nun
5 PEOPLE OF GUAM, ) CR1M1NAL CASE no. CF0346- 17 6 ) v. ) DECISION AND ORDER DENYING 7 ) DEFENDANT'S MOTION FOR JUDGMENT 8 KENNETH LEON GUERRERO NINETE, ) OF ACQUITTAL ) 9 DEFENDANT. ) 10 )
11 In tr o d u ctio n 12 This matter came before the Honorable Maria T. Cenzon on April 10, 2018 on Kenneth 13 Leon Guerrero Ninete's ("Defendant") Motion for Judgment of Acquittal following the close of 14 the People's case-in-chief. Defendant was present and represented by Assistant Puliiic Defender 15 William Bischoff. The People of Guam (the "People") were represented by Assistant Deputy 16 Attorney General .James Collins and Assistant Attorney General Terry VanEaton. Having 17 considered the parties' oral arguments, the record, and the relevant law, the Court ruled from the 18 bench DENYING Defendant's Motion for Judgment of Acquittal. The Court issues this Decision 19 and Order memorializing its decision. 20 Backg r o u n d 21 22 Defendant was charged by indictment with Two Counts of FIRST DEGREE
23 CRIMINAL SEXUAL CONDUCT (as a First Degree Felony) in violation of 9 G.C.A. §§
24 25.15(a)(1)1 and (b) and Three Counts of SECOND DEGREE CRIMINAL SEXUAL
26 27 1 The statute provides, "A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with the victim and if the victim is under fourteen (14) years of age." 28 People of Guam v. Kenneth Leon Guerrero Ninety, CF0346-17 D & O DenyingDefendant's Motion for Judgment of Acquittal Page 1of 4 \ \ ii
CONDUCT (as a First Degree Felony) in violation of 9 G.C.A. §§ 25.20(a)(l)2 and (b). 1 Indictment (Jun. 26, 2017). Jury trial was held April 4 - ll, 2018. On April 9, 2018, at the Close 2 of the People's case-in-chief, Defendant orally moved for Judgment of Acquittal. Defendant 3
4 argued the People failed to satisfy its burden of proof for both counts of Charge l, First Degree
5 Criminal Sexual Conduct. Defendant claims no evidence was presented to suggest a sexual
6 penetration occurred.3 Defendant cites to the testimony of the alleged victim ("R.S.") that her
7 underwear was never removed during the alleged incident.4 Additionally, Defendant reasons
8 there was no evidence of forced penetration, as testified by sexual assault nurse examiner Ann 9 Rios, which one would expect to find based on the allegations that R.S. was asleep during the 10. incident. 11 The People opposed the motion maintaining R.S. testified that she "woke up to the
12 Defendant penetrating her with his penis."5 Although R.S. testified that her underwear was never
13 removed, it is not impossible for a sexual penetration to occur. Further, that Defendant's
14 argument that no evidence of forced penetration was presented contradicts Guam law which does
15 not require corroboration in similar cases. Nonetheless, there was medical and scientific evidence
16 presented in this case. 17 Discussion 18 A motion for judgment of acquittal should be granted "if the evidence is insufficient to 19 sustain a conviction of such offense or offenses." 8 Guam Code Ann. § 100.10 (2005). Under 20 Guam law, "[t]he trial court determines whether a motion for judgment of acquittal should be 21 granted by applying the same test used when the sufficiency of evidence is challenged." People 22 v. George, 2012 Guam 22 'H 47 (citing People v. Song, 2012 Guam 21 *H 26). The Court, 23 therefore, conducts its review of the sufficiency of evidence by determining whether "crediting 24 all of the People's evidence and drawing every reasonable inference form it in favor of the 25
26 2 The statute provides, "A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if that other person is under fourteen (14) years of age." 27 3 Digital Recording at 10:22:02 (Jury Trial Day #4, Apr. 9, 2018). 4 Id. at 10122: 14. 28 old. a 10:23:IL People of Guam v. Kenneth Leon Guerrero Ninete,CF0346-17 D&O Denying Defendant's Motion for Judgment of Acquittal Page 2 of 4 \
1 prosecution, a rational trier of fact could find [the defendant] guilty beyond a reasonable doubt."
2 People v. Anastasia, 2010 Guam 18 'll 17 (citing People v. Maysho, 2005 Guam 4 'H 6, People v.
Guerrero, 2003 Guam 18 'H 13) 3
4 W hen ruling on a motion for judgment of acquittal, a court is only "concerned with the
5 existence or nonexistence of evidence, not its weight." People v. Quitugua, 2015 Guam 27 'il 76
6 (citing George, 2012 Guam 'll 51). Accordingly, it is the role of the trier of fact, and not this
7 court, to fairly 'resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
8 inferences from the basic facts to ultimate facts." People v. Qui rata, 1999 Guam 6 '][ 14.
9 The Court denied the Defendant's motion for judgment of acquittal because it found that
10 the .evidence presented required weighing the credibility of various witnesses, determining the
1.1 plausibility of conflicting explanations, and rnaddng inferences. Song, 2012 Guam 21 'H 18. After
12 weighing all of the evidence presented in this case, the jury returned a unanimous verdict that
13 Defendant was guilty of Charge 1, Count One First Degree Criminal Sexual Conduct (as a First
14 Degree Felony) and of Charge 2, Count One and Two Second Degree Criminal Sexual Conduct
15 (as a First Degree Felony). Defendant was acquitted of Charge 1, Count Two First Degree
16 Criminal Sexual Conduct (as a First Degree Felony) and Charge 2, Count Three Second Degree 17 Criminal Sexual Conduct (as a First Degree Felony). 18 The Court disagrees with Defendant that the People did not present evidence of sexual 19 penetration. As argued by the People, R.S. testified that she felt the Deflendant's penis and finger 20 enter her primary genital area.6 Further, the testimony of FBI Analyst Brandon McCollum 21 confirmed the Defendant was a source of the DNA found on a rape lat swab.7 Notwithstanding 22 that Guam law does not require a victim's testimony to be corroborated in a prosecution for this 23 case,8 the People presented corroborating evidence to allow the trier of fact to determine whether 24 sexual penetration occurred. Thus, crediting all of the People's evidence and drawing every 25
26 s Digital Recording at 10:20:11 (Jury Trial Day #2, Apr. 5, 2018). 27 7 Id. at 9:52:00 (Jury Trial Day #4, Apr. 9, 2018). s Title 9 of the Guam Code Annotated § 25.40, in its entirely provides, "The testimony of a victim need not be 28 corroborated in prosecutions under §§25.15 through 25.35." People of Guam v. Kenneth Lenz Guerrero Ninety; CF0346-17 D&O Denying Defendant's Motion for Judgment of Acquittal Page 3 of 4 . . I \
reasonable inference from it in favor of the prosecution, a rational trier of fact could End the 1 Defendant guilty beyond a reasonable doubt. 2 The Court also disagrees with Defendant's contention and finds that it misconstrues Rios' 3
4 testimony. Contrary to Defendant's argument, Rios testified that a lack of physical injuries do
5 not negate whether a sexual penetration occurred. 9 In fact, physical findings are only present in
6 20% of alleged sexual assault cases and that it is more common, in her experience, that a victim
7 does not have physical injuries. Rios specifically denied that an examination for an alleged
8 sexual assault would typically reveal bruising.10 Further, that there are "several factors" to
9 consider as to why there are no physical findings. Rios confirmed that her examination cannot
10 rule out an allegation of sexual assault, but her role is to perform medical care for a patient.
11 Again, it is the role of the trier of fact - not this Court -to weigh the evidence and to draw
12 reasonable inferences from the basic.facts to ultimate facts. Thus, the Court finds this issue was
13 properly submitted to the trier of fact. 14 Conclusion 15 For the reasons set forth above, the Court finds that it properly DENIED Defendant's 16 Motion for Judgment of Acquittal. 17
19 HAY 08 2018 SO ORDERED this `<~, name pro tune April 9, 2018. V \ . 20 _- ' 21 SERVICE vIA GOURT BOX 22 acknowledge that a copy of the original hereto was plan di n the 23 0 Y *W 0 1 9 V 0 5 6 c HonoRAB121g1\7IAR1A T. CENZON JUDGE, SUPERIOR COURT OF GUAM 24
25 Date: o
27 9 Digital Recording at 10: 19:40 (Jury Trial Day #3, Apr. 6, 2018). 28 10Id. al l0:25:l1. People of Guam v. Kenneth Leon Guerrero Ninety, CF0346-17 D&O Denying Defendants Motion for Judgment of Acquittal Page 4 of 4