People v. Ogo

Opinion

IN THE SUPERIOR COURT

OF GUAM

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3 THE PEOPLE OF GUAM, ) CRIMINAL CASE No. CF0169,.12..

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5 V. ) DECISION AND ORDER ) On Defendant's Motion to Dismiss 6 TROY SAN NICOLAS OGO, ) First and Third Charges 7 )

Defendant. )

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INTRODUCTION

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12 This matter came before the Honorable Judge Michael J. Bordallo on December 6, 2012 o 13 Defendant's Motion to Dismiss First and Third Charges. The People of Guam were represente 14 by Assistant Attorney General Christina Lum. The Defendant was represented by Attome 15 Howard Trapp. Having reviewed the memorandum and papers presented, the court now issue 16

17 the following decision DENYING Defendant's Motion to Dismiss.

18 FACTUAL HISTORY

19 The Defendant has been indicted on eleven separate charges for an alleged incident that 20 took place on March 11, 2012. On the day in question, the Defendant is said to have come 21 home drunk and started an argument with his live-in girlfriend. When the girlfriend asked to 22 leave, the Defendant is alleged to have driven her, despite being intoxicated, to his parent's 23

24 home. While speeding and driving recklessly towards the home, the Defendant allegedly

25 threatened his girlfriend's life before driving the vehicle into a concrete wall on the passenger's 26 side. Based on these alleged facts, the Defendant was charged with both felony Terrorizing and 27 misdemeanor Reckless Conduct, in addition to nine other charges.

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The Defendant has motioned the Court to have the Terrorizing and Reckless Conduc 2 charges dismissed arguing that the indictment failed to sufficiently plead the two offenses. In hi 3 motion, the Defendant states that it is unclear what crime the Defendant threatened to commit 4 speaking to the First Charge of Terrorizing, and that it is similarly unclear from the indictmen 5

6 which behavior constituted the Third Charge of Reckless Conduct. The People filed a

7 opposition citing Guam Supreme Court case law to support their stance that the indictment wa 8 sufficiently pled. For the following reasons, the Court agrees with the People.

9 DISCUSSION

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II The Defendant has motioned the Court to have the First and Third Charges of hi

12 indictment dismissed. The grounds for the Defendant's motion are the claim that two charges 13 one for felony Terrorizing and a second for misdemeanor Reckless Conduct, were not pled wit 14 sufficiency. In support of his argument, the Defendant relies upon the Guam Rules of Pleadin 15 which require that the indictment "be a plain, concise and definite written statement of th 16

17 essential facts constituting the offense charged." 8 GCA §55.10. The Defendant specificall

18 alleges that, for both charges, the indictment failed to provide 'essential facts' sufficient to allo 19 him to properly prepare his defense. Each of the charges will be examined in turn.

20 The First Charge of the indictment properly lists the required elements of the crime o 21 Terrorizing as a third-degree felony. The First Charge states:

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23 "On or about the 11th day of March, 2012, in Guam, TROY SAN NICOLAS OGO did commit the offense of Terrorizing, in that he did knowingly 24 communicate a threat to another person, Annalynne Simbahan to commit a crime 25 of violence dangerous to human life against Annalynne Simbahan, the natural and probable consequence of such threat being to place Annalynne Simbahan in 26 reasonable fear that the crime would be committed, in violation of 9 GCA §§ 19.60(a) and (b)."

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The language of the First Charge of the indictment tracks the language of the crimina 2 statute which states:

3 "A person is guilty of terrorizing if he communicates to any person a threat to 4 commit or to cause to be committed a crime of violence dangerous to human life, against the person to whom the communication is made or another, and the 5 natural and probable consequence of such a threat, is to place the person to whom 6 the threat is communicated or the person threatened in reasonable fear that crime will be committed. (b) Terrorizing is a felony of the third degree."

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8 9 GCA §§19.60 (a) and (b).

9 The language of the Third Charge similarly lists the required elements of the crime o 10 Reckless Conduct as a misdemeanor. The Third Charge states:

11 "On or about the 11th day of March, 2012, in Guam, TROY SAN NICOLAS 12 OGO did commit the offense of Reckless Conduct, in that he recklessly engaged in conduct which unjustifiably placed another, Annalynne Simbahan, in danger 13 of death or serious bodily injury, in violation of9 GCA §§ 19.40 (a)(1) and (b), as 14 amended."

15 The language of the Third Charge of the indictment also tracks the language of th 16 criminal statute which states:

17 "(a) A person is guilty of reckless conduct ifhe: (1) recklessly engages in conduct 18 which unjustifiably places or may place another in danger of death or serious bodily injury; (b) Reckless conduct is a misdemeanor."

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20 9 GCA §§19.40 (a)(l) and (b).

21 The indictment sufficiently charges the Defendant with both Terrorizing as a third-degre 22 felony and Reckless Conduct as a misdemeanor. The Defendant argues that both charges fail t 23 allege the 'essential facts' of each crime as required by the Guam Rules of Pleading. It i 24 established law, however, that the 'essential facts' of the crime are pled when the indictmen 25

26 tracks the language of the criminal statute defining the offense. The Guam Supreme Court ha

27 made explicit that an indictment is "sufficient where it contains the elements of the crim 28 alleged, adequately informs the defendant of the crime to allow him to defend against th

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charges, and is stated with sufficient clarity to bar subsequent prosecution for the same offense. '

2 People v. Jones, 2006 Guam 13 ~ 12. As explained by the Ninth Circuit, "An indictment whic 3 tracks the words of the statute charging the offense is sufficient so long as the word 4 unambiguously set forth all elements necessary to constitute the offense." US. v. Givens, 76 5

6 F.2d 574, 584 (1985). Tracking the language of the criminal statute has been repeatedly held t

7 be sufficient because an indictment is "read in its entirety, construed according to common sense 8 and interpreted to include facts which are necessarily implied." Jones (citing Givens at 584).

9 CONCLUSION

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II Based on the foregoing, the court finds that the First and Third Charges of the indictmen

12 against the Defendant were sufficiently pled. Accordingly, the court DENIES Defendant'

13 Motion to Dismiss First and Third Charges. Further Proceedings are set fo

-~-+-N_·-'---'-1+-1 _20 13 at 9am.

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19 SO ORDERED, this -2/- day of ~20 13. 20

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23 Judge, Superior Court of Guam 24

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