People v. Ogo

Opinion

FILED aL

11

CLERK Qs= Ola a%L§

OF COURT

1 Mme la p me

2 5L§§"§8§§§f_§¥3E. (

3 G? §U§?v§

4

5

6 IN IN THE

THE SUPERIOR COURT OF GUAM GUAM

7

8 PEOPLE OF OF GUAM,

GUAM, ) CRIMINAL CRIMINAL CASE NO.

NO. CF0718-23

CF0718-23

)) GPD R€po1'tNOS.

GPD Report nos. 21 -25726/22-04543/22-06826/ 2 l-25726/22-04543/22-06826/ 9 >) 22-29254/23-04462/23-09492/ 22-29254/23-04462/23-09492/ vs. )) 23-09680/23-07628 10 ))

11 11 )

PETER DAVID TEDTAOTAODTA OGO, )) DECISION AND ORDER 12 12 aka Peter Peter David

David Ogo, Jr., David )

Peter David

Jr., aka Peter RE. DEFENDANT'S MOTION TO Tedtaotao Ogo, Ogo, Jr.,

Jr., )) SEVER SEVER CHARGES IN THE

13 13 DOB:

DOB:11/27/1986 11/27/1986 ) INDICTMENT 14 14 ))

Defendant. Defendant. )

15 15 _______________)) 16 16 I. INTRODUCTION 17 17 This matter is before the Honorable Judge Maria Maria T. Cenzon on Defendant Peter David 18 18 Tedtaotao Oho's ("Defendant" Tedtaotao Ogo's ("Defendant" or "Defendant Ogo")

Ogo")Motion

MotiontotoSever

SeverCharges

Chargesin

inthe

the Indictment

Indictment

19 19

20 20 (the "Motion").

"Motion").Representing

RepresentingDefendant

DefendantOgo

OgoisisAssistant

AssistantPublic

PublicDefender

DefenderZachary

ZacharyC.

C. Tairnanglo

Taimanglo.

21 21 Representing thePeople Representing the Peopleof of Guam

Guam("the

("the People")

People") is Christine S. Tenorio.

Christine S. Tenorio. After After the close of the

of the

22 22 pleadings in the Court took in this case, the took the the Motion

Motion under pursuanttotoCVR 1,mder advisement pursuant CVR 77..1 1 ( e(e)(6)(E)

)( 6)(E)

23, and CR 1-1(g)(4)(B)

l.l(g)(4)(B)ofofthe

theLOCAL

LOCALRULES

RULESOF

OFTHE

THESUPERIOR

SUPERIORCOURT

COURT OF

OF GUAM.

GUAM.

24 24 After reviewing the Defendant's Motion, ot tthe PPeople's Opposition, eople's O ppo and tthe aapplicable pp

25

26 26 statutes t e s and

a n d case h e Courtt now l a w , the

c a s e law, e s this n o w issues D e c i s i o n and t h i s Decision O r d e r GRANTING a n d Order GRA IN PART

27 27 Defendant's Motion.

Motion.

28

Criminal Case No. CF0718-23 People v. Ogo, Criminal

Decision Decision and

and Order

Order Re. Defendant's

Defendant's Motion

Motionto

toSever

SeverCharges

Charges in

in the

the Indictment

Page 11 of Page of13 1 II. PROCEDURAL AND FACTUAL FACTUAL BACKGROUND

2 A. The Indictment 3 A grand

grand jury

jury returned

returned an

an Indictment

Indictment against

against Defendant Ogo on November 7, 2023, Defendant Ogo 2023, 4

wherein the Defendant was was charged with eight (8) offenses. See IIndict. (NOV.

(Nov. 7,7, 2023).

2023). Because

Because

5

6 of the the apparent complexity and volume of of charges in

in this

this matter,

matter, the Court uses the following

77 table for illustrative purposes purposes in its analysis. The order of of the offenses are listed in the order as 8 described in the Indictment:

Indictment:

9 Date of the Alleged Offense The Alleged Offense The Alleged Victim(s) and 10 10 Locations 11 11 Charge Two

Two -- Burglary

Diane Diane Smith ("Smith"),

October October 19, 2021 (As (As aa Second

Second Degree

12 12 Dededo Felony)

13 13 Charge Three -.- Attempted Attempted

Darren Darren Pichon

Pichon ("Pidhon"),

("Pichon"),

October October 19, 2021 Burglary Burglary (As

(As aaSecond

Second

14 14 Yigo Degree Felony)

15 15 Charge One Count Count One

One--

SDA Housing ("SDA"),

("SDA")'

February 14, 2022 Burglary Burglary(As(As aaSecond

Second

16 16 Tamuning Degree Felony)

17 17 Charge Charge Eight Count One One --

Wettengel Elemetary

18 18 November 12 13, 2022 12-13, Criminal Criminal Mischief

Mischief (As a

School ("WES")5 Dededo School ("WES"),

Misdemeanor)

19 19 Charge Four Count One One -.-

20 20 November November 13, 2022 Burglary Burglary toto aa School

School (As a WES, WES,Dededo

Second Degree Felony) Second Degree Felony)

21 Charge One Count Two -.-

22 22 February 15, 2023 Burglary Burglary (As

(As aaSecond

Second I Mart, Mart, Dededo

Dededo

Degree Felony)

23 23 Charge Charge Five - Theft

Theft of

24 24 February 15, 2023 Property Property (As a Third I Mart, Mart, Dededo

Dededo

25 Degree Felony)

Charge Charge Eight Count

Count Two

Two --

26 26 February 15, 2023 Criminal Criminal Mischief

Mischief (As a I Mart, Mart, Dededo

Dededo

27 Misdemeanor)

28

People v.

v. Ogo, Criminal Case No. CF0718-23 Decision and Decision and Order

Order Re. Defendant's

Defendant's Motion

Motionto

toSever

SeverCharges

Charges in

in the

the Indictment

., Page 2 of13

1 Charge Four Count Two Two -.-

Benavente Middle School Benavente Middle School

2 18-19,

March 18 -. 19, 2023 Burglary Burglary to

to aa School

School (As a

("BMS"), Dededo ("BMS")3 Dededo

Second Degree Felony) Second Degree Felony)

3 Charge Eight Count Three

4 19, 2023 March 19, Criminal Mischief - Criminal Mischief (As (As a BMS,Dededo BMS, Dededo

Misdemeanor)

5 Charge Eight Count Four Immaculate Mary Immaculate Heart of Mary

6 April 8, 2023 Criminal Mischief - Criminal Mischief (As (As a Catholic Church Misdemeanor) (£CIHOM'7)$ Toto ("IHOM"), Toto

7 Charge One Count Three Charge Three -.-

Mr. and Mrs. Apuron (the

8 April 9, 2023 Burglary(As Burglary (AsaaSecond

Second

"Apurons"), Mangilao "Apurons"),

9 Degree Felony)

Charge Eight Count Four

10 April 9, 2023 Criminal Mischief - Criminal Mischief (As

(As a The The Apurons, Mangilao

11 11 Misdemeanor)

Charge One,

One, Count

Count Four

Four-- Fin Fin Japanese

Japanese Restaurant

12 12 April 10, 2023 Burglary Burglary(As

(AsaaSecond

Second (C¢Fin73 ("Fin" oror"Fin

"Fin

13 13 Degree Felony) Restaurant"), Restaurant"), Dededo

Dededo

Charge Six - Theft of

14 14 April 10, 2023 Property (As a Third Fin, Dededo 15 15 Degree Felony) 16 16 Charge Eight Count SixSix --

April 10, 2023 Criminal Criminal Mischief

Mischief (As

(As a Fin, Dededo 17 17 Misdemeanor)

18 Charge Seven -- Theft of April 11, 2023 Property (As a Third IHOM, Toto WHOM, Toto

19 19 Degree Felony)

20 20

21 of the alleged events

The dates of events as described described in

in the Indictment

Indictment may

maybe

be grouped

groupedas

as follows

follows::

22 October 19, (1) October 19, 2021 2021 (Victims

(Victims Diane

Diane Smith

Smith and

and Darren Pichon);

Pichon); (2) February 14, 2022 February 14, 2022 (Victim (Victim

23 23 24 12 - 13, 2022 (Victim WES);

Housing); (3) November 12 SDA Housing), WES); (4) February February 15, 2023 (Victim 1I 24

25 25 Mart); (5) March 18 - 19, Mart); 19, 2023 (Victim (Victim BMS);

BMS); and

and(6)

(6) April

April88-- 11,

11,2023

2023O/ictims

(VictimsWHOM,

IHOM, the

26 26 Apurons, and Fin Restaurant).

Restaurant). The

The alleged offenses range from Burglary, Attempted Attempted Burglary,

Burglary,

27 27

28

People v. People v. Ogo, Criminal Case No. CF0718-23 Decision and Decision and Order

Order Re.

Re. Defendant's

Defendant's Motion

MotiontotoSever

SeverCharges

Charges in

in the

the Indictment

Page 3 of13 Page 1 Burglary to a School, Burglary to School, Theft of ofProperty,

Property, and

and Criminal Mischief. The locations Criminal Mischief. locations of the alleged 2 2 offenses range from the the villages

villages ofYigo,

Yigo, Dededo,

Dededo,Toto,

Toto,and

andTamuning,

Tamuning, Guam.

Guam.

3 B. Defendant's Defendant's Motion Motion to

to Sever

Sever Charges in

in the Indictment

Indictment

4 Defendant Ogo

Ogo filed

filedhis

his Motion

Motionon

onAugust

August30,

30,2024.

2024. The

°TheDefendant

Defendantargues

argues that severance

5

6 6 of ofcharges charges is is appropriate

appropriate in

in this matter because

because he

hewould

would be

be unfairly

unfairly prejudiced by presenting the

7 7 unrelated counts countsand

andcharges

chargestotoaasingle

singlejury

jury for

for consideration.See

See Defy

Deft. 's

's Mot. at "The jurors at 2. "The

8 8 connect that if Defendant may connect Defendant committed committed one

one crime,

crime, he

he most

most likely

likelycommitted

committedthe

theothers.

others. Jurors

Jurors

9 not be may not be able able to

to treat

treat the allegations,

allegations, charges,

charges, and

and counts

counts as

as separate and apart

apart from

from each other.

10 10

case as

The jurors might treat this case asproven, proven,if

if the

the Government

Government is

is able

ableto

to prove

prove on count

countor

orcharge."

charge."

11 11

12 12 Id Id atat3.

3. Further,

Further, "the

"thedefendant

defendant may

may need to testify

testify respecting

respecting his

his defenses

defenses to one charge or count, count;

13 13 and respecting respecting his his right to remain silent in regard to the other charges or counts."

counts." Id. Defendant

14 14 Ogo Ogo proposes proposes the following following method

method of

ofsevering

severingthe

thecharges

charges::

15 15 1. Charge One 1. One Cot mt One:

Count One: SDA,

SDA;

16 16 2. Charge One Count Count Two,

Two, Charge Five, and Charge Charge Eight

Eight Count

CountTwo:

Two: I Mart,

Mart;

17 3. Charge One Count Three, and Charge Charge Eight

Eight Count

CountFive:

Five: Mr.

Mr. &

& Mrs.

Mrs. Apruon,

Apruon;

4. Charge One Count Four, Four, Charge

Charge Six, and Charge

Charge Eight

Eight Count

Count Six:

Six: Fin,

Fin;

18 5. Charge Two: Smith, Charge Two: Smith;

19 19 6. Charge Three:

Three: Pichon,

Pichon;

7. Charge Four Count One, and Charge Charge Eight Count One:

One: Wettengel,

Wettengel;

20 20 8. Charge Four Count Two, Two, and Charge Eight

Eight Count Three:

Three: Benavente Middle

Middle School,

School; and

21 9. Charge Seven, and and Charge Eight Count 4:

4: WHOM.

IHOM.

22 Id Defendant Id Defendantasks asksthe

the Court

Courttotohold

holdnine

nine(9)

(9)separate

separate tnlals

trials for each of the nine named victims.

victims.

23

24 24 C. The The People's People's Opposition

25 The People's People'sOpposition

Oppositionagrees

agrees that

that severance

severance of

ofthe

the trials may be appropriate, however, appropriate; however,

26 26 argues thatthere argues that needonly thereneed only be two, rather than thannine,

nine, separate

separatetrials

Malsononthe

thebasis

basisof

of the

the proximity

proximity

27 in time of in of the the offenses

offenses to

to each

each other.

other. See

See Ppl.

Pp!. 's At 4.

's Opp. At 4. The

The People

People propose

propose that the charges

28

People People v.

v. Ogo,

Ogo,Criminal

CriminalCase

Case No.

No.CF0718-23

CF0718-23

Decision Decision and

and Order Re. Defendant's Defendant's Motion

Motion to

toSever

SeverCharges

Charges in

in the

the Indictment

Indictment

Page 4 of13

1 involving involving Diane Diane Smith,

Smith, SDA,

SDA, and

and WES

WES "should

"should be

be joined

joined because they all

because they fingerprint involve fingerprint

all involve

2 2 evidence, and they evidence, and they were were all committed with a 13-month span."Id 13-month span." the People 4. Similarly, the

Id at 4.

3 propose that the the charges

chargesinvolving

involving IIMart,

Mart,the

the Apurons,

Apurons,BMS,

BMS,WHOM, Restaurant"should and Fin Restaurant

IHOM, and "should 4 5 be joined joined in in aa separate trial because separate trial becausethey they all

all involve that show a male in a involve surveillance footage that 5

6 ponytail,"

ponytail,"and and "these

"thesecrimes

crimesall

alloccurred 3-month span." Id. The withinaa3-month

occurredwithin Peoplereason The People that these reason that

7 separate teals would separate trials wouldjoin join offenses that

thatare similarcharacter."

orsimilar

"sameor

the"same ofthe areof character."Id at44(citing Id at (citing US.

US.

8 v. Jawara, Jawara, 474 F.3d 565, 578 (9th Cir.

Cir. 2007). People further ThePeople

2007). The argue that furtherargue the Defendant that the has

Defendant has

9 failed to offer offer arguments

arguments of "how

"how the current joinder the current exploring different prejudices him from exploring jointer prejudices

10 , defenses in each defenses in eachtrial."

trial." Id.

Id at

at 5.

11 11

12 12 DISCUSSION

13 A. Controlling Controlling statutes statutes and law

14 14 The jointer

joinderofofmultiple

multipleoffenses Indictmentisisappropriate singleIndictment

offensesininaasingle when the offenses appropriate when

15 15 charged "are "are of

ofthe

the same

same or

or similar

similarcharacter or based character or on the based on same act or transaction the same or on two transaction or

16 16

17 17 (2) (2) or ormore

moreacts

acts or

ortransactions

transactions connected

connected together or constituting together or parts of constituting parts common scheme or ofaa common

18 18 plan." 8 plan." GCA §55.35(a).

8 GCA §55.35(a). 88 GCA§

GCA §55.35

55.35originates

originatesfrom

fromthe

the Federal

Federal Rules

Rules of

ofCriminal

Criminal Procedure

Procedure

19 19 Rule 8.

Rule 8. See See Note,

Note, 88 GCA

GCA§§55.35.

55.35. Therefore,

Therefore,the

theCourt

Courtmay

may turn

tum to

to federal

federal cases

cases for

for guidance in

20 related local

interpreting related statutes.See local statutes. Benaventev.v.Taitano, SeeBenavente 15.

2006 Guam 15.

Taitano, 2006

21 21

Trial courts severance of trials. US.

courts have broad discretion in deciding severance Reavis, 48 F.3d US. v.v. Reaves,

22 22

23 23 763, 767 (4th Cir. 1995). In joined, courts traditionally properly joined,

are properly

In determining whether offenses are

24 24 consider statute, whether they involve similar are laid under the same statute, consider "whether the charges are similar 25 . . . . . . .

victims, ofoperation, locations, or modes of

vlctlms, locations, and the operation, and time frame the tune in which

frame in the charged which the conduct charged conduct

26 occurred." US. v. Taylor, occurred." US. Taylor, 54 F.3d 967, 973 (1st.

967, 973 Cir. 1995)

(let. Cir. (citations omitted).

1995) (citations Further, "the omitted). Further,

27 27 28 validity of validity ofthe joinderisisdetermined the jointer solelyby determined solely the allegations bythe in the indictment."

allegations in States v.

United States

indictment." United

28

People v, People Ogo, Criminal

v. Ogo, CF0718-23 Case No. CF0718-23

Criminal Case

Decision and Decision Order Re. Defendant's and Order Motionto Defendant's Motion toSever Charges in SeverCharges the Indictment in the

Page of13 Page 5 of 1 Jawara, 474 F.3d Jawara, 474 F.3d 565, 572 (9th 565, 572 (9th Cir.

Cir. 2007).

2007). Joinder

Joiner is

is satisfied

satisfied if

if one

one of

ofthree

three conditions

conditions is

is

2 satisfied: satisfied: the charged offenses the charged offenses must mustbe

be(1)

(1) "of

"of the

the same

same or similar character,"

character," (2) "based

"based on

on the

3 same act or same act or transaction,"

transaction," or

or (3)

(3) "connected with or

or constituting

constituting parts

parts of

ofaa common

common scheme

scheme or

4 plan." plan." Id. at at 572.

572. "Where

"Wherethere

thereisissubstantial evidence between substantial overlap in evidence between two two offenses,

offenses,joinder

jointer

5

6 eliminates the the need to

to prove

prove substantially

substantially the

thesame

sameevidence

evidencetwice

twice over,

over, thus

thusrealizing

realizing precisely

7 7 the kind of of economy

economy envisaged by Rule envisaged by Rule 8(a)."

8(a)." Howerton v.

v. United

United States,

States, 964 A.2d 1282,

1282, 1292

1292

8 (D.C. (D.C. 2009).

2009). In

Inthis

this matter,

matter, both

both parties agree that severance of the alleged alleged charges

charges is appropriate

9 - where the parties depart depart is how such severance severance should

should be

be achieved.

achieved. In ruling on this question, 10 10 the Court first turns to the turns to the charges

charges alleged

alleged in this

this matter

matter and

andwhether

whetherjoinder

jointer of

of offenses is

111

12 12 appropriate under Section 55.35.

55.35.

13 B. Are 13 Are the the acts alleged

alleged of

of the

the"same

"same or

or similar

similar character"?

14 77 The Court

Court first

first considers

considers whether the

the charges are "of

charges are "of the

the same

same or

or similar

similar character.

character."

15 15 Jawara at at 572.

572. In considering charges of ofthe

the same

same or

or similar

similar character,

character, some factors that may be 16 16

17 17 considered are the considered are the elements elements of

of the

the offenses, the temporal proximity of temporal proximity of the the acts,

acts, overlapping

overlapping

18 18 evidence, and logical relation relation of

offacts.

facts. Id

Id at

at 578.

578.

19 19 Here, the

the Court

Court looks to

to the

the underlying

underlying allegations

allegations in determining whetherjoinder determining whether jointer is 20 20 appropriate in this appropriate in this case.

case.The

The Indictment

Indictment alleges

alleges nine

nine (9)

(9) victims

victims in

in this

this matter:

matter: Smith,

Smith, Pichon,

21 SDA, WES, SDA, WES,I IMart, Mart,BMS,

BMS,WHOM,

IHOM, the

the Apurons,

Apurons, and

and Fin

Fin Restaurant.

Restaurant. Because

Because of the variance in 22

23 23 victims, the Court will will consider

consider other

other factors that realizes the the judicial

judicial economy envisioned by 8

24 24 GCA GCA §§ 55.35(a).

55.35(8).

25 25 The Court first considers if any considers if any overlapping overlapping evidence exists between the the alleged

alleged offenses.

26 See ThePeople See Id. The Peopleposit posittwo

twokinds

kindsofofoverlapping

overlappingevidence

evidence exist

exist that

that tends

tends to show

show the

the

27 27 Defendant's identity: Fingerprinting evidence and fingerprinting evidence and surveillance surveillanceor

orvideo

video footage.

footage.See

See Ppl.

Pp!. 's

's Opp.

Opp.

28

People v. People v. Ogo,

Ogo, Criminal

Criminal Case

Case No. CF0718-23

CF0718-23

Decision Decision and

and Order Re. Defendant's Defendant's Motion

MotiontotoSever

SeverCharges

Charges in

in the

the Indictment

Indictment

Page 6 of13

1 at 4.

4. The charges involving Smith, charges involving Smith, SDA, and and WES involve

involve overlapping

overlapping fingeqnrinting fingerprinting evidence

2 2 further, the - further, the charges charges involving II Mart, Mart, the

the Apurons,

Apurons, BMS,

BMS,WHOM,

IHOM, and

and Fin

Fin Restaurant

Restaurant involve

involve

3 evidence of ofvideo

video footage

footageshowing

showing"a

"amale

malein

inaa ponytail."

ponytail."Id.

Id. Therefore,

Therefore,the

theCourt

Courtfinds

finds that

that the

4

5 factor of of overlapping

overlapping evidence

evidence weighs

weighs in

in favor

favor ofofseverance,

severance,because

because the

the separate evidence of

separate evidence

5

6 6 and video fingerprinting and video footage do not overlap in in as far as

as evidence

evidence of Defendant's guilt nor to

7 7 their relationship to the the alleged

alleged victims. For

For instance,

instance, fingerprinting evidence evidence could

could not

not show

show that

that

8 the Defendant burglarized BMS, and video BMS, and video footage

footagecould

couldnot

not show

showthat

that the Defendant

Defendant burglarized

burglarized

9 SDA. On SDA. On the the other

other hand,

hand, fingerprint evidence purportedly purportedly connects

connects the Defendant to to the

the victims

10

Smith, SDA and Smith, and WES, and and surveillance

surveillance footage connects him to connects him to IM BMS, the IM Mart, BMS, the Apurons, Apurons,

11 11

12 12 Fin Fin and and WHOM.

IHOM.

13 Next, Next, the

the Court looks to

to the

thetemporal

temporalproximity

proximitybetween

betweenoffenses.

offenses."The

"The time-period factor

14 . . . . .

be determined

is to be determined on on aa case-by-case

case-by-case approach,

approach; there

there is no

no per se

se rule

rule on

on when

when the

the time

tlme period

15 between similar offenses is so great that they may that they may not

not be

bejoined."

joined." US.

US. v.

v. Rogers,

Rogers, 732 F.2d 625,

16 16

17 17 629 (Sth Cir. 629 (8th 1984). As Cir. 1984). in the described in As described the above above table,

table, the

theevents

eventsinvolving

involving Smith,

Smith, Pichon,

Pichon, SDA,

SDA,

18 18 and WES occurred and occurred during the period of October during the October 19, 19, 2021,

2021, to November

November 13,

13, 2022

2022 -. a span of

19 19 nearly thirteen (13) months.

months. Further, the events Further, the events involving involving IIMart,

Mart,the

the Apurons,

Apurons, BMS,

BMS,WHOM,

IHOM, and

20 Fin Restaurant Fin Restaurant began began on

onFebruary

February15,

15,2023,

2023,totoApril

April 11,

11, 2023

2023-- a span

span of

of nearly

nearly two

two (2) months.

months.

21 22 Although the Court finds finds that

thatthe

theproximity

proximityin

intime

time does

doesnot,

not,in andof

inand ofitself,

itself, weigh

weigh heavily in

22

23 23 favor of ofseverance,

severance, the

the Court

Court acknowledges

acknowledges that

that the

the allegations

allegations occurring

occurring from

from 2021

2021 through

through

24 24 2022 may may be

be appropriately severed from from incidents

incidents which

whichoccurred

occurredin

in2023

2023.

25 Finally, the

the Count looks to

Court looks to the nature nature of the

the alleged

alleged offenses.

offenses. The

The Indictment

Indictment charges

charges

26 Defendant with Burglary, Defendant with Burglary, Attempted Attempted Burglary,

Burglary,Burglary

Burglarytoto aa School,

School, Theft

Theft of

of Property,

Property, and

and

27 27 Criminal Mischief.

Mischief. With

With the

the exception

exception of

ofCriminal

Criminal Mischief,

Mischief, the

the allegations

allegations involve

involve the

the elements

elements

28

People v. People Ogo, Criminal

v. Ogo, Criminal Case

Case No. CF0718-23

No. CF0718-23

Decision and Decision and Order

Order Re. Defendant's

Defendant's Motion

MotiontotoSever

SeverCharges

Charges in

in the

the Indictment

Indictment

Page 7 of13

1 of of Theft Theft (i.e., (i.e.,unlawfully

unlawfullytaking,

taking, obtaining

obtaining or

or exercising

exercising unlawful

unlawful control

control over

over the

the moveable

moveable

2 2 property of ofanother the intent another with the intentto todeprive

deprivehim

himthereof),

thereof), including the

the Burglary

Burglary offenses,

offenses, which

3 include the the elements

elements of

of Theft,

Theft, plus

plus the

the element

element of

ofentering

entering or

orsurreptitiously

surreptitiously remaining remaining in

in any

any

4 5 habitable property, building, habitable property, building,or or school

school under

under99GCA

GCA §§ 37.20. Because the 37.20. Because the offense offense of

of Burglary

Burglary

5

6 6 and the the offense offense of

ofTheft ofProperty

Theftof Propertyare

areofofthe

thesame

sameor

orsimilar

similarcharacter,

character,the CourtEnds

theCourt that they

finds that

7 7 are properly joined. See, States v.

United States

See, e.g., United Chambers, (64 v. Chambers, (64 F.2d

F.2d 1250, 1250-51)(1 st Cir.

1250, 1250-51)(1S'

8 1992)(affirming 1992)( affirming jointer oinderof

ofsix

sixrobberies

robberies involving

involvingsimilar

similarvictims

victimsover

overaaperiod oftwo

period of and a half

twoand

9 th

months, months; United United States

States v. Sanders,

Sanders, 463 F.2d 1086

1086(8

lath Cir.1972)(

Cir. 1972)(affirmingjoinder counts where ofcounts

affirming joinder of

10 offenses were were of

ofthe

thesame

sameor

orsimilar

similarcharacter

character and

and occurred

occurred eight

eight months

months apart), v.

apart); Howard v.

11 11

th

12 12 United United States, States, 372 F.2d 294, 301 301 (9th Cir. 1967), cert.

Cir. denied 388 U.S. 915 cert. denied 915 (1967)(h01ding (1967)(holding that

that

13 13 "the use use of

ofmulticount

multicount indictments

indictments charging

charging offenses

offenses of

of similar

similar character

character is

is aa sanctioned

sanctioned

14 14 practice").

practice"). Only OnlyCharge

Charge Eight CriminalMischief EightCriminal doesnot Mischiefdoes haveelements nothave encompassing Burglary elements encompassing

15 15 or Theft, Theft; however, however, six

six (6)

(6) of

ofthe

thenine

nine (9)

(9)named

named victims

victims are

are also

also alleged

alleged victims of

of Criminal

Criminal

16 16

17 17 Mischief. Consequently, the Court Consequently, the Court finds finds that

thatthe

theelements

elementsofofthe

theoffenses

offensesweigh

weigh in

in favor

favor of

18 18 jointer.

joinder.

19 19 B. Will the Will the jointer

joinderof

ofthe

the offenses

offenses unduly

unduly prejudice

prejudice the

the Defendant?

20 20 The Court's next inquiry is whether a joinder jointer of

ofoffenses

offenses in

in aa single

single trial

trial would

would unduly

unduly

21 prejudice the Defendant. The court has has discretion

discretion to

to grant

grantseverance

severanceof

of offenses

offenses "if

"if ititappears

appears that

that

22

23 23 a defendantor a defendant governmentisisprejudiced thegovernment orthe prejudicedbybyajoinder a jointerofofoffenses

offenses...."

.... 88 GCA

GCA §§ 65.35.

65.35. Section

Section

24 24 65.35 originates from 65.35 originates from Federal Federal Rules of Criminal Criminal Procedure 14, see Note, 88 GCA Procedure Rule 14, GCA §§65.35, 65.35,

25 thus federal case thus federal case law is is instructive. Benavente, 2006 Guam 15 instructive. See Benavente, jointer may be Althoughjoinder

15. . Although

26 26 proper, severance may may still be required if

ifthe

the defendant

defendant or

or the

the government

government is

is prejudiced

prejudiced by

by such

such

27 27

jointer. See joinder. US v.

See US. Cardwell, 433 F.3d v. Caldwell, 378 (4th F.3d 378 Cir. 2005).

(4th Cir. 2005). "Such

"Such cases,

cases, however, will

will be

be rare.

rare.

28

v. Ogo, Criminal Case No. CF0718-23 People v. CF07 l 8-23 Decision Decision and Motionto Defendant's Motion

and Order Re. Defendant's to Sever Charges in SeverCharges in the Indictment the Indictment

Page 8 of13

1 ItItisis not notenough

enough for

for the

the defendant

defendant to show that severance severanceoffers

offershim

him aa 'better

'better chance

chanceof acquittal.ms

of acquittal."'

22 Id Id.

3 Defendant argues that he

argues that he would be unfairly prejudiced prejudiced by

by trying

trying unrelated

unrelated counts

counts and

and

4 5 charges single trial:

charges in a single trial: "It "It would

would be

be unfairly

unfairly prejudicial

prejudicial to

to the

the defendant to let emotions from defendant to

5

6 6 one count or charge charge spill over

over to

to other

other counts

counts or charges."

charges." Defy

Deft. 's

's Mar.

Mot. at

at 2, 3.

3. In

In addition,

addition, he

7 7 claims that that"[t]here willbe

"[t]here will be little

littleoverlapping

overlappingevidence

evidencethat

that would

would end

end up being presented

presentedtwice."

twice."

8 "Theprime 8 Id. "The primeconsideration considerationin

indetermining

determining whether

whether or

or not

not to

to grant

grant a severance is the

the possibility

possibility

9 of ofprejudice prejudice to to the

the defendant

defendant in

in conducting defense. Weighing the conducting his defense. the danger of of confusion

confusion and

and

10 10

73

undue cumulative inference undue cumulative inference isis a matter matter for the

the trial

trial judge

judge and

and within

within his

his sound

sound discretion.

discretion."

11 11

12 12 Johnson Johnson v.v. United States, States, 356 F. 2d

ad 680,

680, 682

682 (8th

(8th Cir.

Cir. 1966).

13 13 The Court finds that that giving instructions to giving proper instructions to guide guide the

thejury

jury deliberations

deliberationssufficiently sufficiently

14 14 addresses any addresses any undue undueprejudice

prejudicefrom

Homthe

thejoinder

jointer of the offenses.

of the offenses. Admonishing Admonishing a jury from

15 15 rendering a decision based rendering based upon upon emotion or feelings

feelings sufficiently

sufficiently addresses

addresses the

the Defendant's

Defendant's

16 16

17 17 concern that "emotions from that"emotions from one

one count

countor

orcharge

charge[will]

[will] spill

spill over

over to

to other

other counts charges." In counts or charges."

18 18 this instance, instance,the

thefollowing

following instructions are typically instructions are typically given given to

to the

the jury

jury as

as a matter of course:

course:

.19 Jurv Instruction: Role of the Court Jury Court 20 20 You have You have now

now heard

heard all ofofthe

the evidence

evidence in

in the

the case

case and

and you have

21 21 heard the the final

final arguments

arguments of of the

the lawyers for

for the parties. My duty at My duty at this point

is to instruct you asas to to the

the law.

law. It is your duty to accept these instructions instructions of

of

22 law and

and apply them to the facts as as you you determine

determine them,

them, just as

as it

it has

has been

23 my duty to preside over over the the trial and

and decide what testimony and evidence is relevant under the the law law for your consideration.

24 24 It It is

is your

your duty to find the facts from all the evidence in the case. case. To To

25 25 those facts you those facts you will

will apply the law

apply the law as

asII give

give it to you. You must you. You follow the must follow the

26 26 law as I give give itit to

to you

you whether

whether you

you agree with it it or

or not. And

And you

you must

must not

be influenced by any personal likes or dislikes, dislikes, opinions, prejudices or opinions, prejudices

27 27 sympathy.

sympathy. That means you must means you must decide

decide the

the case

ease solely

solely on the evidence

28

People v. Ogo, Criminal

v. Ogo, Criminal Case

Case No. CF0718-23

CF0718-23

Decision Decision and

and Order Re. Defendant's Motion Motion to

to Sever

Sever Charges Indictment Charges in the Indictment Page Page 9 of

of13

1 before you. You will recall that you took an oath promising to do so at the of the case.

beginning of

2 On these legal matters, you must take the law as I give it to you. If If 3 any attorney attorney has

has stated

stated a legal principle

principle different

different from

from any that

that I state to you

in my instructions, it is my instructions that you must follow.

follow.

4 You should not single out any instructions as alone stating the law, 5 should consider

but you should instructions as consider my instructions as a whole when you retire retire to

6 deliberate in the jury jury room.

room.

77 added).

(Emphasis added).

8 Additionally, the Addltlonally, the Jury jury is instructed

Instructed to

to consider

consider each

each charge

charge in

in an

an indictment

indictment independently

independently of any

9 other: other:

10 10 Jury Instruction: Jurv Instruction: Consider Each Each Charge

Charge Separately

Separately

11 11

12 12 A separate separate crime is charged in each charge chargeof of the

the Indictment.

Indictment. Each

charge, and the evidence charge, and evidence pertaining to it, it, should

should be

be considered

considered separately

separately

13 13 by the jury.

jury. The

The fact that you may

Inv find

findthe

thedefendant

defendant.quilts

guilty or not guilty

14 as to one of

of the

the charges

chargesshould

shouldnot

notcontrol

controlyour

your verdict

verdict as to any other

14 charge.

15 15 . You should not, any of of you, be concerned about the wisdom of any 16 16 rule that I state. Regardless of any opinion that you may have as to what the 17 17 law may be - or or ought to be - it would violate your sworn swam duty to base a

verdict upon any other view of the law than that which I give you.

18 18 added). See

(Emphasis added). See People v. Jung, 2001 People v. 2001 Guam Guam 15

15 atat 1125 (jury ,r

(jury instructions,

instructions, as

as part of the

19 19

20 20 written Closing Jury kistructions, Instructions, that

that instructed

instructed to consider the charges and counts separately as

21 sufficient for a jury to to the issue of insanity, were sufficient to separately separately consider

consider each

each charge),

charge); see also

22 22 Ninth Circuit Manual of of Model Criminal

Criminal Jury

Jury Instructions

Instructions 6.1

6.11.l. The Court finds that including 23 this instruction is this instruction sufficient to cure is sufficient cure any potential potential prejudice,

prejudice, especially

especially when

when the language

language is

24 25 25 carefully crafted with input from the parties. See People v.

v. Aguon, Guam 24

Aguon, 2020 Guam ,r,r 27-28 (trial 24 11127-28

26 26 appropriately issued curative court appropriately curative jury jury instruction that were crafted with the consultation and

27 27 active participation participation from

from the parties).

parties). Moreover, any risk of prejudice Moreover, any prejudice can can be cured by issuing

28

People People v. Ogo, Criminal

CriminalCase

Case No. CF0718-23

CF0718-23

Decision and Decision and Order Re.

Re. Defendant's Motion to Sever Motion to Sever Charges

Charges in the Indictment Indictment

Page 10 of13 Page of 1 proper jury jury limiting instructions, as "the "the jury is

is presumed

presumed to follow

follow the

the jury

jury instructions."

instructions." Id ~

Id. 11

22 30; see also Zajiro Zafiro v.

v. United States,

States, 506 U.S. 534, 540 (1993) (citation omitted).

3 And, finally, the jury is is instructed

instructed that the People have the burden of proving each and 4 every element of of an offense beyond aa reasonable doubt, and this would apply apply with specificity to 5

66 all of the elements of each and every offense and count of every charge against the Defendant. In

77 this regard, the following instruction is always given to a jury in a criminal case: 8 Jury Jury Instruction: PeopleHave Instuction: People Have Burden Burden to

to Prove

Prove Each

Each and

and Every

Everv Element of an

9 Offense Charged

10 The The People of Guam have the burden burden ofof proving proving every

every element

element of an

offense charged beyond a reasonable doubt. If, after careful and impartial 11 11 consideration of

of all the evidence, you

you find

find that

that the People did not prove one 12 12 or more of the elements of of an offense charged beyond beyond aa reasonable

reasonable doubt,

then it is your duty to find the defendant not guilty.

13

14 14 Because Because the jury will be instructed instructed (1)

(1) not to base its verdict on any emotion (e.g., personal personal

15 likes or dislikes, opinions, prejudices or sympathy), (2) to consider the evidence of each charge

16 16 separately in rendering to find rendering a verdict and not to find him guilty of of a charge simply because the jury 17 7 ofanother found him guilty of another charge charge in

in the

the indictment,

indictment, and

and (3) that the

(3) that the People

People must

must prove

prove every

18

element of of an offense charged beyond beyond a reasonable doubt, the Court finds that the instructions are 19 19

20 20 sufficient to protect against "undue "undue prejudice"

prejudice" to

to the

the Defendant

Defendant by

by the

the joinder

jointer of

of the charges.

21 21 c.

C. Court will, nevertheless, The Court sever the nevertheless, sever the trial trial of

of the

the charges

charges on

on the

the basis

basis of the

the

temporal differences in the charges and the type of evidence relied on by the People.

22 22

23 23 Notwithstanding the Court's Notwithstanding the Court's finding finding that

that joinder

jointer of

of the

the charges for a single

charges for single trial is

24 24 appropriate in this case, the Court agrees to sever the trial of the matters, based upon the temporal 25 and evidentiary evidentiary similarities shared by similarities shared by the charges, charges, into two separate trials, as separate trials, as set forth forth in the

26 following tables:

27

28

People v. People Ogo, Criminal

v. Ogo, Criminal Case

Case No. CF0718-23

No. CF0718-23

Decision and Decision Order Re. Defendant's and Order Defendant's Motion Motionto toSever

SeverCharges

Charges in

in the

the Indictment

Indictment

Page l11 Pa l of13 l The 2021 2021 and 2022 allegations and 2022 allegations shall shall be

be grouped

grouped together

together for the purposes of trial based purposes of

2 2 upon the the proximity

proximity of the

the incidences

incidences in time to each each other

other as well as

as the

the nature of the offenses nature of

3 charged are are similar,

similar,with

with the

the sole

sole exception

exceptionof

of the

the Criminal

Criminal Mischief

Mischief charge relating to charge relating to victim 4 5 Wettengel. The evidence Wettengel. evidence upon which the upon which the People

People rely is

is latent

latent fingerprint

fingerprint evidence

evidence of the

the

5

6 6 Defendant.

7 TRIAL 1

8 DATE OFFENSE CHARGE VICTIM EVIDENCE 10/19/2021 10/19/2021 Burglary (F)

Burglary (F) Two Smith Fingerprints 9 10/19/2021 10/19/2021 Attempted Burglary Three Pichon --

10 10 (F) 11 11 02/14/2022 Burglary (F)

Burglary (F) One, Count 1 SDA Fingerprints 11/13/2022 11/13/2022 Burglary to a School Four, Count 1 1 Wettengel Fingerprints 12 12 (F)

13 13 11/22- 23/2022 Criminal Mischief (M)

Criminal Mischief (M) Eight, Count Count 11 Wettengel Fingerprints

14 14 Trial 22 shall cover

cover the

the offenses

offenses which

which are

are all

all close

close in

in time,

time, are

are similar

similar in

in nature

nature alleged to

15 15 have been committed against each committed against eachof

of the

the victims

victims and

and the

the evidence

evidence of

of which is intended

intended to be

16 16

17 17 supported by by surveillance video::

18 18 TRIAL TRIAL2

19 19 DATE OFFENSE CHARGE VICTIM EVIDENCE 02/15/2023 Burglary (F)

Burglary (F) One, Count 2 I Mart Surveillance 20 20 02/15/2023 Theft of Property (F)

Property (F) Five I Mart Surveillance 21 02/15/2023 Criminal Mischief (M)

Criminal Mischief (M) Eight, Eight, Count 2 I Mart Surveillance 03/18- Burglary to to a School

School (F)

(F) Four, Count 2 BMS Surveillance 22 22 19/2023

23 23 03/19/2023 Criminal Mischief (M)

Criminal Mischief (M) Eight, Eight, Count

Count 3 BMS Surveillance 24 24 04/08/2023 Criminal Mischief (M)

Criminal Mischief (M) Eight, Count Count 4 WHOM

IHOM Surveillance 04/11/2023 Property (M)

Theft of Property (M) Seven WHOM IHOM Surveillance 25 04/09/2023 Burglary (F)

Burglary (F) One, Count 3 Apurons Surveillance 26 04/09/2023 Criminal Mischief (M)

Criminal Mischief (M) Eight, Count Count 5 Apurons Surveillance 27 04/10/2023 Theft of Property (F)

Property (F) Six Fin Fin Rest. Surveillance 04/10/2023 Criminal Mischief (M)

Criminal Mischief (M) Eight, Count Count 6 Fin

Fin Rest. Surveillance 28

People v. People v. Ogo,

Ogo, Criminal

CriminalCase

Case No.

No. CF0718-23

CF0718-23

Decision Decision and

and Order Re.

Re. Defendant's Motion

Motion to

to Sever

Sever Charges Indictment Charges in the Indictment Page of Page 12 of13

I III.

111. CONCLUSION

2 For the

the reasons herein, the set forth herein,

reasons set Motion to Defendant's Motion

the Defendant's Sever Charges to Sever the

Charges in the

3 Indictment Court shall PART. The Court

Indictment is GRANTED IN PART. schedule a Criminal shall schedule Scheduling Criminal Trial Scheduling 4 Conference to discuss Conference to oftrial discuss the setting of dates and trialdates this case, and other deadlines in this thenotice case,the of which

noticeof

5

6 shall be forthcoming.

shall be forthcoming.

th

7 SO ORDERED this 14th day ofApril, dayof April, 2025.

8

f

9

IO 10 ' B

l11I HO RABLE MARIA T. CENZON Judge, Superior Guam Court of Guam

12 12

13 13

14

15 15

16

17

18 18

19 19

20

al 21

22 slsnvlcl Sl!ltYICI!mA

VIAe44IAII.

l!-MAIL

iL acknowledge

ac11now1edge that

that an

e,.. electrons:

e1ectron1t

Cony Copy ofo* the of-gmal

orog,~a1 was

w.-as ee malled

mailed to

to

23 f*G»r Rosa 11-G., ,osc

24

~

25 25 Date I

26 Aw Deputy Oeput\' clerk.

clerk. SupeT\or

Supe,.or Court of Guam

Guam

27 27

28

v. Ogo,

People v. Case No.

Criminal Case

Ogo, Criminal CF0718-23 No. CF0718-23

Re. Defendant's Motion

Decision and Order Re. Sever Charges to Sever

Motion to the Indictment Charges in the Indictment Page 13 13

13 of 13