People v. Ogo

• Court: Superior Court of Guam
• Decided: April 14, 2025
• Docket: CF0718-23
• Status: Unknown

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§

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)

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

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

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

IO 10 ' B l11I HO RABLE MARIA T. CENZON Judge, Superior Guam Court of Guam 12 12

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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

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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