People v. Pablo
Opinion
IN THE SUPERIOR COURT OF GUAM -;nn '"''T "' ~. 1 ') _t;. '2 2 THE PEOPLE OF GUAM, ) CRIMINAL CASltNO.' cFuz~l-09 3 )
vs. )
4 )
)
5 ) DECISION AND ORDER SERAFIN REYES PABLO, 6 )
Defendant. )
7 )
8
9 This matter came before the HONORABLE VERNON P. PEREZ on June 28, 2013 on
10 Defendant's Motion for Acquittal and Motion to Dismiss. Attorney Howard Trapp appeared on
11 behalf of the Defendant. Attorney Matthew Heibel appeared on behalf of the Government.
12 Having reviewed the pleadings, the arguments presented, and the record, the Court now issues
13 the following Decision and Order.
14 BACKGROUND
15 Defendant was charged with two counts of Second Degree Criminal Sexual Conduct as a
16 first degree felony and two counts of Child Abuse as a misdemeanor. After a jury trial,
17 Defendant was found not guilty on Count Two of the Second Degree Criminal Sexual Conduct
18 Charge. As to Count One of that charge, the jury was unable to determine whether Defendant
19 was guilty or not guilty, and the Court declared a mistrial. Defendant now brings a Motion for
20 Acquittal and a Motion to Dismiss Count One of the first charge.
21 DISCUSSION
22 Motion for Acquittal
23 Title 8 GCA § 100.30 provides:
24 If a jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 25 seven days after the jury is discharged or within such further time as the court may fix during the seven-day period. If a verdict of guilty is returned the 26 court may on such motion set aside the verdict and enter judgment of 27 acquittal. If no verdict is returned the court may enter judgment of acquittal.
It shall not be necessary to the making of such a motion that a similar motion 28 has been made prior to the submission of the case to the jury.
People v. Pablo, Decision and Order Criminal Case No. CF0281-09 -Page I of 4-
8 GCA § 100.30 (2013). The standards for consideration of motions for judgment of acquitta 2 3 were set forth by the Guam Supreme Court in People v. Cruz, 1998 Guam 18 (1998). Therein
4 the court held that the evidence presented must be reviewed in "a light most favorable to th 5 government and ... whether any rational trier of fact could [find] the essential elements of th 6 crime beyond a reasonable doubt." Cruz at~ 9 (citing Jackson v. Virginia, 443 U.S. 307,319 9 7 S.Ct. 2781,2788 (1979) and US. v. Riggins, 40 F.3d 1055, 1057 (9th Cir. 1994).
8
9 In this case, Count One of the first charge alleged:
10 On or about the period between October 1, 2008 through November 30, 2008, inclusive ... [Defendant] did commit the offense of Second Degree Criminal 11 Sexual Conduct, in that he did intentionally engage in sexual contact with another, 12 to wit: by causing his hand to touch the breast [of the alleged victim] ... m violation of9 GCA §§ 25.20(a)(l) and (b)."
13
14 See. Superseding Indictment. Defendant argues that the evidence presented at trial is insufficien
15 to sustain a conviction. Defendant points out that the victim testified that the alleged inciden 16 occurred before Halloween (Friday, October 31, 2008). Def's. Mem. in Supp. pg. 1.. To refut 17 that testimony, Defendant provided "Exhibit A," a school work assignment dated November 05 18 2008, which purportedly illustrates that the victim had no problems or issues with the Defendan 19
20 after the date that the incident was alleged to have occurred. Based on that inconsistency
21 Defendant argues that the evidence is insufficient to sustain a conviction, and requests that th 22 Court acquit him as to Count One of the Second Degree Criminal Sexual Conduct Charge. A 23 trial, the Government adduced sworn testimony from the victim that Defendant did in fact touc 24 her breast. Witness Testimony on May 29, 2013, 11:51 :Ola.m .. The Government also adduce 25
26 testimony from the victim's father of when the victim first reported the incident to him. Witnes
27 Testimony on May 29, 2013,11 :23:29a.m.. The Government argues that this was enoug 28 evidence to support a conviction. Govt's. Resp. pg. 3.. The Court agrees. Defendant'
People v. Pablo, Decision and Order
argument is based on an inconsistency involving dates, in that the victim testified that th 2 incident occurred sometime in October yet Defendant's Exhibit A arguably suggests that b. 3 November 5, 2008, the victim had no problems or issue with Defendant. In People v. Campbell 4 the Guam Supreme Court held that "with respect to a variance between the date of the offense a 5
6 alleged and the date of the offense as proved at trial, a number of jurisdictions hold that whil
7 time is an important part of an indictment for sexual offenses, it is not generally considered 8 substantive part of the charging document." People v. Campbell, 2006 Guam 14 ~ 15.
9 Moreover, "[t]ime is a material element of an offense only if made so by statute." !d. "[S]inc 10 time is not an element of criminal sexual conduct, it is sufficient if the evidence demonstrates 11
12 date reasonably near the date alleged in the indictment." !d. at 17. In this case, Defendant'
13 Exhibit A does not foreclose the possibility that the incident still could have occurred within th 14 timeframe charged in the superseding indictment. Therefore, viewing the evidence in a ligh 15 most favorable to the Government, the Court cannot say that a rational trier of fact could not fin 16
17 the essential elements of the crime beyond a reasonable doubt.
18 Motion to Dismiss 19 Defendant argues that the declaration of a mistrial was a result of judicial and 20 prosecutorial impropriety based on the Court's decision to use its own verdict forms as opposed 21 to those proposed by Defendant. The Court's verdict form gave the jury the option to find 22 Defendant "guilty" or "not guilty." Further, the form indicated that if the Jury was unable to 23 decide the Defendant's guilt or innocence, the foreperson was to simply sign and date the form. 24 Defendant argues that this "third option" was designed to avoid an acquittal and, as a result, 25 further prosecution of Defendant is barred as it violates the Double Jeopardy Clause. Def s. 26 Rep. to Gov't Opp.. For support, Defendant cites to Oregon v. Kennedy, 456 U.S. 667 (1982). 27 Rep. to People's Resp .. In that case, the U.S. Supreme Court held that "the circumstances under 28 which ... defendant may invoke the bar of double jeopardy in a second effort to try him are
People v. Pablo, Decision and Order
limited to those cases in which the conduct giving rise to the successful motion for a mistrial 2 was intended to provoke the defendant into moving for a mistrial." !d. at 678-79. The facts of 3 Kennedy, however, are inapposite to the facts of the case at bar. In Kennedy, the Defendant 4 successfully moved for a mistrial based on the prosecution's line of questioning, which the 5 Oregon Court of Appeals later determined to be "overreaching." !d. at 670. Although the Court 6 of Appeals found the questioning to be overreaching, it accepted the trial court's finding that it 7 was not the intent of the prosecutor to cause a mistrial. !d. On that basis, the U.S. Supreme 8 Court reversed the Oregon Court of Appeals' determination that retrial was barred by the
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