IN THE SUPERIOR COURT OF GUAM
n"'' 1 I' C /
) Criminal Case No. CF0;~46-12 - PEOPLE OF GUAM, ) ) ) ) ) DECISION AND ORDER: Defendant's ) Motion to Present Certain Evidence of Past vs. ) Sexual Conduct ) ) ) ZARACKAI PHILLIPE PATRICK, ) Defendant. )) ----------------------------
INTRODUCTION
This matter came before the Honorable Anita A. Sukola on October 14, 2013, for a
hearing on the Defendant Zarackai Patrick's Motion to Present Certain Evidence of Past Sexual
Conduct. The People of Guam (the People) were represented by Assistant Attorney General
Lisa Lorig. Alternate Public Defender Ana Maria Gayle represented Defendant. Following the
hearing, the Court took the matter under advisement. Upon review of the evidence, written
arguments, and legal authorities presented by both parties, the Court hereby issues this Decision
and Order DENYING the Defendant's motion.
BACKGROUND
Defendant was indicted by a Superior Court of Guam Grand Jury on September 26,
2012. The indictment charges the following: (1) three counts of First Degree Criminal Sexual
Conduct, three counts of Second Degree Criminal Sexual Conduct, and one count of Child
Abuse. Indictment (Sept. 26, 2012). On October 10, 2012, Defendant appeared for arraignment
and pled not guilty. Super. Ct. of Guam Minute Entry Log No. 15133 (Oct. 10, 2012).
s The Defendant subsequently provided notice and moved to present evidence of the
victim's past sexual conduct. Notice of Motion; Motion to Present Certain Evidence of Past
Sexual Conduct (Oct. 4, 2013). On October 9, 2013, The People tiled a response objecting to
the introduction of such evidence. ·People's Response to Defendant's Motion to Present Certain
Evidence of Past Sexual Conduct (@ct. 9 2013). The Comi heard oral arguments on October 14,
2013.
DISCUSSION
The Defendant moves for this Court to allow him to "introduce certain evidence of past
sexual conduct of the victim ... under §412 (b) of Title 6, Guam Code Annotated". Notice of
Motion; Motion to Present Certain Evidence of Past Sexual Conduct (Oct. 4, 20 13) at 2.
Specifically, Defendant seeks admission oftwo forensic examination findings revealing redness
and lacerations of the victim's vaginal area in order to show that the injury was caused by
another person. !d. at 2, 3. Defendant contends that, because he was incarcerated during the
time the injuries occurred, he could not have been responsible for causing them. Jd. at 3.
The People oppose to the introduction of the victim's prior sexual conduct on the grounds
that "[t]he hymen tear and laceration don't relate to either Defendant or actions alleged",
rendering them irrelevant. People's Response to Defendant's :r-.v1otion to Present Certain Evidence
of Past Sexual Conduct (Oct. 9 20 13) at 2. The People state their contention, that the alleged
conduct of the Defendant (cunnilingus and digital penetration) could not have caused the
victim's injuries, is supported by Forensic Nurse Ann Rios, who performed the forensic
examinations on the victim. Id. at 2, 3. Additionally, the People claim that such disclosure would
"confuse the jury, unfairly prejudice Victim by disclosing possible sexual history, or both, in
violation of GRE 403." Id. at 4. The Court agrees. Evidence Rule 412
Rule 412 of the Guam Rules of Evidence states that evidence relating to an alleged
victim's prior sexual behavior is generally inadmissible in a criminal proceeding involving
alleged sexual misconduct. 6 G.C.A. §412 (a). This rule is based on Rule 41:1ofthe Federal
Rules of Evidence and "aims to safeguard the alleged victim against the invasion of privacy,
potential embarrassment and sexual stereotyping that is associated with public disclosure of
intimate sexual details and the infusion of sexual innuendo into the factfinding process". Fed. R.
Evid. 412, Advisory Committee Notes, 1994 Amendments (West); United States v. Torres, 937
F.2d 1469, 1472-73 (9th Cir. 1991) (citing 124 Cong.Rec.H. 11944 (daily ed. Oct. 10, 1978)
(statement of Rep. Mann)) (the purpose of the rule is "to protect rape victims from the degrading
and embarrassing disclosure of intimate details about their private lives").
There are a limited number of exceptions to the general presumption of inadmissibility.
Of relevance to the present motion, evidence of specific instances of sexual behavior by the
alleged victim may be offered to prove that a person other than the accused was the source of
semen, injury, or other physical evidence. 6 G.C.A. §412 (b) (1) (A). Here, Defendant seeks to
introduce evidence ofthe victim's sexual conduct with Taylor Rosario to prove that he was the
cause of an injury. Nonetheless, the exception is not applicable. As the federal rule explains, the
§412 (b) exception is limited to instances "[w]here the prosecution has directly or indirectly
asserted that the physical evidence originated with the accused". Fed. R. Evid. 412, Advisory
Committee Notes, 1994 Amendments (West); see also United States v. Eagle Thunder, 893
F .2d 950, 954 (8th Cir. 1990) (412(b )(2)(A) allows "evidence of specific instances of an alleged
victim's past sexual behavior ... if offered 'upon the issue of whether the accused was or was not
... the source of the ... injury.' " (internal citation omitted). In this case, the prosecution is not asserting that the Defendant was the source of injury. On the contrary, the Government
explicitly admits that the injury in question, medically speaking, could not have been caused by
the alleged conduct and occurred at a time the Defendant was incarcerated. See People's
Response, at 2-4. At oral argument, the People reaffirmed this admission by agreeing to
stipulate that the Defendant was not the cause of victim's vaginal injury. Motion Hearing,
CF546-12 (Oct. 14, 2013) at 11:58:35 AM. As both parties agree that Defendant did not cause
the victim's injuries, the victim's conduct does not fall within the physical injury exception and
is governed by the general rule shielding victim's sexual history from disclosure. See United
States v. Azure, 845 F.2d 1503, 1505 (8th Cir.1988) (evidence concerning unrelated previous
injury was not admissible under rule 412).
Relevance and Prejudice
The Court is similarly persuaded by the People's alternate arguments for exclusion.
Assuming arguendo that a §412 (b) exception is applicable, "evidence offered for the specific
purpose identified in this subdivision may still be excluded if it does not satisfy Rules 401 or
403." Fed. R. Evid. §412, Advisory Committee Notes (citing Azure, 845 F.2d at 1505-06); 6
G.C.A. §412 (b) (1) (limiting exceptions to evidence "otherwise admissible under these rules").
Thus, evidence which is irrelevant or unduly prejudicial is barred even if its subject matter falls
within an exception to rule 412.Jd. see also Quinn v. Haynes, 234 F.3d 837, 846 (4th Cir. 2000).
Relevant evidence is evidence "having any tendency to make the existence of any fact
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IN THE SUPERIOR COURT OF GUAM
n"'' 1 I' C /
) Criminal Case No. CF0;~46-12 - PEOPLE OF GUAM, ) ) ) ) ) DECISION AND ORDER: Defendant's ) Motion to Present Certain Evidence of Past vs. ) Sexual Conduct ) ) ) ZARACKAI PHILLIPE PATRICK, ) Defendant. )) ----------------------------
INTRODUCTION
This matter came before the Honorable Anita A. Sukola on October 14, 2013, for a
hearing on the Defendant Zarackai Patrick's Motion to Present Certain Evidence of Past Sexual
Conduct. The People of Guam (the People) were represented by Assistant Attorney General
Lisa Lorig. Alternate Public Defender Ana Maria Gayle represented Defendant. Following the
hearing, the Court took the matter under advisement. Upon review of the evidence, written
arguments, and legal authorities presented by both parties, the Court hereby issues this Decision
and Order DENYING the Defendant's motion.
BACKGROUND
Defendant was indicted by a Superior Court of Guam Grand Jury on September 26,
2012. The indictment charges the following: (1) three counts of First Degree Criminal Sexual
Conduct, three counts of Second Degree Criminal Sexual Conduct, and one count of Child
Abuse. Indictment (Sept. 26, 2012). On October 10, 2012, Defendant appeared for arraignment
and pled not guilty. Super. Ct. of Guam Minute Entry Log No. 15133 (Oct. 10, 2012).
s The Defendant subsequently provided notice and moved to present evidence of the
victim's past sexual conduct. Notice of Motion; Motion to Present Certain Evidence of Past
Sexual Conduct (Oct. 4, 2013). On October 9, 2013, The People tiled a response objecting to
the introduction of such evidence. ·People's Response to Defendant's Motion to Present Certain
Evidence of Past Sexual Conduct (@ct. 9 2013). The Comi heard oral arguments on October 14,
2013.
DISCUSSION
The Defendant moves for this Court to allow him to "introduce certain evidence of past
sexual conduct of the victim ... under §412 (b) of Title 6, Guam Code Annotated". Notice of
Motion; Motion to Present Certain Evidence of Past Sexual Conduct (Oct. 4, 20 13) at 2.
Specifically, Defendant seeks admission oftwo forensic examination findings revealing redness
and lacerations of the victim's vaginal area in order to show that the injury was caused by
another person. !d. at 2, 3. Defendant contends that, because he was incarcerated during the
time the injuries occurred, he could not have been responsible for causing them. Jd. at 3.
The People oppose to the introduction of the victim's prior sexual conduct on the grounds
that "[t]he hymen tear and laceration don't relate to either Defendant or actions alleged",
rendering them irrelevant. People's Response to Defendant's :r-.v1otion to Present Certain Evidence
of Past Sexual Conduct (Oct. 9 20 13) at 2. The People state their contention, that the alleged
conduct of the Defendant (cunnilingus and digital penetration) could not have caused the
victim's injuries, is supported by Forensic Nurse Ann Rios, who performed the forensic
examinations on the victim. Id. at 2, 3. Additionally, the People claim that such disclosure would
"confuse the jury, unfairly prejudice Victim by disclosing possible sexual history, or both, in
violation of GRE 403." Id. at 4. The Court agrees. Evidence Rule 412
Rule 412 of the Guam Rules of Evidence states that evidence relating to an alleged
victim's prior sexual behavior is generally inadmissible in a criminal proceeding involving
alleged sexual misconduct. 6 G.C.A. §412 (a). This rule is based on Rule 41:1ofthe Federal
Rules of Evidence and "aims to safeguard the alleged victim against the invasion of privacy,
potential embarrassment and sexual stereotyping that is associated with public disclosure of
intimate sexual details and the infusion of sexual innuendo into the factfinding process". Fed. R.
Evid. 412, Advisory Committee Notes, 1994 Amendments (West); United States v. Torres, 937
F.2d 1469, 1472-73 (9th Cir. 1991) (citing 124 Cong.Rec.H. 11944 (daily ed. Oct. 10, 1978)
(statement of Rep. Mann)) (the purpose of the rule is "to protect rape victims from the degrading
and embarrassing disclosure of intimate details about their private lives").
There are a limited number of exceptions to the general presumption of inadmissibility.
Of relevance to the present motion, evidence of specific instances of sexual behavior by the
alleged victim may be offered to prove that a person other than the accused was the source of
semen, injury, or other physical evidence. 6 G.C.A. §412 (b) (1) (A). Here, Defendant seeks to
introduce evidence ofthe victim's sexual conduct with Taylor Rosario to prove that he was the
cause of an injury. Nonetheless, the exception is not applicable. As the federal rule explains, the
§412 (b) exception is limited to instances "[w]here the prosecution has directly or indirectly
asserted that the physical evidence originated with the accused". Fed. R. Evid. 412, Advisory
Committee Notes, 1994 Amendments (West); see also United States v. Eagle Thunder, 893
F .2d 950, 954 (8th Cir. 1990) (412(b )(2)(A) allows "evidence of specific instances of an alleged
victim's past sexual behavior ... if offered 'upon the issue of whether the accused was or was not
... the source of the ... injury.' " (internal citation omitted). In this case, the prosecution is not asserting that the Defendant was the source of injury. On the contrary, the Government
explicitly admits that the injury in question, medically speaking, could not have been caused by
the alleged conduct and occurred at a time the Defendant was incarcerated. See People's
Response, at 2-4. At oral argument, the People reaffirmed this admission by agreeing to
stipulate that the Defendant was not the cause of victim's vaginal injury. Motion Hearing,
CF546-12 (Oct. 14, 2013) at 11:58:35 AM. As both parties agree that Defendant did not cause
the victim's injuries, the victim's conduct does not fall within the physical injury exception and
is governed by the general rule shielding victim's sexual history from disclosure. See United
States v. Azure, 845 F.2d 1503, 1505 (8th Cir.1988) (evidence concerning unrelated previous
injury was not admissible under rule 412).
Relevance and Prejudice
The Court is similarly persuaded by the People's alternate arguments for exclusion.
Assuming arguendo that a §412 (b) exception is applicable, "evidence offered for the specific
purpose identified in this subdivision may still be excluded if it does not satisfy Rules 401 or
403." Fed. R. Evid. §412, Advisory Committee Notes (citing Azure, 845 F.2d at 1505-06); 6
G.C.A. §412 (b) (1) (limiting exceptions to evidence "otherwise admissible under these rules").
Thus, evidence which is irrelevant or unduly prejudicial is barred even if its subject matter falls
within an exception to rule 412.Jd. see also Quinn v. Haynes, 234 F.3d 837, 846 (4th Cir. 2000).
Relevant evidence is evidence "having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence". 6 G.C.A. §40 1. Evidence which is not relevant is not
admissible. 6 G.C.A. §402. Further, even relevant evidence may be excluded "if its probative
value is substantially outweighed by the danger of unfair prejudice" or "confusion of the issues". 6 G.C.A. §403. The forensic examination findings offered by Defendant are both irrelevant and
unjustifiably prejudiciaL As explained, the injury suffered by the victim is not indicative of the
conduct alleged and occurred at a different time from the alleged crime. Thus, it does not have a
tendency tomake the determination of consequential facts in the case more or less pmbable.
Because it is irrelevant, such evidence serves no probative value to the determination of pertinent
facts or conclusions. Accordingly, its introduction would serve only to prejudice the victim by
attacking her sexual character in a manner explicitly prohibited by §412. Additionally, the
location and sexual source of the injury is likely to cause unnecessary jury confusion regarding
the unrelated criminal allegation of a similar subject matter. As such, the balancing test of rule
403 weighs strongly in favor of exclusion and §402 requires it.
CONCLUSION
By preponderance of the evidence and based on the foregoing reasons, the Court
DENIESS the Defendant's Motion to Present Certain Evidence of Past Sexual Conduct.
SO ORDERED this ___!__day of JANUARY, 2014.
HONORABLE ANITA A. SUKOLA Judge, Superior Court of Guam