5 IN THE SUPERIOR COURT OF GUAM 6 THE PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0643-11 7 ) 8 v. ) ) DECISION AND ORDER ON 9 DEFENDANT'S MOTION TO ANTHONY R. PUAS, ) DISMISS 10 ) Defendant. ) II
12 INTRODUCTION I3 This matter came before the Honorable Alberto C. Lamorena, III, on March 14 27, 2012 on Defendant's Motion to Dismiss. Attorney Maria G. Fitzpatrick 15 represented Defendant, Anthony R. Puas. Attorney Brian D. Gallagher 16 represented the People of Guam. Following the hearing the Court took the matter 17 under advisement. Having considered the parties' written and oral arguments, the 18 Court now issues its Decision and Order. 19 FACTUAL HISTORY 20 Defendant was charged by indictment with Second Degree Criminal Sexual 21 Conduct (As a 1st Degree Felony) under 9 G.C.A. §§ 25.20(a)(3) and (b), Second 22 Degree Criminal Sexual Conduct (as a 1st Degree Felony) under 9 G.C.A. §§ 23 25.20(a)(6) and (b), and Felonious Restraint (As a 3rd Degree Felony). The charges 24 stem from an incident in which a female individual (the "victim") was approached 25 by a male suspect in a parking lot late at night. The suspect pulled the victim's 26 hair, pinning her to her car while the suspect grabbed the victim's breast. The 27 victim then kneed the suspect in the groin, thereby allowing her to flee in her 28 Decision and Order Criminal Case No. CF0643-11
vehicle. The victim reported the incident to police and later identified Defendant 2 as her attacker. 3 DISCUSSION 4 Defendant's first contention is that the evidence presented to the grand jury 5 does not support the charge for Felonious Restraint. Defendant then argues that 6 because the felonious restraint charge must be dismissed, there is no predicate 7 felony offense to support the First Charge for First Degree Criminal Sexual
8 Conduct. Finally, Defendant claims that there was insufficient evidence of mental
9 anguish suffered by the victim to support the indictment on the Second Charge for
10 Second Degree Criminal Sexual Conduct. The following discussion first addresses
11 Defendant's arguments related to the Felonious Restraint charge (the Third Charge), and is followed analyses of the First Charge (Second Degree Criminal 12 Sexual Conduct) and the Second Charge (also Second Degree Criminal Sexual I3 Conduct). 14 1. Legal Standard 15
16 Generally, an indictment is valid where the grand jury receives sufficient
17 competent evidence to support a reasonable cause finding that the accused committed an indictable offense. 8 G.C.A. §§ 50.42, 50.54(b). "Reasonable cause 18 amounts to evidence such that 'a man of ordinary caution or prudence would be 19 led to believe and conscientiously entertain a strong suspicion of the guilt of the 20 accused.'" People v. Grajo, 1987 WL109393 at 2 (D. Guam App. Div. 1987). An 21 indictment should not be dismissed prior to trial due to alleged errors in the grand 22 jury proceedings unless it is shown that the defendant is prejudiced by the error. 23 Bank of Nova Scotia v. U.S., 487 U.S. 250, 255 (1988). In order to show prejudice, 24 the challenger must establish that a violation has occurred and that the grand 25 jury's decision to indict was substantially influenced by the violation. Bank of 26 Nova Scotia, 487 U.S. at 255. The person challenging the indictment carries a 27 difficult burden and must demonstrate that the grand jury was deceived by the 28 prosecutor's conduct, thus infringing upon the grand jury's ability to exercise
-2- Decision and Order Criminal Case No. CF0643-11
independent judgment. See U.S. v. AI Mudarris, 695 F.2d 1182, 1185 (9th Cir. 2 1983); U.S. v. Wright, 667 F.2d 793, 796 (9th Cir. 1982). 3 A prosecutor's failure to properly instruct a grand jury may, under certain 4 circumstances, be grounds for dismissal of an indictment. "Erroneous grand jury 5 instructions do not automatically invalidate an otherwise proper grand jury 6 indictment." United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982) (citing
7 United States v. Linetsky, 533 F.2d 192, 200-201 (5th Cir. 1976». The record must
8 show "that the conduct of the prosecuting attorney was flagrant to the point that
9 the grand jury was 'deceived' in some significant way." United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982) (citing United States v. Cederguist, 641 F.2d 10 1347, 1352-53 (9th Cir. 1981». The conduct must significantly infringe upon the 11 ability of the grand jury to exercise independent judgment. Id. In regards to the 12 prosecutor's actions regarding preliminary instructions, the prosecutor does not 13 have a duty to instruct the grand jury on the law to the same extent that a judge 14 must instruct a petit jury. People v. Gnass, 101 Cal. App. 4th 1271, 1306, 125 Cal. 15 Rptr. 2d 225, 252 (2002); People v. Calbud, Inc., 49 N.Y.2d 389, 394, 402 N.E.2d 16 1140, 1143 (1980). However, a prosecutor should provide the grand jury statutory 17 definitions of terms whose meaning is not obvious. See People v. Rockwell, 97 18 A.D.2d 853,854,469 N.Y.S.2d 252,254 (1983); People v. Levens, 252 A.D.2d 665, 19 666-67, 677 N.Y.S.2d 390, 392 (1998). With these principles in mind, this Court 20 now turns to the relevant evidence and instructions presented by the prosecution 21 in support of the indictment in this case. 22 II. The Third Charge: Felonious Restraint 23 Defendant first contends that the evidence presented to the grand jury wa 24 insufficient to support the felonious restraint charge. Specifically, Defendant argue 25 that there was no evidence that the accused knowingly exposed the victim t 26 circumstances that would pose a risk of serious bodily injury as required by statute. 27 This Court agrees with the Defendant that there was little evidence presented t 28 support the charge. Perhaps more important to this Court's decision is the fact tha
-3- Decision and Order Criminal Case No. CF0643-11
the prosecution failed to instruct the grand jury on the statutory definition 0 2 serious bodily injury-an essential element of the offense-which this Court find 3 had the likely effect of misleading the grand jury in their decision to indict on the 4 Felonious Restraint charge given the weakness of the evidence presented. 5 The prosecution charged Defendant with Felonious Restraint under title 9, 6 section 22.30(a), which provides:
7 § 22.30. Felonious restraint; Defined & Punished
8 A person commits a felony of the third degree if he knowingly 9 (a) restrains another unlawfully in circumstances 10 exposing him to risk of serious bodily injury 11
12 The definition of the term "serious bodily injury" is adopted from section 16.10(c), 13 which states: 14 Serious Bodily Injury means bodily injury which creates: serious 15 permanent disfigurement; a substantial risk or [sic] death or serious, permanent disfigurement, severe or intense physical pain or protracted 16 loss or impairment of consciousness or of the function of any bodily member or organ. 17
18 9 G.C.A. § 16.10(c). The term "serious bodily injury" is legally distinct from the 19 phrase "bodily injury," which means "physical pain, illness, unconSCIOusness or
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5 IN THE SUPERIOR COURT OF GUAM 6 THE PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0643-11 7 ) 8 v. ) ) DECISION AND ORDER ON 9 DEFENDANT'S MOTION TO ANTHONY R. PUAS, ) DISMISS 10 ) Defendant. ) II
12 INTRODUCTION I3 This matter came before the Honorable Alberto C. Lamorena, III, on March 14 27, 2012 on Defendant's Motion to Dismiss. Attorney Maria G. Fitzpatrick 15 represented Defendant, Anthony R. Puas. Attorney Brian D. Gallagher 16 represented the People of Guam. Following the hearing the Court took the matter 17 under advisement. Having considered the parties' written and oral arguments, the 18 Court now issues its Decision and Order. 19 FACTUAL HISTORY 20 Defendant was charged by indictment with Second Degree Criminal Sexual 21 Conduct (As a 1st Degree Felony) under 9 G.C.A. §§ 25.20(a)(3) and (b), Second 22 Degree Criminal Sexual Conduct (as a 1st Degree Felony) under 9 G.C.A. §§ 23 25.20(a)(6) and (b), and Felonious Restraint (As a 3rd Degree Felony). The charges 24 stem from an incident in which a female individual (the "victim") was approached 25 by a male suspect in a parking lot late at night. The suspect pulled the victim's 26 hair, pinning her to her car while the suspect grabbed the victim's breast. The 27 victim then kneed the suspect in the groin, thereby allowing her to flee in her 28 Decision and Order Criminal Case No. CF0643-11
vehicle. The victim reported the incident to police and later identified Defendant 2 as her attacker. 3 DISCUSSION 4 Defendant's first contention is that the evidence presented to the grand jury 5 does not support the charge for Felonious Restraint. Defendant then argues that 6 because the felonious restraint charge must be dismissed, there is no predicate 7 felony offense to support the First Charge for First Degree Criminal Sexual
8 Conduct. Finally, Defendant claims that there was insufficient evidence of mental
9 anguish suffered by the victim to support the indictment on the Second Charge for
10 Second Degree Criminal Sexual Conduct. The following discussion first addresses
11 Defendant's arguments related to the Felonious Restraint charge (the Third Charge), and is followed analyses of the First Charge (Second Degree Criminal 12 Sexual Conduct) and the Second Charge (also Second Degree Criminal Sexual I3 Conduct). 14 1. Legal Standard 15
16 Generally, an indictment is valid where the grand jury receives sufficient
17 competent evidence to support a reasonable cause finding that the accused committed an indictable offense. 8 G.C.A. §§ 50.42, 50.54(b). "Reasonable cause 18 amounts to evidence such that 'a man of ordinary caution or prudence would be 19 led to believe and conscientiously entertain a strong suspicion of the guilt of the 20 accused.'" People v. Grajo, 1987 WL109393 at 2 (D. Guam App. Div. 1987). An 21 indictment should not be dismissed prior to trial due to alleged errors in the grand 22 jury proceedings unless it is shown that the defendant is prejudiced by the error. 23 Bank of Nova Scotia v. U.S., 487 U.S. 250, 255 (1988). In order to show prejudice, 24 the challenger must establish that a violation has occurred and that the grand 25 jury's decision to indict was substantially influenced by the violation. Bank of 26 Nova Scotia, 487 U.S. at 255. The person challenging the indictment carries a 27 difficult burden and must demonstrate that the grand jury was deceived by the 28 prosecutor's conduct, thus infringing upon the grand jury's ability to exercise
-2- Decision and Order Criminal Case No. CF0643-11
independent judgment. See U.S. v. AI Mudarris, 695 F.2d 1182, 1185 (9th Cir. 2 1983); U.S. v. Wright, 667 F.2d 793, 796 (9th Cir. 1982). 3 A prosecutor's failure to properly instruct a grand jury may, under certain 4 circumstances, be grounds for dismissal of an indictment. "Erroneous grand jury 5 instructions do not automatically invalidate an otherwise proper grand jury 6 indictment." United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982) (citing
7 United States v. Linetsky, 533 F.2d 192, 200-201 (5th Cir. 1976». The record must
8 show "that the conduct of the prosecuting attorney was flagrant to the point that
9 the grand jury was 'deceived' in some significant way." United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982) (citing United States v. Cederguist, 641 F.2d 10 1347, 1352-53 (9th Cir. 1981». The conduct must significantly infringe upon the 11 ability of the grand jury to exercise independent judgment. Id. In regards to the 12 prosecutor's actions regarding preliminary instructions, the prosecutor does not 13 have a duty to instruct the grand jury on the law to the same extent that a judge 14 must instruct a petit jury. People v. Gnass, 101 Cal. App. 4th 1271, 1306, 125 Cal. 15 Rptr. 2d 225, 252 (2002); People v. Calbud, Inc., 49 N.Y.2d 389, 394, 402 N.E.2d 16 1140, 1143 (1980). However, a prosecutor should provide the grand jury statutory 17 definitions of terms whose meaning is not obvious. See People v. Rockwell, 97 18 A.D.2d 853,854,469 N.Y.S.2d 252,254 (1983); People v. Levens, 252 A.D.2d 665, 19 666-67, 677 N.Y.S.2d 390, 392 (1998). With these principles in mind, this Court 20 now turns to the relevant evidence and instructions presented by the prosecution 21 in support of the indictment in this case. 22 II. The Third Charge: Felonious Restraint 23 Defendant first contends that the evidence presented to the grand jury wa 24 insufficient to support the felonious restraint charge. Specifically, Defendant argue 25 that there was no evidence that the accused knowingly exposed the victim t 26 circumstances that would pose a risk of serious bodily injury as required by statute. 27 This Court agrees with the Defendant that there was little evidence presented t 28 support the charge. Perhaps more important to this Court's decision is the fact tha
-3- Decision and Order Criminal Case No. CF0643-11
the prosecution failed to instruct the grand jury on the statutory definition 0 2 serious bodily injury-an essential element of the offense-which this Court find 3 had the likely effect of misleading the grand jury in their decision to indict on the 4 Felonious Restraint charge given the weakness of the evidence presented. 5 The prosecution charged Defendant with Felonious Restraint under title 9, 6 section 22.30(a), which provides:
7 § 22.30. Felonious restraint; Defined & Punished
8 A person commits a felony of the third degree if he knowingly 9 (a) restrains another unlawfully in circumstances 10 exposing him to risk of serious bodily injury 11
12 The definition of the term "serious bodily injury" is adopted from section 16.10(c), 13 which states: 14 Serious Bodily Injury means bodily injury which creates: serious 15 permanent disfigurement; a substantial risk or [sic] death or serious, permanent disfigurement, severe or intense physical pain or protracted 16 loss or impairment of consciousness or of the function of any bodily member or organ. 17
18 9 G.C.A. § 16.10(c). The term "serious bodily injury" is legally distinct from the 19 phrase "bodily injury," which means "physical pain, illness, unconSCIOusness or
20 any impairment of physical condition." 9 G.G.A. § 16.10(b).
21 The grand jury received very little evidence regarding any risk of injury to
22 the victim. The testimony indicated that Defendant had accosted the victim by grabbing the victim's hair, yanking her shirt, and touching her breast and that the 23 victim received "several scratches from when [Defendant] pulled her shirt and 24 rubbed her breast area." (Trans. of Grand Jury Proc., Super. Ct. Case No. CF0643- 25 11, p. 10) It is highly questionable whether the evidence supports a probable cause 26 finding that Defendant committed the offense of Felonious Restraint. See, e.g., 27 Com. v. Schilling, 431 A.2d 1088, 1092, 288 Pa.Super. 359, 367-68 (1981) (fact that 28 defendant restrained victim in a car by pointing a gun to the victim's temple held
-4- Decision and Order Criminal Case No. CF0643-11
insufficient to sustain unlawful restraint conviction because evidence showed the 2 defendant knew firearm was not loaded and therefore he could not be found to 3 have placed victim in danger of incurring serious bodily injury). However, even 4 where there is only scant evidence supporting the allegations, this Court is 5 normally reluctant to disturb the grand jury's findings. 6 The lack of evidence of serious bodily injury or risk of such injury is,
7 however, compounded in this case by the fact that the prosecution also failed to
8 instruct the grand jury on the legal definition of the phrase "serious bodily injury."
9 In this jurisdiction that phrase has significant legal import and maintains a specific meaning that is distinct from the statutory definition of "bodily injury" 10 defined by title 9, section 16.IO(b). Without a definition of "serious bodily injury" 11 the grand jury had no way to distinguish this phrase from other similar, yet 12 distinct legal terms or common lay definitions, and had no opportunity to apply 13 the specific legal definition to determine whether the evidence was sufficient to 14 prove the essential elements of the crime. See, e.g., People v. Rockwell, 97 A.D.2d 15 853, 854, 469 N.Y.S.2d 252, 254 (1983) (acknowledging that while the term 16 'physical injuries' is so obvious that no definition need be given to the grand jury, 17 failure to instruct grand jury as to the phrase 'serious physical injury' was more 18 significant). In this case, there is a strong likelihood that the limited evidence of a 19 risk of serious bodily injury, combined with the prosecution's failure to instruct 20 the grand jury on technical definitions of the essential elements of the offense 21 created a substantial risk that the grand jury was misled and that these factors 22 influenced the decision to indict. As such, dismissal of the Felonious Restraint 23 charge is warranted. 24
25 III. The First Charge: First Degree Criminal Sexual Conduct 26 Defendant next argues that if the felonious restraint charge is dismissed, th 27 First Charge must be dismissed also as that charge is predicated upon the 28 Felonious Restraint offense. The First Charge of the Indictment states as follows:
-5- Decision and Order Criminal Case No. CF0643-11
3 FIRST CHARGE 4 On or about the 21st day of November, 2011, in Guam, 5 ANTHONY R. PUAS did commit the offense of Second Degree Criminal Sexual Conduct, when he intentionally engaged in sexual 6 contact with another, to wit: by causing his hand to touch the breast 7 area of C.M.T. (DOB: 01/13/1991), and the sexual contact occurred under circumstances involving another felony, namely, Felonious 8 Restraint, in violation of 9 GCA §§ 22.20 (a)(3) and (b). 9 The offense of Second Degree Criminal Sexual Conduct, charged under title 9, 10 section 22.20 (a)(3), does indeed require a predicate felony offense. Based on this 11 court's ruling that the Felonious Restraint charge must be dismissed, the existing 12 felony offense on which the First Charge is based is no longer applicable; 13 therefore, the First Charge must be dismissed as well. 14
15 IV. The Second Charge: First Degree Criminal Sexual Conduct 16 In his final argument, Defendant asserts that there was insufficient 17 evidence presented to the grand jury to support the Indictment on the First 18 Degree Criminal Sexual Conduct charge filed under title 9, sections 25.20 (a)(6) 19 and (b) of the Guam Code. The Second Charge provides: 20 SECOND CHARGE 21 On or about the 21st day of November, 2011, in Guam, 22 ANTHONY R. PUAS did commit the offense of Second Degree Criminal Sexual Conduct, when he intentionally engaged in sexual 23 contact with another, to wit: by causing his hand to touch the breast 24 area of C.M.T. (DOB: 0111311991), and ANTHONY R. PUAS caused personal injury to the victim and force or coercion was used to 25 accomplish sexual contact, in violation of 9 GCA §§ 25.20 (a)(6) and (b). 26 Under title 9, section 25.20(a) of the Guam Code, "a person is guilty of criminal 27 sexual conduct in the second degree if the person engages in sexual contact with 28 another person and if ... the actor causes personal injury to the victim and force
-6- Decision and Order Criminal Case No. CF0643-11
or coercion is used to accomplish the sexual contact ...." 9 G.C.A. § 25.20(a)(6). 2 "Personal Injury means bodily injury, disfigurement, mental anguish, chronic 3 pain, pregnancy, disease or loss or impairment of a sexual reproductive organ." 9 4 G.C.A. § 25.10(a)(7). A review of the grand jury transcripts indicates that the 5 prosecution did not instruct the grand jury on the definition of the phrase 6 "personal injury" or of any of phrase contained therein.
7 Defendant's argument rests on his assertion that the prosecution did not
8 present evidence of mental anguish. Defendant cites People v. Petrella, 424 Mich.
9 221, 257, 380 N.W.2d 11, 18-19 (1986) in which the Michigan Supreme Court defined the phrase "mental anguish" as used in Michigan's criminal sexual 10
conduct statutes, which are identical to Guam's statutes. See People v. Okeril, 11 Decision and Order in Criminal Case No. CF0316-96 (Sup. Ct. Guam, May 29, 12 1997) (recognizing that Guam's Criminal Sexual Conduct statutes were adopted 13 from Michigan and citing Petrella for applicable definition of "mental anguish"). 14 The Petrella court held that "mental anguish" means "extreme or excruciating 15 pain, distress, or suffering of the mind." Petrella, 424 Mich. at 257. Applying this 16 definition to the consolidated cases on appeal the Michigan court held that 17 evidence that the victim had screamed and cried during and after her father raped 18 her did not rise to the level of mental anguish that was required in order to 19 elevate the criminal sexual conduct to a greater offense. Id. at 272. Given that 20 Guam's statutes are identical to Michigan's, this Court finds Michigan precedent 21 highly persuasive.! Gibbs v. Holmes, 2001 Guam 11, ~ 15 (where a Guam statute 22 is similar to a state or federal statute, the state or federal cases interpreting that 23 statute are persuasive authority in Guam). 24 The only testimony before the grand jury relating to mental anguish was 25 testimony that the victim was upset and during her encounter with Defendant. 26 1The prosecution cites Illinois case law for the proposition that mental anguish may b 27 presumed in cases of sexual assault. See People v. Williams, 638 N.E. 2d 207 (Ill. App. 3 28 1994). This Court finds no compelling reason to apply Illinois law within this jurisdictio when Michigan law contains identical statutes and compelling precedent. Therefore, thi Court finds the prosecution's argument on this point unconvincing.
-7- Decision and Order Criminal Case No. CF0643-ll
Applying Michigan's definition of "mental anguish" to the facts of this case, and 2 viewing those facts in a light most favorable to the prosecution, it is clear that the 3 evidence does not support a finding that the attack caused the level of mental 4 anguish necessary to elevate the offense to second-degree felony under title 9, 5 section 25.20(a)(6) and (b). Furthermore, the fact that the prosecution did not 6 describe to the grand jury the legal meaning of the phrases "personal injury" or
7 "mental anguish" raises concern as to whether the grand jury had any context to
8 properly find that Defendant knowingly caused the victim to suffer mental
9 anguish. Personal injury, however, encompasses more than simply mental anguish and thus this Court's analysis does not end here. 10 Defendant overlooks the fact that the term "personal injury" also includes 11 any "bodily injury" suffered by a victim. Although Chapter 25 governing sexual 12 offenses does not include a definition of bodily injury, title 9, section 16.10(b) 13 states that "Bodily Injury means physical pain, illness, unconsciousness or any 14 impairment of physical condition." The grand jury in this case heard evidence that 15 Defendant pulled the victim's hair, that the victim was crying, and that the victim 16 had scratches on her chest resulting from the attack. When viewed in a light most 17 favorable to the prosecution, this evidence would likely support a probable cause 18 finding that the victim suffered physical pain during the assault. See People v. 19 Kraai, 92 Mich. App. 398,403,285 N.W.2d 309,312 (1979) ("We find no indication 20 in the statute that the injuries suffered must necessarily be permanent or 21 substantial."); ~ People v. MackIe, 241 Mich. App. 583, 598, 617 N.W.2d 339, 22 347-48 (2000) (open-hand slaps supported a finding of physical injury."). 23 However, this Court remains concerned by the fact that the prosecution 24 failed to provide the grand jury with a statutory definition of "personal injury." 25 Personal injury is an essential element of the charged offense and that phrase
26 contains nuanced legal meaning that is specifically defined by statute to include a
27 number of distinct components. There is a substantial risk that the grand jury's
28 decision to indict the Defendant on the Second Charge was influenced by the fact
-8- Decision and Order Criminal Case No. CF0643-11
that the grand jury did not receive the available legal definitions of the essential 2 elements of the crime. 3 CONCLUSION 4
5 This is a case for which a probable cause finding on the charged offenses
6 hinges on the nuances of the legal definitions for the terms "serious bodily injury"
7 and "personal injury." The evidence presented to the grand jury in support of the
8 charged crimes was far from overwhelming and this Court cannot simply overlook the fact that the prosecution failed to instruct the grand jury on crucial legal 9 definitions. Based on the foregoing, the Indictment shall be DISMISSED 10 WITHOUT PREJUDICE. Should the People choose to re-indict, the People shall 11 instruct the grand jury on the relevant legal definitions regarding the essential 12 elements of the offenses charged. 13
15 It is SO ORDERED this 5th day of July, 2012.
19 Honorable Judge 20 Presiding Judge, Su.~r:.wl:..J.,..j( urt of Guam 21