People v. Roberts

Opinion

PEOPLE OF GUAM, CRIMINAL CASE NO. CF0384-06 3 CLERK G? 4 VS. 1 DECISION ) KEVIN JOHN ROBERTS, ) Defendant. ) 6

(1 The Defendant's Motion for Reconsideration was heard on June 22, 2009 before the 1 8 II HONORABLE ELIZABETH BARRETT-ANDERSON. People were represented by Assistant Attorney I 9 II General Kimberly Raines, and Defendant was represented by Attorney Howard Trapp. The Court having I lo 1 (considered all the briefs and arguments herein now renders the following decision, and for the reasons I II stated below, Defendant's Motion for Reconsideration is DENIED. I 11 FACTUAL HISTORY - I I l2

l3 l4 I11( On February 11, 2009, Defendant was found Guilty of second degree criminal sexual conduct.

On March 16,2009 this Court heard Defendant's Motion for Judgment of Acquittal. On March 30,2009 1 15 this Court issued its Decision denying Defendant's Motion for Judgment of Acquittal (hereinafter 16 "March 30" Decision"). On April 29,2009, Defendant filed this Motion for Reconsideration. 17 DISCUSSION

l8 11 Under Guam Rules of Civil Procedure, a reconsideration motion is considered a Rule 60@) I l9 1 motion if filed more than 10 days after the order. This motion will be reviewed accordingly. Sananap v. I 20 11 Cyfred, Ltd., 2008 Guam 19 ( 15. II I In Merchant v. Nonyo Realv, Inn., the Guam Supreme Court places a high bar for granting a 22 II Rule 60@) motion for reconsideration. 1998 Guam 26, 1998 WL 964571 at (9. The assertion of issues I 1/ already addressed or the advancement of arguments, such as a point of law that was overlooked, which 24 II were otherwise available for presentation at the initial hearing may not be addressed under Rule 60@). 1 25 26 1 Id When a court has considered all arguments and a motion for reconsideration merely reiterates those I arguments, no relief may be granted under Rule 60@). The fact that Defendant may disagree with, or 27 find the Court's previous ruling incorrect, does not give cause for this Court to change it's prior position. In Defendant's brief pleading, State v. ~ r u c e is ' cited as a point of law that was overlooked and the sole

reason why this Court should reconsider its March 30'" Decision. 396 S.E.2d 95 (N.C. Ct. App. 1988).

The Court finds no merit and is not persuaded by a North Carolina decision that is not on point.

Furthermore, Bruce can be distinguished from this case. In Bruce, the defendant is charged with vaginal

intercourse and there was a lack of evidence of vaginal penetration at trial, rather the government only

provided evidence of attempted rape. Id. In this case Defendant was charged and convicted of with

engaging in sexual contact and the government provided evidence of sexual contact with the victim's

intimate parts and the area commonly referred to as a female "vagina"; albeit the government did not

provide direct evidence of the Defendant touching the vagna as defined in the jury instructions; hence

"the variance in this case is where the victim was touched" and not a variance to the charges. People v.

Roberts, Criminal Case No 0384-06, Decision (Mar. 30,2009).

This Court did not overlook a point of law that is binding on this Court. As indicated in thc

March 30'" Decision, the Guam Supreme Court discusses variances of proof, the same standard this Cour

applied to this case. The Court finds that the government was able to prove all of the essential element; of second degree criminal sexual conduct. The Court will not reconsider its denial of Defendant's Motio~

for Judgment of Acquittal. CONCLUSION

Defendant's Motion for Reconsideration is DENIED. The Defendant shall appear for sentencing

on IT IS SO ORDERED this day of M , 2 o o 9 .

, \

H O N O F ~ B L EELIZABETH BARRETT- ANDERSON Judge, Superior Court of Guam

1 This case discusses State v. Loudner, 335 S.E.2d 78 (1985) where "evidence tended to show that defendant placed his finger in the victim's vagina" and this Court doubts that the North Carolina court required proof of the finger entering the biological d e f ~ t i o nof a vagina versus the area on the female body that the word vagina connotes. Bruce, 369 S.E.2d at 97. However, regardless of the proof offered in State v. Loudner, the March 30Ih Decision is correct about the law on Guam regarding this issue.