People v. Roberts

Opinion

?, ,--,- ,>,,?-*, " -" I'>T \ " , ' i J ,- L,u.r I IN THE SUPERIOR COURT OF GUAM-

I 3 THE PEOPLE OF GUAM

5 KEVIN JOHN ROBERTS 1 (Motion for Judgment of Acquittal) 6 1 7

1 This came on regularly on regularly for hearing on March 16,2009, before the Honorable

I 9 ELIZABETH BARRETT-ANDERSON on Defendant's Motion for Judgment of Acquittal. 1 1 I 0 Defendant was represented by AttorneyHoward Trapp. The People were represented by Assistant

1 Attorney General Sally A. Tobin. Based on the arguments presented, the Court herewith DENIES 12 the Defendant's Motion. 13 A motion for judgment of acquittal requires, in order to be granted, that the Court find 14 "insufficient evidence to sustain a conviction of the offense charged." Section 100.10,8 G.C.A.

I 15 The standard of review is whether any rational trier of fact could, after examining all of the

I 16 evidence in a light most favorable to the government, find the essential elements of the crime

18 I 17 charged beyond a reasonable doubt. People v. Campbell 2006 Guam 14. The Defendant is charged with engaging in sexual contact with a minor. The People 19 further allege specific facts that the Defendant touched the "vagina" of the minor. Defendant

I1 20 contends that the People failed to present "a scintilla" of evidence that the victim's "vagina" was

21 lltouched by the Defendant. Sexual contact involves the intentional touching of the victim's

1I 22 intimate parts. An intimate part includes the primary genital area of a person, in this case the

24 I1 23 female genitalia region whch includes the "vagina."

The minor victim testified that she was touched on her "bottom" inside her shorts and 25 underwear. In response to the People's question of the meaning of "bottom" she was asked

26 whether that also meant "vagina."She responded "Yes."She also stated on cross-examinationthat

Page 1 of 3 1 she was touched in the outer area, and that no penetration happened. 2 The People have consistently used the term "vagina." This is not a term used by the 3 victim. It is not a term that a 14 year old child would normal use or understand. The Court

4 accepted a jury instruction defining the word "vagina" to mean "the canal between the vulva and 5 the uterus." A 14 year old girl would not make such a distinction between her genital parts. To

6 her any part of her "private" or "bottom" area can generally be referred to as the "vagina." 7 The Guam Supreme Court in Campbell held that the proof of "time" as alleged in the

8 indictment and the time actually proved at trial is not an essential element of the crime of Second 9 Degree Criminal Sexual Conduct. The Guam Supreme Court reasoned the difference between 10 the time alleged in the indictment and the time actually proved at trial is a variance of proof. It

11 was not a complete failure of proof. 12 The inquiry is whether the variance affects the "substantial rights" ofthe defendant so that 13 defendant is "1) definitely informed as to the charges against h m , so that he may be enabled to 14 present his defense and not be taken by surprise by the evidence offered at trial, and 2) that he

15 may b e protected against another prosecution for the same offense." Campbell quoting Berger 16 v. United States 295 U . S. 78. As long as the defendant is neither surprised nor hampered in 17 preparing his defense, there can be a variance between the indictment and what is actually proved 18 at trial provided it does not relate to an essential element of the crime. 19 The variance in this case is where was the victim touched. The People offered the 20 testimony of the victim that she was touched in the region of her female genitalia. The variance

21 cannot be said to have prejudiced the Defendant. There was no surprise at trial. There was no 22 prejudice to the Defendant's ability to prepare an adequate defense. And so he did. His counsel

23 strongly argued to the jury that there was no evidence the victim's actual "vagina" was touched. 24 The jury, using their common sense, experience, and sound judgment found that the touching of 25 the victim's "private" or "bottom" constituted touching of thewvagina"despite the variance in

26 definition of the location of the actual female vagina. As stated by the People, even Defendant's

Page 2 of 3 3wn jury instruction on the definition of the term "vagina" included "the entrance to the vagina." There are various female genitalia leading to the vaginal canal. It is not unreasonable for a child :Othink of t h s entire area as the "vagina", nor is it unreasonable for the jury to do so. The

:ompact nature of a woman's genital parts, the nearness of those parts to each other, and the

matomical connection of those parts as representing the whole of the female genitalia can be ;onstrued by a reasonable person to mean the "vagina" without distinction. The vagina is not an slement of the crime, and therefore, can not be used to throw away this conviction. Defendant's motion is DENIED.

SENTENCING is presently scheduled for April 6,2009 at 10:OO a.m.

SO ORDERED this 30thday of March 2009.

TT-ANDERSON Judge, Superior Court of Guam

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