People v. Song

Opinion

FILED SUPERIOR COURT OF1

ZIIIBJAN 3 lAM |: 23

CLERK DF couRT

By

IN THE SUPERIOR COURT OF GUAM

THE PEOPLE OF GUAM, cR11v11nAL CASE no. CF0710-16

vs. DECISION AND ORDER

IAYSON FRANCISCO SONG,

Defendant.

INTRODUCTION This matter came before the Honorable Vernon P. Perez on November 1, 2017, for

continued Motion Hearing on the People of Guam's ("the Government") Motion in Limine

Concerning Defense of Consent and Defendant Jayson Francisco Song's ("Defendant") Motion

to Dismiss the Indictment. Defendant was present with counsel, Attorney Howard Tramp, and Assistant Deputy Attorney General James C. Collins was present on behalf of the Government.

Having reviewed the pleadings, the arguments presented, and the record, the Court now issues

the following Decision and Order. BACKGROUND On January 26, 2017, a Superseding Indictment was returned by a Grand Jury charging

Defendant with the following offenses: (1) First Degree Criminal Sexual Conduct (As a First

Degree Felony) - 4 Counts, (2) Second Degree Criminal Sexual Conduct (As a First Degree

Felony), (3) Delivery of a Schedule II Controlled Substance (As a First Degree Felony) with

Special Allegation of Delivery of a Controlled Substance to a Minor; (4) Possession of a

People v. Song Case No. CF0710-16 Decision and Order

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• 1 Schedule H Controlled Substance with Intent to Deliver (As a First Degree Felony), and (5)

2 Possession of a Schedule II Controlled Substance (As a Third Degree Felony). (Superseding 3 Indictment, Jan. 26, 2017).

4 On July 10, 2017, the Government filed a Motion in Liming Concerning theDefense of 5 Consent. On July 17, 2017, Defendant tiled' a Notice of Defense and W itness, indicating that

6 Defendant intends to use the consent of the alleged victim as a defense to the charges of

7 criminal sexual conduct. On July 17, 2017, Defendant also tiled his Response to the Motion in

8 Liming. On July 18, 2017, the Government tiled its Reply.

9 On July 26, 2017, Defendant tiled a Motion to Dismiss the krdictment. 10 On August 3, 2017, at a Further Proceedings Hearing, the Court heard brief arguments 11 on the Motion in Limine, and continued the matter to August 30, 2017. 12 On August 7, 2017, the Government filed a Statement Concerning Defense Ord 13 Response to Motion in Limine Concerning Defense of Consent.

14 On August 7, 2017, the Government also tiled its Opposition to the Motion to Dismiss is the Indictment. On August 10, 2017, Defendant filed his Reply.

16 After several continuances, the Court heard additional arguments on both motions on

17 November 1, 2017, and subsequently placed both matters under advisement. 18 DISCUSSION

19 I. Defendant's Motion to Dismiss 20 The Court will first address Defendant's Motion to Dismiss, as it may moot the 21 Government's Motion in Limine. Defendant moves the Court to dismiss the criminal sexual 22 conduct charges in this matter because the Superseding Indictment is factually insufficient

23 under 8 G.C.A. § 55.l0(a). See generally,Mot. Dismiss, Jul. 26, 2017. 24 Title 8 G.C.A. section 55. 10 provides in relevant part: 25 (a) The indictment or the information shall be a plain, concise and definite written statement of the essentzkzl facts Constituting the ojense charged and shall be 26 signed by the prosecuting attorney. It need not contain a formal commencement, 27 a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. 28

People v. Song Case No. CF071046 Decision and Order

Page 2 of 8 It may be alleged in a single count that the means by which the defendant 1 committed the offense are unknown or that he committed it by one or more 2 specified means. 3 8 G.C.A. § 55.l0(a) (emphasis added). An indictment is sufficient if "it contains the elements

4 of the crime alleged, adequately informs the defendant of the crime to allow him ro defend 5 against the charges, and is stated with sufficient clarity to bar subsequent prosecution for the 6 same offense." People v. Jones, 2006 Guam 13 'I 12 (citation omitted). "[I]t is also well 7 established that an indictment should be read in its entirety, construed according to common 8 sense, and interpreted to include facts which are necessarily implied." Id. (internal quotation 9 marks and citation omitted). "An indictment which tracks the words of the statute charging the 10 offense is sufficient as long as the words unambiguously set forth all the elements of the

offense." People v. Tories,2014 Guam 8 qi 20 (quoting Jones,2006 Guam13 'I 23). 12 Here, Defendant is charged with four counts of First Degree Criminal Sexual Conduct 13 (As a First Degree Felony) and one count of Second Degree Criminal Sexual Conduct (As a

14 First Degree Felony). These charges read in the Superseding Indictment as follows: 15 FIRST CHARGE 16 Count One 17 On or about the 2"d day of November, 2016, in Guam, JAYSON FRANCISCO SONG, did commit the offense of First Degree Criminal Sexual Conduct, when 18 he did intentionally engage in sexual penetration with another, to wit: sexual 19 intercourse with G.A.M. (DOB: 08/08/1999), and the sexual penetration occurred under circumstances involving another felony, namely, Delivery of a Schedule II 20 Controlled Substance, in violation of 9 GCA §§ 25.15(a)(3) and (b), and 9 GCA 21 §§ 67.401.1(a)(1) and (b)(l).

22 Count Two On or about the 2nd day of November, 2016, in Guam, JAYSON FRANCISCO 23 SONG, did commit the offense of First Degree Criminal Sexual Conduct, when 24 he did intentionally engage in sexual penetration with another, to wit: fellatio with 25 G.A.M. (DOB: 08/08/1999), and the sexual penetration occurred under circumstances involving another felony, namely, Delivery of a Schedule II 26 Controlled Substance,in violation of 9 GCA §§ 25.15(a)(3) and (b), and 9 GCA 27 §§67.401.1(a)(1) and (b)(1).

People v. Song Case No. CF0710- 16 Decision and Order

Pages of 8 1 Count Three On or about the 2nd day of November, 2016, in Guam, JAYSON FRANCISCO 2 SONG, did commit the offense of First Degree Criminal Sexual Conduct, when 3 he did intentionally engage in sexual penetration with another, to wit: cunnilingus 4 with G.A.M. (DOB: 08/08/1999), and the sexual penetration occurred under circumstances involving another felony, namely, Delivery of a Schedule II 5 Controlled Substance, in violation of 9 GCA §§ 25.l5(a)(3) and (b), and 9 GCA 6 §§67.40l.l(a)(1) and (b)(1).

7 Count Four On or about the 2nd day of November, 2016, in Guam, JAYSON FRANCISCO 8 SONG, did commit the offense of First Degree Criminal Sexual Conduct, when 9 he did intentionally engage in sexual penetration with another, to wit: by causing his finger to enter the primary genital opening of G.A.M. (DOB: 08/08/1999), and 10 the sexual penetration occurred under circumstances involving another felony, ll namely, Delivery of a Schedule H Controlled Substance, in violation of 9 GCA §§ 12 25.15(a)(3) and (b), and 9 GCA §§67.401.1(a)(l) and (b)(l).

13 SECOND CHARGE On or about the 2nd day of November, 2016, in Guam, JAYSON FRANCISCO 14 SONG, did commit the offense of Second Degree Criminal Sexual Conduct, when 15 he did intentionally engage in sexual conduct with another, to wit: by touching the 16 primary genital area of G.A.M. (DOB: 08/08/1999), and the sexual contact occurred under circumstances involving another felony, namely, Delivery of a 17 Schedule I] Controlled Substance, in violation of 9 GCA §§ 25.20(a)(3) and (b), 18 and 9 GCA §§67.40l.l(a)(1) and (b)(l),

19 (Superseding Indictment at 1-2, Jan. 26, 2017).

20 In his Motion to Dismiss, Defendant alleges that the Superseding Indictment fails to

21 state what the controlled substance consisted of and how the delivery of the controlled

22 substance was involved in the sexual conduct. See Mot. Dismiss at 5, Reply at 1-2. Although

23 the above criminal sexual conduct charges do not identify a specific controlled substance, when

24 looking at the Superseding Indictment as a whole, reference can be made to the Third Charge,

25 Delivery of a Schedule II Controlled Substance, which specifies that Defendant allegedly

26 delivered an "amphetamines-based substance."' See Jones, 2006 Guam 13 'I 12. Additionally,

27 | The Third Charge of the Superseding Indictment, Delivery of a Schedule II Controlled Substance (As a First 28 Degree Felony) reads as follows:

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o

l the Court is inclined to agree with the Government that that the delivery of a controlled 2 substance to a minor can be interpreted as an act to lower the inhibitions of or impair the

3 judgment of the alleged victim prior to engaging in the sexual acts which occurred immediately

4 after. Accordingly, the Court finds that the facts contained in the Superseding Indictment 5 sufficiently put Defendant on notice for the criminal sexual conduct charges and will not

6 dismiss them.

8 II. The Government's Motion in Limine

9 The Government moves the Court to preclude Defendant from presenting a defense of

10 consent at trial becauseit is inapplicable under Guam law. See generally, Mot. Liming, Jul.10, 11 2017. Defendant opposes, arguing that the consent of a victim is a defense to a charge of 12 criminal sexual conduct which occurs under circumstances involving the delivery of a \3 controlled substance, citing Guam v. Agualo, 948 F.2d 1116 (9th Cir. 1991). (Opp'n Ar 1, Jul.

14 17, 2017). On July 17, 2017, Defendant Bled a Notice of Defense and Witness, indicatingthat 15 he intends to use the victim's consent as a defense to the charges of criminal sexual conduct and 16 that Defendant will testify in support of this. (Notice, Jul. 17, 2017). Under Guam law, the 17 defense of consent applies to factual scenarios where "such consent precludes the infliction the 18 harm or evil sought to be prevented by the law defining the offense." 9 G.C.A. § 7.64(a).

20 THIRD CHARGE 21 On or about the 2" day of November, 2016, in Guam, JAYSON FRANCISCO SONG did commit 22 the offense of Delivery of a Schedule II Controlled Substance, in that he intentionally or knowingly delivered a Schedule II Controlled Substance, that is, an amphetamines-based 23 substance, in violation of 9 GCA § 67.401.1(a)(1) and (b)(1). 24 SPECIAL ALLEGATION 25 Delivery of Controlled Substance to a Minor Defendant is a person of at lent eighteen (18) years old and did distribute or deliver a non- 26 narcotic Schedule II Controlled Substance, that is, an amphetamines-based substance, to a person under eighteen (18) years of age, in violation of 9 GCA § 67.407(b). 27 (Superseding Indictment at 3, Jan, 26, 2017). 28

People v. Song Case No. CF0710-16 Decision andOrder

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l The first issue before the Court is whether Agualo is binding precedent In Agualo, the 2 Ninth Circuit held that the trial court did not err by failing to instruct the jury as to the defense

3 of consent, finding that there was insufficient evidentiary basis for a consent instruction, and

4 that non-consent was not an element of the crime of conviction. Agualo was convicted of first 5 degree criminal sexual conduct under circumstances involving the commission of another

6 felony. To determine if non-consent was an element of criminal sexual conduct, the Ninth

7 Circuit looked to Michigan law which Guanl's criminal sexual conduct statute was pattered

8 after. See Agualo, 948 F.2d at 1118 ("Because the Guam statute is identical to the Michigan 9 st at ut e aft er w hic h it is pat t ered, w e view Mic higan law t o be persuasive in t his 10 circumstance.").

11 Under Michigan law, consent of the victim is a defense to a charge of criminal sexual conduct during the commission of a felony. See People v. Thompson, 117 12 Mich.App. 552, 324 N.W .2d 22, 23 (1982), see also People v. Hearn, 100 13 Mich.App. 749, 300 N.W . 396, 398 (1980). However, because the legislature eliminated the "necessity of proof of nonconsent by the prosecution," Hearn, 300 14 N.W.2d at 398, failure to give a consent instruction is error only when evidence to 15 support that theory of defense has been introduced, see Thompson, 324 N.W.2d at 16 23. As noted above, no such evidence was introduced at Agualo's trial. Therefore, the trial court did not err by failing to instruct the jury as to the defense 17 of consent. 18 Id. 19 The Court does not find Agualo to be binding precedent on this Court at this time 20 because there is sufficient reason to deviate from the Agualo decision. See People v. Cummins, 21 2010 Guam 19 qt 22 ("although we generally will not deviate from precedent of the Appellate 22 Division if it was well established in law and well reasoned, we will deviate from such 23 precedent when there is sufficient reason to do so."). The Michigan Court of Appeals has since 24 clarified its decisions in Thompson and Hearn, which the Agualo court cites to. In People v. 25 Waltonen, 728 N.W.2d 881 (Mich.App. 2006), the Michigan Court clarifies that: 26

27 2 Agualo appealed to the Ninth Circuit for appellate review in 1991, prior to the establishment of the Supreme 28 Court of Guam.

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[T]he problem with Thompson as well as Hearn, two cases in which the 1 prosecution did not proceed under any of the force or coercion provisions of [the 2 Michigan CSC statute], is that they ultimately rely on Khan, in which force or 3 coercion was the foundation for the CSC III charges. In the context of the CSC statutes, consent can be utilized as a defense to negate the elements of force or 4 coercion. Also problematic in our view is that Hearn and Thompson rely on the 5 proposition that a consent defense is implicit under the CSC statutes, which most certainly runs contrary to accepted principles of statutory construction.... 6 The plain and unambiguous statute of [the Michigan CSC statute] does not require 7 proof of force or coercion and does not otherwise provide for the defense of 8 consent. We agree ... that the issue of consent relative to charges brought under [the Michigan CSC statute] can only arise in the context of the underlying felony 9 because if a defendant successfully argues the existence of consent with respect to 10 the underlying felony, assuming that consent is a legally recognizable defense, the prosecution cannot establish the second element of CSC I pursuant to [the statute]. Here, there is no dispute that the crime of delivery of a controlled 12 substance is not subject to a consent defense, therefore, consent is not a defense to 13 the particular CSC I charges on which defendant is being prosecuted. The problem with implying that a consent defense is viable under [the statute] with 14 respect to sexual penetration, other than the fact that rnaddng such an implication 15 runs afoul of principles of statutory construction, is that it results in a judicial modification of the statutory language. The language of [the statute] encompasses 16 all acts of 'sexual penetration,' and ruling in favor of defendant's position would 17 alter this clear language by carving out an exception for certain acts of sexual 18 penetration, i.e., consensual sexual penetration. The statute does not provide that it applies to 'no consensual sexual penetration,' but rather it simply refers to 19 'sexual penetration.' 20 Waltonen, 728N.W. at 887-88 (internal citations omitted). 21 In this case, Defendant is not charged with any criminal sexual conduct offenses 22 containing force or coercion elements that must be proven, and the Court declines to adopt a 23 generalized holding that consent of the victim is a defense to a charge of criminal sexual 24 conduct during the commission of any felony. The Court adopts the Michigan Court of 25 Appeal's holding in Waltonen that consent is not a defense to criminal sexual conduct occurring 26 under circumstances involving another felony, specifically, Delivery of a Schedule II Controlled 27 Substance. 28

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1 CONCLUSION 2 For the foregoing reasons, the Coup hereby DENIES Defendant's Motion to Dismiss 3 and GRANTS the Government's Motion in Limine. 4 A Further Proceedings is set for PI/'HHY'\.[ 27, 2015 at 9:00 am. 5 IT IS SO ORDERED this s f * day of January, 2018. 6

I 9

10 HONORABLE VERNON p. PEREZ Judge, Superior Coup of Guam 11

20 SERVICE vIA COURT BOX 21 I acknovNadge Ma! a copy of the original hereto was placid in the CO 22 7% 23 A te:m jun-7 I50}'4, 24 Deputy Clerk, Sure am 25

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