People v. Tenorio
Opinion
IN THE SUPERIOR COURT
OF GUAM
2
3 THE PEOPLE OF GUAM, ) CRIMINALCASE No. CF 0409-12 4 )
)
5 v. )
DECISION AND ORDER
) On People's Motion to Permit 6 BRIAN J. TENORIO, ) Introduction of Prior Bad Acts 7 )
Defendant. )
8
9
10 INTRODUCTION
11 This matter came before the Honorable Judge Michael J. Bordallo on October 5, 2012 o 12 the People's Motion to Permit Introduction of Prior Bad Acts. The People of Guam wer 13 represented by Assistant Attorney General Brian Gallagher. The Defendant was represented b 14 Assistant Public Defender Richard Dirkx. Having reviewed the memorandum and paper 15
16 presented, the court now issues the following decision DENYING the People's Motion.
17 FACTUAL HISTORY
18 The Defendant was indicted on July 12, 2012 on felony charges of First Degree Crimina 19 Sexual Conduct and Kidnapping. The charges arise from the allegation that the Defendan 20 unlawfully pulled a six year-old girl into his home and engaged in sexual penetration with th 21
22 child. At the time of the alleged crime the Defendant, a registered sex offender, was servin
23 parole for an earlier criminal sexual conduct conviction involving another minor female child. 24 The People have motioned to have evidence of the Defendant's prior conviction admitte 25 in the current criminal proceedings. The People argue that the Defendant's criminal record i 26
27 admissible pursuant to Guam Rule of Evidence 413 and may be used to "prove propensity t
28 commit [a] current sex crime." The Defendant timely filed an opposition arguing that the prio conviction should not be admitted because it is irrelevant and causes undue prejudice. Havin 2 reviewed the Rules of Evidence and the applicable case law, the Court agrees with the Defendan 3 and will not currently permit the People to introduce evidence of the prior conviction.
4 DISCUSSION
5
6 The Defendant was indicted on felony charges of First Degree Criminal Sexual Conduc
7 and Kidnapping for allegedly coercing a six year-old girl into his home and engaging in sexua 8 penetration with her. At the time of the alleged crime the Defendant was serving parole for a 9 earlier criminal sexual conduct conviction involving another minor female child. The Peopl 10
II now seek to have this conviction entered into evidence in the current criminal proceedings. Th
12 basis of the People's argument is that the conviction record is both admissible and relevant. Th 13 Defendant opposes the introduction of his conviction record, arguing that the record is no 14 relevant and is unduly prejudicial.
15 The admissibility of the Defendant's prior criminal history is governed by the Gu 16
17 Rules of Evidence ('GRE'). The GRE law specific to the admission of prior convictions fo
18 criminal sexual conduct states: "In a criminal case in which the defendant is accused of 19 offense of criminal sexual conduct, evidence of the defendant's commission of another offens 20 or offenses of criminal sexual conduct is admissible, and may be considered for its bearing o 21 any matter to which it is relevant." 6 GCA §413(a). Evidence of prior acts of criminal sexua 22
23 conduct is therefore presumptively admissible where relevant to the current criminal case.
24 Admissible evidence must be both relevant and not unduly prejudicial. Rule 413 is not 25 isolated rule and "shall not be construed to limit the admission or consideration of evidenc 26 under any other rule." §413(c). Rule 413's presumption of admissibility is accordingly tempere 27
28 by Rule 401, defining relevancy, and Rule 403, which requires courts to balance the probativ value of evidence against possible prejudice. Both the relevancy of the prior conviction and it 2 probative versus prejudicial value to the current proceedings may be evaluated together.
3 The People have not explained how the Defendant's prior conviction is relevant to th 4 current proceedings. Relevant evidence is evidence "having any tendency to make the existenc 5
6 of any fact that is of consequence to the determination of the action more probable or les
7 probable than it would be without the evidence." 6 GCA §401. The People rely solely on th 8 presumption of admissibility and cite to the case of People v. Escudero for the proposition tha 9 "Evidence of a person's commission of other sexual offenses is ordinarily relevant in 10
11 prosecution against the person for another sex crime." 107 Cal.Rptr.3d 758 (3d District 2010).
12 The evidence of prior assaults in Escudero was relevant because the charges required th 13 prosecution to prove intent. Escudero was accused of "willfully and lewdly commit[ing] an 14 lewd or lascivious act [ ] with the intent of arousing, appealing to, or gratifying the lust, passions 15 or sexual desires of that person or the child." Cal.Pen.Code §288 subd. (a). The court admitte 16
17 the defendant's prior sexual assaults "as evidence of intent and absence of mistake." Escudero a
18 762. Additionally, the evidence in Escudero was admitted only after its relevancy was weighe 19 against its prejudicial nature. Despite being highly prejudicial, the evidence was ultimate!
20 admitted because the earlier assaults "share significant similarities with molestations of th 21
victim in this [current] case." !d. at 763. There is, however, no element of intent in the curren 22
23 charges against the Defendant and no significant similarities have been established between th
24 prior conviction and the current case. 25 The Ninth Circuit has established a test for determining whether to admit evidence of 26 defendant's prior acts of sexual misconduct. The test requires judges to evaluate: "(1) th 27
28 similarity of the prior acts to the acts charged, (2) the closeness in time of the prior acts to th acts charged, (3) the frequency of the pnor acts, (4) the presence or lack of intervenin 2 circumstances, and (5) the necessity of the evidence beyond the testimonies already offered a 3 trial." US. v. LeMay, 260 F.3d 1018, 1028 (2001) (citing US. v. Guardia, 135 F.3d 1326, 133 4 (1Oth Cir. 1998)). The People have not analyzed the probative versus prejudicial nature o 5
6 admitting the Defendant's prior conviction, nor have they addressed the factors the Court i
7 required to consider. Because the People have not demonstrated that the prior convictio 8 evidence is relevant, the Court need not perform the LeMay five factor analysis.
9 The People finally argue that the Defendant's prior conviction constitutes "similar 10
11 transaction" evidence. To support their argument, the People cite the case of State v. William t
12 suggest that the prior conviction is admissible "to show a common scheme or plan if the offens 13 is proximate in time, similar to the offense charged, and committed with persons similar to th 14 prosecuting witness." 930 A.2d 753, 760 (Conn.App.Ct. 2007). In William, the court permitte 15 evidence of prior assaults involving the same victim and occurring in the week preceding th 16
17 assault for which the defendant was charged. The evidence was admitted because the assault
18 were "part of an overall plan so interconnected that proof of the uncharged crimes is part an 19 parcel of the proof of the crime charged." !d. at 761.
20 There are insufficient facts to support the argument that the Defendant's prior convictio 21 constitutes "similar-transaction" evidence. The People state that the two victims, the allege 22
23 victim in the current case and the victim from the prior conviction, "cannot be more similar.'
24 However, the only similarities offered to the Court are that both victims are minor, femal 25 children. The People claim that the two minors are "defendant's daughters, both of whom live 26 in his home at the time of the offense." Yet the record indicates that the Defendant's prio 27
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