People of Guam v San Nicolas Salas [2000] GUSC 3; 2000 Guam 02 (14 January 2000)

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Appeal from the Superior Court of Guam
Argued and submitted on November 12, 1999
Hagåtña, Guam

Appearing for Plaintiff-Appellee: Alicia A. Limtiaco Assistant Attorney General Office of the Attorney General Prosecution Division 2-200E Judicial Ctr. Bldg. 120 W O'Brien Dr. Hagåtña, Guam 96910	Appearing for Defendant-Appellant: Ladd A. Baumann, Esq. L.A. Baumann & Associates Pacific News Building, Suite 903 238 Archbishop Flores Street Hagåtña, GU 96910

BEFORE: BENJAMIN J. F. CRUZ, Chief Justice; PETER C. SIGUENZA, Associate Justice; and ALBERTO C. LAMORENA III, Designated Justice.

CRUZ, C.J.:

[1] Anthony San Nicolas Salas (hereinafter ASalas@) was convicted of First Degree Criminal Sexual Conduct, Second Degree Criminal Sexual Conduct, and Child Abuse. He was sentenced to life imprisonment for Count One, fifteen years for Count Two, and one year for Count Three. Counts Two and Three are to run consecutively with Count One. He appeals his conviction based upon two claims. First, he argues that the trial court prejudiced his case by allowing the Government to make two amendments to its pleadings during the trial. Second, he argues that the medical diagnosis offered by the doctor who treated the alleged victim was inadmissible hearsay and a violation of the Confrontation Clause. Based upon the following analysis, the court upholds the trial court's holdings and therefore affirms Salas' convictions.

[2] In late 1994 or early 1995, Salas began living with T.C., his girlfriend. T.C. is the mother of two daughters, N.R. and T., who were eleven years-old and three years-old, respectively, at the time this case went to trial. T.C. often works long hours during the night and leaves her children with Salas. In the fall of 1997, N.R. began spending time after school with her biological father, a fact that potentially helps to frame the time in which alleged crimes occurred.

[3] According to N.R., she was in her family's living room watching television on November 5, 1997. Salas entered the room and began French-kissing her. He ordered her to take off her clothes. Then he took off his clothes. He placed his penis inside her vagina Ajust a little bit.@ Transcript, vol. I, p. 75 (Jury Trial, May 19, 1998). Afterward, he warned her, AIf you tell anyone, I'll do something bad.@ Transcript, vol. I, p. 75 (Jury Trial, May 19, 1998). This was the last incident of seven similar incidents allegedly beginning around October 1, 1997.

[4] On November 8, 1997, N.R. asked her mother if she and her sister could be taken to their aunt's house. When her mother said no, N.R. began crying. She confessed for the first time, ADad did it with me. . . .Dad had sex with me.@ Transcript, vol. I, p. 135 (Jury Trial, May 19, 1998). She declared that this was not the first time it had happened. Soon after, T.C. took N.R. to the emergency room and introduced her to Officer Scott Wade.

[5] From the emergency room, N.R. was taken to the Seventh Day Adventist Clinic where she met with Dr. William Paul Vercio. Dr. Vercio conducted a physical examination on N.R. which lasted about two hours. As part of this inspection, Dr. Vercio examined N.R.'s genital area. N.R. cried uncontrollably throughout the exam. Afterward, N.R. was interviewed by Officer Wade.

[6] On November 18, 1997, the Government filed an indictment against Salas. In Count One, Salas was charged with knowingly engaging in sexual penetration with N.R. on November 5, 1997. In Count Two, he was charged with intentionally engaging in sexual contact with the eleven year-old on November 5, 1997. Finally, in Count Three, he was charged with knowingly subjecting a child to cruel mistreatment from October 1, 1997 to November 4, 1997.[1]

[7] At the trial, Dr. Vercio testified about physically examining N.R. and inquiring about what had happened to her. Salas' counsel objected to the doctor's testimony, but the trial court overruled the objection. Transcript, vol. II, p. 11 (Continued Jury Trial, May 20, 1998). Dr. Vercio recounted that N.R. cried uncontrollably during the medical examination. He said it was normal for young girls to be embarrassed when having their genitals examined, but that N.R.'s reaction was far from the norm. Transcript, vol. II, pp. 12-13 (Continued Jury Trial, May 20, 1998). He stated that he took two vaginal swabs from N.R. and that neither sample contained any sperm. Transcript, vol. II, pp. 15-16 (Continued Jury Trial, May 20, 1998). When examining her vagina, Dr. Vercio noticed a small white scar on the vaginal wall. Transcript, vol. II, p. 17 (Continued Jury Trial, May 20, 1998). The Government asked if the medical evidence led him to believe N.R.'s comments and Dr. Vercio answered affirmatively. Transcript, vol. II, p. 20 (Continued Jury Trial, May 20, 1998).

[8] After Dr. Vercio's testimony, defense counsel brought a motion for judgment of acquittal. Transcript, vol. II, p. 55 (Continued Jury Trial, May 20, 1998). The trial court denied the motion. Transcript, vol. II, p. 62 (Continued Jury Trial, May 20, 1998). Around the time that Salas' counsel requested an acquittal, the trial court raised two concerns it had with Count Three of the indictment. The first concern involved the dates of the charge and the second involved the phrase Acontinuing course of penetration and/or conduct.@ Transcript, vol. II, pp. 55, 63-64 (Continued Jury Trial, May 20, 1998). Consequently, the Government submitted an amended indictment on May 21, 1998. In the amendment, the Government changed the alleged time frame of the crimes from Abetween October 1, 1997 and November 4, 1997" to Abetween September 1, 1997 and November 4, 1997". It also changed the allegation from Aa continuing course of sexual penetration or contact@ to Aseven (7) separate acts of sexual penetration or contact.@ Compare Defendant-Appellant's Excerpts of the Record at 2 with Plaintiff-Appellee's Excerpts of the Record at 3. Salas' counsel objected to the amendment twice, claiming that it would prejudice the defendant. Transcript, vol. II, pp. 81, 90 (Continued Jury Trial, May 20, 1998). After hearing both sides discuss the matter on more than one occasion, the trial court ruled that it would allow the amendment. Transcript, vol. III, pp. 11, 13 (Closing Arguments and Jury Instructions, May 21, 1998). Salas was eventually convicted of all charges.

[9] The court has jurisdiction based upon 48 U.S.C. ' 1424-1(b) (1984) and Title 7 GCA '' 3107-08, (1994).

[10] Salas argues two points in this appeal. First, Salas contends that the trial court abused its discretion in granting the motion to amend two defects in Count Three of the indictment. We review the Government's amendment of the indictment de novo. United States v. Morlan, 756 F.2d 1442 (9th Cir. 1985).

[11] Next, Salas also argues that the trial court erred in allowing Dr. Vercio's testimony which he claims is beyond the medical diagnosis hearsay exception, thus violating the Confrontation Clause. We review matters concerning the Confrontation Clause and hearsay evidence de novo. United States v. George, 960 F.2d 97, 99 (9th Cir. 1992).

Salas maintains that he was prejudiced by the two alterations in the charges. He believes he was not given time to properly cross-examine witnesses or develop his own defense. He especially deems it problematic that the trial court initiated this change rather than requiring the prosecutor to work diligently on finding this flaw. The Government, on the other hand, asserts that the alterations did not substantially affect Salas' defense. Given that the amendments were done before the verdict was given, the Government argues that it followed this law precisely.

[13] Cases from Guam's courts suggest that this rule is not a high hurdle to overcome. 8 GCA ' 55.20 provides the court with a flexible tool to allow parties to change easily small errors in their pleadings. Guam courts have followed this law verbatim. Unless a judge has been able to point to an added charge of which the defendant and his or her counsel had no knowledge or a substantial way in which a defendant has been prejudiced, judges have consistently allowed the prosecution to make this amendment. People v. Hilton, D.C. Crim. Appeal No. 8200055A, 1984 WL 55539, at **4-5 (D. Guam Ap. Div. Apr. 18, 1984); People v. Manibusan, D.C. No. 81-00053A, 1983 WL 29943, at *3 (D. Guam Ap. Div. May 5, 1983). This is especially so if the amendment would require the prosecutor to prove the case at a higher burden. People v. Quidachay, Crim. No. 82-00022A, 1983 WL 29954, at *4 (D. Guam Ap. Div. Nov. 8, 1983).

Supreme Court of Guam

People of Guam v San Nicolas Salas [2000] GUSC 3; 2000 Guam 02 (14 January 2000)