People of Guam v San Nicolas [2001] GUSC 5; 2001 Guam 04 (28 February 2001)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM
Plaintiff-Appellee

vs.

DONICIO M. SAN NICOLAS
Defendant-Appellant

OPINION

Filed: February 28, 2001

Cite as: 2001 Guam 4

Supreme Court Case No. CRA00-0005
Superior Court Case No. CF0471-97

Appeal from the Superior Court of Guam
Argued and submitted on Feb. 8, 2001
Hagåtña, Guam

Appearing for the Plaintiff-Appellee: Angela M. Borzachillo, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division Ste. 2-200E, Judicial Ctr. Bldg. 120 West O'Brien Drive Hagåtña, Guam 96910

Appearing for the Defendant-Appellant: Richard Parker Arens, Esq. Cunliffe & Cook A Professional Corporation Ste. 200 210 Archbishop Flores St. Hagåtña, Guam 96910

BEFORE: BENJAMIN J.F. CRUZ, Chief Justice; PETER C. SIGUENZA, JR., and F. PHILIP CARBULLIDO, Associate Justices.

CARBULLIDO, J.:

[1] Donicio M. San Nicolas (hereinafter ASan Nicolas@) was indicted on two counts of Aggravated Murder (as a First Degree Felony), one count of Murder (as a First Degree Felony), one count of Attempted Murder (as a First Degree Felony), one count of Aggravated Assault (as a Second Degree Felony), and two counts of Child Abuse (as a Third Degree Felony). After a trial by jury, San Nicolas was convicted of the two counts of Child Abuse. The trial court sentenced San Nicolas to three years imprisonment for each count, to be served consecutively. San Nicolas appeals the sentence and argues that the lower court was required to impose concurrent sentences. We affirm the trial court's decision.

I.

[2] San Nicolas was indicted on charges that stemmed from an incident on July 27, 1997, wherein San Nicolas brought two minors, Christina San Nicolas and April Camacho, to the Lonfit River. While swimming under his supervision, the girls were swept downstream in a strong current. April escaped physically unharmed but emotionally shaken while Christina, San Nicolas' daughter, drowned. Although knowing of the minors' perilous state and despite April's pleas for help, San Nicolas did not attempt to help in a rescue attempt and is alleged to have held the girls' heads below the water.

[3] San Nicolas was acquitted of both the aggravated murder and murder charges as to Christina, and the attempted murder and aggravated assault charges as to April. He was, however, convicted on the two Child Abuse counts, each charging that San Nicolas Aknowingly, and unreasonably caused and permitted the physical, mental, and emotional health of [the child victim] to be endangered@ while in his care and custody. Appellant's Excerpts of Record, tab 1, pp. 1-3 (Indictment, Oct. 29, 1997). One charge named April as a victim, and the other named Christina as the victim. See id.

[4] On March 3, 1998, San Nicolas filed a Notice of Motion for Acquittal and Motion for Acquittal Notwithstanding the Verdicts. The trial court denied San Nicolas' motion. Prior to sentencing, San Nicolas entered into an agreement with the Government, which was approved by the trial court, wherein he waived his right to appeal the convictions in exchange for the Government's promise to dismiss the two Aggravated Assault Charges and the two lesser-included Misdemeanor Assault charges. San Nicolas specifically reserved his right to appeal the sentence for the Child Abuse convictions.

[5] The trial court entered a judgment of the convictions on May 19, 2000. The court sentenced San Nicolas to three years imprisonment for each count of Child Abuse, to be served consecutively. San Nicolas timely filed a Notice of Appeal.

II.

[6] This court has jurisdiction to hear the appeal of a final judgment of conviction pursuant to Title 8 GCA