People of Guam v Flores [2004] GUSC 17; 2004 Guam 18 (4 October 2004)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

vs.

JOSEPH PEREZ FLORES,
Defendant-Appellant

Supreme Court Case No. CRA03-013
Superior Court Case No. CF122-02

OPINION

Filed: October 4, 2004

Cite as: 2004 Guam 18

Appeal from the Superior Court of Guam
Argued and submitted on July 15, 2004
Hagåtña, Guam

Appearing for Plaintiff-Appellee: B. Ann Keith, Esq., Asst. Attorney General Office of the Attorney General of Guam Suite 2-200E, Guam Judicial Center 120 West O=Brien Drive Hagåtña, Guam 96910	Appearing for Defendant-Appellant: Vincent E. Leon Guerrero, Esq. Klemm, Blair, Sterling & Johnson Suite 1008, Pacific News Building 238 Archbishop F.C. Flores Street Hagåtña, Guam 96910

BEFORE: F. PHILIP CARBULLIDO, Chief Justice; FRANCES M. TYDINGCO-GATEWOOD, Associate Justice; ROBERT J. TORRES, Associate Justice.

TYDINGCO-GATEWOOD, J.:

[1] Defendant-Appellant Joseph Perez Flores appeals from a Superior Court Judgment convicting him of one count each of Attempted Third Degree Criminal Sexual Conduct (As a Second Degree Felony), Fourth Degree Criminal Sexual Conduct (As a Misdemeanor), Harassment (As a Petty Misdemeanor) and two counts of Assault (As a Misdemeanor). Flores argues that there was insufficient evidence to support his conviction for Attempted Third Degree Criminal Sexual Conduct and that the trial court abused its discretion in refusing to give the Amissing witness@ instruction to the jury. We disagree with both arguments put forth by Flores and thus, affirm the judgment.

I.

[2] On February 16, 2001, Claire Rosario, John Blas and Vincent Sablan, who had been out drinking, playing pool and singing karaoke, were driving toward Rosario=s Barrigada home when they stopped at Flores= house because Rosario needed to use the bathroom. While Rosario was inside Flores= house, Blas and Sablan drove to a nearby church to wait for her, at Flores= request. When Rosario tried to go after the car, Flores blocked the doorway. Flores and Rosario struggled, with Flores touching, dragging and getting on top of Rosario. After she Atried to play along,@ Rosario was able to leave Flores= house. Transcript of Proceedings (ATr.@) vol. I, p. 23 (Trial, June 4, 2002). Rosario ran to the house of her friend Jesse Lewis and told him and his mother that she (Rosario) was almost raped. Rosario asked Lewis to drive her to Flores= home to retrieve her purse. When they arrived at Flores= home, they saw a truck pulling out of the driveway. Blas and Sablan testified that they saw Rosario arrive at Flores= home, and she was crying and hysterical. They also testified that she yelled at them and asked why they left her, and that Flores Apractically raped@ her. Tr. vol. II, pp. 29-32, 51-53 (Trial, June 5, 2002). Rosario did not report this incident until a separate incident involving Flores occurred on March 24, 2002, when Flores pulled Rosario by the neck and hair, shoved her and touched her during a barbecue at the home of Rosario=s sister=s boyfriend. Rosario=s sister reported the March 24, 2002 incident to police, and after an investigation of the allegations, Flores was arrested.

[3] On March 25, 2002, Flores was charged by the Attorney General=s Office regarding the separate March 24, 2002 incident. On April 3, 2002, he was indicted in the case at bar for both the March 24, 2002 incident and the February 16, 2001 incident. The indictment was amended on June 3, 2002 and Flores was charged with one count of Attempted Third Degree Criminal Sexual Conduct (As a Second Degree Felony) for the February 16, 2001 incident, and one count of Terrorizing (As a Third Degree Felony), one count of Attempted Fourth Degree Criminal Sexual Conduct (As a Misdemeanor), one count of Fourth Degree Criminal Sexual Conduct (As a Misdemeanor), two counts of Assault (As a Misdemeanor) and one count of Harassment (As a Petty Misdemeanor) for the March 24, 2002 incident.

[4] Flores filed a motion for judgment of acquittal, which was denied. Subsequently, a jury found Flores guilty of four of the charges levied against him and he was thereafter sentenced by the trial court. The judgment was entered on the docket on August 5, 2003. Flores timely filed his Notice of Appeal on August 8, 2003.

II.

[5] This is an appeal from a final judgment, over which this court has jurisdiction. Title 7 GCA _ 3107(b) (2002), as amended by Guam Pub. L. 27-31 (Oct. 31, 2003); Title 8 GCA _ 130.15(a) (1996).

[6] Flores challenges the sufficiency of evidence supporting his conviction, to which we apply a highly deferential standard of review. We have stated:

The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction is to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. When a criminal defendant asserts that there is insufficient evidence to sustain the conviction, this court reviews the evidence in the light most favorable to the prosecution to ascertain whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. AThe Ninth Circuit has noted that this is a highly deferential standard.@

People v. Reyes, 1998 Guam 32, _ 7 (citations omitted) (quoting People v. Gill, Crim. No. 92-00099A, 1994 WL 150934, at *6 (D. Guam App. Div April 15, 1994)).

[7] AWhether th[e missing witness] instruction should be given is a matter that lies within the discretion of the trial court.@ United States v. Bautista, 509 F.2d 675, 678 (9th Cir. 1975). Consequently, the lower court=s refusal to give the instruction is reviewed for abuse of discretion. See id. AAn abuse of discretion has been defined as that >exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.=@ People v. Tuncap, 1998 Guam 13, _ 12 (quoting Int=l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 822 (9th Cir. 1993)). Under this standard, Aa reviewing court does not substitute its judgment for that of the trial court. Instead, we must first have a definite and firm conviction the trial court, after weighing relevant factors, committed clear error of judgment in its conclusion.