People of Guam v Demapan [2004] GUSC 23; 2004 Guam 24 (22 December 2004)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

vs.

THOMAS SABLAN DEMAPAN,
Defendant-Appellant.

Supreme Court Case No. CRA03-001
Superior Court Case No. CF0180-02

OPINION

Filed: December 22, 2004

Cite as: 2004 Guam 24

Appeal from the Superior Court of Guam
Argued and submitted on February 17, 2004
Hagåtña, Guam

Appearing for Plaintiff-Appellee: B. Ann Keith, Esq. Assistant 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: Pablo M. Aglubat, Esq. Public Defender Service Corp. 200 Judicial Center Annex 110 West O=Brien Drive Hagåtña, Guam 96910

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

TYDINGCO-GATEWOOD, J.:

[1] Defendant-Appellant Thomas Sablan Demapan appeals from his conviction for burglary. Demapan argues that the trial court erred in failing to sua sponte issue jury instructions on the lesser included offense of criminal trespass, the elements of theft and the specific intent to commit theft. We find that criminal trespass is not a lesser included offense of burglary and that the trial court=s failure to issue instructions regarding theft and intent to commit theft was not plain error. We affirm Demapan=s conviction for burglary.

I.

[2] On April 20, 2002, Yugi Yamashita and his wife were guests at the Guam Plaza Hotel in Tumon, Guam. That evening they left their hotel room to visit relatives who were staying in another room on the same floor of that hotel. Yamashita=s wife left the door to their room unsecured. When Yamashita returned to his room, he discovered Demapan exiting the room. Yamashita stopped Demapan and the police were summoned. Yamashita later found his wallet on a fire extinguisher in the hallway leading to his hotel room. Demapan was found to be in possession of a hotel room key, a digital camera and other items, which had earlier that day been reported stolen by another tourist. A glass pipe used for smoking crystal methamphetamine was found nearby and possession was attributed to Demapan.

[3] On May 1, 2002, Demapan was indicted for burglary, theft of the digital camera and other items, and possession of a controlled substance. A jury trial commenced on July 26, 2002. On August 1, 2002 at the close of the evidence, Demapan moved for judgment of acquittal. The trial court granted acquittal on the theft charge, but sent the other two charges to the jury. On August 5, 2002, the jury found Demapan guilty on the burglary charge and not guilty on the possession charge. On November 7, 2002, Demapan was sentenced to ten years imprisonment for burglary. On January 27, 2003, the trial court entered judgment. Demapan appealed.

II.

[4] This court has jurisdiction over this appeal from a final judgment of the Superior Court. Title 7 GCA ' 3107(b) (2004).

[5] On appeal, Demapan argues that the trial court erred in failing to issue certain jury instructions. The record shows that Demapan=s trial counsel failed to object to the jury instructions issued by the trial court.[1] Generally, A[w]hen there is no objection to the jury instructions at the time of trial, the court of appeals will review only for plain error.@ People v. Perez, 1999 Guam 2, & 21. Plain error is highly prejudicial error affecting a substantial right and Awill be found only where necessary to prevent a miscarriage of justice or to maintain the integrity of the judicial process.@ Id.

III.

[6] The issues on appeal center on Demapan