People of Guam v Perry [2009] GUSC 4; 2009 Guam 04 (24 April 2009)

IN THE SUPREME COURT OF GUAM

THE PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

DOYLE LAMONT PERRY,
Defendant-Appellant.

AMENDED OPINION

Filed: April 24, 2009
Cite as: 2009 Guam 4

Supreme Court Case No.: CRA07-006
Superior Court Case No.: CF0230-06

Appeal from the Superior Court of Guam
Argued and submitted, May 13, 2008
Hagåtña, Guam

Appearing for Plaintiff-Appellee: Marianne Woloschuk, Esq. Office of the Attorney General Prosecution Div. 287 W O’Brien Dr. Hagåtña, GU 96910

Appearing for Defendant-Appellant: Howard Trapp, Esq. 200 Saylor Bldg. 139 Chalan Santo Papa Hagåtña, GU 96910

BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.

MARAMAN, J.:

[1] This court issued an earlier opinion in People v. Perry, 2008 Guam 24. The opinion did not consider the vast majority of the transcripts, which were ordered by the defendant’s attorney but never delivered to this court. On rehearing, we determined that this court should have considered the transcripts, which were part of the record, in rendering our opinion. As a result, we now issue this Amended Opinion to supersede our earlier opinion in People v. Perry, 2008 Guam 24.

[2] Plaintiff-Appellant Doyle Lamont Perry appeals from convictions of assault, terrorizing, and multiple counts of criminal sexual conduct in various degrees. He argues that the court committed error in its final jury instructions in reciting the allegations of the indictment, on one hand, and instructing that the government needed to prove at least one act for each charge, on the other hand. Perry concludes that the effect of the jury instructions was failure to clearly instruct that all essential elements of the crime must be proven beyond a reasonable doubt. Although we agree that the jury instructions were flawed, the error did not amount to plain error and the verdict must be affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] Perry was indicted on six charges: (1) three counts of First Degree Criminal Sexual Conduct ("CSC"); (2) three counts of Second Degree CSC; (3) three counts of Third Degree CSC; (4) Assault with Intent to Commit CSC; (5) Aggravated Assault, and (6) Terrorizing.[1] For each CSC charged, the first count alleged vaginal contact or penetration, the second count alleged rectal contact or penetration, and the third count alleged oral contact or penetration. At trial, the jury returned verdicts of guilty on all charges and counts.

[4] The trial court instructed the jury as to the essential elements of each charge and count. Because the instructions are nearly identical, a representative instruction from the transcript suffices to demonstrate the trial court’s method. For example, as to the first count of First Degree CSC, the court instructed the jury:

Ladies and gentlemen, now the essential elements of First Degree Criminal Sexual Conduct, as a First Degree Felony, Count One, okay.

It is alleged here that on or about May 27, 2006, in Guam, Defendant, Doyle Lamont Perry, did intentionally engage in sexual penetration with another, to wit, Defendant caused his penis to enter the vaginal area of Su Young Thompkins, and used force and coercion to accomplish the sexual penetration, causing personal injury to Su Young Thompkins.

Appellant’s Excerpts of Record ("ER") at 48 (Amended Transcript, Feb. 1, 2008). The jury also took a written version of this jury instruction into the deliberation room. The written jury instructions more clearly enumerated the individual elements for the crimes, for example:

JURY INSTRUCTION NO. 7A

ESSENTIAL ELEMENTS OF

FIRST DEGREE CRIMINAL SEXUAL CONDUCT

(As a First Degree Felony)

(Count 1)

1. ON OR ABOUT MAY 27, 2006;

2. IN GUAM

3. DEFENDANT, DOYLE LAMONT PERRY,

4. DID INTENTIONALLY ENGAGE IN SEXUAL PENETRATION WITH ANOTHER, TO WIT: DEFENDANT CAUSED HIS PENIS TO ENTER THE VAGINAL AREA OF SU YOUNG TOMPKINS,

5. AND USED FORCE AND COERCION TO ACCOMPLISH THE SEXUAL PENETRATION

6. CAUSING PERSONAL INJURY TO SU YOUNG TOMPKINS.

Supplemental Excerpts of Record ("SER") at 63 (Jury Instruction No. 7A, Mar. 13, 2008). Just before reciting the elements of the second count of first degree CSC, the court also made the following comment: "keep in mind, with these essential elements it goes without saying that the Government must meet the burden of proof beyond a reasonable doubt that the defendant . . . ." ER at 34 (Transcript, Apr. 23, 2007). Nowhere, however, was the jury instructed that it must find that each and every element of the crime was proven beyond a reasonable doubt.

[5] Perry requested a unanimity instruction, which was given as follows:

The defendant is charged with FIRST DEGREE CRIMINAL SEXUAL CONDUCT (as a 1st Degree Felony) (3 counts); SECOND DEGREE CRIMINAL SEXUAL CONDUCT (as a 1st Degree Felony) (3 Counts); THIRD DEGREE CRIMINAL SEXUAL CONDUCT (as a 2nd Degree Felony) (3 Counts); ASSAULT WITH INTENT TO COMMIT CRIMINAL SEXUAL CONDUCT (as a 3rd Degree Felony); AGGRAVATED ASSAULT (as a 2nd Degree Felony); and TERRORIZING (as a 3rd Degree Felony) sometime during the period of May 27, 2006.

The People have presented evidence of more than one act to prove that the defendant committed each offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of the acts for each charge and you all agree on which act he committed for each charge.

Id. at 45. No objection was made to the unanimity instruction at trial.

[6] Finally, the court gave an instruction on the sufficiency of the circumstantial evidence:
Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be . . . proven beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.

Id. at 19; accord SER at 29 (Jury Instruction No. 3I).

[7] Judgment was entered on November 14, 2007 and Perry timely filed a notice of appeal.