People of Guam v Anastacio [2010] GUSC 18; 2010 Guam 18 (30 December 2010)

IN THE SUPREME COURT OF GUAM

THE PEOPLE OF GUAM,
Plaintiff-Appellee,

V

LESTER ANASTACIO,
Defendant-Appellant.

Supreme Court Case No. CRA10-003
Superior Court Case No. CF0121-09

OPINION

Filed: December 30, 2010

Cite as: 2010 Guam 18

Appeal from the Superior Court of Guam
Argued and submitted December 3, 2010
Hagåtña, Guam

For Petitioner-Appellant: F. Randall Cunliffe, Esq. Cunliffe & Cook, PC 210 Archbishop F.B. Flores St. Hagåtña, GU 96910

For Plaintiff-Appellee: Marianne Woloschuk, Esq. Office of the Attorney General 287 W O’Brien Dr. Hagåtña, GU 96932

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

CARBULLIDO, J.

[1] Defendant-Appellant Lester Anastacio (“Anastacio”) and his co-defendant Tyrone Teliu (“Teliu”) were indicted on March 19, 2009, by a Superior Court grand jury on charges of Attempted Murder, Aggravated Assault with Possession and Use of a Deadly Weapon, Conspiracy to Commit Aggravated Assault, Criminal Facilitation, Assault, and Harassment. During a jury trial, the trial court dismissed the charge of Criminal Facilitation, and the remaining charges went to the jury for verdict. The jury found Anastacio guilty of Conspiracy to Commit Aggravated Assault, Assault, and Harassment, and found him not guilty of Attempted Murder and Aggravated Assault with Possession and Use of a Deadly Weapon in the Commission of a Felony. Anastacio was sentenced to a total of eleven years and sixty days in prison – ten years for the Conspiracy charge, one year for the Assault charge, and sixty days for the Harassment charge, all to be served consecutively.

[2] Judgment of Conviction was entered on the docket on March 22, 2010, and Anastacio timely appealed. Anastacio raises four issues on appeal: (1) that there was insufficient evidence to convict on all charges; (2) that the charge of Conspiracy to Commit Aggravated Assault does not allege a crime; (3) that the crimes for which he was convicted merge; and (4) that the trial court erred in failing to sentence him according to first offender guidelines. For the reasons set forth below, we affirm the Assault conviction and vacate the Conspiracy and Harassment convictions.

I. FACTUAL AND PROCEDURAL HISTORY

[3] At some time in the early morning hours of March 7, 2009, Johanes Temengil was found severely beaten at the home in which he was living, which belonged to Melii Diaz, Anastacio’s mother. Guam Police Department officers eventually arrested and charged Teliu and Anastacio in connection with the beating.

[4] A Superior Court grand jury later returned an indictment against Teliu and Anastacio. This indictment charged Anastacio as follows:

Charge One: ATTEMPTED MURDER

Charge Two: AGGRAVATED ASSAULT, Special Allegation Possession and Use of a Deadly Weapon in the Commission of a Felony

Charge Three: CONSPIRACY TO COMMIT AGGRAVATED ASSAULT

Charge Four: CRIMINAL FACILITATION

Charge Five: ASSAULT

Charge Six: HARASSMENT

Appellant’s Excerpts of Record (“ER”) at 1-3 (Indictment, Mar. 19, 2009).

[5] During the course of the investigation, Anastacio’s co-defendant, Teliu, allegedly made a statement to police that included statements about Anastacio. Based on this, Anastacio filed a motion to sever, arguing that Teliu’s statement contained references to Anastacio, which, if offered, would affect Anastacio’s rights. The People opposed the severance. The parties later came to a compromise, which the trial court accepted, that instead of a severance, the People would redact all reference to Anastacio in Teliu’s statement.

[6] The trial court proceeded with a jury trial. Anastacio moved for a judgment of acquittal at the close of the People’s case-in-chief, which the court granted as to the charge of Criminal Facilitation. Anastacio also filed a motion to dismiss the charge of Conspiracy to Commit Aggravated Assault, which the court denied without a written order.

[7] The People thereafter filed an Amended Indictment deleting the Criminal Facilitation charge that the trial court acquitted. At the close of all the evidence, Anastacio renewed his motion for a judgment of acquittal, which the trial court denied. After deliberations, the jury returned its verdict, finding Anastacio not guilty of Attempted Murder and Aggravated Assault with Possession and Use of a Deadly Weapon in the Commission of a Felony. The jury found Anastacio guilty of Conspiracy to Commit Aggravated Assault, Assault, and Harassment. Thereafter, Anastacio again moved the court for an acquittal, which the court denied orally without issuing any written decision.

[8] During the sentencing hearing, Anastacio argued that certain crimes merged. The court heard some of the matters at the first sentencing hearing, but then twice continued the sentencing hearing. At the last hearing, the trial court sentenced Anastacio to a total of eleven years and sixty days in prison. Judgment was filed and entered on the docket. Anastacio filed a timely Notice of Appeal. Anastacio has been incarcerated since the time of his arrest in March 2009.

II. JURISDICTION

[9] This court has jurisdiction over this appeal from a final judgment in a criminal case. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw current through Pub. L. 111-264 (2010), 7 GCA § 3107(b) (2005); see also 8 GCA § 130.15(a) (2005) (permitting defendant's appeal from a final judgment of conviction).

III. STANDARD OF REVIEW

[10] Where a defendant has raised the issue of sufficiency of evidence by motion for acquittal in the trial court, the denial of the motion is reviewed de novo. People v. Maysho, 2005 Guam 4 ¶ 6. Whether the charge of Conspiracy to Commit Aggravated Assault lawfully alleges a crime is a question of law reviewed de novo. See People v. Angoco, 1996 WL 875777 at *3 (D. Guam A.D.); People v. Chargualaf, 1989 WL 265040 at *2 (D. Guam A.D.) (questions of law and issues of statutory interpretation are reviewed de novo