People of Guam v Songeni [2010] GUSC 20; 2010 Guam 20 (31 December 2010)

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Appeal from the Superior Court of Guam
Argued and Submitted November 4, 2010
Hagåtña, Guam

For Defendant-Appellant
F. Randall Cunliffe, Esq
Cunliffe & Cook, P.C
210 Archbishop Flores Street
Hagåtña, Guam 96932

For Plaintiff-Appellee:
Marianne Woloschuk, Esq
Assistant Attorney General
Office of the Attorney General
287 West O'Brien Drive
Hagåtña, Guam 96932

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

[1] In the trial court, Defendant-Appellant Mannix Frank Songeni was convicted of one charge of Second Degree Criminal Sexual Conduct ("CSC"). Songeni appeals this conviction on the theory that Second Degree CSC is not a "lesser included offense" of First Degree CSC under the applicable Guam statutes. For the reasons set forth below, we agree and reverse the conviction.

[2] A Grand Jury issued an indictment charging Songeni with one count of First Degree CSC as a First Degree Felony and one count of Child Abuse as a Misdemeanor. See Appellant's Excerpts of Record ("ER") at 3-4 (Indictment). The indictment accused Songeni of causing his penis to enter the vagina of A.M., a minor under fourteen (14) years of age, but did not contain any charges against Songeni for Second Degree CSC. Id.

[3] Testimony at trial indicated (1) that Songeni encountered A.M. at the home of his some-time girlfriend; (2) that Songeni and at least 4 minors (including the victim) were at one point watching television in the living room of the home; and (3) that subsequently the other minors departed "to the store." See ER at 10-13, 19, 113-14 (Reporter's Transcripts of Jury Trial, Dec. 1, 2009 & Dec. 7, 2009). A.M. testified that after the other minors departed, Songeni sexually assaulted her. See ER at 10-11 (Reporter's Transcripts of Jury Trial, December 1, 2009). A.M. also testified that no one else was present during the assault. See ER at 11 (Transcripts of Jury Trial, Dec. 1, 2009). One other minor testified that he witnessed at least part of the assault. See ER at 100-01 (Transcripts of Jury Trial, Dec. 4, 2009).

[4] After both the People and Songeni rested their cases, the judge, while reviewing the draft jury instructions proposed by both parties, entered into the following colloquy with Songeni's counsel outside the presence of the jury:

The Court: Ai adai. Even though I asked you, you're not going to do it, even though the law says it; is that what you're saying to me?

The Court: I understand the law, and it's not that you don't want to do it, it's that you're just making the choice, but I have to give it. Okay? I just want you to know that. As I understand it, the Defendant is charged with two charges: First Degree Criminal Sexual Conduct, as a First Degree Felony. I want you to know that the lesser included would be Second Degree Criminal Sexual Conduct, as a First Degree . . . .

[5] Later, the court provided counsels with Draft # 1 of the jury instructions and during review of instructions 7B and 7C, the following exchanges occurred:

The Court: Now 'The Conviction of a Lesser Included Offense,' 7B. The crime of first degree Criminal Sexual Conduct includes the lesser crime of second degree Criminal Sexual Conduct. If you are not convinced beyond a reasonable doubt that defendant is guilty of first degree Criminal Sexual Conduct, and if you are convinced beyond a reasonable doubt that defendant is guilty of the lesser crime of second degree Criminal Sexual Conduct, you may find the defendant guilty of second degree Criminal Sexual Conduct. The crime of second degree Criminal Sexual Conduct as a first degree felony is lesser to first degree Criminal Sexual Conduct, as a first degree felony.

The Court: Okay. And again as I am mandated, I am compelled to do so by the Supreme Court. Objection's overruled.

The Court: And I understand the defendant's continuing objection as this being included, it's a lesser included. Correct [Counsel]?

[6] Over these objections, the trial court instructed the jury that Second Degree CSC was a "lesser included offense" of First Degree CSC and that if there was insufficient evidence to convict Songeni of First Degree CSC, the jury might alternatively convict him of Second Degree CSC. See Transcripts of Jury Trial, Dec. 9, 2009 at 100-01. The jury returned verdicts of guilty on the lesser included offense of Second Degree CSC as a First Degree Felony and Child Abuse as a Misdemeanor. See Appellant's Br. at 3; ER at 5-7 (Judgment, Feb. 11, 2010). Songeni was acquitted of First Degree CSC. Id. A judgment of conviction was entered, sentencing Songeni to twenty (20) years in confinement for both convictions. Songeni timely appealed. See ER at 6 (Judgment).

[7] In addition to renewing his objections to the trial court's jury instructions, Songeni appeals to this court on two other grounds: (1) the handling of the case by the trial court judge, and (2) his sentence of twenty (20) years for the Second Degree CSC conviction. See Appellant's Br. at 6-11, 17.

[8] This court has jurisdiction over appeals taken from a judgment of conviction pursuant to 48 U.S.C.A. § 1421-1(a)(2) (Westlaw current through Pub. L. 111-264 (2010)); 7 GCA §§ 3107 and 3108(a) (2005); and 8 GCA § 130.15(a) (2005).

[9] Where a defendant objected to a particular jury instruction at trial, courts view the instruction in the context of the delivered jury instructions as a whole and reverse only for an abuse of discretion.[1] See, e.g., United States v. Alcantar, 832 F.2d 1175, 1178 (9th Cir. 1987) (citing United States v. Park, 421 U.S. 658, 674 (1975); United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir. 1982)).

[10] Songeni's main argument concerns the propriety of the jury instructions delivered by the trial court judge. Specifically, Songeni contends that Second Degree CSC is not a proper lesser included offense of First Degree CSC; therefore, the trial court erred in sua sponte issuing an instruction on Second Degree CSC. Appellant's Br. at 11-17. The People made a similar argument on appeal in People v. Cummins, 2010 Guam 19, and did not submit any opposition to Songeni's arguments of this issue.

[11] In determining whether one offense is a "lesser included offense" of another, we examine 8 GCA § 105.58. See 8 GCA § 105.58 (2005) ("Guilt of Included Offense Permitted: Defined."); Cummins, 2010 Guam 19 ¶ 16; People v. Demapan, 2004 Guam 24 ¶¶ 9-12; Angoco v. Bitanga, 2001 Guam 17 ¶ 13. Songeni's primary argument concerns whether Second Degree CSC is a lesser included offense of First Degree CSC under the language of 8 GCA § 105.58(b)(1). See Appellant's Br. at 12-17.

[12] In Cummins, this court ruled that Second Degree CSC is not a lesser included offense of First Degree CSC under 8 GCA § 105.58(b)(1) because Second Degree CSC contains a scienter element not within the greater offense of First Degree CSC. 2010 Guam 19 ¶¶ 19-20.

[13] However, our analysis on this issue does not end with the decision rendered in Cummins. In this case, unlike the defendant in Cummins, Songeni argued that Second Degree CSC could not properly be considered under any of the three prongs of 8 GCA § 105.58(b). See Appellant's Br. at 11-17. Although we ruled in Cummins that Second Degree CSC is not a proper "lesser included offense" of First Degree CSC under 8 GCA § 105.58(b)(1), we must now consider whether Second Degree CSC is a "lesser included offense" under 8 GCA § 105.58(b)(2) or (b)(3).

[14] Under 8 GCA § 105.58(b)(2), an offense can be considered an included offense of another if "[the offense] consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein." 8 GCA § 105.58(b)(2). Clearly this prong of 8 GCA § 105.58(b) deals solely with inchoate offenses.

[15] We ruled in Cummins that Second Degree CSC is not established by proof of the same or less than all the facts required to establish the commission of First Degree CSC under the "same or less facts" test of 8 GCA § 105.58(b)(1). See Cummins, 2010 Guam 19 ¶¶ 17-22 (citations omitted). Our code defines criminal attempt as "an attempt to commit a crime when, with intent to engage in conduct which would constitute such crime were the circumstances as he believes them to be, he performs or omits to perform an act which constitutes a substantial step toward commission of the crime." 9 GCA § 13.10 (2005). From this language it is clear that an "attempted crime" under Guam law differs from the crime of which it is an inchoate version only insofar as it was not a completed version of that crime. It follows that the completed crime of Second Degree CSC is distinct from an "attempted" (or otherwise inchoate) crime of First Degree CSC. In the proper case, a trial court could, under this prong of 8 GCA § 105.58(b), properly instruct a jury on the crime of Attempted First Degree CSC or Solicitation to Commit First Degree CSC[2] as an included offense of First Degree CSC. However, Second Degree CSC can never constitute an included offense of First Degree CSC under this prong of 8 GCA § 105.58(b). If the trial court in this case gave the Second Degree CSS instruction under 8 GCA § 105.58(b)(2); it erred.

[16] Under 8 GCA § 105.58(b)(3), one offense can be considered a lesser included offense of another if "[the offense] differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission." 8 GCA § 105.58(b)(3). While this section is not obviously inapplicable to this case (as 8 GCA § 105.58(b)(2) is), the court finds that Second Degree CSC is similarly not included under First Degree CSC under the language of 8 GCA § 105.58(b)(3).

[17] The degrees of CSC are not clearly separated by divergent grades of "injury" either to a person or to property. See 9 GCA §§ 25.15–.35 (2005). This is in contrast to other Guam criminal statutes where differing degrees of injury either to persons or to property define either separate offenses or different grades of a single offense. Compare 9 GCA § 25.15–.35 with 9 GCA §§ 19.20–.30 (2005) (aggravated assault contemplates "serious bodily injury" while assault contemplates "bodily injury"), 9 GCA §§ 22.30–.35 (2005) (felonious restraint and unlawful restraint), and 9 GCA §§ 58.20(b)–58.30 (2005) (felony escape and ordinary escape).[3]

[18] States which define "lesser included offense" in a similar manner have likewise focused on whether the injuries or potential injuries criminalized by the statutes being analyzed were similar in nature but different in scope. See, e.g., People v. Palmer, 944 P.2d 634, 638 (Colo. App. 1997) (under Colorado law, "menacing" not a lesser included offense of second degree assault because the offenses differ both in injury or risk of injury contemplated and in culpability required), rev'd on other grounds, 964 P.2d 524 (Colo. 1998); State v. Roberson, 812 A.2d 429, 433 (N.J. Super. Ct. Law Div. 2002) (where joyriding contained an element of risk to the public greater than that found in theft (of a motor vehicle), joyriding could not be considered a lesser included offense of theft); Commentary to Ky. Rev. Stat. Ann. § 505.020(2)(d) (Westlaw 2010) ("An illustration of this provision is provided by the definitions of assault [under Kentucky law]: assault in the second degree . . . is committed when an offender 'intentionally causes serious physical injury to another person'; assault in the third degree . . . is committed when an offender 'intentionally . . . causes physical injury to another person.' Differing from the first offense only as to the degree of injury caused, the second offense is an 'included' offense."). In contrast to these examples, the two grades of CSC considered here do not contain similar clearly delineated language which distinguishes the two crimes solely on the basis of different or divergent "injury" suffered by the victim; as discussed below, the main textual difference between the grades of CSC concerns the separate definitions of "sexual penetration" and "sexual contact." Compare 9 GCA § 25.10(a)(9) (2005) with 9 GCA § 25.10(a)(8). The nature of the variation between these two definitions is not solely that the "injury" they contemplate is similar in nature but different in scope.

[19] The "culpability" clause of 8 GCA § 105.58(b)(3) is also inapplicable in considering whether Second Degree CSC is a lesser included offense of First Degree CSC. First Degree CSC, as charged in this case, is defined as "engag[ing] in sexual penetration with the victim . . . if . . . the victim is under fourteen (14) years of age." 9 GCA § 25.15(a)(1); ER at 3 (Indictment). "Sexual penetration" is defined as "sexual intercourse, cunnilingus, fellatio, anal intercourse or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body . . . ." 9 GCA § 25.10(a)(9). Second Degree CSC involves "sexual contact," defined to be the "intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification." 9 GCA § 25.10(a)(8) (emphases added). Under these definitions, Second Degree CSC contains a greater quantum of culpability than First Degree CSC (which is essentially a status crime), as the relevant statutes contain additional mens rea elements not found in First Degree CSC. The reverse would have to be true for Second Degree CSC to be a proper lesser included offense of First Degree CSC under 8 GCA § 105.58(b)(3).

[20] Again, this interpretation is supported by analogous authority from other jurisdictions. See, e.g., Wright v. State, 658 N.E.2d 563, 567 (Ind. 1995) (under Indiana law, as the only difference between murder and reckless homicide is a lesser degree of culpability, reckless homicide is a lesser included offense of murder); Green v. State, 887 S.W.2d 230, 233 (Tex. App. 1994) (under Texas law, involuntary manslaughter and criminally negligent homicide are lesser included offenses of murder).

[21] We recognize that at least one other jurisdiction has held that sexual contact is a less serious injury than sexual penetration and that degrees of sexual assault may indicate a lesser degree of culpability. In deciding thusly, we reject the standards embraced by the Supreme Court of Hawai'i in State v. Kinanne, 897 P.2d 973 (Haw. 1995). Although we do not question the wisdom of that case, its outcome was at least partially premised on interpretation of the official commentary to Hawai'i Revised Statute § 701-109(4)(c), which is not applicable in Guam. See id. at 982-83 (citing State v. Alston, 865 P.2d 157, 167 (Haw. 1994)). The Alston court notes that in Hawai'i:

Under [Haw. Rev. Stat. § 701-109(4)(c)], an offense is included if "[i]t differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person . . . or public interest or a different state of mind indicating lesser degree of culpability suffices to establish its commission."

"Subsection (c) differs from (a) in that there may be some dissimilarity in the facts necessary to prove the lesser offense, but the end result is the same." State v. Freeman, 774 P.2d 888, 892 (1989) (citing Commentary to HRS § 701-109)[4]

Supreme Court of Guam

People of Guam v Songeni [2010] GUSC 20; 2010 Guam 20 (31 December 2010)