People of Guam v Leslie [2011] GUSC 23; 2011 Guam 23 (9 December 2011)

IN THE SUPREME COURT OF GUAM

THE PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

JEREMY REY LESLIE,
Defendant-Appellant.

Supreme Court Case No.: CRA11-001
Superior Court Case No.: CF0633-09

OPINION

Filed: December 9, 2011

Cite as: 2011 Guam 23

Appeal from the Superior Court of Guam
Argued and submitted on July 13, 2011
Dededo, Guam

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

Appearing for Plaintiff-Appellee: Jonathan R. Quan, Esq. Assistant Attorney General Office of the Attorney General 287 W O'Brien Dr. Hagåtña, GU 96910

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

TORRES, J.:

[1] After a jury trial, Defendant-Appellant Jeremy Rey Leslie was convicted on two counts of Third Degree Criminal Sexual Conduct for intentionally engaging in sexual penetration with a minor but acquitted on a charge of the Electronic Enticement of a Child. On appeal, Leslie challenges his conviction and the trial court's decision dismissing his Motion for New Trial. Leslie makes two arguments. First, Leslie argues that the trial court abused its discretion when it denied his Motion for New Trial. Leslie asserts that the minor M.L. (DOB: 05/04/1994), who was the key witness for Plaintiff-Appellee People of Guam ("People"), offered testimony that was "simply not credible." Thus, Leslie contends that the trial court committed a "clear error of judgment" when it found that M.L.'s testimony was credible and that the evidence did not weigh heavily against the verdict such that Leslie should be granted a new trial. Second, Leslie argues that this court should set aside his conviction because the jury delivered an inconsistent verdict when it found Leslie guilty on two counts of Third Degree Criminal Sexual Conduct, but acquitted him on the Electronic Enticement of a Child charge.

[2] We reject each of Leslie's arguments and affirm both the trial court's ruling and the judgment of conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] In late November 2009, Leslie found M.L.'s Myspace page while browsing the Internet and over the next couple of weeks, the two engaged in online conversations using instant messaging. M.L.'s Myspace profile indicated she was eighteen years old, although in later online conversations with Leslie, she expressed she actually was fifteen going on sixteen. Leslie and M.L. made plans to meet in person, and late one evening in early December 2009, Leslie picked her up outside her residence.

[4] During the course of this evening, Leslie engaged in sexual penetration with M.L. on two separate occasions. On one occasion, Leslie performed cunnilingus on M.L. On another occasion, Leslie stuck his "finger inside of [M.L. (DOB: 05/04/1994)] and . . . finger[ed]" her. Transcripts ("Tr") at 84 (Jury Trial, June 30, 2010). When these events occurred, Leslie was twenty-nine years old, and M.L. was fifteen.

[5] A Superior Court of Guam Grand Jury indicted Leslie on two charges: (1) Electronic Enticement of a Child (as a First Degree Felony), and (2) Third Degree Criminal Sexual Conduct (as a Second Degree Felony) (Two Counts). Record on Appeal ("RA"), tab 1 at 1-2 (Indictment, Dec. 18, 2009). Under the first charge involving the Electronic Enticement of a Child, the Grand Jury indicted Leslie for using Myspace to communicate with a " minor known by him to be under the age of eighteen (18) years . . . with the intent to promote or facilitate the commission of a felony, that is, Third Degree Criminal Sexual Conduct, and that he intentionally traveled to the agreed upon meeting place at the agreed upon meeting time." Id. at 1. Under the second charge involving two counts of Third Degree Criminal Sexual Conduct, the Grand Jury indicted Leslie for intentionally engaging in sexual penetration with a minor who was "at least fourteen (14) but less than sixteen (16) years of age" on two separate occasions on the night of the incident. Id. at 2.

[6] Throughout the trial, the jury heard testimony from six witnesses including testimony from the People's key witness, M.L. M.L. testified on direct examination and briefly in non-extensive cross examination. Tr. at 3-60 (Jury Trial, June 29, 2010).

[7] The jury also heard from Leslie, who offered key testimony on direct examination. Tr. at 7-64 (Jury Trial, June 30, 2010). On direct examination, Leslie stated that when he engaged in sexual penetration with M.L., he did not really understand what her age was, but presumed it to be at least sixteen. Id. at 17. Leslie cited two primary reasons for his conclusion. Id. First, Leslie stated that he was confused because M.L.'s Myspace profile indicated that she was eighteen years old. Id. Second, Leslie stated that he was confused because M.L. told him that she was fifteen years old—going on sixteen—via a message that she sent him over Myspace. Id. Specifically, Leslie stated that he "didn't really understand what . . . turning 16 meant." Id. Leslie "presumed it at that time to be something that was very around the corner, something that we kind of anticipate coming quickly, going to be 16." Id.

[8] After the jury and trial court heard all of the testimony at trial, the trial court instructed the jury:

It is a defense to a charge of criminal sexual conduct that the defendant reasonably believed that [M.L.] had reached the age of sixteen. The defendant has the burden of proving that it is more probably true than not true that the defendant reasonably believed that [M.L.] had reached the age of sixteen. If you find that the defendant reasonably believed that [M.L.] had reached the age of sixteen, you must find the defendant not guilty.

RA, tab 43 (Jury Instruction 6F, July 7, 2010).

[9]