People of Guam v Song [2012] GUSC 23; Guam 21 2012 (20 December 2012)

	Home \| Databases \| WorldLII \| Search \| Feedback Supreme Court of Guam

Appeal from the Superior Court of Guam
Argued and submitted on August 22, 2012
Hagåtña, Guam

Appearing for Defendant-Appellant:
F. Randall Cunliffe, Esq.
Cunliffe & Cook, P.C.
210 Archbishop Flores St.
Hagåtña, GU 96910

Appearing for Plaintiff-Appellee:
Marianne Woloschuk, 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; and KATHERINE A. MARAMAN, Associate Justice.

[1] Defendant-Appellant Jimmy Chin Song appeals from a final judgment convicting him of one count of Manslaughter (As a First Degree Felony) and one count of Aggravated Assault (As a Third Degree Felony). Song argues that the judgment should be reversed because the trial court erred in denying his motions for judgment of acquittal. The thrust of Song's argument for reversal is that there was insufficient evidence to prove the element of recklessness required by both charges.

[3] This case arises from the death of Yun Mo James Ku following an incident involving Defendant-Appellant Jimmy Chin Song during the early morning hours of June 18, 2011. The grand jury returned an indictment charging Song with one count of Manslaughter (As a First Degree Felony) and one count of Aggravated Assault (As a Third Degree Felony). A jury trial commenced a few months later.

[4] The following outline of facts is based primarily on the trial testimony provided by Plaintiff-Appellee People of Guam's ("the People") key witness, Sabrina Mabanta, who was Ku's girlfriend and present at the time of the incident.

[5] On the evening of June 17, 2011, Ku and Mabanta, in celebration of their 11-month anniversary as a couple, had dinner at Planet Hollywood followed by karaoke at the Sing-a-Song Café in Harmon Industrial Park. Ku and Mabanta arrived at Sing-a-Song around midnight on June 18, 2011, and were directed to a private karaoke room wherein they ordered soju, a Korean alcoholic beverage, and sang songs. Around 1:00 a.m., Song, a man who neither Ku nor Mabanta knew prior to that evening, opened the door to their private room and looked in. He repeated this action shortly thereafter.

[6] A few minutes later, Ku and Mabanta decided to go home for the night. Ku stepped out of the room to pay their tab, then came back to the room to get Mabanta. While the couple was at the counter, Song rushed toward them from the back of the café. Speaking in Korean, a language which Mabanta did not understand, Song motioned for Ku to go outside. Immediately thereafter, both Song and Ku went outside of the café, with Mabanta following behind them.

[7] Outside of the café, Mabanta stood beside a pillar as she observed a discussion between Ku and Song. Mabanta described Ku as being calm during the incident, whereas she described Song as becoming increasingly loud and agitated, with his voice rising to the level of shouting. Fearing that things would escalate, Mabanta turned around and reentered the café in order to ask the owner, who spoke Korean, for assistance. Before she made it through the door, however, she heard a loud thud which she described as sounding like a coconut being forcefully dropped to the floor. She turned around and, though partially blocked by the pillar, she observed Song in a stance that suggested he had just thrown a punch. Once outside, she found Ku lying on the ground unconscious and stiff. He was bleeding from his lips. Meanwhile, Song paced next to them, smirking and grinning. Mabanta proceeded to try to revive Ku to no avail. Upset, she yelled at Song and asked him why he punched her boyfriend, to which he responded that he hit Ku because Ku hit him first. She noticed that the knuckles on Song's right hand were bloody. Mabanta then touched Song's face to look for any injuries, and Song poked her shoulder and said, "Do not touch me." Transcripts ("Tr.") at 120 (Cont. Jury Trial, Aug. 29, 2011). A photo of Mabanta's shoulder after the incident showed a half dollar-size bruise.

[8] Still unable to arouse Ku, Mabanta returned to the café and asked the owner for help. The owner, upon seeing Ku on the ground, proceeded to yell at Song in Korean. She then attempted to revive Ku, first by patting his face and then by pouring soju on his face. In the meantime, Mabanta yelled at Song to call 911. In response, he yelled, "I'll call 911, call 911" as he proceeded to raise his hand as if he were about to strike her. Id. at 126-27. As Mabanta cringed, the owner said something to Song in Korean, and Song stopped the threatening gesture.

[9] Mabanta then returned to the café and asked another patron to call 911, which he did. Before going back outside, Mabanta retrieved a bottle of whiskey from behind the bar and hid it behind her back. She said that she did so in order to arm herself and to smash it in Song's face.

[10] When Mabanta returned outside, Ku had yet to awaken. Song was still there, smirking and grinning as he looked down upon Ku. The owner, speaking in Korean, motioned for Song to leave, and Song left. Mabanta, still armed with the whiskey bottle, attempted to follow him. In the meantime, the police arrived. Mabanta returned to the outside of the café and discovered that Ku had awakened and was now sitting in his car.

[11] The responding police officer, Officer James Muna of the Guam Police Department, testified that when he first saw Ku in his vehicle, he appeared to be intoxicated. Officer Muna noticed a strong odor of alcohol emitting from Ku's breath. He also noted swelling to Ku's lower lip. When Officer Muna asked Ku about the source of the injury, Ku responded that nothing had happened and that he had merely fallen. Despite Mabanta's insistence, Ku declined to press charges against Song. Ku also refused the police officer's offer of medical treatment. The officer also testified that when he observed Ku walking, he appeared steady on his feet.

[12] Eventually, Mabanta drove herself and Ku home. During the drive, Mabanta argued with Ku over his refusal to press charges against Song and to seek medical attention. She also asked Ku to tell her what he and Song had argued about, but Ku refused to discuss it.

[13] At home, Mabanta continued to press Ku about the incident until finally he told her that Song punched him first, he ducked, and then he could not remember anything more. Before finally falling asleep, Ku vomited several times. It was later revealed that Ku induced the vomiting by sticking his finger down his throat.

[14] Ku slept through the rest of the night and well into the next afternoon. He finally awoke around 3:00 p.m., made himself a protein shake, and went back to sleep. At around 8:00 p.m., he ate some dinner with Mabanta's assistance. He complained of pain at the top of his head, as well as in his lips and jaw, and went back to bed after taking some Tylenol.

[15] The following morning, June 19, Ku woke up at about 9:00 a.m. to brush his teeth, and then swayed as he returned to bed. Mabanta noticed that he was becoming agitated for no apparent reason, the lights bothered him, he had sweats and chills, he did not want to be touched, and he was not acting like himself. At 11:30 a.m., Mabanta called Ku's mother to ask her to help take Ku to the hospital. Mabanta and Mrs. Ku helped Ku get dressed and supported him as he walked to the car, and then they drove him to Guam Memorial Hospital.

[16] At the emergency room, Ku slumped in his chair and covered his eyes against the light, complaining that it was blinding him. After 30 to 40 minutes of waiting, he saw a doctor. Ku reported to the nurse that his pain level was at an eight on a scale of one to ten. A CAT scan showed that he had brain swelling and bleeding. The doctor told Mrs. Ku that her son's brain was damaged, and that it was too late for an operation. Mrs. Ku told the doctor that she wanted to take her son to Korea for treatment, but the doctor advised her not to do so because of the severe amount of pressure in his head.

[17] At the hospital, Ku's condition continued to deteriorate. While he was able to speak before arriving at the hospital, a few short hours later, he could not talk or communicate. At about 4:00 p.m. the following day, June 20, Ku had a seizure. He was placed on life support in the Intensive Care Unit. By 7:00 or 8:00 p.m., the doctor told Mrs. Ku that her son's brain was dead and that there was no hope for survival, and urged her to take her son off life support. Mrs. Ku refused.

[18] On June 21 and 22, Ku developed a fever and infection. Still, Mrs. Ku refused to take her son off life support. Finally, on June 24, 2011, after observing discoloration in her son's extremities and eyes, Mrs. Ku finally gave her consent to remove Ku from life support. He died later that day.

[19] Officer Jeremiah DeChavez of the Guam Police Department testified that he arrested Song on June 23, 2011. The officer testified that while Song was being processed, he did not observe any injuries to Song's face. The officer did, however, notice a Band-Aid on the base of Song's right, middle finger. A photograph of Song's right hand taken on the date of arrest was admitted into evidence.

[20] The Chief Medical Examiner, Dr. Aurelio Espinola, an expert in forensic pathology, performed Ku's autopsy on June 27, 2011. An external examination showed abrasion and contusion to Ku's lip and a contusion to the back of Ku's left hand, but no apparent injuries to the head or scalp. An internal examination revealed bleeding underneath the skull at the top rear portion of the head. Upon opening the skull, Dr. Espinola discovered a subdural hematoma, meaning that there was a blood clot covering the right side of Ku's brain as well as the base of his brain. Dr. Espinola also found a contrecoup[1] injury on the opposite side of the impact, at the base of the brain at the same level as the eyes.

[21] At trial, Dr. Espinola opined that "because of the location of the hemorrhage at the top of the head, and the location of the contrecoup, my opinion was that [Ku] was hit here, so that the—the—the force transferred forward and produced the contrecoup injury to the brain." Tr. at 109-10 (Jury Trial (Cont.), Sept. 1, 2011). The force of the downward striking blow to Ku's head was from the top, back to front. Dr. Espinola also testified that because of the location of the contrecoup injury, the injury at the top of the head was not consistent with falling down. Id. at 110 ("No [he was not hit by falling]. Because if it was due from—If it was from [the] fall, the contrecoup would be located at the back of the head."). In Dr. Espinola's expert opinion, the blunt force trauma that caused the injury to Ku's brain was delivered by a closed fist. He further testified that the injury was likely caused by a downward striking blow with the side of a fist, not with the knuckles. Dr. Espinola also testified that only a very hard blow could have caused such an injury. The fact that there were no visible external injuries to the head led Dr. Espinola to believe that the injury was not caused by a hard, blunt object like a baseball bat. In addition, Dr. Espinola visited the scene and found nothing in the Sing-a-Song parking lot that could have accounted for the head injury.

[22] A photo of Song's hand after the incident, which was presented as evidence, was shown to Dr. Espinola, who testified that the contusions and bruising were consistent with having hit someone in the mouth.

[23] Dr. Espinola concluded that the cause of Ku's death was subdural hematoma and laceration of the brain, and the manner of death was homicide.

[24] Song did not testify in his defense. Song moved for judgment of acquittal at the close of the People's case and renewed his motion at the close of all the evidence. The trial court denied both motions. The jury returned a guilty verdict as to both counts of the indictment. The trial court sentenced Song to twelve years of imprisonment, but suspended five of those years. Judgment was entered, and notice of entry on docket took place the following day. After an earlier appeal was dismissed for lack of jurisdiction, Song timely filed a Notice of Appeal.

[25] This court has jurisdiction over appeals from a final judgment of conviction pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw current through Pub. L. 112-197 (2012)); 7 GCA §§ 3107(b) and 3108(a) (2005); and 8 GCA §§ 130.10-.15(a) (2005).

[26] Where a defendant raised the issue of sufficiency of the evidence by a motion for judgment of acquittal, we review the trial court's denial of the motion de novo. People v. Anastacio, 2010 Guam 18 ¶ 10 (citing People v. Maysho, 2005 Guam 4 ¶ 6). In determining whether there exists sufficient evidence to sustain a defendant's conviction, we review the evidence presented at trial in the light most favorable to the People and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Tennessen, 2009 Guam 3 ¶ 14 (quoting People v. Cruz, 1998 Guam 18 ¶ 9); see also 8 GCA § 90.21 (2005) ("No person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt."). "This is a 'highly deferential standard of review.'" People v. Tenorio, 2007 Guam 19 ¶ 9 (quoting People v. Sangalang, 2001 Guam 18 ¶ 20).

[27] Before reviewing the trial court's decision denying Song's motion for judgment of acquittal, we discuss the principles governing such motions. Under Guam law, the trial court "on motion of a defendant or on its own motion shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment . . . after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." 8 GCA § 100.10 (2005). The trial court determines whether a motion for judgment of acquittal should be granted by applying the same test used when the sufficiency of the evidence is challenged. Tennessen, 2009 Guam 3 ¶ 14 (quoting Cruz, 1998 Guam 18 ¶ 9). Since the denial of a motion for judgment of acquittal is predicated on the sufficiency of the evidence, the resolution of the propriety of the denial necessarily encompasses a review of the sufficiency of the evidence. Thus, on appeal we review the evidence presented at trial in the light most favorable to the People and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. (quoting Cruz, 1998 Guam 18 ¶ 9).

[28] A verdict of guilty removes the presumption of innocence to which a defendant had formerly been entitled and replaces it with a presumption of guilt. State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011) (citation omitted); see also Herrera v. Collins, 506 U.S. 390, 399 (1993) ("Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears."). Accordingly, the "defendant bears the burden on appeal of showing that the evidence was legally insufficient to sustain a guilty verdict." Sisk, 343 S.W.3d at 65 (citations omitted). In conducting this analysis, the People "must be afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn therefrom." Id.; see also Anastacio, 2010 Guam 18 ¶ 17 ("[O]ur inquiry is whether, crediting all of the People's evidence and drawing every reasonable inference from it in favor of the prosecution, a rational trier of fact could find Anastacio guilty beyond a reasonable doubt").

[29] "It is not the province of the court, in determining [a motion for a judgment of acquittal], to resolve conflicts in the evidence, to pass upon the credibility of witnesses, to determine the plausibility of explanations, or to weigh the evidence; such matters are for the jury." State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005) (quoting 75A Am. Jur. 2d Trial § 1026); see also Anastacio, 2010 Guam 18 ¶ 18; People v. Jesus, 2009 Guam 2 ¶ 61 ("The appellate court cannot merely substitute its judgment for that of the jury."). When ruling on a motion for judgment of acquittal, the trial court is concerned with the existence or nonexistence of evidence, not its weight, State v. Weston, 625 S.E.2d 641, 648 (S.C. 2006), and this standard remains constant even when the People rely exclusively on circumstantial evidence, State v. Elmore, 628 S.E.2d 271, 273 (S.C. Ct. App. 2006). A defendant is entitled to a judgment of acquittal when the People fail to produce evidence of the offense charged. Id. A trial court should grant a motion for judgment of acquittal when the evidence merely raises a suspicion that the accused is guilty. Id.; Anastacio, 2010 Guam 18 ¶ 18 (citing United States v. Littrell, 574 F.2d 828, 833 (5th Cir. 1978)). "However, if there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, we must find the case was properly submitted to the jury." Elmore, 628 S.E.2d at 273 (internal quotation marks omitted).

[30] With these standards in mind, we turn to Song's particular claim, that there was insufficient evidence to sustain a conviction on either the Manslaughter or Aggravated Assault charge because the People were unable to prove beyond a reasonable doubt the element of recklessness required by both charges.

B. Whether Sufficient Evidence Existed to Prove the Element of Recklessness Beyond a Reasonable Doubt

[31] "[A] person is not guilty of a crime unless he acts intentionally, knowingly, recklessly or with criminal negligence, as the law may require, with respect to the conduct, the result thereof or the attendant circumstances which constitute the material elements of the crime." 9 GCA § 4.25 (2005) (emphasis added). Title 9 GCA § 4.30(c) defines "recklessly" as follows:

A person acts recklessly, or is reckless, with respect to attendant circumstances or the result of his conduct when he acts in awareness of a substantial risk that the circumstances exist or that his conduct will cause the result and his disregard is unjustifiable and constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.

9 GCA § 4.30(c) (2005); see also Tr. at 33 (Jury Instr. & Delib., Sept. 6, 2011).

[32] A person is guilty of criminal homicide if he recklessly causes the death of another human being. 9 GCA § 16.20(a)(4) (2005); see also Tr. at 33 (Jury Instr. & Delib., Sept. 6, 2011). "Criminal homicide is aggravated murder, murder, manslaughter or negligent homicide." 9 GCA § 16.20(b). When criminal homicide is committed recklessly, it constitutes manslaughter. 9 GCA § 16.50(a)(1) (2005); see also Tr. at 33 (Jury Instr. & Delib.). Thus, in the case of manslaughter, the People must have shown: that Song's conduct caused Ku's death; that Song acted in awareness of a substantial risk that he would cause Ku's death; and that Song's disregard of the risk was unjustifiable and constituted a gross deviation from the standard of care that a reasonable person would have exercised in the situation. See Tr. at 33-34 (Jury Instr. & Delib.).

[33] "A person is guilty of aggravated assault if he either recklessly causes or attempts to cause: . . . serious bodily injury to another." 9 GCA § 19.20(a)(2) (2005); see also Tr. at 33 (Jury Instr. & Delib.). "Serious bodily injury means bodily injury which creates: serious permanent disfigurement; a substantial risk or [sic] death or serious, permanent disfigurement, severe or intense physical pain or protracted loss or impairment of consciousness or of the function of any bodily member or organ." 9 GCA § 16.10(c) (2005); see also Tr. at 33 (Jury Instr. & Delib.). Thus, in the case of aggravated assault, the People must have shown: that Song caused or attempted to cause serious bodily injury to Ku; that Song acted in awareness of a substantial risk that he would cause serious bodily injury to Ku; and that Song's disregard of the risk was unjustifiable and constituted a gross deviation from the standard of care that a reasonable person would have exercised in the situation. See Tr. at 33-34 (Jury Instr. & Delib.).

[34] On appeal, Song does not argue that his conduct did not cause Ku's death or serious bodily injury to Ku. Song contends only that the evidence was insufficient to prove that he acted recklessly. We discuss each element of recklessness, slightly out of turn, and apply the legal principles to Song's conduct.

[35] To show that a defendant acted recklessly, the prosecution must establish that the defendant's conduct involved a "substantial risk." 9 GCA § 4.30(c). In examining the substantial risk element of recklessness, the Supreme Court of Colorado has held:

Supreme Court of Guam

People of Guam v Song [2012] GUSC 23; Guam 21 2012 (20 December 2012)