People of Guam v Roten [2012] GUSC 3; 2012 Guam 03 (20 April 2012)

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Appeal from the Superior Court of Guam
Argued and submitted March 7, 2011
Hagåtña, Guam

Appearing for Plaintiff-Appellee: Jonathan R. Quan, Esq. Assistant Attorney General Office of the Attorney General 287 W. O'Brien Dr. Hagåtña, GU 96910	Appearing for Defendant-Appellant: Joaquin C. Arriola, Jr., Esq. (Briefed) Arriola, Cowan & Arriola 259 Martyr St., Ste. 201 Hagåtña, GU 96910

	Leevin T. Camacho, Esq. (Argued) Terlaje Professional Bldg., Ste. 216 194 Hernan Cortez Ave. Hagåtña, GU 96910

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

[1] After a jury trial, Defendant-Appellant Rikat Roten was found guilty of five counts of First Degree Criminal Sexual Conduct and three counts of Second Degree Criminal Sexual Conduct, all first-degree felonies and was sentenced to thirty years in prison. Roten now appeals his convictions, alleging errors during his trial. The People of Guam ("People") oppose the appeal. For the reasons set forth below, we find that although the trial court committed errors in Roten's trial, they were harmless and, therefore, the convictions are affirmed.

[2] Roten was indicted for five counts of First Degree Criminal Sexual Conduct and three counts of Second Degree Criminal Sexual Conduct. Appellant's Excerpts of Record ("ER"), tab 1 (Indictment, Mar. 5, 2010).

[3] Trial commenced on June 11, 2010 with the testimony of Guam Police Department Officer Reynold Alcantara ("Alcantara"). Transcript ("Tr.") at 17 (Jury Trial, June 11, 2010). Alcantara testified that during his fourteen-year service as a police officer, he investigated approximately 150 sexual assault cases, and conducted approximately sixty to seventy interviews with victims alleging sexual assault. Id. at 17-18. As the Prosecutor began to delve into the specifics of Alcantara's involvement with the Roten case, Roten's counsel objected on the basis of hearsay. Id. at 19. The People responded that there was an applicable exception to the hearsay rule, the "law enforcement exception." Id. at 20. The Prosecutor stated: "I do think the Officer can talk about his thoughts and impressions . . . of the investigation that he performed. He's not talking about statements that were made to him." Id. Roten's objection was overruled, and examination continued, with Roten's counsel continuing to object on the basis of hearsay. Id. at 21. After inquiry from the trial court, the Prosecutor stated that "we're not offering [Alcantara's testimony] for the truth of the matter asserted. We're offering it to show this Officer's—the results of the investigation that he performed and the information he learned during that investigation." Id. at 23.

[4] Although some of Roten's objections were sustained, the following colloquy was entered into evidence over Roten's objection:

[Ms. Raines]: Officer Alcantara, the results of your investigation, did they reveal to you that a sexual assault had occurred?

[Ms. Raines]: Did the results of your investigation reveal to you that sexual assault had occurred on three occasions?

[5] After continued objections from Roten's counsel, the trial court called a recess, during which the attorneys discussed Alcantara's testimony with the trial court. Id. at 30-34. The trial court ruled that:

This is what an officer can testify to, an officer has very limited testimony, they can testify to the fact of how they began their investigation; who, what, where, when and how . . . . They can testify as to their conclusions which you have asked the Officer and [Roten's counsel] did not object to . . . . But, not to anything with regard to the details of the crime because that all comes from the victim.

[6] After returning from recess, the Prosecutor began to inquire concerning Alcantara's previous experience regarding delayed reporting of crimes by sexual assault victims. Id. at 35-36. Roten objected on the grounds of improper expert testimony. Id. at 36. The objection was overruled. Id. After discussion of delayed reporting in general, the Prosecutor inquired: "[Q:] Now, is that situation similar to the investigation that was performed in this case? [A:] Yes, ma'am." Id. at 37. Later, over Roten's objection, Alcantara testified to his conclusion that Roten did penetrate the victim orally and with his penis. Id. at 39-40. Cross-examination revealed that the extent of Alcantara's investigation was a single interview with the victim. Id. at 43.

[7] The second witness in the case was the victim. An interpreter was provided to assist the victim because she had some difficulty with the English language. Id. at 48. The victim testified that she was in her mid-20s, both at the time of the incidents alleged and at trial. Id. at 51. The victim testified that Roten was her step-father.[1] Id. at 52. The victim testified about three distinct incidents of sexual assault; the first took place in the family's home in Astumbo. Id. at 59. The victim indicated that she told Roten to stop and that she attempted to push him away from her. Id. at 57. The victim later testified that after the first incident Roten admonished her not to tell anyone about the incident. Id. at 58. The second incident took place on Tanguisson Beach; again, the victim testified that she verbally communicated her non-consent, and that Roten held her feet as he assaulted her. Id. at 63-64. The victim testified that several other family members were at the family home when she and Roten returned from Tanguisson. Id. at 64-65. The third incident took place in a new family home in Yigo; yet again, the victim testified that she admonished Roten verbally and that he held her legs open during the assault. Id. at 74-75.

[8] The People's third witness was Joseph Rotenis, who identified himself as the nephew of Roten. Id. at 154. Rotenis testified that he remembered the day when the second incident was alleged to have taken place and that the victim appeared variously, hung over, mad, or upset upon her return to the house. See id. at 148, 154.

[9] The People's fourth witness was Investigator Anthony Blas of the Attorney General's Office. Transcripts ("Tr.") at 5-6 (Jury Trial, June 14, 2010). Investigator Blas testified that he had, with the assistance of the victim, located and photographed the places where the three alleged assaults took place. Id. at 9-22. Investigator Blas also testified about his interview of Roten. Id. at 22. Investigator Blas testified that during the interview Roten admitted that he twice had sexual contact with the victim corresponding to the first two alleged assaults, but that Roten asserted that those incidents of sexual contact with the victim were consensual. Id. at 28. Lengthy portions of an audio recording of the interview were played back to the jury. See id. at 31-46. On the tape, Roten admits to sexual contact with the victim in situations that correspond to the first two incidents described by the victim, but denies any force or coercion was used. Id. at 37, 39. After Investigator Blas' testimony concluded, the People rested. Id. at 57. Roten rested without presenting any evidence. Id. at 75.

Officer Alcantara also told us that based on his 14 years as a police officer, that his experience has been, that it is common for victims to not report these types of crimes right away. He told us that, based on his experience, they usually don't report them right away because the victim is afraid or the victim feels threatened, and that is what [the victim] told us.

Transcripts ("Tr.") at 14 (Jury Trial, June 15, 2010). Roten's counsel did not make a contemporaneous objection to the excerpted portion of the Prosecutor's closing argument. Id.

[11] Roten was found guilty of all counts and sentenced to thirty years in confinement. Record on Appeal ("RA"), tab 81 (Judgment, July 30, 2010). This appeal follows.

[12] The Supreme Court of Guam has jurisdiction over this appeal of a criminal conviction pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 112-89 (2012)); 7 GCA §§ 3107(a), 3107(b), and 3108(a) (2005); and 8 GCA §§ 130.10, 130.15(a) (2005).

[13] Evidentiary rulings of the trial court are reviewed for abuse of discretion and will not be reversed absent prejudice affecting the verdict. See People v. Muritok, 2003 Guam 21 ¶ 32 (citing People v. Fisher, 2001 Guam 2 ¶ 7). Specifically, a trial court's decision concerning the admission of evidence over a hearsay objection is reviewed under an abuse of discretion standard. See People v. Hayes, No. CR-92-00140A, 1993 WL 469357, at *2 (D. Guam App. Div. 1993).[2] "This court has defined an abuse of discretion as that 'exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.'" People v. Evaristo, 1999 Guam 22 ¶ 6 (quoting People v. Quinata