People of Guam v Felder [2012] GUSC 8; 2012 Guam 08 (29 June 2012)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

DOMINICK L. FELDER,Defendant-Appellant.

Supreme Court Case No. CRA11-002
Superior Court Case No. CF0081-08

OPINION

Filed: June 29, 2012

Cite as: 2012 Guam 8

Appeal from the Superior Court of Guam
Argued and submitted August 25, 2011
Hagåtña, Guam

Appearing for Plaintiff-Appellee: Marianne Woloschuk, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division 287 W O'Brien Dr. Hagåtña, GU 96910

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

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

MARAMAN, J.:

[1] Defendant-Appellant Dominick L. Felder was indicted for first degree criminal sexual conduct ("CSC"). After the gathering of evidence and before the jury reached its verdict, Felder acquiesced to the trial court's issuance of a second degree CSC instruction to the jury. Felder was subsequently found guilty of second degree CSC and sentenced to twenty years in prison.

[2] Felder's failure to object to the jury instruction subjects the jury instruction to plain error review, and Felder has not met his burden to show how the error below needs to be reversed in order to prevent a miscarriage of justice. Additionally, the Superior Court did not sentence Felder as a first offender because it found that he was not a first offender. We find that the court's sentencing decision was not based on an erroneous view of the law or on a clearly erroneous assessment of the evidence. As a result, we affirm his conviction and 20-year sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] G.K.H.H. (DOB 02/21/1995) was 12 years old in February 2008. At Felder's trial, G.K.H.H. testified that on the night of February 11, 2008, while her mother was sleeping, Tokiou Andon called her from Dominick Felder's cell phone and told her to come outside. When G.K.H.H. came outside, Andon told her to get in Felder's car. G.K.H.H. hopped in the back seat next to Andon. G.K.H.H. testified that when she got in the car, she did not know where they were going. They ultimately ended up at Hotel Ypao in Tamuning.^[1] Andon testified that once in the hotel he went back out to the car to fetch condoms after Felder asked him to do so. G.K.H.H. testified that at the hotel, Felder aka "Boss" penetrated her vagina with his penis and then Tokiou Andon did "the same thing." Tr., vol. 1 at 80-83 (Jury Trial, Oct. 15, 2009); Tr., vol. 3 at 25 (Cont. Jury Trial, Oct. 19, 2009).

[4] The next morning, G.K.H.H. reported to her school counselor what Felder and Andon did to her the night before. Accompanied by her mother, G.K.H.H. filed a police report and afterwards went to the Department of Mental Health and Substance Abuse, Healing Hearts Crisis Center, where G.K.H.H underwent an acute examination for sexual assault.

[5] The grand jury returned an indictment charging Felder with first degree CSC. At trial, before instructing the jury, the trial court went through each jury instruction with the parties and asked Felder for his response to the inclusion of an instruction for second degree CSC. Even though Felder was only indicted on first degree CSC, he did not object to the giving of an instruction on second degree CSC as a lesser included offense of first degree CSC. In response to the trial court's inquiry, Felder's counsel stated, "The Supreme Court [of Guam] has said in four or five cases [that] it is a lesser included offense." Tr., vol. 3 at 112 (Cont. Jury Trial, Oct. 19, 2009). The instruction that second degree CSC was a lesser included offense of first degree CSC was then given to the jury.

[6] The jury acquitted Felder of first degree CSC but convicted him of second degree CSC, a felony of the first degree. The trial court subsequently sentenced Felder to twenty years of incarceration. Felder now appeals both the conviction on the basis of improper jury instructions and the trial court's decision to sentence him to twenty years of incarceration.

II. JURISDICTION

[7] This court has jurisdiction over appeals from a final judgment. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 112-104 (2012)); 7 GCA §§ 3107, 3108(a) (2005).

III. STANDARD OF REVIEW

[8] Jury instructions are reviewed for plain error when no objection to the instructions was made at trial. People v. Perry, 2009 Guam 4 ¶ 9. When the defendant fails to object to a jury instruction giving rise to a constructive amendment, we also review for plain error. 8 GCA §§ 90.19(c), 130.50(b) (2005).

[9] Issues of statutory interpretation are reviewed de novo. People v. Manley, 2010 Guam 15 ¶ 12. The trial court's imposition of a sentence is reviewed for an abuse of discretion. People v. Diaz, 2007 Guam 3 ¶ 10.

IV. ANALYSIS

A. Whether the Giving of a Lesser Included Offense Charge of Second Degree CSC Warrants Reversal of Felder's Conviction.

[10] Felder argues that the giving of the lesser included offense charge of second degree CSC is reversible error and that it is not necessary to object to the instruction to have this appeal be subject to a standard other than plain error review. Appellant's Br. at 5-7 (May 27, 2011). He asserts that the trial court was required to give the lesser included offense instruction because the Supreme Court in four or five cases stated that second degree CSC is a lesser included offense of first degree CSC and there was a rational basis to support the giving of the instruction. Tr., vol. 3 at 112 (Cont. Jury Trial, Oct. 19, 2009). Substantiating this point, Felder cites to case law from the Appellate Division of the District Court of Guam that held that second degree CSC was an included offense of first degree CSC. Appellant's Br. at 5 (citing People v. Lastimoza, No. 82-0017A, 1983 WL 29940 (D. Guam App. Div., Aug. 16, 1983)). Felder now believes, however, that this court's holdings in People v. Cummins, 2010 Guam 19, and