People of Guam v Mendiola [2014] GUSC 17; 2014 Guam 17 (16 July 2014)

IN THE SUPREME COURT OF GUAM

THE PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

CARMELO A.Q. MENDIOLA,
Defendant-Appellant.

Supreme Court Case No. CRA13-017
Superior Court Case No. CF0196-07

OPINION

Filed: July 16, 2014

Cite as: 2014 Guam 17

Appeal from the Superior Court of Guam
Argued and submitted February 10, 2014
Hagåtña, Guam

Appearing for Defendant-Appellant: Leevin T. Camacho, Esq. Law Office of Leevin T. Camacho 194 Hernan Cortez Ave., Ste. 216 Hagåtña, Guam 96910

Appearing for Plaintiff-Appellee: Matthew S. Heibel, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division 590 S. Marine Corps Dr., Ste. 706 Tamuning, Guam 96913

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

CARBULLIDO, J.:

[1] A jury convicted Defendant-Appellant Carmelo A.Q. Mendiola on five criminal charges stemming from the sexual assault of his minor niece. On appeal, Mendiola challenges only his conviction of First Degree Criminal Sexual Conduct. Mendiola argues that his conviction should be reversed because insufficient evidence was presented at trial to support a finding of sexual penetration—a necessary element of First Degree Criminal Sexual Conduct. For the reasons set forth below, we affirm the First Degree Criminal Sexual Conduct conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] The following evidence was presented at trial. K.M.,[1] the minor victim in this case, lived with her uncle Carmelo A.Q. Mendiola, his wife and children, and K.M.'s brothers and sisters. All persons lived at K.M.'s father's house while he was off-island. K.M. slept in the living room with her brothers and sisters.

[3] At the time of the incident, K.M. was nine years old and attended elementary school. While at school, K.M. experienced pain in her ear and was taken to the school nurse. In accordance with the school nurse's recommendation that K.M. be sent home, Auntie Mel (Mendiola's wife) retrieved K.M. from school and transported her home. When K.M. and Auntie Mel arrived, Mendiola and his children were at the house. That afternoon Auntie Mel planned to take her children to Santa Rita and asked K.M. if she would like to join them. Mendiola said that K.M. was not allowed to go to Santa Rita with the others and instructed her to stay at the house with him.

[4] Following Auntie Mel and the children's departure, K.M. asked Mendiola if she may have some candy. Mendiola said that K.M. may have candy but only if she lay next to him. While they lay on the bed, Mendiola received a phone call from the school nurse stating that K.M. had bruises on her body. Mendiola instructed K.M. to remove her shirt so he may see if she had bruises. After K.M. complied, Mendiola had K.M. remove her pants as well. Mendiola paused to look at K.M. while she stood naked in front of him before telling her to lie on the bed in the room. K.M. lay on her back on the bed, and Mendiola climbed on top. Mendiola then placed a pillow over K.M.'s face, spread her legs and leaned against her.

[5] As K.M. lay on the bed with her legs spread and a pillow covering her face, she could feel pressure on her vagina. K.M. stated that "when [Mendiola] leaned against me he put pressure on my body with his private against my . . . private." Transcripts ("Tr.") at 30 (Jury Trial – Day 1, Nov. 16, 2011). K.M. explained that Mendiola was not clothed and was applying the pressure with his penis. K.M. knew it was Mendiola's penis because she could feel his skin on her body. According to K.M., she felt too frightened to move and lay on the bed gripping a blanket until the incident ceased. After an unknown length of time, Mendiola stopped what he was doing, said nothing, and left. K.M. got up, put her clothes back on, and went outside to draw.

[6] K.M. did not mention the incident to anyone until she was caught acting out sexually with her cousin approximately six months later. At the instruction of another aunt, Auntie Rachel, K.M.'s brother questioned K.M. about the sexual behavior. K.M. revealed to her brother that Mendiola had touched her in an inappropriate manner. The next day, Auntie Rachel took K.M. to the police station to report the incident and later to Healing Hearts Crisis Center for an examination.

[7] Ann Rios, a nurse examiner at Healing Hearts, interviewed and physically examined K.M. when she arrived at Healing Hearts. At trial, Ms. Rios provided testimony as to K.M.'s visit. Ms. Rios stated that generally she lets the patient dictate the type of examination she conducts. For example, if a patient explained "[h]e pulled my hair here" or "I hurt here," forensic evidence would be obtained from the particular areas described by the patient. Tr. at 6 (Jury Trial – Day 2, Nov. 17, 2011). During K.M.'s visit to Healing Hearts, Ms. Rios conducted a variety of external and internal examinations of K.M.'s vagina.

[8] Ms. Rios also provided testimony concerning her interview of K.M. about the incident involving Mendiola. When asked what information was gained during the interview, Ms. Rios consulted K.M.'s health history form which indicated that she had been sexually abused and experienced vaginal discomfort or pain on urination. Ms. Rios further testified that K.M. indicated to her that K.M. had been sexually penetrated.

[9] Ms. Rios testified to the following:

Q: On the two things you've indicated that were yes, "Private parts discomfort, pain," and "Pain in urination," do you recall if that would be something you showed that you got only from the -- from [K.M.] or from someone else (indiscernible)?

A: No, this was actually from [K.M.]. If you look at my progress notes, you'll find it in another form.

. . . .

Q: Now [K.M.], in her history, indication that there'd been sexual penetration, in the history?

A: (Indiscernible), she said yes.

Q: All right. And was this general examination consistent with that history?

A: Yes, it is.

Id. at 15, 26.

[10]