People of Guam v Fegarido [2014] GUSC 29 (10 November 2014)

IN THE SUPREME COURT OF GUAM

People of Guam,
Plaintiff-Appellee,

v.

Elpidio T. Fegarido,
Defendant-Appellant.

Supreme Court Case No.: CRA13-015
Superior Court Case No.: CF0083-07

OPINION

Filed: November 10, 2014

Cite as: 2014 Guam 29

Appeal from the Superior Court of Guam
Argued and submitted on May 16, 2014
Hagåtña, Guam

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

Appearing for Defendant-Appellant: Stephen P. Hattori, Esq. Assistant Alternate Public Defender Alternate Public Defender DNA Bldg., Ste 902 238 Archbishop F.C. Flores St. Hagåtña, GU 96910

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

CARBULLIDO, J.:

[1] Defendant-Appellant Elipidio T. Fegarido appeals from a judgment of conviction filed on December 22, 2009, and reentered nunc pro tunc on May 31, 2013. Fegarido was charged with First Degree Criminal Sexual Conduct ("CSC") for sexually penetrating J.H.E. and Second Degree CSC for sexually touching J.H.E., J.E., and C.H.E. At the conclusion of trial, the jury convicted Fegarido of (1) First Degree CSC for sexually penetrating J.H.E.; (2) Second Degree CSC for sexually touching J.H.E.; and (3) Fourth Degree CSC for sexually touching C.H.E., as a lesser included offense of Second Degree CSC. Fegarido was acquitted of all Second Degree CSC allegations involving J.E. and C.H.E. except for the Fourth Degree CSC for sexually touching C.H.E, which was a lesser included offense of Count Nine of the Second Charge of Second Degree CSC.

[2] First, we affirm the trial court's reentry of the final judgment and find that this court has jurisdiction to hear the matter. Second, we affirm the trial court's denial of Fegarido's motion of acquittal on the First and Second Degree CSC charges. Finally, we affirm the Fourth Degree CSC conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] Fegarido began dating Christina and moved in with her family at Ruelos Apartments in Dededo. At the time, Christina was living with three of her daughters: J.H.E. (DOB: 10-18-95), J.E. (DOB: 03-31-92), and C.H.E. (DOB: 03-03-91). They later moved to Santa Ana and then to Ypaopao.

[4] In response to a criminal sexual conduct report, the Guam Police Department interviewed Fegarido. At the interview, Fegarido waived his rights and wrote a statement in Tagalog. In the statement, he wrote:

On January 12, I did it to [J.H.E.]. I inserted my finger while she was awake. She did not say anything nor did I during the incident. I did not do anything bad to [J.E.] As for [C.H.E.], all I did was grab the phone from her to break it to the wall but their mom got it from me. That is all I can remember and nothing else.

Transcripts ("Tr."), vol. 2 at 52 (Jury Trial, Dec. 16, 2008); People v. Fegarido, CF0083-07 (People's Exhibit 5, 5-A (Dec. 16, 2008)). A grand jury indicted Fegarido. In Count Two of the First Charge, the grand jury charged Fegarido with First Degree CSC for "intentionally engag[ing] in sexual penetration with another by causing his finger to enter the vagina of J.H.E., a minor under fourteen[] years of age in violation of 9 GCA §§ 25.15(a)(1) and (b)"[1] "[o]n or about the period between January 1, 2007 through January 31, 2007." RA, tab 37 at 1-2 (Superseding Indictment, Aug. 17, 2007). In Count Three of the Second Charge, the grand jury charged Fegarido with Second Degree Sexual Conduct for touching J.H.E.'s vagina "in violation of 9 GCA §§ 25.20(a)(1) and (b)"[2] "[o]n or about the period between January 1, 2007 through January 31, 2007." Id. at 2-3. In Count Nine of the Second Charge, the grand jury charged Fegarido with touching C.H.E.'s breast "in violation of 9 GCA §§ 25.20(a)(1) and (b)" "[o]n or about the period between January 1, 2004 through March 31, 2005." Id. at 3-4; see also infra Table 1: Summary of Charges; Appellee's Br. at 4 (Dec. 23, 2013).

[5] At trial, C.H.E. testified that she lived at Santa Ana in the seventh grade for one year before moving to Saipan. C.H.E. testified that while the family was living in Santa Ana, C.H.E. shared a room with her younger brother, but that she would sometimes sleep on the couch in the living room. C.H.E. testified that in Santa Ana, Fegarido had touched her breast "two or three times . . . I don't remember," and touched her vagina on the outside of her clothes "two or three times." Tr., vol. 1 at 52-54 (Jury Trial, Dec. 11, 2008). In addition, C.H.E. testified that while the family was living in the Ruelos Apartment, Fegarido touched her every time she slept outside in the living room, which was "about five times." Id. at 55. She testified that the first time "was in my breasts and [] butt and [] vagina but it was on the outside not the inside." Id. In regard to the second incident, she testified that "the second time was inside my breasts . . . over my bra. And then . . . he would unzip my pants but then I wouldn't move just to make him think I'm going to wake up. But I was awake. I just closed my eyes and I opened it a little bit. I guess he was scared so he just moved away and went back inside." Id. She testified that it was always at night time, always in the living room, and always when she was sleeping.

[6] J.H.E. testified that at Santa Ana, she slept in a room with C.H.E., and "[Fegarido] would always come inside the room and open the door with either, a knife or a key; I don't really know. But he will touch my sister first and then he'll touch me." Tr., vol. 3 at 31 (Jury Trial, Dec. 17, 2008). She testified that he would touch her by opening her pants and touching the outer part of her vagina inside her clothes. She testified that she would also see him touching C.H.E.'s vagina.

[7] In addition, J.H.E. testified that in Ypaopao she had turned a small storage room into her own room because she was tired of sharing a room with her sisters. She testified that Fegarido came into the storage room that she had been sleeping in, "touched the outer part of [her] vagina and then he sticked [sic] his finger in [her vagina]." Id. at 34-35. She stated that the incident occurred in 2007 "[b]efore Valentines or like around there." Id. at 35.

[8] After Fegarido rested his case, the parties discussed whether to include a lesser included offense for Second Degree CSC. Fegarido's counsel asserted and the court agreed that pursuant to People v. Angoco, 2001 Guam 17 ¶ 19, the court is required to "charge the jury with respect to the included offense." Tr., vol. 4 at 8 (Jury Trial, Dec. 18, 2008). The parties agreed that Fourth Degree CSC was a lesser included offense of Second Degree CSC:

Defense Counsel:

[T]here is a lesser included of second degree criminal sexual conduct . . . it's fourth degree criminal sexual conduct. Because here in our case, the facts came out that the victims, meaning the person alleged to have been subjected to criminal sexual conduct, whether 14, 16, 38 was asleep; all three of them. I looked at my notes, all three of them testified they were asleep, except for that one time where [J.E.] was doing the dishes, she was not asleep. So, maybe that could be argued as not fourth degree CSC, but when I looked at the evidence presented on my notes taken, the three . . . said that touching occurred when they were asleep. They're both vic- - One, they're both all victims and, two, they're - - they meet the criteria under physically helpless; asleep. I have spoken to [the prosecutor]; he has no problem with this conclusion, Your Honor.

Prosecutor:

That's correct, Your Honor, I agree with [defense counsel] and the Court . . . that fourth degree CSC would be the natural lesser included for second degree CSC, unfortunately.

Id. at 10-13.

[9] During the closing argument, the defense counsel attacked the reliability of the government's witnesses and argued that the government did not meet its burden of showing that Fegarido committed the offenses.

[10] After closing arguments, the trial court instructed the jury as follows:

Jury Instruction 7EE, Essential Elements of Second Degree Criminal Sexual Conduct, as a First Degree Felony, Second Charge, Count Nine. The people must prove beyond a reasonable doubt that the defendant, Elpidio Fegarido, did intentionally engage in sexual contact with another, that is, by causing his hand to touch the breasts of [C.H.E.], a minor under 14 years of age, in Guam, on or about the period between January 1, 2004, through March 31, 2005, inclusive.

Jury Instruction 7FF, Conviction of a Lesser Included Offense. The crime of Second Degree Criminal Sexual Conduct includes the lesser crime of Fourth Degree Criminal Sexual Conduct. If (1) you are not convinced beyond a reasonable doubt that the defendant is guilty of a lesser crime of Fourth Degree Criminal Sexual Conduct, you may find the defendant [not] guilty of Fourth Degree Criminal Sexual Conduct.

The crime of Fourth Degree Criminal Sexual Conduct, as a Misdemeanor, is lesser to Second Degree Criminal Sexual Conduct, as a First Degree Felony.

Jury Instruction 7GG, Essential Elements to Fourth – of Fourth Degree Criminal Sexual Conduct, as a Misdemeanor. The people must prove beyond a reasonable doubt that the defendant, Elpidio Fegarido, did intentionally engage in sexual contact with another, that is, by causing his hand to touch the breast of [C.H.E.], while Elpidio Fegarido knows or has reason to know that [C.H.E.] was physically helpless, in Guam, on or about the period between January 1, 2004, through March 31st, 2005 inclusive.

Tr., vol. 5 at 77-78 (Jury Trial, Dec. 19, 2008).

[11]