People of Guam v Perez [2015] GUSC 10 (9 April 2015)

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Appeal from the Superior Court of Guam
Argued and submitted on October 13, 2014
Hagåtña, Guam

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

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

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

[1] Defendant-Appellant Vincent Chargualaf Perez appeals from a final judgment convicting him of five counts of Second Degree Criminal Sexual Conduct (as a 1st Degree Felony). Perez argues the trial court erred when: (1) admitting hearsay statements made by the victim's mother regarding the victim's report of sexual abuse; (2) admitting the victim's testimony about counseling sessions over a relevancy objection; and (3) sustaining the People's "leading question" objection when Perez asked the defense witness whether she had seen Perez inappropriately touch the victim. Perez contends the cumulative effect of the trial court's evidentiary errors was prejudicial and effectively denied him a fair trial.

[2] We hold that the trial court abused its discretion in admitting the hearsay statement made by the victim's mother, but that such error was harmless. We also hold that the victim's testimony relating to counseling services was relevant. Further, the trial court properly exercised control over the mode of interrogating the defense witnesses. Accordingly, the trial court's judgment is affirmed.

[3] Perez was indicted for one count of First Degree Criminal Sexual Conduct (As a 1st Degree Felony), five counts of Second Degree Criminal Sexual Conduct (As a 1st Degree Felony), one Count of Terrorizing (As a 3rd Degree Felony), and three Counts of Child Abuse (As a Misdemeanor). The Child Abuse charges were dismissed.

[4] The criminal sexual conduct ("CSC") charges stem from allegations that Perez performed sexual acts upon a minor victim, K.D.S., between the dates of January 13, 2011 through June 30, 2012. K.D.S. was born in 1997, and is her mother's eldest daughter. The third charge concerns Perez's threats to kill the victim's mother.

[5] The mother became romantically involved with Perez, her coworker at the time, and he moved into her apartment in Anigua in September of 2008. Perez, the mother, K.D.S., and K.D.S.'s young biological siblings (H., S., and C.) lived at the Anigua apartment together.[1] In addition, Perez had four children, D.P., S.P., R.I., and N.I.[2] In May 2010, the family moved out of the Anigua apartment and into another apartment in Mangilao. D.P. lived for two to three months at the Anigua residence and two to three months at the Mangilao residence, but not for the entire time her father stayed at either residence. S.P., R.I., and N.I. would go back and forth between living with their father and mother.

[6] The Anigua residence had two bedrooms, one belonging to the victim's mother and Perez, and another used by the children. While the family lived at the Anigua apartments, K.D.S. testified her mother would work from around 7:00 or 8:00 in the morning until late at night.[3] After school, K.D.S. would either return to the apartment and remain inside, or go to her grandmother's house while the younger children played outside. K.D.S. also testified that Perez was home when she got off school, and he began touching her breasts and vaginal area when the other children were not present. She estimated that Perez assaulted her 25 times every month in various areas in the apartment while the other children were outside and stated Perez instructed her to keep the touchings a secret.

[7] K.D.S. indicated the touching continued when the family moved to a two-bedroom residence in Mangilao. She explained these touchings occurred frequently throughout the house while her mother was at work and the children were outside. K.D.S. further testified that on one occasion Perez unsuccessfully attempted to insert his penis into her vagina.

[8] The mother testified that in November 2010, she moved from the Mangilao residence into her parents' house due to financial instability and a desire to move away from Perez. K.D.S. attested, however, that the touchings continued when her mother brought her and her siblings to Perez's apartment at Tamuning Lodge. According to her testimony, Perez would touch her when the children were in bed watching television, or when her mother was outside smoking and talking to the neighbors. K.D.S. also testified Perez inserted his finger into her vagina at all three residences.

[9] K.D.S.'s mother ended the relationship with Perez in August of 2013 following emotionally abusive texts sent by him. Perez continued to send her frequent voice mail messages, on some days professing his love, and on other days his hate for her. This continued until the messages escalated. On September 17, 2013, Perez threatened to kill K.D.S.'s mother and her children by way of a vehicular head-on collision. This incident, coupled with an episode in which she observed Perez driving by and parking near her house, prompted her to seek a restraining order.

[10] Once K.D.S. learned that her mother was reporting Perez for the threats, she drove to the Agana Precinct to disclose the sexual assaults. The first person K.D.S. informed of the sexual assault was her aunt. K.D.S. then told her mother about the assaults before police officers took K.D.S. aside for questioning.

[11] At trial, the People called five witnesses: the victim's mother, K.D.S., the victim's aunt, and the two officers who interviewed K.D.S. when she made her sexual assault complaint. The People's first witness was K.D.S.'s mother, who was questioned about how she came to learn of the sexual assaults while at Agana Precinct:

A: I was sitting there, then all of a sudden my sister calls the phone, I see her number, I answered it. And she says, "Come out here right now, it's important."

A: I got off my seat, out of the room and went outside, I saw my daughter, [K.D.S.].

A: She hugged - - she came up to me, hugged me, and she said "Mom." She started crying, and I said, "What, what's wrong?" "He touched me." "Touched you?"

MR. MILLER: Objection, Your Honor.
Transcripts ("Tr.") at 3, 32 (Jury Trial, Day 2, Nov. 13, 2013). Perez objected on the ground that the testimony was inadmissible hearsay. In response, the People argued the statement was an excited utterance. The court overruled Perez's objection finding that the statement fell within the present sense impression exception to hearsay.

[12] K.D.S. took the stand following her mother as the People's second witness. K.D.S. testified about the details of the assaults as well as the circumstances under which she reported the sexual assault at Agana Precinct on September 17, 2013.

[13] The People asked K.D.S. if she saw anyone to discuss her feelings following her report to the police:

Q: . . . Since you went to the police and told what had been happening, have you seen anybody to talk about your feelings or how this has affected you?

MS. VASILIADES: It's relevant because it goes to the emotional and psychological injury.

Id. at 92-93. K.D.S. went on to testify that she met with a victim advocate from the Guam Police Department and sought services at Healing Hearts. The People then asked K.D.S. if she went anywhere other than Healing Hearts and Perez again objected:

MS. VASILIADES: It's. . .It's not actually where she's travelling, she was going to say anywhere else in a sense that where else did she get counseling.

MR. MILLER: Everything she did after the crime is not relevant to proving the elements to the crime.

MS. VASILIADES: It is because it goes to psychological and emotional injury that she's been in counseling; it's the same thing as having a physical injury.

Id. at 94. Following the overruled objection, K.D.S. testified she sought counseling services from Doris Tolentino at the GCIC on one occasion.

[14] After an unsuccessful motion for acquittal, the defense called three witnesses: Perez's eldest daughter D.P., his younger daughter R.I., and his son S.P. During opening statements, Perez suggested that K.D.S. fabricated claims because she didn't like Perez and also because she was jealous of the attention that her mother was getting at the police station. Another defense tendered by Perez was that it was unlikely K.D.S. was abused 25 days out of a given month without the numerous inhabitants noticing. K.D.S. had testified the assaults occurred during a period where as many as nine people were living in the same apartment. During the defense's case-in-chief, trial counsel tried to ask Perez's daughter D.P. whether she had ever witnessed any sexual assault by her father against K.D.S. while she stayed at the Anigua and Mangilao apartments:

Supreme Court of Guam

People of Guam v Perez [2015] GUSC 10 (9 April 2015)