People of Guam v Kim [2015] GUSC 25 (20 August 2015)

IN THE SUPREME COURT OF GUAM

THE PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

JULIEON EDWARD QUICHOCHO KIM,
Defendant-Appellant.

Supreme Court Case No.: CRA14-020
Superior Court Case No.: CF0030-13

OPINION

Filed: August 20, 2015

Cite as: 2015 Guam 25

Appeal from the Superior Court of Guam
Argued and submitted on February 24, 2015
Hagåtña, Guam

Appearing for Defendant-Appellant: F. Randall Cunliffe, Esq. Cunliffe & Cook A Professional Corporation 210 Archbishop Flores St., Ste. 200 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Jesse N. Nasis, 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 A. MARAMAN, Associate Justice.

MARAMAN, J.:

[1] Defendant-Appellant Julieon E.Q. Kim appeals from a conviction of one count of Second Degree Burglary for stealing copper wire from the fenced portion of a school yard. Kim first argues the judgment for Second Degree Burglary should be reversed because the trial court erroneously permitted an amendment to the original indictment to accurately reflect the statutory language of Guam's burglary statute. This amendment, in his view, resulted in new factual allegations necessitating a grand jury assessment. Second, Kim contends this amendment was duplicitous because both, (1) entry into a school building, and (2) entry onto a school yard, were included in a single burglary charge. Third, Kim challenges the trial court's denial of his motion to dismiss the amended burglary charge because entry into a fenced area to commit theft does not fall within Guam's burglary definition. Finally, Kim believes Guam's burglary statute is void for vagueness if we find it encompasses entry onto a fenced school yard.

[2] We hold that the trial court should have dismissed the burglary charge. The court improperly extended the definition of "separately secured or occupied portion thereof" to include a fenced enclosure. We need not address the remaining issues on appeal. Accordingly, Kim's burglary conviction is reversed.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] On December 21, 2012, police responded to a call from Wettengel Elementary School ("Wettengel") reporting that two men jumped the fence out of the school's property. The investigating officer discovered that copper wire was removed from the junction panel boxes on the roof and exterior of the building. Six or seven bundles of copper wire and a bag of tools were found along the northern perimeter of Wettengel's fence line.

[4] Officer Donald Nakamura conducted a follow-up investigation of the copper wire thefts. Kim became a suspect because he took several loads of copper wire to Viba's Recycling Center, where he exchanged the wire for money. When interrogated by Nakamura, Kim admitted to the Wettengel theft.

[5] Kim was charged with Burglary (As a Second Degree Felony) and also with Attempted Theft of Property (As a Second Degree Felony). The first charge of the original Indictment charged Kim as follows:

On or about December 21, 2012, in Guam, JULIEON EDWARD QUICHOCHO KIM did commit the offense of Burglary, in that he did enter or surreptitiously remain in the habitable property of Wettengel Elementary School, or in a separately secured or occupied portion thereof, with the intent to commit the crime of theft therein, at a time when the premises was neither open to the public nor the defendant was licensed or privileged to so enter in, in violation of 9 GCA §§ 37.20(a) and (b).

Record on Appeal ("RA"), tab 8 at 1 (Indictment, Jan. 25, 2013). (emphasis omitted). Following empanelment of the jury on March 26, 2014, the People moved to amend the indictment to accurately reflect the language of Guam's burglary statute set forth in 9 GCA § 37.20(a). The People conceded there was no evidence indicating there was "entry into any of the habitable property at Wettengel." Transcripts ("Tr.") at 2 (Jury Trial, Apr. 3, 2014). Instead, the People sought to prosecute a "burglary" which occurred on a separately "secured or occupied portion" of the habitable property of Wettengel. Id. Kim objected to the amendment, asserting the amended charge would result in a different crime that should be brought to a grand jury. The People maintained that the burglary charge within the original indictment would be the same, but the proposed amendment would accurately reflect the language of 9 GCA § 37.20(a). Id. at 5-6.

[6] Despite Kim's written opposition to the People's Motion to Amend the Indictment, the trial court granted the motion. The Amended Indictment was filed on March 28, 2014, and charged Kim as follows:

On or about December 21, 2012, in Guam, JULIEON EDWARD QUICHOCHO KIM did commit the offense of Burglary, in that he did enter or surreptitiously remain in the habitable portion of Wettengel Elementary School, or in a separately secured or occupied portion thereof, with the intent to commit the crime of theft therein, when the premises was neither open to the public nor the defendant was licensed or privileged to so enter in, in violation of 9 GCA §§ 37.20(a) and (b).

RA, tab 58 at 1 (Am. Indictment, Mar. 28, 2014) (emphasis added) (original emphasis omitted). Kim moved to dismiss the Amended Indictment on the ground that the fenced area did not satisfy Guam's burglary statute, but the trial court denied the motion, reasoning that the "plain language" of Guam's statute included a fence as a "separately secured or occupied portion" of the "habitable property" of Wettengel. RA, tab 59 at 4-5 (Mot. to Dismiss Am. Indictment, Mar. 31, 2014); Tr. at 23-24 (Jury Trial, Apr. 2, 2014). Kim also moved to dismiss the Amended Indictment as void for vagueness, which the People opposed and the trial court denied.

[7] Trial commenced on April 3, 2014. At the close of the People's case, Kim moved for acquittal on the amended burglary charge, but this motion was also denied. The jury returned a verdict convicting Kim of Burglary (As a Second Degree Felony), and the lesser included offense of Attempted Theft of Property (As a Third Degree Felony). Kim was found not guilty of Attempted Theft of Property (As a Third Degree Felony).

[8]