People of Guam v Blas [2015] GUSC 30 (10 November 2015)

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Appeal from the Superior Court of Guam
Argued and submitted on May 14, 2015
Hagåtña, Guam

Appearing for Defendant-Appellant:
Curtis C. Van de veld, Esq.
The Vandeveld Law Offices, P.C.
Restored Historic Dungca House
Second Floor
123 Hernan Cortes Ave.
Hagåtña, GU 96910

Appearing for Plaintiff-Appellee:
James C. Collins, 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.

[1] Defendant-Appellant Frank Garrido Blas appeals from a final judgment convicting him of two counts of Invasion of Privacy (As a Misdemeanor) in violation of 9 GCA § 70.35(a)(2) (2005), for allegedly capturing videos and images of women using the restroom at the Bank of Guam (“Bank”). On appeal, Blas first argues that the evidence was insufficient to support a conviction for Invasion of Privacy because Plaintiff-Appellee People of Guam (“the People”) did not present evidence that the images or videos were taken within the applicable statute of limitations period. Within Blas’s sufficiency of the evidence challenge appears to be a unit of prosecution objection to Blas’s conviction for two counts of Invasion of Privacy; one for each of the two victims identified in the Complaint. This argument, however, was not sufficiently developed for purposes of appellate review. Next, Blas contends the People made improper comments regarding the applicable burden of proof during closing argument that the trial court did not cure. Finally, Blas believes the trial court’s Judgment improperly required him to register as a Level One Sex Offender.

[2] We hold that sufficient evidence on the record supported Blas’s Invasion of Privacy conviction. Second, we hold that any improper statement by the prosecutor resulted in harmless error. Finally, we conclude that the trial court did not abuse its discretion in notifying Blas of his sex offender registration requirements in the Judgment. Accordingly, the trial court’s Judgment is affirmed.

[3] On May 13, 2009, a Bank employee discovered a camera in a men’s restroom stall on the seventh floor of the Bank. Within the camera, the employee found an SD card containing explicit photographs of women using the restroom. The employee removed the SD card, but left the camera in the stall. After sharing the contents of the SD card with a co-worker, the pair agreed to turn the card in to their supervisor.

[4] The two employees were unable to locate a hole in the seventh floor women’s restroom, but examined the sixth floor restroom after determining some women in the photos worked on the sixth floor. The employees discovered a hole in the toilet paper dispenser of the sixth floor women’s restroom. They opened the outer utility room adjacent to the women’s restroom to further investigate the mechanical utility room, but their keys were unable to open the door to the interior electrical utility room. The employees submitted the SD card with an anonymous letter to the human resources manager (“HR Manager”). The HR Manager shared the letter with her supervisor and the Bank’s General Counsel upon receipt, resulting in an investigation.

[5] The investigating team discovered that the master key did not open the interior utility room. The master key opened the inner and outer utility rooms on all floors except the sixth floor. The head of security also was unable to access the room. In the months prior to the discovery of the SD card, Blas was identified as the only person with keys to the interior utility room. The maintenance department was in charge of maintenance keys controlling the Bank’s utility rooms, and Blas was the Bank’s head of maintenance.

[6] Blas was located and directed to use his key to open the room. Inside the room, a laptop was discovered, as well as a hole in the wall adjacent to the women’s restroom, an X-rated CD or DVD, and two adult “toys.” The hole in the utility room provided a view to the women’s restroom. Blas admitted to other employees that the computer found in the room was his personal laptop, and that he liked to do personal work there because it was “peaceful and quiet.”

[7] The General Counsel asked Blas to start the computer, and the first user profile to boot up was entitled “Valued Customer.” Blas immediately changed the username to “Frank” and appeared nervous. There did not appear to be any inappropriate images under the “Frank” username.” Blas claimed “Valued Customer” was the previous owner of the computer, which he purchased at a flea market. The HR Manager confiscated the laptop to ensure private Bank information was not compromised, and found additional images similar to those on the SD card. Two female bank employees were identified within the images from their recognizable hair and jewelry.

[8] Blas’s office on the seventh floor was searched, and a camera box, charger, and a charging battery were discovered. When further questioned by Bank personnel, Blas stated he knew about the hole in the utility room since 2008, but chose not to cover it up. Blas also said he looked through the hole to see women use the toilet, but claimed that he did not photograph them.

[9] Blas was charged with two counts of Invasion of Privacy (As a Misdemeanor) for allegedly capturing videos and images of women using the restroom at the Bank:

On or about the period between April 1, 2009, through May 31, 2009, inclusive, in Guam, FRANKIE GARRIDO BLAS did commit the offense of Invasion of Privacy, in that he did install in a private place, that is, a women’s restroom located at the Bank of Guam, Hagåtña Branch Building, without the consent of the person or persons entitled to privacy there, to wit: [victims], a device for observing, photographing, recording, amplifying or broadcasting sounds or events in such place, in violation of 9 GCA § 70.35(a)(2).

[10] A jury trial commenced on December 17, 2013. At trial, Officer Jesse P. Rodriguez (the “Examiner”) testified as a Certified Computer Forensics Examiner on behalf of the People. He identified a total of five user profiles on the laptop, including the “Valued Customer” profile. The “Valued Customer” profile was created on February 10, 2009, was the only active profile, and had been used on May 12, 2009. The profile contained 5.89 gigabytes of data with several folders designated by dates containing pictures of women using the restroom. The “jpg” and “mov” files on the SD card were consistent with those found on the “Valued Customer” profile. The Examiner accessed the files using a program that did not alter the date stamps, and burned CDs of the content in a way that did not change the date or alter the contents of the files.

[11] Blas elicited testimony from the Examiner that the date and time of creation of a file is based on the internal clock of the computer, which can be manipulated by the user:

Q So then you can’t say that the files, themselves, were created February 10, 2009. You can only say that the folder of the user was created; right?

A No. The files should be in the burned disk. It should be there. But I don’t recall what the dates were on the burned disk. . . .

Transcript (“Tr.”) at 26-27, 30-32 (Jury Trial, Day 3, Dec. 19, 2013). The Examiner only recalled the creation date for one image:

Q . . . Didn’t you indicate that according to an image that you found on the computer, it had a creation date of June 2, 2008?

Q Thank you. And that was a picture similar to those that you downloaded to the two CDs you made while imaging; correct?

Q And in order for it to have that date, it meant that the image had to have been created prior to that date. Correct?

Id. at 43. On redirect, the Examiner clarified the difficulty in determining a date based on the time designation of the operating system from his CD files:

[T]he software, when it boots up, is not using the operating system. So, as far as timeframe is concerned, I’m not going to know that. It’s designed in such a way that you don’t interrupt the data within . . . the hard drive. So, because of that, it’s not going to show me a time and date on the bottom. You’re running off the CD.

[12] Following the Examiner’s testimony, the two victims identified in the Complaint took the stand. The victims were able to identify themselves in videos shown at trial. The first victim recognized her wedding ring and watch, but could not identify a time frame that the videos were taken. The second identified herself by her accessories and wedding ring, but was also unable to specify a date that the images might have been taken. In addition to identifying herself, the second victim testified she had once observed Blas photographing her and she informed him to stop. She further testified he frequented her office and was “creepy.” Finally, she mentioned that she observed Blas exiting the men’s bathroom on the sixth floor at the same time she exited the ladies room even though he worked on the seventh floor. This peculiar coincidence occurred more than three times, and she began suspecting he was a “peeping Tom.” Id. at 85.

[13] During closing argument, Blas’s counsel objected to several statements made by the People including the following: “Now, Mr. Van de Veld is probably going to get up here later and talk about reasonable doubt, and he’s going to tell you some reasons why he thinks that the evidence fails.” Reporter’s Transcript of Partial Proceedings (“RT”) at 3 (Dec. 20, 2013). After a side bar conference that was inaudible and unable to be transcribed, the People continued:

MS. YU: Members of the jury, as I was saying about reasonable doubt, the reasonable doubt that may be created later or he might try to create later, are not going to come up together to make a reasonable alternative as to what happened. It will not be reasonable doubt.

Id. at 3. Following Blas’s closing argument, the People offered the following in rebuttal:

MS. YU: Ladies and gentlemen, as I told you, Mr. Van de Veld got up here and told you about reasonable doubt. He pointed out several pieces of evidence that he thought was the reason why the evidence failed. But, pointing out all the holes, he doesn't give you a reasonable alternative as to what could have happened. He still hasn’t come up with anyone who has a motive or an opportunity to frame the Defendant.

Id. at 11. Blas again objected, but the content of the sidebar conference was indiscernible. Id. at 11-12. After the sidebar conference, the Prosecution clarified with the following statements:

MS. YU: Now, while it’s true that Defendant doesn’t have a burden to prove to you anything, he’s asserting that there’s another reasonable alternative explanation as to what happened. But he never tells you what that is. All he points out are little things that confuse you as to what the real issue here is.

[14] It is not clear from the record if the trial court instructed the jury to disregard the People’s statements. However, a jury instruction given by the trial court at the beginning of the trial clarified the burden of proof:

The defendant has pled not guilty to the charges, and is presumed innocent until such time the Government proves the defendant guilty beyond a reasonable doubt.

In addition, the defendant also continues to have the right to remain silent, and is never having to prove innocence, or to present any evidence.

Tr. at 26 (Jury Trial, Day 1, Dec. 17, 2013). Following the trial, the court provided another burden of proof instruction before the jurors began deliberation:

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. The burden never shifts to a defendant for the law never imposes upon a defendant in any criminal case the burden or duty of calling any witnesses or producing any evidence.

[15] After the People presented their case, Blas moved for an acquittal. First, he argued the Complaint argued an identical crime twice. Second, he moved for an acquittal on statute of limitations grounds, arguing that the People “failed to prove . . . the date of installation of the device in the wall.” Tr. at 106, 108 (Jury Trial, Day 3). Blas argued all that was proven was the date the images were discovered, but not when the crime occurred—namely, the date the images were taken. The trial court allowed the charge to go forward as a single charge with two counts for the two victims. Furthermore, the trial court denied the motion for acquittal despite the lack of providing a specific date for commission of the crime, reasoning that “a reasonable jury may still find beyond a reasonable doubt that, in fact, Mr. Blas did engage in the conducts alleged” in the Complaint based on the evidence presented. Id. at 118.

[16] Blas was convicted of two counts of Invasion of Privacy (As a Misdemeanor), and sentenced to one year incarceration for each count to be served consecutively, as well as fines, restitution to the victims, and two years of parole following confinement. The Judgment also indicated Blas was required to “register as [a] Level One Sex Offender with the Guam Sex Offender Registry.” RA, tab 95 at 2 (Judgment, May 16, 2014). Blas timely appealed.

II. JURISDICTION
[17] This court has jurisdiction over appeals from a final judgment. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 114-49 (2015)); 7 GCA §§ 3105, 3107(b), 3108(a) (2005); 8 GCA §§ 130.10, 130.15(a) (2005).

[18] The relevant inquiry when reviewing whether the evidence was sufficient “to support a criminal conviction is ‘whether the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt.’” People v. Campbell, 2006 Guam 14 ¶ 10 (quoting People v. Maysho, 2005 Guam 4 ¶ 8). The evidence is reviewed “in the light most favorable to the People,” and is sufficient to support a conviction if “any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime charged.” Id. (citing Maysho, 2005 Guam 4 ¶ 8). This standard of review is “‘highly deferential.’” Id. (quoting People v. Sangalang, 2001 Guam 18 ¶ 20).^[1]

[19] A claim for prosecutorial misconduct requires a showing that the “‘prosecutor’s “comments” so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” People v. Evaristo, 1999 Guam 22 ¶ 20 (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Even if the People’s comments to the jury are “‘undesirable or even universally condemned,’” the remarks are not necessarily “tantamount to a constitutional violation.” Id. (quoting Wainwright, 477 U.S. at 181). Objectionable comments by the People are reviewed under a harmless error standard and will only be reversed if “it is more likely than not that the comment affected the jury’s verdict” in a way that “taint[s] the underlying fairness of the proceedings.” People v. Moses, 2007 Guam 5 ¶ 7 (quoting Evaristo, 1999 Guam 22 ¶ 18).

[20] “Issues of statutory interpretation are reviewed de novo.” Ada v. Guam Tel. Auth., 1999 Guam 10 ¶ 10 (citing People v. Quichocho, 1997 Guam 13 ¶ 3).

A. Whether Sufficient Evidence was Presented to Show that Blas Captured Images and Video within the Applicable Statute of Limitations

[21] Blas contends there was insufficient evidence to sustain his Invasion of Privacy conviction because no evidence at trial proved that he used the device within the applicable statute of limitations. Appellant’s Br. at 11 (Aug. 29, 2014). Blas also believes that the People erroneously conflate the dates of the use of the product of the device installation (i.e., the collected images) with the transfer of those images from a viewing device onto computers or disks. Appellant’s Reply Br. at 4-9 (Jan. 22, 2015). Instead, he argues that the only evidence on the record supporting the date the device (i.e., the camera) was used was June 2, 2008, which was more than one year prior to the filing of the misdemeanor charges on July 8, 2009. Appellant’s Br. at 13 (citing RA, tab 1 at 2 (Compl.)); see also Tr. at 43 (Jury Trial, Day 3) (the Examiner testified regarding an image with a June 2, 2008 creation date). Under 8 GCA § 10.30, a misdemeanor offense such as Invasion of Privacy offense must be charged within one year after it is committed. 8 GCA § 10.30 (2005).

[22] The People counter that Blas’s argument fails to focus on additional evidence presented and how that evidence relates to the charge. Appellee’s Br. at 10 (Dec. 19, 2014). The charge does not relate to a specific image or video, but rather that the installation of a device within a private place occurred between April 1, 2009 through May 31, 2009, for the purpose of “observing, photographing, recording, amplifying or broadcasting sounds or events in such a place.” RA, tab 1 at 1-2 (Compl.). Although there is no clear date showing when filming began, the People argue sufficient evidence was provided for a jury to conclude that Blas engaged in an ongoing course of illegal conduct following his discovery of the hole, and until the camera was discovered on May 13, 2009. Appellee’s Br. at 12.

[23] In evaluating whether the evidence was sufficient to support Blas’s criminal conviction, we must determine “‘whether the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt’” within the applicable statute of limitations. See Campbell, 2006 Guam 14 ¶ 10 (quoting Maysho, 2005 Guam 4 ¶ 8). In doing so, we review the evidence presented in a light most favorable to the People, and the conviction will be upheld if “any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime charged.” Id. (citations omitted).

[24] We have said that in the criminal sexual conduct context, “a conviction may be attacked if the evidence at trial demonstrates that the date proved was not ‘reasonably near’ the date alleged in the indictment” even though time is not an essential element of the crime. Id. ¶ 17 (quoting People v. Atoigue, DCA No. CR 91-95A, 1992 WL 245628, at *7 (D. Guam App. Div. Sept. 11, 1992)). Although this is an Invasion of Privacy case in which time is not an essential element, the “reasonably near” principle described in Campbell is equally applicable. Thus, proving “‘any date before the return of the indictment and within the statute of limitations is sufficient’” to sustain a conviction. See id. (quoting Atoigue, 1992 WL 245628, at *7). Variance between the dates alleged in the indictment or information and those proved at trial is permissible “[a]s long as a defendant is neither surprised nor hampered in preparing his defense.” Id. (citing Tingley v. State, 549 So. 2d 649, 650 (Fla. 1989) (“[T]he exact date of the offense need not be alleged.”); United States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir. 1997)).

[25] Turning to the facts of this case, it is apparent that Blas’s concentration on the image created on June 2, 2008, fails to focus on additional evidence and how that evidence relates to the Invasion of Privacy charge. Title 9 GCA § 70.35(a)(2) (2005), before being repealed and reenacted by Pub. L. 32–144:2 (Apr. 28, 2014), criminalized “install[ing]” or “us[ing] any such unauthorized installation,” and sufficient evidence showed the camera was used because each separate instance of filming would constitute an “installation” or “use” of an unauthorized installation.^[2]

Supreme Court of Guam

People of Guam v Blas [2015] GUSC 30 (10 November 2015)