People of Guam v Joshua [2015] GUSC 32 (12 November 2015)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

JESHUA JOSHUA aka JESS JOSHUA,
Defendant-Appellant.

Supreme Court Case No.: CRA14-022
Superior Court Case No.: CF0629-13

OPINION

Filed: November 12, 2015

Cite as: 2015 Guam 32

Appeal from the Superior Court of Guam
Argued and submitted on May 12, 2015
Hagåtña, Guam

Appearing for Defendant-Appellant: Terrence E. Timblin, Esq. Yanza, Flynn, Timblin, LLP One Agana Bay 446 E. Marine Corps Dr. Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Gerald L. Henderson, Esq. Assistant Attorney General 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.

TORRES, C.J.:

[1] Defendant-Appellant Jeshua Joshua appeals his conviction on the charges of Home Invasion, Burglary, and Second Degree Criminal Sexual Conduct. He was sentenced to ten years of imprisonment for the Home Invasion charge and five years for the Criminal Sexual Conduct charge, which were to run consecutively. The Superior Court merged the Burglary charge with the Home Invasion charge.

[2] For the reasons stated herein, we find no grounds to reverse, and we affirm the convictions and sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] In the early hours of November 15, 2013, sometime after midnight, Victoria Mutuk was awoken by someone trying to open the locked bedroom door of her Agat residence. After waking her sleeping boyfriend, she got up and entered the hallway to find Joshua standing in the living room and L.R.T., the child of the woman who also lives at the Agat residence with her, telling Joshua to leave. L.R.T's mother, V.P., was off-island at the time, and Mutuk was taking care of L.R.T. and her brother.

[4] L.R.T., who was nine years old the night of the incident, was awoken that night by a man putting his hand in her pants while she lay in her bed. She told him to leave and he exited by jumping out of her bedroom window. The same man returned later in the night, and L.R.T. awoke to him trying to pull off her blanket. Again, she told him to leave and this time, he left through her bedroom door that led into the hallway of the residence.

[5] L.R.T. followed him into the hallway, where she turned on the light and told him again to leave. It was at this time that Mutuk entered the hallway and saw them both. Mutuk testified that the man left the residence and she called the police. Both L.R.T. and Mutuk identified the man they saw in their lit hallway as Joshua.

[6] Guam Police Officer Christopher Champion responded to Mutuk's residence at about 3:00 a.m. on November 15, 2013. Mutuk reported to Officer Champion that a male had entered her house and attempted to pull down L.R.T.'s pants. She also told him that they knew the intruder, calling him Jess. She informed the officer that he was wearing black and white plaid shorts and that he lived across the street and down two houses. Officer Champion proceeded to the specified residence and spoke to Joshua, who admitted to having entered Mutuk's residence to use the restroom. Officer Champion noted that he was wearing black and white patterned shorts and that there was a black t-shirt draped on a chair inside Joshua's residence.

[7] Joshua was indicted on one charge of Home Invasion, one charge of Burglary, and one charge of Second Degree Criminal Sexual Conduct. Prior to trial, the People notified Joshua of their intent to introduce character evidence pursuant to 6 GCA § 404(b) "relevant to show intent, preparation, plan or an absence of mistake or accident." Record on Appeal ("RA"), tab 36 at 1-3 (People's Notice of Intent to Introduce Prior Crimes, Wrongs or Acts Pursuant to 6 GCA, subsection 404(b), July 22, 2014). After a hearing on admissibility, the court allowed T.P., also a minor, to testify about a similar incident that she had witnessed involving Joshua.

[8] At trial, L.R.T. testified that the same man came into her room twice in the same night. She referred to the man as "he" repeatedly throughout her testimony and said she knew it was the same person because he was wearing the same black shirt. Eventually, she identified the man as Joshua. On cross-examination, L.R.T. maintained that it was the same man that came into her room both times and that she saw that man's face when she followed him into the hallway and turned the light on. Mutuk also identified the man in the hallway as Joshua.

[9] During the defense's case, Mutuk was called to testify about an accusation that L.R.T. had made to her mother about Mutuk's brother, Donovan, touching her. On cross-examination, the prosecution asked Mutuk if Donovan was at the house at all on the night of the alleged Home Invasion. Mutuk answered that he was not there that night and that it was Joshua that she saw that night in their hallway when L.R.T. turned on the light.

[10] The prosecution sought to further clarify this issue by calling L.R.T. as a rebuttal witness. On rebuttal, L.R.T. was asked to recall the night of November 15, 2014, and she was then asked to recall that she told the court that someone came into her room and touched her. L.R.T. answered that she remembered that testimony. The prosecution then asked if she had said it was Joshua, and L.R.T. answered in the affirmative. The defense immediately objected stating that this was a mischaracterization of L.R.T.'s former testimony. The prosecution maintained that it was based on L.R.T.'s previous testimony. The court sustained the objection and questioning resumed.

[11]