People of Guam v Barcinas [2016] GUSC 38 (30 December 2016)

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Appeal from the Superior Court of Guam
Argued and submitted on July 6, 2016
Hagåtña, Guam

Appearing for Defendant-Appellant:
Terence E. Timblin, Esq.
Yanza, Flynn, Timblin, LLP
446 E. Marine Corps Dr., Ste. 201
Hagåtña, GU 96910

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

[1] Defendant-Appellant Jason Jr. Cruz Barcinas appeals from final judgment of the trial court sentencing him to seven years’ incarceration for convictions on eight counts of Second Degree Criminal Sexual Conduct (As a 1st Degree Felony). Barcinas argues the charging statute—9 GCA § 25.20, subsections (a)(1)-(6)—creates six disjunctive elements, subsection (a)(7) creates an additional, mandatory element, and the People did not charge subsection (a)(7) in their Superseding Indictment. Barcinas also argues, in the alternative, the statute is ambiguous and should be interpreted in his favor. The People argue Barcinas’s interpretation of the statute is “inconsistent with the scheme of the law” and this court’s previous precedent.
[2] For the reasons detailed herein, we affirm the judgment of the trial court.

[3] Barcinas was indicted on eight counts of Second Degree Criminal Sexual Conduct (As a 1st Degree Felony). After a jury trial, Barcinas was convicted on all eight counts. He was sentenced^[1] to seven years’ incarceration with credit for time served. Barcinas filed his Notice of Appeal following sentencing but prior to the entry of judgment.^[2]
[4] Barcinas’s charges stemmed from eight separate instances of sexual contact with a minor, C.N.P.C., between May 1, 2014, and June 29, 2014. Specifically, evidence was presented at trial that Barcinas made contact with his exposed penis to the clothed buttocks of the minor victim on eight separate occasions. Evidence was presented that C.N.P.C. was ten years old at the time of the sexual contact. The People also submitted evidence that Barcinas pleaded guilty and was convicted on previous charges of Criminal Sexual Conduct involving minors.^[3]

[5] This court has jurisdiction over an appeal from a final judgment of the Superior Court. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 114-254 (2016)); 7 GCA §§ 3107, 3108(a) (2005).

[6] We review issues of statutory interpretation de novo. People v. Diaz, 2007 Guam 3 ¶ 10 (citing People v. Flores, 2004 Guam 18 ¶ 8).

[7] Barcinas argues that 9 GCA § 25.20(a)(1)-(6) creates six disjunctive, alternate elements and that subsection (a)(7) creates an additional, mandatory element of the offense of Second Degree Criminal Sexual Conduct and that the People did not charge that element in their Superseding Indictment. Appellant’s Br. at 8 (Apr. 8, 2016); Appellant’s Reply Br. at 2 (Apr. 22, 2016). He argues, in the alternative, that the statute is ambiguous and should be interpreted in his favor. Reply Br. at 2 (citing People v. San Nicolas, 2001 Guam 4 ¶ 13; People v. Tenorio, 2007 Guam 19 ¶ 14). The People argue that Barcinas’s interpretation is “inconsistent with the scheme of the law” and our previous precedent. Appellee’s Br. at 3 (Apr. 13, 2016). The People rely primarily on our reasoning in Flores, 2004 Guam 18. Appellee’s Br. at 5-7.
[8] The People’s Superseding Indictment charged Barcinas as follows:

On or about the period between May 1, 2014 through June 29, 2014 . . . [Barcinas] did commit the offense of Second Degree Criminal Sexual Conduct, in that he did intentionally engage in sexual contact with another, to wit: by causing [his] penis to touch the buttock of C.N.P.C. (DOB: 06/24/2004), a minor under fourteen (14) years of age, in violation of 9 GCA §§ 25.20(a)(1) and (b).

Record on Appeal (“RA”), tab 60 at 1-2 (Superseding Indictment, Aug. 17, 2015) (emphasis omitted).^[4] Similar charging language was included in all eight counts. See id. at 1-4.
[9] Title 9 GCA § 25.20(a) states:

A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists:

(2) that other person is at least fourteen (14) but less than sixteen (16) years of age and the actor is a member of the same household as the victim, or is related by blood or affinity to the fourth degree to the victim, or is in a position of authority over the victim and the actor used this authority to coerce the victim to submit;

(3) sexual contact occurs under circumstances involving the commission of any other felony;

(4) the actor is aided or abetted by one or more other persons and either of the following circumstances exists:

(A) the actor knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless; or

(5) the actor is armed with a weapon or any article used or fashioned in a manner to lead a person to reasonably believe it to be a weapon;

(6) the actor causes personal injury to the victim and force or coercion is used to accomplish the sexual contact; and

(7) the actor causes personal injury to the victim and the actor knows or has reason to know that the victim is mentally defective, mentally incapacitated or physically helpless.
9 GCA § 25.20(a) (2005) (emphases added).
[10] The entirety of Barcinas’s argument turns on a formalistic reading of the conjunction “and” found at the end of subsection (a)(6). Barcinas views this wording as an indication that subsection (a)(7) was intended to be viewed conjunctively, apart from the list of alternative grounds described in subsection (a)(1)-(6).
[11] Barcinas’s argument contrasts the disjunctive language of subsection (a) with the conjunctive wording of subsection (a)(6). Compare 9 GCA § 25.20(a) (“any of the following”), with 9 GCA § 25.20(a)(6) (“and”). Though Barcinas’s brief does not articulate more, we infer this to be an argument that the legislature chose to use the conjunctive “and” instead of the disjunctive “or” because it meant to deem the seventh element as mandatory and separate from the first six.
[12] In Flores, we reviewed a similar argument with respect to the Third Degree Criminal Sexual Conduct statute, 9 GCA § 25.25. See 2004 Guam 18 ¶ 9. There, the defendant argued the statute was ambiguous because three alternate grounds, presented in the disjunctive, were linked together with the conjunction “and.” Id. ¶ 15. We rejected this argument, finding that such an interpretation would lead to an absurd result in the context of the statutory scheme. Id. ¶¶ 18, 19. We held that while plain meaning is the starting point to statutory interpretation, “such language need not be followed where the result would lead to absurd or impractical consequences, untenable distinctions, or unreasonable results.” Id. ¶ 18 (quoting Sumitomo Constr. Co. v. Gov’t of Guam, 2001 Guam 23 ¶ 17). Further, we stated that statutory language must be interpreted within the context of the statutory scheme. Id. ¶ 19 (quoting Aguon v. Gutierrez, 2002 Guam 14 ¶ 9). We compared 9 GCA § 25.25 to the statute at issue in the present case, section 25.20, and found the statutory scheme did not allow for a conjunctive interpretation in either circumstance:

[Q]uestions of statutory interpretation may be aided by reference to the prevailing interpretation of other statutes that share the same language and either have the same general purpose or deal with the same general subject as the statute under consideration. To determine the meaning of section 25.25, we consider language found in statutes defining other criminal sexual conduct offenses, including First Degree Criminal Sexual Conduct and Second Degree Criminal Sexual Conduct.

Applying the conjunctive interpretation to sections 25.15 and 25.20 would impose an absolute bar to convictions for First Degree and Second Degree Criminal Sexual Conduct, since it would be impossible for the prosecution to establish evidence satisfying all seven circumstances listed under the subsections of each statute. Quite simply, it would be impossible for the victim to be both “under” fourteen years of age and “at least” fourteen years of age. See 9 GCA §§ 25.15, 25.20. As a matter of interpretation, we cannot conclude that the absurdity resulting from the conjunctive reading of these statutes was intended by the Legislature, because clearly, the senators did not intend to enact statutes that could not be prosecuted. Flores’ argument pertaining to the ambiguity of section 25.25 is not persuasive and is rejected; thus, the rule of lenity does not apply.

Supreme Court of Guam

People of Guam v Barcinas [2016] GUSC 38 (30 December 2016)