People of Guam v Diego [2016] GUSC 5 (12 February 2016)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

WARREN PETER DIEGO,
Defendant-Appellant.

OPINION

February 12, 2016

Cite as: 2016 Guam 5

Supreme Court Case No.: CRA14-018
Superior Court Case No.: CF0390-12

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

Appearing for Defendant-Appellant: F. Randall Cunliffe, Esq. Cunliffe & Cook 210 Archbishop Flores St., Ste. 200 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.

MARAMAN, J.:

[1] Defendant-Appellant Warren Peter Diego appeals his conviction for the crimes of Second Degree Criminal Sexual Conduct and Child Abuse. He was sentenced to twenty years for the Criminal Sexual Conduct charge and one year for the misdemeanor Child Abuse charge, which run concurrently. For the reasons herein, we affirm Diego's convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] Diego was indicted by a grand jury for the offenses of Second Degree Criminal Sexual Conduct and Child Abuse. At Diego's trial, J.P.S. testified that on Friday, April 6, 2012, when she was eleven years old, she was in the bedroom of her mother and her mother's boyfriend, Warren Diego, watching TV with them. After J.P.S. put a DVD into the player, she found that Diego had moved from one side of the bed to the middle of the bed leaving only a space next to him open for J.P.S. to lie on the bed. While watching the DVD, J.P.S. claims that her mother fell asleep and she thought Diego was asleep as well.

[3] She discovered that he was not asleep when he put his hand on her leg and moved it up her shorts and into her panties, touching her vaginal area. At first, J.P.S. claimed that she pretended to be asleep, but soon after got up and left the room and returned to her own bedroom. During her testimony, J.P.S. identified Diego as the man who touched her that night. Before the conclusion of J.P.S.'s direct examination, the People asked J.P.S. if everything she testified to and everything in her written statement was true. J.P.S. answered both questions in the affirmative.

[4]