People of Guam v Roby [2017] GUSC 7 (7 August 2017)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,

Plaintiff-Appellee,

v.

HELPME ROBY,

Defendant-Appellant.

Supreme Court Case No.: CRA15-026
Superior Court Case No.: CF0682-13-02

OPINION

Filed: August 7, 2017

Cite as: 2017 Guam 7

Appeal from the Superior Court of Guam
Argued and submitted on May 20, 2016
Hagåtña, Guam

Appearing for Defendant-Appellant: Peter C. Perez, Esq. Law Office of Peter C. Perez DNA Building 238 Archbishop Flores St., Ste. 802 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Jonathan R. Quan, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division 590 S. Marine Corps Drive, Ste. 706 Tamuning, GU 96913

BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.^[1]

MARAMAN, J.:

[1] Defendant-Appellant Helpme Roby appeals his conviction for multiple charges of criminal sexual conduct related to actions involving two minor victims. He was charged alongside four co-defendants, all of whom pleaded guilty to various related charges. On appeal, Roby argues that the court abused its discretion when it admitted several instances of hearsay testimony; that the prosecution committed misconduct by vouching for witnesses and using inflammatory language in statements made, and questions asked, before the jury; and that the court abused its discretion by imposing a longer sentence on him after trial than was imposed on his co-defendants under their plea agreements.^[2] Finding no reason to disturb the Superior Court judgment, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] An exact timeline of events is difficult to ascertain because the only direct eyewitnesses were highly intoxicated while the actions underlying this case took place. Nonetheless, the testimony establishes a basic timeline. On December 13, 2013, eleven-year-old A.K.E. was spending time with her cousin R.K.F., age fifteen, at R.K.F.’s house in Santa Ana, Dededo. At around six or seven that evening, the girls headed to R.K.F.’s friend’s house nearby to drink beer.
[3] At some point that evening, Roby arrived at the party accompanied by Gibson Billias and three brothers—Betewen Henry, Hen Henry, and Oratuch Henry.^[3] The girls soon began drinking vodka the men brought. Sometime thereafter, fifteen-year-old J.E.P. joined the party.
[4] Eventually, the group moved to the Henry brothers’ house or directly to a nearby bus stop.^[4] R.K.F. testified that at some point she looked through a window of the Henry home from the outside and saw Roby having sex with J.E.P. in Oratuch’s room. Roby later confessed to Guam Police Department (“GPD”) Officer Jerry Santos that he had sex with J.E.P. that evening, but he provided a slightly different timeline.
[5] The party moved into a jungle area behind a Santa Ana bus stop. Hen testified that he had sex with A.K.E. in the jungle and that he saw Roby have sex with her as well. Oratuch also testified that he saw photographs taken on his iPad, all but one of which were later deleted, of Roby having sex with A.K.E. Betewen testified that he saw Roby having sex with one of the girls and specified that a photograph he was shown was of Roby having sex.^[5] Roby confessed to Officer Santos that he had sex with A.K.E. in the jungle after several of the other men had sex with her. He claimed that she called out to him and initiated the sexual encounter, but R.K.F. and J.E.P. testified that A.K.E. was silent and unmoving during the portions of the event they witnessed.
[6] In the early morning hours of December 14, 2013, Officer Maile Lizama and her partner responded to a “beyond control” complaint in the area. Tr. at 4-5 (Jury Trial, Nov. 7, 2014). Proceeding to the bus stop, they heard a girl—later identified as J.E.P.—yelling about missing her deceased father while being held up by a man later identified as Roby. J.E.P. appeared highly intoxicated. Because of her condition and continued thrashing and screaming, the officers cuffed J.E.P. and placed her in their police vehicle. Roby was questioned at the scene and allowed to leave; he did not raise any suspicions because he appeared merely to be aiding J.E.P.
[7] J.E.P. was transported to a nearby precinct. She was given water and allowed to “sleep off what was happening for a little while” before being interviewed by Officer Aida Pierce sometime between seven and nine in the morning. Tr. at 9 (Jury Trial, Nov. 7, 2014); Tr. at 29 (Jury Trial, Nov. 6, 2014). Officer Pierce testified that J.E.P. had some blood in her mouth, that she “just kept crying,” and that she eventually reported there was “another girl . . . back in the jungle.” Tr. at 24 (Jury Trial, Nov. 6, 2014). She identified several men who had sex with this other girl, A.K.E., including Roby.^[6] She told Officer Pierce that “[A.K.E.] didn’t appear to know what was happening to her,” that she “looked out of it,” and that she “was intoxicated.” Tr. at 26, 30 (Jury Trial, Nov. 6, 2014). The court overruled several hearsay objections, stating that the statements fell under the exception for, among others, excited utterances.
[8] At some point during the interview, Officer Pierce instructed Officer Santo Tomas to “immediately go back and check the jungle area for this [other] girl.” Id. at 31. While Officer Santo Tomas was back in the field, Officer Lizama spoke with J.E.P., who told the officer “that she didn’t know if she was raped or not, because at some point in the night she had passed out, but that she was having pain to [sic] her vaginal area.” Tr. at 10 (Jury Trial, Nov. 7, 2014). After Officer Lizama asked J.E.P. to conduct a self-examination in the restroom, J.E.P. reported that she was bleeding and “shouldn’t have . . . her period for the next two weeks.” Id. During this time, J.E.P. “was shaking” and appeared “scared,” “very emotional,” and “distraught.” Id. at 11.
[9] Officer Santo Tomas approached the bus stop in his marked GPD truck and saw a “kid, short man, maybe” turn and run back into the jungle. Tr. at 43-44 (Jury Trial, Nov. 6, 2014). In pursuit, Officer Santo Tomas saw two other men run from the area. Id. at 44. Proceeding a bit further, he “saw [a] girl laying down in the ponding basin . . . on her side[,] crying [and] moaning.” Id. at 45. Officer Santo Tomas “asked if she [was] hurt, [and] she said yes. [He] asked . . . if she was raped,” and “[s]he nodded yes.” Id. They spoke a bit while Officer Santo Tomas helped her out of the jungle, and her speech was slurred. Id. at 47. “At one point in time she . . . asked [Officer Santo Tomas] for 50 cents . . . for her lunch,” which deepened the officer’s suspicion that she was drunk. Id. at 47. Officer Santo Tomas was able to identify her as A.K.E. Id. at 48.
[10] Later that day, Dr. William Weare, a physician working part-time for Healing Hearts Rape Crisis Center, saw both A.K.E. and J.E.P. The court recognized Dr. Weare as an expert without objection from the defense. Id. at 73. He testified that A.K.E. told him she was given alcohol and then raped by someone named “Roby” or “Ropy.” Id. at 79. He also testified that her pubic area had been badly abraded. Id. at 91.
[11] Dr. Weare testified to J.E.P.’s substantive statements regarding the incident, including her statement that she found blood in her underwear when she conducted her self-check at the police precinct.
[12] Throughout his testimony, Dr. Weare referenced his two reports, which were both admitted into evidence. The defense objected to admission through Dr. Weare’s report of J.E.P.’s statements describing what she saw happen to A.K.E. The court limited the scope of Dr. Weare’s testimony related to J.E.P.’s interview—keeping out the identity of the perpetrator of the acts J.E.P. reported regarding A.K.E.—but the defense continued to object to the redacted admission, believing it did not go far enough.
[13] Both victims testified. J.E.P. testified that she drank alcohol and did not remember what happened to her that night. She did, however, testify that she saw several men having sex with A.K.E. She identified Roby as one of the men.^[7] Because J.E.P. failed to recall many details about the night that she had earlier relayed to the police, the People moved to have J.E.P.’s written statement admitted into evidence. The trial court allowed the People to read J.E.P.’s statement into evidence under Guam Rule of Evidence 803(5) (recorded recollection), over a defense objection, but did not admit it as an exhibit. The next day, A.K.E. testified that she drank alcohol and had sex with one of the other men, but did not remember anything more.
[14] Betewen, Hen, and Billias entered plea agreements for several criminal sexual misconduct charges and were sentenced to fifteen years of incarceration. Oratuch pleaded guilty to misdemeanor destruction of evidence and was sentenced to a suspended term of one year of incarceration.
[15] A jury found Roby guilty of five counts of First Degree Criminal Sexual Conduct, two counts of Second Degree Criminal Sexual Conduct, and four counts of Third Degree Criminal Sexual Conduct. Roby was sentenced to a total of seventy years of incarceration. He timely appealed.

II. JURISDICTION

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