People of Guam v Nathan [2018] GUSC 13; 2018 Guam 13 (21 September 2018)

IN THE SUPREME COURT OF GUAM

THE PEOPLE OF GUAM

Plaintiff-Appellee,

v.

SIREN NATHAN

Defendant-Appellant.

OPINION

Filed: September 21, 2018

Cite as: 2018 Guam 13

Supreme Court Case No.: CRA16-012
Superior Court Case No.: CF0281-15

Appeal from the Superior Court of Guam
Argued and submitted on May 17, 2017
Hagåtña, Guam

Appearing For Defendant-Appellant: F. Randall Cunliffe, Esq. Cunliffe & Cook A Professional Corporation 210 Archbishop Flores St., Ste. 200 Hagåtña, GU 96910

Appearing For Plaintiff-Appellee: Nicole Driscoll, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division 590 S. Marine Corps Dr., Ste. 706 Tamuning, GU 96913

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

MARAMAN, C.J.:
[1] Defendant-Appellant Siren Nathan appeals his convictions of attempted murder in the first degree and aggravated assault in the second degree. First, he argues attempted murder in the first degree is a lesser-included offense of aggravated assault in the second degree and, therefore, his attempted murder conviction should be set aside as a lesser-included offense. Second, he argues that the trial court committed plain error when it did not sua sponte instruct the jury on intoxication as a defense to negate the requisite mens rea for his crime. Lastly, he contends that he was prejudiced by ineffective assistance of counsel.
[2] For the reasons discussed below, we affirm the conviction for attempted murder in the first degree, vacate the conviction for aggravated assault in the second degree, and remand to the trial court for sentencing not inconsistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] On or about May 2, 2015, Defendant-Appellant Siren Nathan, two other co-defendants, and the victim, Saul Sos, were drinking alcoholic beverages around an apartment complex parking lot. Eventually, one of Nathan’s co-defendants and Sos got into an argument that escalated into a fist fight.^[1] During the fist-fight, one of the other co-defendants began shooting pieces of rebar at Sos using a slingshot. Sos then ran at that co-defendant and attacked him with a machete.^[2]
[4] All of the defendants, including Nathan, ended up fighting against Sos. During the melee, as one of the co-defendants was choking Sos, Nathan, along with the other co-defendant, began striking Sos’s head and legs with a machete. The fight continued until witnesses intervened. Nathan and the co-defendants then stopped their attack. When the fight was over, Nathan and the co-defendants got into a car while the victim remained lying unconscious on the ground. A co-defendant then drove over Sos’s legs. Nathan was not the driver of the vehicle. At trial, this evidence was submitted by both witness testimony and video footage.
[5] The People of Guam ultimately filed three charges against Nathan. Charge Three in the Indictment was Attempted Murder as a first degree felony with a Special Allegation of Possession and Use of a Deadly Weapon (a machete) During the Commission of a Felony. Record on Appeal (“RA”), tab 94 at 3 (Am. Superseding Indictment, July 14, 2015). Charge Four in the Indictment was Aggravated Assault with a Special Allegation as a second degree felony of Possession and Use of a Deadly Weapon (a machete) During the Commission of a Felony. Id. at 4. Lastly, Charge Seven in the Indictment was Attempted Murder with a Special Allegation of Possession and Use of a Deadly Weapon (an automobile) During the Commission of a Felony. Id. at 5.
[6] During trial, Nathan introduced evidence of his self-induced intoxication through the testimony of two witnesses, as is permitted under 9 GCA § 7.58(b) to negate any element of the offenses charged. One witness confirmed that the suspects were drinking alcoholic beverages, and the other testified that the defendants “were drunk, but I don’t know if they were really drunk.” However, Nathan’s counsel did not request a jury instruction on self-induced intoxication nor did the trial court issue such an instruction sua sponte. Furthermore, while providing instructions to the jury, the trial court stated that “[t]he crime of aggravated assault as a second-degree felony is lesser to attempted murder as a first-degree felony.” Tr. at 217 (Jury Trial, July 17, 2015). No objections were made to the instructions as given.
[7] Nathan was convicted of attempted murder in the first degree and aggravated assault in the second degree with special allegations for use of a deadly weapon for each crime. He was sentenced to ten years’ imprisonment for the charge of Attempted Murder, three years’ imprisonment for the charge of Aggravated Assault, and five years’ imprisonment for the Special Allegations. The sentences for Attempted Murder and Aggravated Assault were to run concurrently. The sentences for the two Special Allegations were to run concurrently with each other, but consecutively with the Attempted Murder and Aggravated Assault charges. Nathan timely filed his Notice of Appeal.

II. JURISDICTION

[8] This court has jurisdiction over appeals from a final judgment of conviction. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 115-223 (2018)); 7 GCA §§ 3107(b), 3108(a) (2005); 8 GCA § 130.15(a) (2005).

III. STANDARD OF REVIEW

[9] When no objections to jury instructions are made at trial, we review the instructions for plain error. People v. Gargarita, 2015 Guam 28 ¶ 11. Under plain error review, this court “will not reverse unless (1) there was an error; (2) the error is clear or obvious under current law; (3) the error affected substantial rights; and (4) reversal is necessary to prevent a miscarriage of justice or to maintain the integrity of the judicial process.” Id. (quoting People v. Felder, 2012 Guam 8 ¶ 19).
[10]