People of Guam v Hill [2018] GUSC 3 (16 April 2018)

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Appeal from the Superior Court of Guam
Argued and submitted on March 2, 2017
Hagåtña, Guam

Appearing for Defendant-Appellant:
Howard Trapp, Esq.
Howard Trapp Inc.
200 Saylor Bldg.
139 E. Chalan Santo Papa
Hagåtña, GU 96910

Appearing for Plaintiff-Appellee:
Matthew S. Heibel, Esq.
Assistant Attorney General
Office of the Attorney General
Prosecution Div.
590 S. Marine Corps Dr., Ste. 706
Tamuning, GU 96913

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

CARBULLIDO, J.:
[1] Defendant-Appellant Adam Jim Hill appeals his conviction of one count of First Degree Criminal Sexual Conduct (“CSC”) and one count of Second Degree CSC. The sole basis for his claim of error on appeal is that the trial court did not properly instruct the jury on the element in the charges having to do with the age of the victim. Specifically, Hill alleges that the trial court did not instruct the jury that it had to find, as an essential element of the charges, that the victim was under the age of fourteen, but rather, it instructed the jury that the victim was in fact under fourteen years of age—thus taking away the victim’s age as an element that the jury needed to find for itself beyond a reasonable doubt. For the reasons discussed below, Hill failed to satisfy his burden to show the alleged error affected his substantial rights. Therefore, under a plain error analysis, we affirm his conviction.

[2] Hill was indicted on one count of First Degree CSC (as a 1st Degree Felony) and one count of Second Degree CSC (as a 1st Degree Felony). Testimony was elicited at trial regarding the age and birthdate of J.P., the minor alleged victim. J.P.’s mother testified that, at the time of trial, J.P. was 14, turning 15. J.P. testified that her birthdate is August 27, 2000. Although Hill’s trial counsel cross-examined both of these witnesses, the issue of J.P.’s age or birthdate was never questioned or raised as a point of contention during cross-examination. At the conclusion of each side’s closing arguments, the trial court verbally instructed the jurors in the following way, as to the first charge:

Elements of the offense, Charge 1, the crime charged is first degree criminal sexual conduct and the People must prove beyond a reasonable doubt that the defendant Adam Jim Hill, on or about the period between January 1st 2014 through January 31st 2014 inclusive in Guam, did intentionally engage in sexual penetration with another, to wit, by causing his finger to penetrate the genital openings of [J.P.] who’s [sic] date of birth is August 27, 2000, a minor under fourteen years of age.
Transcript (“Tr.”) at 54-55 (Jury Trial, July 10, 2015) (emphasis added).
[3] As to the second charge, the trial court instructed:

Charge 2, the crime charged is second degree criminal sexual conduct and the People must prove beyond a reasonable doubt that the defendant Adam Hill, on or about the period between January 1st, 2014 through January 31st, 2014 inclusive, in Guam, did intentionally engage in sexual contact with another, to wit, by causing his finger to touch the primary genital areas of [J.P.] who’s [sic] date of birth is 8/27/2000, a minor under fourteen years.
Id. at 55 (emphasis added).
[4] The relevant jury instructions, in printed form, read as follows:

The crime charged is first degree criminal sexual conduct. The People must prove beyond a reasonable doubt that the Defendant, Adam Jim Hill:

The crime charged is second degree criminal sexual conduct. The People must prove beyond a reasonable doubt that the Defendant, Adam Jim Hill:

Record on Appeal (“RA”), tab 52 at 52-53 (Jury Instrs., July 10, 2015).
[5] The only concern raised by Hill had to do with Instruction 3G relative to what is not considered evidence—an instruction inapposite to the error claimed on appeal. Hill did not otherwise object to the jury instructions. The jury returned a verdict of guilty as to both charges, and the trial court sentenced Hill in accordance with that verdict. A judgment of conviction was entered, and Hill timely appealed.

[6] This court has jurisdiction over the appeal from a final judgment in a criminal case. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 115-140 (2018)); 7 GCA § 3107(b) (2005); see also 8 GCA § 130.15(a) (2005).

[7] Hill’s sole challenge on appeal is that the jury instructions were improper. Because Hill did not object to the instructions at trial, this court reviews the issue for plain error. See People v. Cruz, 2016 Guam 15 ¶ 17 (“If no objections to jury instructions are made at the time of trial, the standard of review is plain error.” (citation omitted)); People v. Diego, 2013 Guam 15 ¶ 9 (citation omitted); People v. Jones, 2006 Guam 13 ¶ 9 (citation omitted). “Plain error is highly prejudicial error,” and we will reverse only if “‘(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.’” People v. Gargarita, 2015 Guam 28 ¶ 11 (quoting People v. Felder, 2012 Guam 8 ¶ 19).

[8] Guam law defines First Degree CSC, in relevant part, as follows: “A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with the victim and if any of the following circumstances exists: (1) the victim is under fourteen (14) years of age[.]” 9 GCA § 25.15(a)(1) (as amended by Pub. L. 32-012:2 (Apr. 11, 2013)). Second Degree CSC is defined, in relevant part, in this way: “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: (1) that other person is under fourteen (14) years of age[.]” 9 GCA § 25.20(a)(1) (as amended by Pub. L. 32-012:2 (Apr. 11, 2013)). For these offenses, the jury must find beyond a reasonable doubt that the victim was under fourteen years of age at the time of the offenses. Hill asserts that providing the alleged victim’s birthdate in the jury instructions made it appear as though it was a given fact rather than an element that the jury needed to find beyond a reasonable doubt. He argues that this was erroneous and prejudicial. While we agree with Hill that the trial court’s jury instructions were erroneous, we find such error did not affect his substantial rights, and we affirm his conviction.

[9] The failure to properly instruct a jury on an essential element of the charged offense creates the danger that the defendant has been deprived of his right to have the jury determine whether the People have proved beyond a reasonable doubt each and every element of the offense. Rose v. Clark, 478 U.S. 570, 595-96 (1986) (Blackmun, J., dissenting). Hill argues that the given jury instructions failed to advise the jury that it needed to find, as an essential element of both of the CSC charges, that the victim was under the age of fourteen at the time of Hill’s alleged criminal conduct.
[10] The first prong of the plain error analysis requires the court to determine whether there was error in the instructions. See Gargarita, 2015 Guam 28 ¶ 13. In this case, when instructing the jury on the elements of the crimes charged, the court identified the alleged victim as “[J.P.] who’s [sic] date of birth is August 27, 2000 . . . .” Tr. at 54-55 (Jury Trial, July 10, 2015) (emphasis added); see also RA, tab 52 at 52-53 (Jury Instrs.) (“[J.P.] (DOB: 08/27/00)”).
[11] The Court of Appeals of Washington, in the case of State v. Baxter

Supreme Court of Guam

People of Guam v Hill [2018] GUSC 3 (16 April 2018)