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Supreme Court of Guam |
IN THE SUPREME COURT OF GUAM
THE PEOPLE OF GUAM,
v.
PETRUS JUNIOR MARTIN,
Supreme Court Case No.: CRA15-039
Superior Court Case No.:
CF0679-11
OPINION
Cite as: 2018 Guam 7
Appeal from the Superior Court of Guam
Argued and submitted
on August 17, 2016
Hagåtña, Guam
Appearing for Defendant-Appellant:
Peter C. Perez, Esq. Law Office of Peter C. Perez 238 Archbishop Flores St., Ste. 802 Hagåtña, GU 96910 |
Appearing for Plaintiff-Appellee:
Marianne Woloschuk, Esq. Assistant Attorney General Prosecution Division 590 S. Marine Corps Dr. Tamuning, GU 96913 |
BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.[1]
CARBULLIDO, J.:
[1] Defendant-Appellant Petrus Junior Martin appeals from a final
judgment convicting him of two counts of First Degree Criminal Sexual
Conduct
(“CSC”) (as a First Degree Felony) and three counts of Second Degree
CSC (as a First Degree Felony). Martin
argues the two counts of First Degree
CSC were multiplicitous, violated double jeopardy, and the trial court abused
its discretion
by admitting certain hearsay statements. In supplemental
briefing, Martin also argues that there is insufficient evidence to sustain
all
the counts of which he was convicted.
[2] For the reasons that follow,
we affirm the final judgment entered by the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
[3] The People’s initial indictment alleged two charges of First
Degree CSC, one charge of Second Degree CSC, and one charge of
Felonious
Restraint against two defendants: Alaph Mounik and Petrus Junior Martin. The
People entered a superseding indictment removing
the charge of Felonious
Restraint and modifying the First Degree and Second Degree CSC charges to two
charges with multiple counts,
rather than separate charges for each count.
After Martin’s trial began, a Plea Agreement was reached with Mounik. The
People
entered a third and final charging document, the Amended Superseding
Indictment, removing Mounik as a defendant and maintaining the
charges against
Martin: two counts of First Degree CSC and three counts of Second Degree CSC.
After the People’s case-in-chief,
Martin’s counsel moved for
judgment of acquittal based on insufficient evidence with respect to the third
count of Second Degree
CSC only. Tr. at 13-14 (Jury Trial, June 30, 2014). The
court denied the motion. Id. at 19. The jury returned a verdict of
guilty on all five counts. After the verdict, Martin’s counsel did not
renew his motion
for judgment of acquittal or move for judgment of acquittal
with respect to any other counts. Tr. at 14-15 (Jury Trial, July 9,
2014). The
court held three sentencing hearings prior to entering its Judgment and
Sentence. The court ultimately sentenced Martin
to twenty years’
incarceration for each count of First Degree CSC to run consecutively and five
years’ incarceration
for each count of Second Degree CSC to run
concurrently. Judgment was entered. Martin did not initially file a timely
appeal but
moved for reentry of judgment. Judgment was reentered, and Martin
timely appealed.
[4] The charges at issue in this case stem from an
incident where a minor, M.R., according to testimony at trial, was abducted and
sexually
assaulted by three men. Of the three accused males, one was a minor,
I.M., and the second, Mounik, accepted a plea agreement. The
third, Martin, is
the Defendant-Appellant in this case.
[5] At trial, the People called
a number of witnesses, including: M.R.’s father; Dr. William Weare,
M.R.’s examining physician
at the Healing Hearts Crisis Center; and Guam
Police Department (“GPD”) Officer Peter Paulino. Dr. Weare’s
medical
evaluation report was also submitted.
II. JURISDICTION
[6] This court has appellate jurisdiction over this matter pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 115-173 (2018)); 7 GCA §§ 3107 and 3108(a) (2005); and 8 GCA § 130.15(a) (2005).
III. STANDARD OF REVIEW
[7] A claim that an indictment has resulted in multiplicitous
convictions is reviewed de novo. United States v. Stewart, 420
F.3d 1007, 1012 (9th Cir. 2005) (citing United States v. Vargas-Castillo,
329 F.3d 715, 718-19 (9th Cir. 2003)). A double jeopardy claim likewise
presents a question of law that we review de novo. People v.
Quenga, 2015 Guam 39 ¶ 8 (quoting People v. San Nicolas, 2001
Guam 4 ¶ 8).
[8] Where a defendant has raised the issue of
sufficiency of the evidence by a motion for judgment of acquittal, we review the
trial
court’s denial of the motion de novo. People v. Song,
2012 Guam 21 ¶ 26. At trial, Martin raised sufficiency of the evidence
only with respect to one count of Second Degree CSC, which would
therefore raise
the question of whether plain error review applies to the remaining four counts.
See People v. Quitugua, 2009 Guam 10 ¶ 10 (citation omitted)
(applying plain error review when issue was not raised at trial). We decline to
reach this question,
however, because we find the evidence sufficient even if we
apply a de novo standard to all the counts that Martin presently
contests, as discussed further in Part IV.C of this opinion.
[9] We
review for plain error where no objection to the admission of evidence is made
at trial. People v. Mendiola, 2014 Guam 17 ¶ 23 n.2 (citation
omitted); see also 8 GCA § 130.50(a) (2005). We have previously
summarized plain error review as “highly prejudicial error. We 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.” Quitugua, 2009 Guam 10 ¶ 11 (citations
omitted).
[10] Evidentiary decisions, such as the admission of
evidence over a hearsay objection, are reviewed for abuse of discretion.
People v. Perez, 2015 Guam 10 ¶ 19 (quoting People v. Roten,
2012 Guam 3 ¶ 13). An abuse of discretion is “that ‘exercised
to an end not justified by the evidence, a judgment that is clearly
against the
logic and effect of the facts as are found.’” Id. (quoting
People v. Evaristo, 1999 Guam 22 ¶ 6).
IV. ANALYSIS
A. Martin Waived His Objection that the Indictment Was
Multiplicitous
[11] Title 8 GCA § 65.15 requires a defendant
to raise an objection to an indictment prior to trial, except where the
objection is
that it fails to show jurisdiction or to charge an offense. 8 GCA
§ 65.15(b) (2005) (“The following shall be raised prior
to trial: . .
. (b) Defenses and objections based on defects in the indictment . . .
.”); accord Fed. R. Crim. P. 12(b)(3)(B)(ii) (“The following
. . . objections, . . . must be raised by pretrial motion . . . : . . . (B)
a
defect in the indictment . . . including: . . . charging the same offense in
more than one count (multiplicity) . . . .”).
Failure to raise such an
objection in a pretrial motion constitutes waiver absent a showing of good
cause. 8 GCA § 65.45 (2005);
see also People v. Grajo, No.
86-00002, 1987 WL 109393, at *3 (D. Guam App. Div. Feb. 12, 1987) (ruling that
defendant waived objection to indictment under
8 GCA § 65.15 when he failed
to raise before trial or show good cause); People v. White, 2005 Guam 20
¶¶ 14-15 (same). This court has discretion to review plain errors or
defects affecting substantial rights, even when not
raised at trial. See
8 GCA § 130.50. We exercise this discretion “sparingly, solely in
those circumstances in which a miscarriage of justice
would otherwise
result.” People v. Ueki, 1999 Guam 4 ¶ 17 (citing United
States v. Young, 470 U.S. 1, 15 (1985) (internal quotation marks
omitted)).
[12] Because Martin did not raise the issue of a
multiplicitous indictment at any time prior to appeal, he did not satisfy the
mandatory
procedural requirements set forth under 8 GCA §§ 65.15(b)
and 65.45, and in the present case he has failed to provide any
good cause for
his failure to do so. See White, 2005 Guam 20 ¶¶ 15-16
(“We hold that failure to raise objections to defects in the indictment or
institution of the prosecution
in a timely fashion, without good cause,
precludes appellate review.”); People v. Diaz, 2007 Guam 3 ¶
51 (same); People v. Garrido, 882 F. Supp. 152, 153 (D. Guam App. Div.
1995) (same). Therefore we hold Martin waived objection to the indictment by
failing to comply with the
timeliness requirements of 8 GCA §§ 65.15
and 65.45.
B. Consecutive Sentences Did Not Violate Double
Jeopardy
[13] Martin also argues that “[c]onsecutive
sentences imposed on multiplicitous counts violates [sic] Double
Jeopardy.” Appellant’s
Br. at 20 (Apr. 29, 2016); see also
Appellant’s Reply Br. at 7-8 (Aug. 11, 2016). As noted above, Martin
waived his objection to the indictment based on multiplicity,
but in order to
address his double jeopardy claim, we will address his argument that the
indictment was multiplicitous.
[14] Title 9 GCA § 1.22
specifically enables charging multiple offenses when a defendant’s conduct
establishes multiple criminal
acts, except under certain enumerated
circumstances not implicated here. 9 GCA § 1.22 (2005) (“When the
same conduct
of a defendant may establish the commission of more than one
offense, the defendant may be prosecuted for each such offense.”).
“An indictment is multiplicitous if it charges a single offense in more
than one count.”[2] United
States v. Williams, 527 F.3d 1235, 1241 (11th Cir. 2008) (citing Ward v.
United States, 694 F.2d 654, 660-61 (11th Cir. 1983)); United States v.
Jenkins, 313 F.3d 549, 557 (10th Cir. 2002) (“Multiplicitous counts
are separately charged counts that are based on the same criminal
behavior.”
(citing United States v. McIntosh, 124 F.3d 1330, 1336
(10th Cir. 1997))). Multiplicitous counts “are improper because they
allow multiple punishments for a single criminal
offense.”
Jenkins, 313 F.3d at 557 (citing McIntosh, 124 F.3d at
1336).
[15] Where an indictment charges two violations of the same
statute for seemingly related conduct, our multiplicity analysis is twofold.
We
must first determine “what act the legislature intended as the ‘unit
of prosecution’ under the statute.”
San Nicolas, 2001 Guam 4
¶ 13 (citations omitted).[3]
When determining the unit of prosecution, “[t]he relevant inquiry is
‘whether the conduct at issue was intended to give
rise to more than one
offense under the same [statutory] provision.’” Id. (second
alteration in original) (quoting United States v. McLaughlin, 164 F.3d 1,
14 (D.C. Cir. 1998)). This inquiry necessarily involves determining whether the
alleged violation is statutorily defined as a course
of conduct offense. See
People v. Afaisen, 2016 Guam 31 ¶¶ 9, 32-34; see also 9 GCA
§ 1.22(e) (“[A defendant] may not, however, be convicted of more than
one offense if . . . the offense is defined
as a continuing course of conduct
and the defendant’s course of conduct was uninterrupted . . . .”);
People v. Quinones, 779 N.Y.S.2d 131, 132 (App. Div. 2004) (“An
indictment cannot charge a defendant with more than one count of a crime that
can be characterized
as a continuing offense unless there has been an
interruption in the course of conduct.” (citations
omitted)).
[16] We must also determine whether “the conduct
underlying each violation involves a separate and distinct act.”
United States v. Technic Servs., Inc., 314 F.3d 1031, 1046 (9th Cir.
2002) (citations omitted), overruled in part on other grounds by United
States v. Contreras, 593 F.3d 1135 (9th Cir. 2010). We look to the
indictment to evaluate whether the underlying acts, as alleged, were
“separated in time or are of a significantly
different nature.”
State v. Multaler, 2002 WI 35, ¶ 56, 252 Wis. 2d 54, 643 N.W.2d 437
(quoting State v. Eisch, 291 N.W.2d 800, 803 (Wis. 1980)).
“Acts may be ‘different in nature’ even when they are the
same types of acts as long as each required ‘a new
volitional departure in
the defendant’s course of conduct.’” Id. ¶ 57
(quoting State v. Koller, 2001 WI App 253, ¶ 31, 248 Wis. 2d 259,
635 N.W.2d 838). This analysis involves determining “whether there
was sufficient time for reflection between the acts such that the defendant
re-committed himself to the criminal conduct.” Id. ¶ 56
(citing State v. Hirsch, 410 N.W.2d 638, 641 (Wis. Ct. App.
1987)).
[17] First Degree CSC is defined, in pertinent part, as
follows:
(a) 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:
. . . .
(4) the actor is aided or abetted by one or more other persons and either of the following circumstances exists:
. . . .
(B) the actor uses force or coercion to accomplish the sexual
penetration.
9 GCA § 25.15(a), (a)(4), (a)(4)(B) (amended by Guam Pub.
L. 32-012:2 (Apr. 11, 2013)). Sexual penetration is defined as “sexual
intercourse, cunnilingus, fellatio, anal intercourse or any other intrusion,
however slight, of any part of a person’s body
or of any object into the
genital or anal openings of another person’s body . . . .” 9 GCA
§ 25.10(a)(9) (2005).
[18] As a threshold matter, we find that
the plain language of the statute clearly expresses legislative intent to define
the unit of
prosecution for First Degree CSC as a single act of
penetration—“however slight”—when other statutory
conditions
are satisfied.
[19] In determining whether the conduct
underlying the separate counts involved separate and distinct acts, we look to
the indictment:
Count One
On or about the 3rd day of December 2011, in Guam, [Martin] did commit the offense of First Degree Criminal Sexual Conduct, in that he intentionally engaged in sexual penetration with another, to wit: by sexual intercourse with M.R. . . . and [Martin] was aided or abetted by one or more other persons and [Martin] used force or coercion to accomplish the sexual penetration, in violation of 9 GCA §§ 25.15(a)(4)(ii) and (b).[4]
Count Two
On or about the 3rd day of December 2011, but at a time
different than that alleged in the Third Charge, Count One above, in Guam,
[Martin] did commit the offense of First Degree Criminal Sexual Conduct, in that
he intentionally engaged in sexual penetration
with another, to wit: by sexual
intercourse with M.R. . . . and [Martin] was aided or abetted by one or more
other persons and [Martin]
used force or coercion to accomplish the sexual
penetration, in violation of 9 GCA §§ 25.15(a)(4)(ii) and
(b).[5]
RA, tab 121 at 1-2 (Am.
Superseding Indictment, July 1, 2014).
[20] We conclude that the
counts of First Degree CSC allege offenses for separate acts. The indictment
charges two distinguishable acts,
separated in time. Id. (distinguishing
the counts by alleging second violation occurred “at a time different
than that alleged in [Count One]”); see also Multaler, 2002 WI
35, ¶ 56.
[21] Because First Degree CSC allows for a separate
unit of prosecution based on a single separate act of
penetration—“however
slight”—and the indictment alleged
two distinct acts of First Degree CSC, we find that the imposition of
consecutive
sentences was therefore proper, because the indictment was not
multiplicitous. Where “the statute prohibits individual acts
. . . then
each act is punishable separately,” San Nicolas, 2001 Guam 4 ¶
23 (citing United States v. Johnson, 612 F.2d 843, 845-46 (4th Cir.
1979); Blockburger, 284 U.S. at 302). Therefore, we affirm the sentence
imposed by the trial court.
C. The Evidence Was Sufficient for Each Count of First Degree CSC and
Second Degree CSC
[22] As stated above, where a defendant has
raised the issue of sufficiency of the evidence by a motion for judgment of
acquittal, we
review the trial court’s denial of the motion de
novo. Song, 2012 Guam 21 ¶ 26. Solely for the sake of
argument, we will apply this standard to all counts contested by Martin, even
though at trial
he moved with respect to only one count.
[23] We
have stated:
In determining whether there exists sufficient evidence to sustain a defendant’s conviction, we review the evidence presented at trial in the light most favorable to the People and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. “This is a ‘highly deferential standard of review.’”
Id. (citations omitted); see also People v. Wusstig, 2015 Guam 21 ¶ 9. In reviewing a motion for judgment of acquittal, it is not for the court “‘to resolve conflicts in the evidence, to pass upon the credibility of witnesses, to determine the plausibility of explanations, or to weigh the evidence; such matters are for the jury.’” Song, 2012 Guam 21 ¶ 29 (quoting State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005)); see also People v. Jesus, 2009 Guam 2 ¶ 61 (“The appellate court cannot merely substitute its judgment for that of the jury.” (collecting cases)). In reviewing sufficiency of the evidence, a court is “concerned with the existence or non-existence of evidence, not its weight, and this standard remains constant even when the People rely exclusively on circumstantial evidence.” Song, 2012 Guam 21 ¶ 29 (citations omitted); see also Jesus, 2009 Guam 2 ¶ 62 (“[E]vidence sufficient to support a guilty verdict may be entirely circumstantial, and the factfinder is free to choose among reasonable interpretations of the evidence.” (quoting United States v. Boskic, 545 F.3d 69, 85 (1st Cir. 2008))).
1. First Degree CSC Counts
[24] As charged, the elements of
First Degree CSC are (1) sexual penetration with the victim, (2) aiding or
abetting by another individual,
and (3) use of force or coercion. 9 GCA §
25.15(a), (a)(4), (a)(4)(B). At trial, Martin testified to two instances of
penetration,
Tr. at 31-32 (Jury Trial, June 30, 2014), providing evidence to
support the first element of First Degree CSC for two distinct counts.
[25] Numerous other witnesses testified, including: M.R.; her
father; her examining physician; police officers; as well as Martin’s
accomplices, I.M. and Mounik. See generally Tr. (Jury Trial, June 20,
2014); Tr. (Jury Trial, June 23, 2014); Tr. (Jury Trial, June 24, 2014); Tr.
(Jury Trial, June 25, 2014);
Tr. (Jury Trial, June 26, 2014); Tr. (Jury Trial,
June 27, 2014); Tr. (Jury Trial, June 30, 2014). M.R. testified that she was
“forced”
to drink alcohol prior to the rape. Tr. at 23:19-20 (Jury
Trial, June 27, 2014). She also testified that she was held down, raped
more
than once, and had to climb a gate to leave the area. Id. at 24:8-26:20.
Mounik also testified that there was a fence around at least part of the area,
and that it was dark at the time.
Tr. at 36:9-11, 37:21-22 (Jury Trial, June
24, 2014). Mounik further told police that they were holding her legs because
“she
. . . was trying to get up.” Tr. at 7:10-18 (Jury Trial, June
26, 2014). I.M. testified that M.R. resisted through the incident,
and that she
had to be restrained. Id. at 36:1-38:6, 68:1-7, 71:6-14. There was also
circumstantial evidence that Martin was never alone at the scene, as he and I.M.
left
at the same time, as stated in both Martin’s testimony, Tr. at
33:5-16 (Jury Trial, June 30, 2014), and I.M.’s testimony,
Tr. at 41:4-5
(Jury Trial, June 26, 2014). Further, there was evidence of a striking extent
of debris covering M.R.’s lower
extremities, including dirt and vegetable
foreign matter under her clitoral hood and at the opening of the vagina, along
with probable
leaf material at the cervix, deep inside the vagina. Tr. at
107:12-15, 108:18-21, 109:6-8, 109:11-14, 110:1-13 (Jury Trial, June
20, 2014).
[26] Based on our review of this evidence in the light most
favorable to the People, we determine that a rational trier of fact could
have
found, beyond a reasonable doubt, the continuing presence of the second and
third elements of First Degree CSC—aiding
and abetting by another
individual and the use of force or coercion—with respect to the second
count. Because the evidence
sufficient to support a guilty verdict may be
entirely circumstantial, and the factfinder is free to choose among reasonable
interpretations
of the evidence, e.g., Jesus, 2009 Guam 2 ¶
62 (citation omitted), the fact that this evidence is circumstantial does not
undermine its sufficiency.
[27] Martin himself testified to two
distinct instances of penetration. See Tr. at 35:24-36:1 (Jury Trial,
June 30, 2014). There was also a separation in time between the two distinct
penetrations. See, e.g., Tr. at 24:8-26:30 (June 27, 2014). The unit of
prosecution allows for separate convictions based on two distinct instances of
penetration,
as discussed previously in Part IV.B, and does not violate double
jeopardy. This is the case even if other elements may be inferred
to be
satisfied circumstantially at the time the second penetration occurred.
[28] Consequently, we find Martin has not met his burden of showing
the evidence at trial was insufficient to sustain convictions on two
counts of
First Degree CSC. Cf. Jesus, 2009 Guam 2 ¶ 62. Even if we were to
apply a de novo standard of review, we conclude a rational trier of fact
could have found, beyond a reasonable doubt, all of the essential elements
of
First Degree CSC necessary to sustain convictions on two distinct counts.
2. Second Degree CSC Counts
[29] As charged, the elements
of Second Degree CSC are (1) sexual contact with the victim, (2) aiding or
abetting by another individual,
and (3) use of force or coercion. These
elements parallel the elements of First Degree CSC, but instead of sexual
penetration, sexual
contact is required.
[30] As stated, Martin
testified to the two instances of sexual penetration. See Tr. at 31-32
(Jury Trial, June 30, 2014). Because Second Degree CSC is not a lesser included
offense of First Degree CSC, see People v. Songeni, 2010 Guam 20 ¶
27; People v. Cummins, 2010 Guam 19 ¶ 8, the sexual penetration,
aiding or abetting, and force or coercion elements that were established for two
of the counts
of First Degree CSC can therefore carry over to satisfy the
requisite elements for the three charged counts of Second Degree CSC.
Martin
also testified that in his interview with police he admitted he had touched the
victim’s breasts. Tr. at 35-36 (Jury
Trial, June 30, 2014). Officer
Lujan corroborated this statement and testified that Martin admitted to touching
the victim’s
breasts while his accomplices forced themselves on
her. Tr. at 51, 67 (Jury Trial, June 23, 2014). Even if we were to apply a
de novo standard of review, this testimony reflects sufficient evidence
that a rational trier of fact could find, beyond a reasonable doubt,
all three
elements of Second Degree CSC—sexual contact, aiding or abetting, and
force or coercion—to support three distinct
counts of Second Degree CSC.
[31] We therefore affirm Martin’s convictions for all counts of
First Degree CSC and all counts of Second Degree CSC.
D. The Trial Court Did Not Commit Reversible Error by Admitting the
Testimony of M.R.’s Father, the Healing Hearts Report,
and the Paulino
Testimony
[32] Martin argues the trial court abused its discretion
by admitting impermissible hearsay statements within M.R.’s father’s
testimony, the Healing Hearts Report, and the Paulino
testimony.[6] See
Appellant’s Br. at 21-22. The People argue the statements were
admitted under exceptions to the hearsay rule and, in the alternative,
admission
was harmless or was not plain error. See Appellee’s Br. at 32-46
(June 28, 2016).
[33] Hearsay is defined as “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.” Guam R. Evid.
(“GRE”) 801(c). Hearsay statements are
generally inadmissible
except as provided under recognized exceptions. See GRE 802.
1. The Trial Court Did Not Abuse its Discretion by Admitting the Testimony of M.R.’s Father under the “Excited Utterance” Hearsay Exception
[34] At trial, M.R.’s father testified at some length about his
discovery of M.R. the morning following the incident, and her distraught
appearance. Tr. at 39-40 (Jury Trial, June 20, 2014). Because the trial court
admitted this testimony as an excited utterance over
Martin’s objection,
we review for an abuse of discretion. Perez, 2015 Guam 10 ¶ 19
(citations omitted).
[35] Under GRE 803(2), “excited
utterance” statements are not considered inadmissible hearsay. GRE
803(2). An excited utterance
is defined as “[a] statement relating to a
startling event or condition made while the declarant was under the stress of
excitement
caused by the event or condition.” Id. For a
statement to be admitted as an excited utterance, it must (1) describe an
“event or condition startling enough to cause
nervous excitement,”
(2) relate to the startling event, and (3) “be made while the declarant is
under the stress of the
excitement caused by the event before there is time to
contrive or misrepresent.” Jesus, 2009 Guam 2 ¶ 36 (citations
omitted); see also GRE 803(2). “All three inquiries bear on
the ‘ultimate question’ [of] ‘[w]hether the statement was the
result of reflective
thought or whether it was a spontaneous reaction to the
exciting event.’” Jesus, 2009 Guam 2 ¶ 36 (quoting
United States v. Arnold, 486 F.3d 177, 184 (6th Cir.
2007)).
[36] The facts underlying the CSC charges at issue in this
case clearly establish an event startling enough to cause nervous excitement,
and M.R.’s statements related to that event. Thus, the first two elements
of the excited utterance exception have been satisfied.
[37] When
assessing whether statements fulfill the third requirement, we may consider
various factors, including, but not limited to,
“the lapse of time between
the startling event and the statement, whether the statement was made in
response to an inquiry,
age/maturity of the declarant, the physical and/or
mental condition of the declarant, characteristics of the event, and the subject
matter of the statements.” Id. ¶ 38 (collecting cases).
“[T]here is no precise amount of time between the event and the statement
beyond which the statement
cannot qualify as an excited utterance.”
Id. ¶ 40 (citation omitted). “[A] victim’s statement
made in response to an inquiry does not, without more, negate its
spontaneity as
an ‘excited utterance.’” Id. ¶ 43 (citations
omitted). “Describing the declarant’s voice, appearance, demeanor,
whether the declarant was crying
or appeared frighten, is often sufficient to
demonstrate that the declarant was in an excited state.” Id.
¶ 44 (citations omitted).
[38] At trial, M.R.’s
father testified that he discovered M.R. sometime in the early morning following
the incident, around or after
4:00 a.m. Tr. at 39 (Jury Trial, June 20, 2014).
M.R.’s father’s testimony indicates that M.R.’s statements
were
made within a matter of hours of the traumatic event. M.R.’s father
also testified that he discovered M.R. “on the path
towards the store . .
. running,” id., indicating that the statements were made before
M.R. had a chance to take shelter and collect her thoughts or reflect on the
incident.
Under the present facts, the passage of a matter of hours does not
negate the apparent stress and excitement of the event. Any
inquiry
M.R.’s father may have made to M.R. does not negate the spontaneity of her
statements.
[39] M.R.’s father described M.R. as running
“like she’s running away from somebody,” crying, “like
somebody’s
been beating her up,” with a swollen face and red eyes,
shaking, with grass on her person “like somebody dragged her,”
and
her pants inside out. Id. at 39-40. Based on this description, we find
that M.R. was sufficiently “excited” for her statements to be
admissible
under GRE 803(2).
[40] The fact that M.R. later recanted
certain parts of her testimony does not, in itself, render her statements
inadmissible. The trial
court is not required to exclude otherwise admissible
excited utterance evidence merely because the declarant later recants. See
State v. Young, 161 P.3d 967, 973 (Wash. 2007) (en banc) (citing State v.
Briscoeray, 974 P.2d 912, 916 (Wash. Ct. App. 1999)). M.R.’s
subsequent declarations go to the weight of the hearsay statements made under
the stress of excitement, not their admissibility.
Consequently, her partial
recantation must be weighed by the finder of fact.
[41] We therefore
hold that the trial court did not abuse its discretion by admitting M.R.’s
father’s testimony under the
excited utterance exception.
2. The Trial Court Did Not Abuse Its Discretion by Admitting the Healing
Hearts Report under the “Medical Diagnosis”
Hearsay
Exception
[42] Martin argues that the trial court abused its
discretion by admitting the Healing Hearts Report (hereinafter, the
“Report”)
because “[t]he entire . . . Report . . . was
impermissible hearsay.”[7]
Appellant’s Br. at 22. The People argue that the Report was properly
admitted under the Rule 803(4) exception for statements
made for the purpose of
medical diagnosis (“medical exception”). Appellee’s Br. at
35-37. Martin replies that
the trial court did not make a finding on the
Report’s admissibility under the medical exception or expressly apply Rule
803(4).
Reply Br. at 9. Because the Report was admitted over an objection, we
review for an abuse of discretion. See Perez, 2015 Guam 10 ¶ 19
(citations omitted).
[43] Rule 803(4) provides a hearsay exception for
“[s]tatements made for purposes of medical diagnosis or treatment and
describing
medical history, or past or present symptoms, pain, or sensations, or
the inception or general character of the cause or external
source thereof
insofar as reasonably pertinent to diagnosis or treatment.” GRE 803(4).
This exception for statements made
for purposes of medical diagnosis or
treatment is a “‘firmly rooted’ exception to the exclusion of
hearsay evidence,”
People v. Ignacio, 10 F.3d 608, 612 (9th Cir.
1993) (citation omitted), based on the presumption that a patient seeking
medical care has a “strong motivation
to be truthful.” Id.
(quoting Fed. R. Evid. 803(4) advisory committee’s note to 1972 proposed
rules) (citations omitted); see also People v. Camacho, 2016 Guam 37
¶ 25 (quoting United States v. Joe, 8 F.3d 1488, 1493-94 (10th Cir.
1993)). “[W]hether a statement is admissible under the medical treatment
exception does not depend solely
on the intent of the person asking the
questions, but also on whether the respondent understands herself to be
providing information
for purposes of medical treatment.” Ignacio,
10 F.3d at 613 n.3. “[T]he trial court must act as a vigilant gatekeeper
to ensure that the GRE 803(4) exception does not
become overbroad, especially as
applied to multidisciplinary interviews.” Camacho, 2016 Guam 37
¶ 30.
[44] During trial, the People moved to admit the Report
after laying a foundation for its admission through the testimony of Dr. Weare.
See Tr. at 103-105 (Jury Trial, June, 20, 2014). Martin objected to the
admission of the Report, arguing that the Report “contain[ed]
hearsay,” “was prepared for forensic reasons,” and did not
“fall within a hearsay exception.” Id. at 105. The People
responded that the statements found within the Report were “made for the
purposes of medical diagnosis”
and therefore admissible. Id. The
court overruled Martin’s objection and admitted the Report without
examining individual statements:
There is case law to support the fact that even though there are some –
that there are medical records, particularly with regard
to Healing Hearts, or
centers that deal both with the medical treatment, which are also – have
an element of forensic information,
or that are captured for the purposes of
prosecution at a later date, that does not then make them inadmissible for
purposes of medical
records. So the Court will admit the exhibits into . . .
evidence.
Id. The People then elicited testimony from Dr. Weare
regarding the contents of the Report and his examination of M.R. Id. at
105-12.
[45] The trial court is correct to the extent that case law
does exist regarding the admissibility of hearsay statements when made in
the
context of an examination at a multidisciplinary medical treatment center, such
as Healing Hearts. For example, in United States v. Lukashov, the Ninth
Circuit upheld a federal district court ruling that certain hearsay statements
made to a social worker during an interview—in
the presence of law
enforcement—when combined with a medical examination at a
multidisciplinary medical clinic specializing
in child abuse, were admissible
under the medical exception. 694 F.3d 1107, 1114-15 (9th Cir. 2012). In that
case, a victim was interviewed by a social worker and physically examined by a
doctor at a facility
similar to Healing Hearts. See id. at 1115. At an
evidentiary hearing, the social worker said that “the purpose of the
interview was ‘to gather information
to be used in determining the
diagnosis that the physician makes and to make treatment
recommendations.’” Id. The doctor “explained that the
physical exam and interview ‘go hand-in-hand in generating a medical
diagnosis.’”
Id. The doctor told the victim that the
multidisciplinary facility was “a regular doctor’s office” and
that the social
worker and doctor were going to “make sure that [the
victim] was healthy.” Id. The defendant argued that “the
purpose of [the victim’s] statements to [the social worker] was to build a
case against
him rather than to obtain medical diagnosis or treatment.”
Id. He supported this argument with the fact that the interview was
separate from the medical examination, a police officer was present,
and the
victim used the word “evidence” during the interview. See
id. The Ninth Circuit was unpersuaded by these arguments. The court upheld
the finding that the purpose of the victim’s statements
was for medical
diagnosis and treatment because (1) the victim, the social worker, and the
doctor believed the interview was a part
of the medical process, (2) the
presence of a police officer did not change the medical nature of the
evaluations, and (3) mention
of the word “evidence” was brief and
was not subject to follow up. Id. The court clarified that “what
matters is that, to [the victim], [the social worker], and [the doctor], the
interview took
place for the purpose of, and was reasonably pertinent to,
medical diagnosis and treatment.” Id. (emphasis added) (citing
Fed. R. Evid. 803(4); Ignacio, 10 F.3d at 613 &
n.3).
[46] In People v. Ignacio, the Ninth Circuit held that a
doctor’s testimony regarding a victim’s statements was admissible
under the medical exception,
but that a social worker’s similar testimony
was not because statements made to the social worker were not made for medical
treatment. See 10 F.3d at 613-14 (finding statement to social worker
inadmissible, but error was harmless). In fact, the social worker’s
testimony
“establish[ed] that he questioned the child to determine whether
he needed to notify Child Protective Services of a case of
suspected child
abuse.” Id. at 613.
[47] As required by GRE 803(4) and
emphasized in Lukashov, we look to the purpose for which a statement is
made and whether that statement is pertinent to medical diagnosis or treatment.
GRE 803(4); see Lukashov, 694 F.3d at 1115 (citing Fed. R. Evid. 803(4);
Ignacio, 10 F.3d at 613 & n.3). Our inquiry must not place undue
emphasis on the identity of the interviewer obtaining a statement or
that
interviewer’s dual purpose when working at a facility like Healing Hearts.
See Camacho, 2016 Guam 37 ¶ 29. We must instead assess each
instance of hearsay “piece-by-piece, making individual decisions on each
[statement]
. . . .” Id. ¶ 30 (alteration in original)
(citation omitted). The court “must ‘carefully parse each statement
. . . to determine
whether [it] is sufficiently trustworthy, focusing on the
declarant’s motivation to seek medical care and whether a medical
provider
could have reasonably relied on the statement for diagnosing or treating the
declarant.’” Id. (alteration in original) (citation
omitted).
[48] After reviewing the Report in its entirety and giving
consideration to all relevant evidence in the record, we determine that the
statements made by M.R. to Dr. Weare in the Report were made for the purposes
of, and reasonably pertinent to, medical diagnosis
or treatment.
[49] The Report itself consists of eight forms, containing brief
descriptions of M.R.’s statements regarding the cause of her injuries,
her
symptoms, and Dr. Weare’s physical findings. See generally Exs.
44G-R, People v. Martin, CF0679-11 (Healing Hearts Report (Dec. 4, 2011)). For
example, M.R. made statements indicating that
she was penetrated by a penis and
a finger, Ex. 44H, and physically subdued, Ex. 44I. M.R. also made statements
indicating that
alcohol was used and a weapon was used to threaten her. Ex.
44I. The Report does not, however, indicate that M.R. made any statements
with
respect to the identities of her assailants.
[50] Nothing in the
record suggests that M.R.’s statements would be made for a purpose other
than to obtain medical treatment or
diagnosis. For example, Dr. Weare
understood the examination procedure at Healing Hearts to consist of both
physical and non-physical
examinations intertwined as part of the same
diagnostic undertaking:
This exam is a pretty comprehensive exam. It takes me a minimum of two hours
to do it. I spend half an hour to an hour or more talking
to the patient about
their past medical history, the events that led up to the incident that got them
before me. And details about
what had happened. This lets me focus in on areas
that I need to look at, especially when I do the physical exam. And then we do
a thorough physical exam, which is the head-to-toe exam where basically we leave
no parts untouched.
Tr. at 102 (Jury Trial, June 20, 2014).
M.R.’s father testified that he understood her examination to be a
“procedure,”
a “check,” where M.R. would receive
“some medication . . . to protect her from getting sick. . . .”
Tr. at 45-46 (Jury Trial, June 20, 2014).
[51] We recognize
that the stock language appearing on the Report itself strongly suggests that
the document was created, at least in
part, for the purpose of collecting
evidence to be used at trial. For example, the title of the Report includes the
terms “Forensic
Medical Report – Sexual Assault Form.” Ex.
44G, People v. Martin, CF0679-11 (Healing Hearts Report (Dec. 4, 2011)).
The
cover page includes boxes for the input of a GPD number for the document, the
name and badge number of the accompanying law
enforcement officer, and the title
or name and badge number of the officer present during examination. Id.
Under the heading “Patient Consent / Information,” the form
states that the signee “understand[s] that an examiner
can with . . .
consent, conduct a separate medical examination for evidence of sexual
assault at public expense,” that the purpose of such examination “is
to discover and preserve evidence of the assault,” that the signee
“consent[s] to a medical examination for evidence of sexual
assault,” that “collection of evidence may include
photographing injuries,” and that data may be collected “for health
and forensic purposes.” Id. (emphasis
added).
[52] Nevertheless, our analysis must focus on the specific
statements made within the Report, the purpose for which those individual
statements
were made, and whether they were reasonably pertinent to medical
diagnosis or treatment. See GRE 803(4); see also Camacho, 2016
Guam 37 ¶ 28. Here, M.R.’s statements were admissible because they
qualified under the Rule 803(4) exception, even if the Report
itself was to be
used for the additional purpose of collecting evidence against potential
defendants.
[53] In summary, the record reflects that the statements
made by M.R. found within the Report were made “for purposes of medical
diagnosis or treatment.” GRE 803(4). Her statements described
“present symptoms, pain, or sensations” as well
as the
“inception or general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis
or treatment.” Id.
Thus, we hold that the trial court did not abuse its discretion by admitting the
Report under the medical diagnosis exception.
3. The Trial Court’s Admission of Prior Inconsistent Statements as
Substantive Evidence Was Not Plain Error
[54] Martin assigns error
to the trial court’s admission of statements made by Mounik through the
testimony of Officer Paulino (hereinafter,
the “Paulino
testimony”).[8]
Appellant’s Br. at 22. The People argue the Paulino testimony was
admissible to impeach the unexpected, inconsistent statements
made during
Mounik’s direct testimony at trial. See Appellee’s Br. at
38-39, 42. Additionally, they argue that this court should adopt the so-called
“modern rule”
that would allow the testimony to become admissible as
substantive evidence. Appellee’s Br. 41-43. Finally, they argue in
the
alternative that admission of the Paulino testimony does not warrant reversal of
the conviction because the admission was not
plain error. Appellee’s Br.
at 43-46. In reply, Martin argues the testimony is inadmissible because it was
offered as substantive
evidence and does not satisfy GRE 801. Reply Br. at 9.
Martin also argues in his reply that this court should not adopt the
“modern
rule.” Id.
[55] At trial, Officer Paulino
testified as to certain prior inconsistent statements made by Mounik during a
police interview in which
Mounik described the events surrounding the rape.
See Tr. at 54-55 (Jury Trial, June 25, 2014). Martin did not object to
admission of Paulino’s testimony. See generally Tr. (Jury Trial,
June 25, 2014); Tr. (Jury Trial, June 24, 2014). We therefore review for plain
error.[9] Mendiola, 2014 Guam
17 ¶ 23 n.2 (citation omitted); see 8 GCA § 130.50(a); see
also Quitugua, 2009 Guam 10 ¶ 10 (citation omitted).
[56] A
prior inconsistent statement made by a witness, under oath or in a deposition,
is not considered hearsay if the witness is subject
to cross-examination
regarding the statement. GRE 801(d)(1)(A); see also United States v.
Dietrich, 854 F.2d 1056, 1061 (7th Cir. 1988) (“If a prior
inconsistent statement meets the requirements of Rule 801(d)(1)(A) it may be
admitted as
substantive evidence to establish the truth of the matter
asserted.” (citing United States v. DiCaro, 772 F.2d 1314 (7th Cir.
1985), cert. denied, 475 U.S. 1081 (1986))).
[57] If a prior
inconsistent statement was not made under oath or in a deposition, extrinsic
evidence of the statement may be admitted,
for purposes of impeachment, if the
witness “is afforded an opportunity to explain or deny the same and the
opposite party
is afforded an opportunity to interrogate the witness thereon, or
the interests of justice otherwise require.” GRE 613(b).
If offered as
substantive evidence, extrinsic evidence of prior inconsistent statements will
trigger the rule against hearsay.
See GRE 802; see also Dietrich,
854 F.2d at 1061 (7th Cir. 1988) (“A prior inconsistent statement that
does not meet one of the criteria of Rule 801(d)(1)(A)
. . . may be used only
for the purpose of impeaching the witness.”).
[58] At trial,
the People elicited testimony from Paulino regarding prior inconsistent
statements made by Mounik during an unsworn police
interview. See Tr. at
54-55 (Jury Trial, June 25, 2014); Tr. at 74-84, 88-89 (Jury Trial, June 24,
2014). Paulino testified that during Mounik’s
GPD interview, Mounik
stated that Martin placed M.R. on the ground where Martin forced himself on her
as she cried and pleaded with
him to stop. Tr. at 54-55 (Jury Trial, June 25,
2014). Paulino also testified that Mounik stated that I.M. and Martin took
turns
holding M.R.’s legs down during the rape, that Mounik allegedly had
consensual sex with her afterwards, and that after I.M.
and Martin left the
scene, Mounik carried M.R.’s unconscious body to a nearby roadway where he
lay beside her until she awoke
and walked away. Id. at 55-57.
Finally, Paulino testified that Mounik stated that none of the three men wore a
condom. Id. at 58.
[59] Martin did not object to
Paulino’s testimony, see id. at 52-60, or request a limiting
instruction on the admission of Mounik’s prior inconsistent statements.
Therefore, the prior
inconsistent statement testimony was offered as substantive
evidence and not for the limited purpose of impeaching Mounik’s
prior
testimony. Nevertheless, this error does not rise to the level of plain error
because the statements admitted did not affect
Martin’s substantial rights
due to the cumulative nature of the testimony. For example, I.M. also testified
that the men removed
M.R.’s clothes while Martin and Mounik restrained
her. Tr. at 33 (Jury Trial, June 26, 2014). I.M. further testified that
he and
Mounik held M.R.’s legs while Martin raped the victim. Id. at
35-40. In addition, M.R. testified she was forced into the backseat of a car,
taken into the jungle, forced to drink alcohol,
and raped by I.M. and Martin.
Tr. at 84-86 (Jury Trial, June 26, 2014); Tr. at 7-8, 21-24 (Jury Trial, June
27, 2014). She testified
that I.M. and Martin forcefully removed her clothes
and took turns raping her while holding her against the ground. Tr. at 24-25,
50 (Jury Trial, June 27, 2014). Taking the cumulative nature of this testimony
into account, we are not persuaded that the Paulino
testimony of Mounik’s
hearsay statements adversely affected the integrity of the judicial process or
Martin’s substantial
rights. Therefore, we hold that the error to admit
extrinsic hearsay evidence of Mounik’s prior inconsistent statements as
substantive evidence did not rise to the level of plain error. Because we
affirm the trial court on the admission of the Paulino
testimony, we need not
reach the issue of whether this court should adopt the “modern rule”
as espoused by the People.
V. CONCLUSION
[60] For the foregoing reasons, we hold that: (1) Martin waived his objection to the indictment by failing to comply with the timeliness requirements of 8 GCA §§ 65.15 and 65.45; (2) the trial court did not err when it imposed consecutive sentences for each count of First Degree CSC; (3) the evidence was sufficient to convict Martin on each count of First Degree CSC and each count of Second Degree CSC; and (4) the trial court properly admitted the testimony of the victim’s father, the Healing Hearts Report, and Officer Paulino’s testimony. We AFFIRM the Judgment of Conviction entered by the trial court.
[1] The signatures in this opinion reflect the titles of the Justices at the time this matter was argued.
[2] Multiplicity stands in contrast to “duplicity,” which describes more than one offense alleged in a single count. United States v. Davis, 306 F.3d 398, 415 (6th Cir. 2002) (citation omitted); Quenga, 2015 Guam 39 ¶ 52 (citation omitted).
[3] We note that Martin misframes the application of Blockburger v. United States, 284 U.S. 299, 304 (1932), when he states that “[a]n indictment is not multiplicitous if each count or charge requires proof of a fact which the other does not,” Appellant’s Br. at 17, and then goes on to assert his consecutive sentences for the two counts of First Degree CSC violated double jeopardy, see id. at 20. As we discussed at some length in San Nicolas, “Blockburger applies only where the defendant is convicted of violating two distinct statutory provisions,” but here Martin was sentenced consecutively for two counts under the same First Degree CSC statute, “therefore, the Blockburger test is inapplicable in determining whether consecutive sentences are proper.” San Nicolas, 2001 Guam 4 ¶¶ 11-12. Because Martin challenges his consecutive sentences imposed for two violations of the same statute, the proper test is the “unit of prosecution” test. See id. ¶ 13; accord People v. Afaisen, 2016 Guam 31 ¶ 13.
[4] Title 9 GCA § 25.15(a)(4)(ii) has since been renumbered as subsection 25.15(a)(4)(B). See Guam Pub. L. 32-012:2 (Apr. 11, 2013).
[5] See supra note 4 and accompanying text.
[6] Martin only assigns error generally, asserts that the entire Healing Hearts Report is inadmissible and does not point to specific hearsay statements made by M.R.’s father or Officer Paulino. See Appellant’s Br. at 22. But see Guam R. App. P. 13(a)(9)(A) (requiring “citations to the authorities and parts of the record on which the Appellant relies”).
[7] Martin’s argument consists primarily of the following sentence: “The entire Healing Hearts Report offered into evidence during the testimony of Dr. Weare was impermissible hearsay.” Appellant’s Br. at 22. We would be within our authority to disregard his argument on the basis that:
[i]t is not sufficient for a party “simply to announce a position or assert an error and then leave it up to this [c]ourt to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority to sustain or reject his position.”
Lamb v. Hoffman, 2008 Guam 2 ¶ 35 (quoting Wilson v. Taylor, 577 N.W.2d 100, 105 (Mich. 1998)); see also Millies v. LandAmerica Transnation, 372 P.3d 111, 118 n.5 (Wash. 2016) (en banc) (declining to consider an issue that the appellant supported with insufficient argument); cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal ‘argument’, [sic] really nothing more than an assertion, does not preserve a claim.”). For the sake of argument, we address the claim because it was argued in some depth at oral argument.
[8] Martin’s “argument” consists primarily of the following sentence: “Officer Paulino’s extensive testimony concerning his interview of Mounik, and the statements Mounik allegedly made when interviewed, impermissibly disclosed the substance of their conversations.” Appellant’s Br. at 22. We would be within our authority to disregard such cursory assertions. See supra note 7 and accompanying text.
[9] Martin does not include a plain error analysis even though that is the proper standard.
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