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Supreme Court of Guam |
IN THE SUPREME COURT OF GUAM
PEOPLE OF GUAM,
Plaintiff-Appellee,
v.
BENNY SAM ROBERT,
Defendant-Appellant.
Supreme Court Case No.: CRA18-002
Superior Court Case No.:
CF0477-16
OPINION
Filed: May 17, 2019
Cite as: 2019 Guam 2
Appeal from the Superior Court of Guam
Argued and submitted
on October 29, 2018
Hagåtña, Guam
Appearing for Defendant-Appellant:
Terence E. Timblin, Esq. Yanza, Flynn, Timblin, LLP One Agana Bay 446 E. Marine Corps Dr., Ste. 201 Hagåtña, GU 96910 |
Appearing for Plaintiff-Appellee:
James C. Collins, Esq. Assistant Attorney General Office of the Attorney General 590 S. Marine Corps Dr., Ste. 801 Tamuning, GU 96913 |
BEFORE: KATHERINE A. MARAMAN, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; and ROBERT J. TORRES, Associate Justice.
TORRES, J.:
[1] Defendant-Appellant Benny Sam Robert appeals
from a conviction of one count of Terrorizing as a Second Degree Felony and his
sentence
for three separate Special Allegations for the Use of a Deadly Weapon
in the Commission of a Felony. Robert argues insufficient
evidence exists to
support his Terrorizing conviction[1]
and that his sentence is illegal because he should have been sentenced on one
special allegation, rather than three. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
[2] While Jose S. Villagomez was preparing to drive out of a parking
lot, Robert approached his vehicle. See Transcript (“Tr.”)
at 6 (Bench Trial, Dec. 12, 2016). Robert struck the back of the vehicle with a
machete. Id. He then proceeded toward the driver’s window, swung
the machete, and struck the driver’s side of the vehicle. Id.
Robert then swung the machete again and struck Villagomez’s arm,
injuring him. Id. Villagomez fled the vehicle through the passenger
door. Robert continued to pursue him, still wielding the machete. Id.
at 6-7.
[3] After a bench trial, the trial court found Robert
guilty of one count of Aggravated Assault as a Second Degree Felony, Terrorizing
as a Third Degree Felony, and Criminal Mischief as a Third Degree Felony, each
of which included a Special Allegation for the Use
of a Deadly Weapon in the
Commission of a Felony. See Record on Appeal (“RA”), tab 56
at 1-4 (Judgment, Apr. 13, 2018). Robert was sentenced to five years of
incarceration on each count, to be served concurrently. Id. at 2-3.
Robert was sentenced to an additional five years of incarceration for each
Special Allegation, each term to be served consecutively.
In total, Robert was
sentenced to twenty years’ imprisonment including other conditions.
Id. Robert timely appealed.
II. JURISDICTION
[4] This court has jurisdiction over appeals from a final judgment of conviction. See 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 116-17 (2019)); 7 GCA §§ 3107(b), 3108(a) (2005); 8 GCA §§ 130.10, 130.15(a) (2005).
III. STANDARD OF REVIEW
[5] “Claims of insufficient evidence are matters of law reviewed
de novo.” People v. Camacho, 2015 Guam
37 ¶ 9. Questions of statutory interpretation are also reviewed
de novo. See People v. Diaz, 2007 Guam 3 ¶ 55. We
must interpret statutes “in light of their terms and legislative
intent.” People v. Flores, 2004 Guam 18 ¶ 8 (quoting
Carlson v. Guam Tel. Auth., 2002 Guam 15 ¶ 46 n.7).
[6] We review the legality of a sentence de novo. See
People v. Manley, 2010 Guam15 ¶ 12.
IV. ANALYSIS
A. The Evidence is Sufficient to Support Robert’s Conviction for
Terrorizing
[7] At trial, Robert moved for a judgment of
acquittal for reasons different than those he advances on appeal. See
Tr. at 2 (Bench Trial, Dec. 14, 2017). Following a bench trial, a defendant
may raise sufficiency of the evidence for the first time
on appeal. See
People v. Maysho, 2005 Guam 4 ¶ 7; see also Camacho, 2015 Guam
37 ¶ 9. That is because the trial judge, “acting as the trier
of both fact and law, implicitly rules on the sufficiency of the evidence
by
rendering a verdict of guilty.” Maysho, 2005 Guam 4 ¶ 7
(quoting United States v.
Atkinson, 990 F.2d 501, 503 (9th Cir.
1993)).
[8] In reviewing the sufficiency of the evidence, we determine
whether the evidence in the record reasonably supports a finding of guilt
beyond
a reasonable doubt. Camacho, 2015 Guam 37 ¶ 9. Under
this standard, we review the evidence in the light most favorable to the People.
People v. Song, 2012 Guam 21 ¶ 26. The credibility of
witnesses and the weight given to such testimony is within the exclusive role of
the trier
of fact and is immune from appellate review, and thus, we do not
reweigh the evidence. See People v. Sangalang, 2001 Guam
18 ¶ 39; see also People v. Messier, 2014 Guam 34 ¶
21. We review the record to determine whether any rational trier of fact could
have found the elements of the offense beyond
a reasonable doubt. Diaz,
2007 Guam 3 ¶ 10; see also 8 GCA § 90.21
(2005).
[9] We review Robert’s Terrorizing conviction,
determining whether there is sufficient evidence to support each statutory
element
beyond a reasonable doubt. Terrorizing, under 9
GCA § 19.60, is defined as follows:
A person is guilty of terrorizing if he communicates to any person a threat to commit or to cause to be committed a crime of violence dangerous to human life, against the person to whom the communication is made or another, and the natural and probable consequence of such a threat, is to place the person to whom the threat is communicated or the person threatened in reasonable fear that crime will be committed.
9 GCA § 19.60(a) (2005).
[10] We have yet to rule on whether
non-verbal conduct constitutes a threat under 9
GCA § 19.60.[2] Before
reaching the merits, we review de novo this question of statutory
interpretation. See Diaz, 2007 Guam 3 ¶ 55.
“The plain meaning will prevail where there is no clearly stated
legislative intent
to the contrary.” Data Mgmt. Res., LLC v. Office of
Pub. Accountability, 2013 Guam 27 ¶ 17 (quoting Sumitomo Constr. Co.
v. Gov’t of Guam, 2001 Guam 23 ¶ 17). The statutory scheme does
not define “threat” or “communication,” and we must give
them their
plain meaning. See 9 GCA § 19.10 et. seq.; see
also Flores, 2004 Guam 18 ¶¶ 17-19. Under the plain meaning
approach, a “threat [is] an expression of intention to inflict evil
or injury on another.” Threat, Black’s Law Dictionary
(10th ed. 2014) (emphasis added); see also Threat, Webster’s (2d
ed. 1961). A “communication” is the expression or exchange of
information by “speech, writing,
gestures, or conduct.”
Communication, Black’s Law Dictionary (10th ed. 2014)
(emphasis added). In Camacho, we held that an indirect threat,
communicated through others, can constitute a threat sufficient to uphold a
conviction of terrorizing.
See 2015 Guam 37 ¶ 25. There, we noted
case law from other jurisdictions, which held that “nonverbal acts satisfy
the communication requirement
if a threat can be gleaned from context.”
Id. Thus, we find that under the plain language of the statute, a threat
may be made non-verbally by an expression of conduct or
gestures.
[11] The record supports a finding of Robert’s guilt,
and a rational trier of fact could have found the elements of Terrorizing beyond
a reasonable doubt—namely, (1) that Robert did knowingly communicate a
threat; (2) to commit a crime of violence dangerous
to human life; and (3) the
natural and probable consequence of such threat placed Villagomez in reasonable
fear. Id.; see RA, tab 6 at 2 (Indictment, Aug. 16, 2016).
Robert communicated a threat by running toward Villagomez, who was in his
vehicle, while
brandishing a machete and striking Villagomez’s vehicle
several times. See Tr. at 6, 65 (Bench Trial, Dec. 12, 2016).
Importantly, he struck the tailgate of the vehicle twice while leaving the
vehicle damaged
with a display of dents and slash marks. Id. at 6, 33.
He further communicated a threat by striking the driver’s side of the
vehicle with the machete. Id. at 80, 170. This conduct communicated a
threat to commit a crime of violence dangerous to human life. Cf. Phipps v.
People, 54 V.I. 543, 545 (2011).
[12] The record further reveals
that Villagomez was placed in reasonable fear that a crime would be committed.
Villagomez raised his arms
in a defensive posture while Robert swung the machete
outside of his vehicle. Tr. at 80 (Bench Trial, Dec. 12, 2016).
Villagomez felt compelled to jump out of the truck and run away because he
believed Robert was “ready to kill.” Id. at 148, 174.
Accordingly, a rational trier of fact could have found Villagomez had a
reasonable fear based upon Robert’s conduct.
See People v. Root,
1999 Guam 25 ¶ 10 (“Subjective fear need not be proven in order to
establish Terrorizing under 9 GCA section 19.60.”). Based
on our review
of the record, considering the evidence in the light most favorable to the
People, there is sufficient evidence to
support Robert’s conviction of
Terrorizing.
B. A Special Allegation of Possession or Use of a Deadly Weapon May Attach to Multiple Felony Convictions
[13] Guam law provides a special allegation, which imposes an additional term of imprisonment, for possession or use of a deadly weapon during the commission of a felony. See 9 GCA § 80.37 (2005). Under the statute,
(a) [w]hoever unlawfully possesses or uses a deadly weapon in the commission of a felony punishable under the laws of Guam shall,
(1) in addition to the punishment imposed for the commission of such felony, be imprisoned for a term of not less than five (5) years nor more than twenty-five (25) years, . . .
. . . .
(e) The term required to be imposed by this Section shall not run concurrently with any term of imprisonment imposed for the commission of any other felony.
9 GCA § 80.37(a)(1), (e) (emphases added).
[14] Robert was
convicted of three separate felonies, each including a special allegation
sentencing enhancement. See RA, tab 56 at 1-4 (Judgment). Robert
challenges his sentence, arguing that, as a matter of statutory interpretation,
he should be
subjected to only a single special allegation because of the single
use of the machete and the injury of a single victim. Appellant’s
Br. at
13-14; Reply Br. at 2-3. We review de novo both the legality of
Robert’s sentence, see Manley, 2010 Guam 15 ¶ 12, and the
statutory interpretation of a special allegation, see Diaz, 2007
Guam 3 ¶ 55.
[15] We have similarly addressed this
issue in People v. Afaisen, 2016 Guam 31, where a special allegation
attached to two separate attempted murder convictions. There, in interpreting
the relevant statute,
we held that a special allegation is permissible for
multiple felony convictions. Id. ¶¶ 26-27. While
reviewing the language of the statute, we determined that the Legislature
intended to “impose a penalty that would be
in addition to the punishment
for the underlying felony,” id. ¶ 27 (quoting People v.
Snaer, 758 F.2d 1341, 1344 (9th Cir. 1985)), because of the use of singular
words surrounding “a felony” and “such felony,” id.
We find no reason to depart from this precedent and reiterate that a
separate special allegation may attach to each individual underlying
felony
conviction. See id.; see also People v. Moses, 2016 Guam 17
¶¶ 15-16. Therefore, being that Robert has three separate felony
convictions, a special allegation may attach to each
underlying
felony.
[16] We reject Robert’s arguments that he should be
subjected to just a single sentencing enhancement based on the special
allegation
because of his single use of the deadly weapon or that a single
victim was injured. Although the issue in Afaisen arose following a
double jeopardy analysis of the two attempted murder convictions of two separate
victims, our special allegation
analysis did not focus on the number of victims
but rather the number of felony convictions. 2016 Guam
31 ¶¶ 26-27; cf. Moses, 2016 Guam 17 ¶¶
15-16. The number of victims or number of uses of a single deadly weapon is
irrelevant. The relevant inquiry is the
number of underlying felony convictions
during the commission of which the deadly weapon was used. See Afaisen,
2016 Guam 31 ¶¶ 26-27. In light of Afaisen, we find
that a special allegation can attach to each of Robert’s felony
convictions. Id. Therefore, the trial court did not err in attaching a
special allegation to each underlying felony conviction, and we find no error
in
the sentence imposed.
V. CONCLUSION
[17] For the reasons set forth above, we AFFIRM Robert’s judgment of conviction.
[1] In his sentencing memorandum
after trial, Robert also argued that the charge of terrorizing should be merged
with the charge of aggravated
assault. RA tab 47 at 1-6 (Def.’s
Sentencing Mem., July 18, 2017). On appeal, he abandons his merger argument.
See Oral Argument at 10:17:38-10:18:23 (Oct. 29,
2018).
[2] In his Opening Brief,
Robert argues that communication of a threat must be verbally made and is not
present here because he “did
not say anything.” Appellant’s
Br. at 10 (July 23, 2018). In his Reply Brief, however, Robert concedes that
communication
of a threat need not be verbal, see Appellant’s Reply
Br. at 1-2 (Aug. 21, 2018), and at oral argument, Robert fully abandoned the
argument that a threat must be
verbally made, see Oral Argument at
10:19:50-10:20:17 (Oct. 29, 2018).
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