People of Guam v Ehlert [2019] GUSC 3 (5 June 2019)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,
Plaintiff-Appellee,

v.

MICHAEL BLAIR EHLERT,
Defendant-Appellant.

Supreme Court Case No.: CRA17-018
Superior Court Case No.: CF0011-16
(consolidated with CF0081-17)

OPINION

Filed: June 5, 2019

Cite as: 2019 Guam 3

Appeal from the Superior Court of Guam
Argued and submitted on May 17, 2018

Hagåtña, Guam

Appearing for Defendant-Appellant: F. Randall Cunliffe, Esq. Cunliffe & Cook, P.C. 210 Archbishop Flores St., Ste. 200 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Jeremy S. Kemper, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division 590 S. Marine Corps Dr., Ste. 801 Tamuning, GU 96913

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

TORRES, J.:

[1] Defendant-Appellant Michael Blair Ehlert appeals his convictions of (1) Third Degree Criminal Sexual Conduct (“CSC”) against victim H.R., and (2) Attempted Third Degree CSC against victim F.R. Ehlert was charged with Third Degree CSC through the use of force or coercion. Ehlert alleges three principal errors. First, he argues there was insufficient evidence to support the element of “force or coercion.” Second, Ehlert argues that the trial court erred in admitting evidence under Guam Rule of Evidence (“GRE”) 413 about past uncharged sexual misconduct and in instructing the jury on this evidence. Third, Ehlert asserts that because he should have been entitled to a judgment of acquittal on the Third Degree CSC charge regarding F.R., the jury should have never been instructed on the included offense of Attempted Third Degree CSC.
[2] For the following reasons, we affirm Ehlert’s judgment of conviction.

I. FACTUAL & PROCEDURAL BACKGROUND

[3] Ehlert was a professor at the University of Guam. He hosted a party at his house in Ipan, Talofofo, for students in his psychology class. Approximately twenty people attended the party, and the students brought food and alcohol to share.
[4] Late in the evening, the remaining party-goers went swimming at the beach, which was within walking distance of Ehlert’s home. It was dark. H.R. testified that, while in the ocean, Ehlert approached her from behind while she was sitting or crouching in the water, put his hand inside her bathing suit, and put his finger in her vagina. F.R. testified that, after realizing H.R. was “very drunk,” earlier hearing Ehlert say he would “screw one of his students,” she approached H.R. and Ehlert in the water and pulled H.R. away by the arm. Transcript (“Tr.”) at 33-35 (Jury Trial, July 19, 2017). F.R. then gave H.R. a piggyback ride toward shore. While she had H.R. on her back, a finger was placed up one of the leg holes on F.R.’s jean shorts. The finger ended up at the edge of F.R.’s vulva—between her anus and actual vaginal opening. The only people near F.R. at this time were H.R., who was on her back, and Ehlert.
[5] Soon thereafter, all the party-goers left the beach and went back to the house. After returning to the house, some of the women showered to get the salt off and changed into dry clothes. After leaving Ehlert’s house, several party-goers met outside a local mall and discussed what happened. Tr. at 11-12 (Jury Trial, July 14, 2017).
[6] F.R. reported the incident to the University of Guam (“University”) within three days. The University reported learning of the incident from a different alleged victim—K.P. K.P. also reported that Ehlert had touched her breasts and digitally penetrated her vagina. After the reports, the University investigated the matter. Because of the accusations and investigation, the University modified Ehlert’s teaching duties to prohibit him from having any contact with students. He was allowed to continue his research and committee and service activities, but he remained on administrative leave from campus after the incident.
[7] Plaintiff-Appellee People of Guam (the “People”) filed an indictment in Superior Court Case No. CF0011-16, which charged Ehlert with two counts of Third Degree CSC, and eight misdemeanor charges, related to the allegations made by F.R. and K.P. A second indictment was filed in Superior Court Case No. CF0081-17, which charged Ehlert with one charge of Third Degree CSC for allegations made by H.R. Upon agreement of the parties, the trial court consolidated the cases. The trial court dismissed with prejudice the misdemeanor charges as barred by the statute of limitations, and the matter proceeded to trial.
[8] At the close of the People’s case, Ehlert moved for a judgment of acquittal, which the trial court denied. The jury found Ehlert not guilty of the first count of the indictment—both the penetration and attempted penetration allegations made by K.P. Ehlert was also acquitted of the second count of the indictment for the penetration of F.R., but was found guilty of the included offense of attempted penetration on this count. The jury further convicted Ehlert on the third count of the indictment for penetration of H.R. The defense renewed its motion for judgment of acquittal, which the trial court denied.
[9] The trial court sentenced Ehlert to 24-months incarceration on each conviction to be served consecutively—a total of 48 months—but suspended 30 months of the sentence. The trial court ordered a three-year term of parole subject to conditions, upon Ehlert’s completion of his term of incarceration. Ehlert timely appealed.

II. JURISDICTION

[10] This court has jurisdiction over appeals from final judgments of conviction. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 116-18 (2019)); 7 GCA §§ 3107, 3108(a) (2005); 8 GCA § 130.15(a) (2005).

III. STANDARD OF REVIEW

[11] “[C]laims of insufficient evidence are matters of law that are reviewed de novo.” People v. Flores, 2009 Guam 22 ¶ 10 (citing People v. Maysho, 2005 Guam 4 ¶ 6).
[12] Under the GRE, the admission or exclusion of evidence is generally reviewed for an abuse of discretion. See People v. Palisoc, 2002 Guam 9 ¶ 28. When no objection is made at trial, erroneous jury instructions are reviewed for plain error. People v. Felder, 2012 Guam 8 ¶ 8. When an objection is made at trial, we review for harmless error.