People v. Riocne, (2012)

• Docket Number: Supreme Court Case No. CRM 1-003,Superior Court Case No. CM0705-10
• Decision Date: 30 May 2012
• Citation: 2012 Guam 5
• Parties: THE PEOPLE OF GUAM, Plaintiff-Appellee, v. NRINEXT RIOCNE Defendant-Appellant, and JIMMY KIRACHY and JAMES KIROSY, Defendants.
• Court: Guam Supreme Court

2012 Guam 5

THE PEOPLE OF GUAM, Plaintiff-Appellee,

v. NRINEXT RIOCNE Defendant-Appellant,andJIMMY KIRACHY and JAMES KIROSY, Defendants.

Supreme Court Case No. CRM 1-003 Superior Court Case No. CM0705-10

SUPREME COURT OF GUAM

Date: May 30, 2012

OPINION

Appeal from the Superior Court of Guam

Submitted on Appellant's Brief October 31, 2011

Hagåtña, Guam

Appearing for Plaintiff-Appellee:

Jonathan Quan, Esq.

Office of the Attorney General of Guam

Appearing for Defendant-Appellant:

Thomas Fisher, Esq.

Fisher and AssociatesBEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice;

and KATHERINE A. MARAMAN, Associate Justice.

MARAMAN, J.:

[1] Defendant-Appellant Nrinext Riocne appeals from a conviction of one count of disorderly conduct, as a violation. Riocne argues that the trial court erred when it approved an amendment to the complaint charging the defendant under a different subsection of the disorderly conduct statute because it was an additional or different offense. Riocne also argues that his conviction is a nullity because the trial court failed to arraign him on the amended charge. After an independent examination of the law and the record on appeal, we find that Riocne's substantial rights were not prejudiced by either the amendment or the trial court's failure to rearraign him on the amended complaint. We therefore affirm his conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

[2] Guam Police Department Officer Donny Pangelinan was called regarding a disturbance at Hemlani Apartments in Harmon, Guam and arrived at the scene around midnight. Officer Pangelinan observed the Defendant-Appellant, Nrinext Riocne, shouting from the second floor of the apartment building. Officer Pangelinan advised Riocne to calm down and began to question him. In the middle of questioning, Riocne continued to shout at a group of males. Upon instructing Riocne to calm down once more, he complied. Shortly thereafter, Riocne began shouting in the direction of Officer Pangelinan and told him, "Fuck you." Transcripts ("Tr.") at 12-13 (Bench Trial, May 16, 2011). Riocne was then arrested for disorderly conduct. The People filed a magistrate's complaint charging Riocne with disorderly conduct as a petty misdemeanor under 9 GCA § 61.15(a)(1) and (c) and public drunkenness as a violation. Before trial, the People moved to amend the complaint to charge Riocne with disorderly conduct under 9GCA § 61.15(a)(2) and (c) and public drunkenness under 9 GCA § 61.25(a) and (b). The People amended the complaint on the grounds that the charge under subsection (a)(2) better fit the facts of the case and "[the] amendment [did] not charge an additional or different offense and [did] not prejudice the substantial rights of the defendant." RA, tab 49 at 2 (Mot. Leave of Ct. to File Am. Compl., May 13, 2011). Over Riocne's objection, the trial court granted the People's motion to amend. After a bench trial, the trial court found Riocne guilty of a lesser included offense, disorderly conduct as a violation. This appeal followed.

II. JURISDICTION

[3] This court has jurisdiction over an appeal from a final judgment of the Superior Court of Guam pursuant to 48 U.S.C.A. § 1424-l(a)(2) (Westlaw through Pub. L. 112-104 (2012)); 7 GCA §§ 3107(b) and 3108(a) (2005); and 8 GCA §§ 130.10 and 130.15(a) (2005).

III. STANDARD OF REVIEW

[4] Review of a trial court's decision to permit an amendment to a charging document is one of abuse of discretion. State v. Seeler, 316 S.W.3d 920, 925 (Mo. 2010) (citing State v. Smith, 242 S.W.3d 735, 742 (Mo. Ct. App. 2007)); City of Windsor Heights v. Spanos, 572 N.W.2d 591, 592 (Iowa 1997); State v. Wilson, 172 P.3d 1264,1268 (Mont. 2007).¹

[5] A trial court's failure to arraign a defendant is reviewed for reversible error. See State v. Bruyette, 604 A.2d 1270, 1277 (Vt. 1992) (internal citation omitted) ("It may be reversible error if a defendant is not arraigned on any charge, or if an arraignment is not held after a material change is made to the charges."); Tingle v. State, 632 N.E.2d 345, 355 (Ind. 1994) ("A showingof harm prejudicial to the defendant's substantial rights is required to demonstrate reversible error.").

IV. ANALYSIS

[6] Over Riocne's objection, the trial court granted the People's motion to amend the complaint charging Riocne under a different subsection. Tr. at 2-3 (Bench Trial). Riocne maintains in his opening brief on appeal that the trial court's ruling was error because 8 GCA § 55.20 permits the prosecution to amend the complaint at trial, but not to add a new charge. Appellant's Br. at 5-8 (Sept. 12, 2011). The People did not file an opposing brief, but instead submitted a letter pursuant to Rule 13(i) of the Guam Rules of Appellate Procedure.² Letter from Attorney General to Clerk of Court, Re: People v. Riocne (Oct. 26, 2011). The People argue that Riocne should have been arraigned on the new charge, but maintain that the bench trial was proper and without error. Id. Though the People have asserted that this change in its position is dispositive of the issues raised in this appeal, id., this court has clarified that '"the proper administration of the criminal law cannot be left merely to the stipulation of parties.'" People v. Yingling, 2009 Guam 11 ¶ 13 (quoting Young v. United States, 315 U.S. 257, 259 (1942)). Accordingly, this court has a "responsibility to independently examine the law and the record to determine whether the prosecutor's concession is well-founded." Id. (citations omitted).

A. Amendment of a Complaint Under Guam Law

[7] Guam's statute allowing an accusatory pleading to be amended, 8 GCA § 55.20,³ reads:

The court may permit an indictment or information to be amended upon the application of the prosecuting attorney at any time before verdict or finding if no additional [or] different offense is charged and if substantial rights of the defendant are not prejudiced.

8 GCA § 55.20 (2005) (alteration in original).⁴ Under this two-prong test, an amendment to the complaint charging Riocne with disorderly conduct was allowed if: (1) no additional or different offense was charged, and (2) the substantial rights of Riocne were not prejudiced.

[8] The first magistrate's complaint charged Riocne with disorderly conduct as a petty misdemeanor under 9 GCA § 61.15(a)(1) and (c) and public drunkenness as a violation. RA, tab 1 at 2 (Magistrate's Compl., Aug. 23, 2010). The amended magistrate's complaint charged Riocne with disorderly conduct as a petty misdemeanor under 9 GCA § 61.15(a)(2) and (c) and public drunkenness as a violation under 9 GCA § 61.25(a) and (b). RA, tab 49, ex. A at 2 (Am. Magistrate's Compl., May 13, 2011). The People amended the complaint on the grounds that the charge under section 61.25(a)(2) better fit the facts of the case and "[the] amendment [did] not charge an additional or different offense and [did] not prejudice the substantial rights of the defendant." RA, tab 49 at 2 (Mot. Leave of Ct. to File Am. Compl., May 13, 2011). When Riocne objected to the amendment at trial, the People reiterated that there was no additional or different offense, arguing that "[i]t's still disorderly conduct," but conceding that the charge was based on creating noise as opposed to fighting. See Tr. at 2-3 (Bench Trial). On appeal, Riocne argues that the People's amendment was improper because it charged a new statutory violation and alleged new facts. See Appellant's Br. at 6.

1. Different Offense

[9] Guam's disorderly conduct statute, 9 GCA §61.15(a), provides:

(a) A person is guilty of disorderly conduct, if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

(1) engages in fighting or threatening, or in violent or tumultuous behavior;

(2) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or

(3) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the defendant.

9 GCA § 61.15(a) (2005). The original complaint stated that Riocne "recklessly created a risk of public inconvenience, annoyance and alarm by violent and tumultuous behavior, after a reasonable warning and request to desist," in violation of 9 GCA § 61.15(a)(1). RA, tab 1 at 2 (Magistrate's Compl.). The People's declaration in support of the original complaint stated that Riocne "continued to behave aggressively trying to fight with the other men in the area and had to be restrained by Officers." Id. at 4. In contrast, the amended complaint stated that Riocne "with intent to cause public inconvenience, annoyance or alarm, and recklessly creating a risk thereof, he [made] unreasonable noise or offensively coarse utterance, gesture or display, or address[ed] abusive language to any person present," in violation of 9 GCA § 61.15(a)(2) and (c)." RA, tab 49, ex. A at 2 (Am. Magistrate's Compl.).⁵ The amended declaration omitted any reference to Riocne behaving aggressively by trying to fight with other men in the area andinstead added the fact that "Riocne continued shouting after being instructed multiple times to calm down and stop shouting." See RA, tab 49, ex. B at 1 (Am. Decl. Lisa Hack, May 13, 2011). This sentence merely clarifies the "tumultuous behavior" alleged in the original complaint.

a. Allegation of New Facts

[10] In People v. Diaz, we stated: "An amendment to an indictment which alleges no new facts and cites no new statutory citation has been held not to charge an additional or different offense." 2007 Guam 3 f 16 (citing United States v. Stone, 954 F.2d 1187, 1191 (6th Cir. 1992)).⁶ Riocne argues that the Diaz case stands for the proposition that an amendment that alleges new facts and a new statutory citation therefore charges an additional or different offense. See Appellant's Br. at 7-8. However, Riocne's interpretation of the Diaz holding is inaccurate. The Stone court, from which the Diaz holding was derived,...