People v. Taitano, (2015)

• Court: Guam Supreme Court
• Writing for the Court: MARAMAN, J.
• Citation: 2015 Guam 33
• Docket Number: Supreme Court Case No.: CRA14-017
• Decision Date: 13 November 2015
• Parties: PEOPLE OF GUAM, Plaintiff-Appellee, v. LUKE ALLEN PANGELINAN TAITANO, Defendant-Appellant.

2015 Guam 33

PEOPLE OF GUAM, Plaintiff-Appellee, v. LUKE ALLEN PANGELINAN TAITANO, Defendant-Appellant.

Supreme Court Case No.: CRA14-017

SUPREME COURT OF GUAM

Argued and submitted: May 12, 2015

November 13, 2015

Superior Court Case No.: CF0211-12

OPINION

Appeal from the Superior Court of Guam

Argued and submitted on May 12, 2015

Hagåtña, Guam

Appearing for Defendant-Appellant:

Leevin T. Camacho, Esq.

Law Office of Leevin T. Camacho

194 Hernan Cortez Ave., Ste. 216

Hagåtña, GU 96910

Appearing for Plaintiff-Appellee:

Marianne Woloschuk, Esq.

Assistant Attorney General

Office of the Attorney General

590 S. Marine Corps Dr.

Tamuning, GU 96913 BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.

MARAMAN, J.:

[1] This case comes before the court following the criminal conviction of Defendant-Appellant Luke Allen Pangelinan Taitano after a jury trial. The dispute centers on whether Plaintiff-Appellee People of Guam ("the People") presented sufficient evidence to establish that Taitano assaulted the victim during the timeframe alleged, whether a material variance in proof affected Taitano's substantial rights, and whether the trial court improperly admitted testimony about separate incidents of sexual contact. Taitano claims that the trial court erred in denying his Motion for Judgment of Acquittal and Motion for a New Trial. Specifically, Taitano asserts that the trial court should have found insufficient evidence supporting his conviction based on the material variance between details of the crime for which he was indicted and those presented at trial. He further suggests that the trial court abused its discretion in admitting testimony of other alleged incidents of sexual assault against the victim and for not issuing a limiting instruction about this testimony to the jury.

[2] We reverse Taitano's conviction, vacate his sentence, and remand for a new trial on the basis that a material variance between the allegations and proof offered at trial violated his constitutional rights to notice and to protection from double jeopardy.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] The case arises from a criminal conviction for Second Degree Criminal Sexual Conduct ("CSC") (as a First Degree Felony). The People initially charged Taitano with three counts of Second Degree CSC against the same victim, L.J.H. The first charge alleged a timeframe "[o]n or about the period between January 1, 2008 through December 31, 2009, inclusive. . . ." RA, tab 2 at 1 (Compl., Mar. 30, 2012). The second charge included "the period between January 1, 2010 through December 31, 2010. . . ." Id. at 2. The final charge encompassed "the period between January 1, 2011 through December 31, 2011. . . ." Id. Attached to the Complaint was the signed declaration of Assistant Attorney General ("AAG") Brooke E. Wright, which stated that the 2008-2009 incident occurred in Yigo, the 2010 incident occurred in Mangilao, and the 2011 incident was committed in NCS Dededo. The grand jury returned an indictment as to the second charge only, charging that on or between the period January 1, 2010 through December 31, 2010, Taitano did commit the offense of Second Degree CSC by touching the genital area of L.J.H., a minor under the age of fourteen.

[4] Following a scheduling conference, the People filed their trial memorandum. This document stated that while there was evidence of four separate alleged incidents, the one for which Taitano had been indicted occurred in Mangilao. Taitano filed a Motion in Limine to exclude evidence of all alleged incidents of unlawful sexual conduct except the one for which he had been indicted, pursuant to Rule 404(b) of the Guam Rules of Evidence ("GRE"). The People responded, arguing that the admission of such evidence was relevant and probative of Taitano's motive, intent, plan, and lack of mistake. At trial, Taitano renewed his objection and specifically argued that testimony regarding any uncharged acts would be more prejudicial than probative. The trial court overruled Taitano's objection.

[5] Testimony at trial from several witnesses revealed ambiguity and some contradiction with regard to the precise timeline of where the family had lived during each period. During the prosecution's case-in-chief, the victim, L.J.H., was called to testify. Her testimony described in detail how Taitano had touched her "private part" in Yigo, and identified the contact as a "bad touch" consistent with criminal sexual conduct. Transcript ("Tr.") at 13-19, 34-35 (Cont. Jury Trial, Nov. 26, 2012). However, when questioned about the incident in Mangilao, the victim stated that "nothing happened," explaining that Taitano had attempted to touch her on one occasion but that she awoke and stopped him. Id. at 19-21. The victim also testified, over Taitano's GRE 403 objection, regarding incidents in Mongmong-Maite and Dededo in which Taitano had unsuccessfully tried to touch her while she was sleeping. Following the prosecution's case in chief, Taitano moved for acquittal, claiming that insufficient evidence was presented as to the Mangilao incident or that any sexual contact occurred in 2010. His motion was denied.

[6] The jury returned a verdict finding Taitano guilty of Second Degree Criminal Sexual Conduct (As a First Degree Felony). Following the verdict, Taitano renewed his motion for a judgment of acquittal and alternately moved for a new trial, again asserting that insufficient evidence was presented to convict him for the Mangilao incident. The People opposed, claiming that the testimony of the victim as to multiple instances of abuse enabled a rational jury to conclude that such abuse had occurred in 2010. The trial court denied these motions, reasoning that any variance which arose through proof at trial did not defeat sufficiency or adversely affect the rights of the defendant, since time was not an element of the offense. The court sentenced Taitano to fifteen years of incarceration.

[7] Taitano timely filed a notice of appeal, challenging his conviction and seeking dismissal.

II. JURISDICTION

[8] This court has jurisdiction over appeals from final judgment of the Superior Court pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 114-49 (2015)), and 7 GCA §§ 3107(b) and 3108(a) (2005). This is an appeal of a final judgment issued by the Superior Court on July 28, 2014.

III. STANDARD OF REVIEW

[9] Ordinarily, a claim of material variance "will be treated as an attack on the sufficiency of the evidence." People v. Diaz, 2007 Guam 3 ¶ 10 (citing People v. Campbell, 2006 Guam 14; United States v. Antonakeas, 255 F.3d 714, 721 (9th Cir. 2001)). "[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; United States v. Shipsey, 363 F.3d 962, 971 n.8 (9th Cir. 2004)). "'In reviewing the sufficiency of the evidence to support a criminal conviction,' this court inquires as to 'whether the evidence in the record could reasonably support a finding of guilty beyond a reasonable doubt.'" People v. Root, 2005 Guam 16 ¶ 33 (quoting People v. Guerrero, 2003 Guam 18 ¶ 13; People v. Sangalang, 2001 Guam 18 ¶ 20). However, a material variance claim will also involve the interpretation of Fifth Amendment considerations regarding fair notice and double jeopardy. See United States v. Tsinhnahijinnie, 112 F.3d 988, 992 (9th Cir. 1997). Such considerations are reviewed de novo. People v. Muritok, 2003 Guam 21 ¶ 10; United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991).

[10] We review admission of evidence of prior similar bad acts under GRE 404(b) for abuse of discretion. People v. Evaristo, 1999 Guam 22 ¶ 6 (citing United States v. Santiago, 46 F.3d 885, 888 (9th Cir. 1996)); see also People v. Quintanilla, 2001 Guam 12 ¶ 9. However, the trial court's determination of whether the evidence falls within the scope of GRE 404(b) is reviewed de novo. People v. Palisoc, 2002 Guam 9 ¶ 7 (citing United States v. Arambula-Ruiz, 987 F.2d 599, 602 (9th Cir. 1993)). The trial court's analysis under 6 GCA § 403 is subject to an abuse of discretion review. Evaristo, 1999 Guam 22 ¶ 6 (citation omitted).

IV. ANALYSIS

A. Taitano's Motion for Judgment of Acquittal and Motion for a New Trial on Grounds of Material Variance and Insufficient Evidence

[11] Analysis of a material variance claim consists of two separate but related inquiries. To the extent that the variance concerns a lack of proof at trial regarding the essential elements of an indictment, it functions as an attack on the sufficiency of evidence supporting a conviction. Diaz, 2007 Guam 3 ¶ 10; Antonakeas, 255 F.3d at 721. However, a variance also constitutes reversible error if it affects the substantial rights of a defendant, including proper notice of charges and protection against double jeopardy. Berger v. United States, 295 U.S. 78, 82 (1935). In this sense, a claim of variance also functions as a challenge based on the deprivation of due process rights under the Fifth Amendment of the United States Constitution, made applicable to Guam by the Organic Act. See Tsinhnahijinnie, 112 F.3d at 992; 48 U.S.C.A. § 1421b(u). Thus, both factors must be evaluated when addressing Taitano's claim of variance.

1. Sufficiency of Evidence

[12] "A claim of fatal variance is treated as an attack on the sufficiency of the evidence." Diaz, 2007 Guam 3 ¶ 37 (citing United States v. Hewlett, 453 F.3d 876, 879 (7th Cir. 2006)); see also United States v. Jenkins, 779 F.2d 606, 616 (11th Cir. 1986); Antonakeas, 255 F.3d at 721. This court has previously addressed the proper standard for evaluating a sufficiency of evidence challenge, explaining that:

In reviewing the sufficiency of the evidence to support a criminal conviction, this court inquires as to whether the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt. Because this is a highly

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