PEOPLE OF GUAM, Plaintiff-Appellee/Cross-Appellant, v. RENATO CAPILI BOSI, Defendant-Appellant/Cross-Appellee.
Supreme Court Case No. CRA19-015; Superior Court Case No. CF0596-17
IN THE SUPREME COURT OF GUAM
December 27, 2022
2022 Guam 15
Appeal from the Superior Court of Guam; Argued and submitted on December 2, 2020 via Zoom video conference
David J. Highsmith, Esq.
Assistant Public Defender
Public Defender Service Corporation
779 Rte. 4
Sinajana, GU 96910
Appearing for Plaintiff-Appellee:
Marianne Woloschuk, Esq.
Assistant Attorney General
Office of the Attorney General
Prosecution Division
590 S. Marine Corps Dr., Ste. 901
Tamuning, GU 96913
CARBULLIDO, C.J.:
[1] Defendant-Appellant Renato Capili Bosi appeals from his criminal judgment of conviction and denial of his motion for judgment of acquittal. A jury found Bosi guilty of five offenses: two counts of Second Degree Criminal Sexual Conduct (As a First Degree Felony) (“CSC II”), two counts of Fourth Degree Criminal Sexual Conduct (As a Misdemeanor) (“CSC IV”), and one count of Child Abuse (As a Misdemeanor). At sentencing, however, the trial court invoked its power under
I. FACTUAL AND PROCEDURAL BACKGROUND
[2] The following evidence was presented. Before his arrest, Bosi was a pastor at the Living Lighthouse Baptist Church. Through the church, he became acquainted with a young female member of his congregation, A.D.G., who moved to Guam from the Philippines in April 2015.
[3] By May 2016, the relationship between Bosi and A.D.G. had become personal and close. A.D.G. testified that because she was having problems at home, her parents entrusted her to the Bosi family‘s care. Bosi‘s wife testified that A.D.G.‘s father allowed A.D.G. to spend weekends with the Bosi family so she could learn “godly things, and household chores.” Transcript (“Tr.”)
[4] While staying in the Bosi household, A.D.G. performed household chores and received guidance from Bosi on what he considered appropriate or inappropriate behavior, see, e.g., Tr. at 42-45 (Jury Trial, Apr. 16, 2019) (lecturing A.D.G. about having a boyfriend); id. at 64-65 (counseling A.D.G. about propriety of a photo she posted on Facebook). A.D.G.‘s mother testified that at one point, Bosi took A.D.G.‘s cell phone and read all the messages between her and her boyfriend aloud in front of Mrs. Bosi and other individuals, and that A.D.G. cried while he did so. Multiple witnesses testified that A.D.G. was treated as a member of the Bosi family.
[5] A.D.G. testified that in May 2016, when she was 14 years old, Bosi improperly touched her intimate areas on two occasions. Both incidents occurred while A.D.G. was washing dishes at the Bosi family home. In the first incident, Bosi touched A.D.G.‘s buttocks over her clothes; A.D.G. testified that she at first believed this touching may have been “an accident.” Tr. at 87 (Jury Trial, Apr. 15, 2019). A.D.G. also testified to a sеcond incident, in which Bosi placed his hand between A.D.G.‘s legs and touched her primary genital area over her clothes.
[6] A.D.G. also testified about several unusual interactions between her and Bosi in the months following May 2016. In one incident, A.D.G. testified that Bosi came to visit her at her home and “forcibly kissed” her on the lips twice. Id. at 88-89, 108. In another incident, she alleged that Bosi purchased “Spandex” undergarments for her; Bosi told A.D.G. to keep these undergarments hidden from her parents and to not tell Bosi‘s wife about this gift. Id. at 90-91. In a third incident, Bosi sent A.D.G. an email in response to a photograph she had posted to Facebook, telling her that her lips looked “very kissable.” Id. at 91. A.D.G. also testified that Bosi often called her cell phone
[7] After trial, the jury returned a guilty verdict on all charges and counts. Bosi moved for a post-verdict judgment of acquittal, arguing there was insufficient evidence presented to support his CSC II and CSC IV convictions. The trial court denied this motion, holding that a reasonable jury could have found facts sufficient to support all elements of each offense.
[8] Before sentencing, Bosi asked the trial court to invoke its power under
[9] Bosi timely appealed, creating this case. The People of Guam also timely appealed under Supreme Court Case No. CRA19-017. We consolidated the two cases upon the People‘s motion.
II. JURISDICTION
[10] This court has jurisdiction over an appeal from a final judgment of conviction under
[11] When a defendant raises a sufficiency of the evidence argument by a motion for judgment of acquittal, we review the trial court‘s denial of that motion de novo. People v. Song, 2021 Guam 14 ¶ 16 (quoting People v. Aguon, 2020 Guam 24 ¶ 11). “We review the record to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.” People v. Robert, 2019 Guam 2 ¶ 8 (citing People v. Diaz, 2007 Guam 3 ¶ 10). The People “must be afforded the strongest legitimate view of the evidence and аll reasonable inferences that may be drawn therefrom.” People v. Song, 2012 Guam 21 ¶ 28 (quoting State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)). “This highly deferential standard is in place to ensure that the sufficiency of the evidence review only invades the province of the jury ‘to the extent necessary to guarantee the fundamental protection of due process of law.’” People v. Jesus, 2009 Guam 2 ¶ 60 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
[12] As a matter of first impression for this court, we apply abuse-of-discretion review to a trial court‘s reduction of an offense under
[13] When a defendant fails to object to an indictment before trial, the defendant waives his right to do so on appeal absent a showing of good cause.
[14] We review jury instructions for plain error when the defendant did not object at trial. People v. Gargarita, 2015 Guam 28 ¶ 11 (citing People v. Felder, 2012 Guam 8 ¶ 8). “Plain error is highly prejudicial error, which this court ‘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.’” Id. (quoting Felder, 2012 Guam 8 ¶ 19).
[15] When proper objections were made, we review for abuse of discretion the trial court‘s rulings on the authentication of evidence, see In re N.A., 2001 Guam 7 ¶ 53, and the trial court‘s non-imposition of sanctions for violating a discovery order, People v. Nego, 2021 Guam 3 ¶ 24. If the trial court has abused its discretion, “the proper standard for evaluating whether reversal is required is the harmless error standard.” People v. De Soto, 2016 Guam 12 ¶ 19 (quoting People v. Perez, 2015 Guam 10 ¶ 20). “A ‘harmless error inquiry analyzes the following factors: (1) the
[16] When proper objections were not made, our review of the trial court‘s evidentiary rulings is for plain error. See People v. Quintanilla, 2020 Guam 8 ¶ 17;
IV. ANALYSIS
A. The Evidence Was Sufficient to Sustain Bosi‘s Criminal Sexual Conduct Convictions
[17] Bosi challenges the sufficiency of the evidence supporting his convictions for CSC II under
that other person is at least fourteen (14) but less than sixteen (16) years of age and the actor is a member of the same household as the victim, or is related by blood or affinity to the fourth degree to the victim, or is in a position of authority over the victim and the actor used this authority to coerce the victim to submit . . . .
[19] Guam‘s CSC statutes were patterned after Michigan‘s, so we typically find interpretations of Michigan‘s CSC statutes persuasive. People v. Ehlert, 2019 Guam 3 ¶ 20 (citing People v. Cummins, 2010 Guam 19 ¶ 21). In People v. Garrison, the Michigan Court of Appeals discussed the legislative intent behind designating a “same household” relationship to be an aggravating factor for certain CSC offenses:
We agree with the trial court that the stated purpose of the criminal sexual conduct statute was to increase the penalty where the sexual penetration occurred in situations within a household. . . . The increased penalty imposed by the legislation is a reflection of the fact that people in the same household, those living together, bear a special relationship to one another. That relationship is specifically protected by the increased penalty . . . .
In context, the legislative intent is to proscribe sexual penetration in those instances involving young persons and members of the same family group, bounded by the “household”. Under prior law, incest, which was based on a familial relationship unrelated to age, carried a less severe penalty than did statutory rape. The first-degree criminal sexual conduct statute evidences a strong legislative intent to specify several situations in which the chance for sexual abuse of young persons is acute.
341 N.W.2d 170, 172-73 (Mich. Ct. App. 1983). Similar logic applies to the three relationships between defendant and victim listed in
[20] With this legislative policy in mind, we turn to the evidence supporting Bosi‘s conviction for CSC II. The elements of the offense, as charged, are: (1) sexual contact; (2) a victim at least 14 but less than 16 years old; and (3) one of the relationships between victim and defendant listed in the statute.
[22] We need not belabor the analysis of whether Bosi held a position of authority over A.D.G.; as shown in the factual background above, see supra Part I, ample testimony from several witnesses suggested Bosi was not only A.D.G.‘s pastor, but also a mentor, a parental figure, and an occasional caretaker. From this evidence, a rational jury could infer that Bosi held a position of authority over A.D.G. The closer questions are whether there was sufficient evidence that Bosi coerced A.D.G. and whether he used his authority over her to do so.
[23] Guam‘s CSC statutes do not specifically define “coercion,”4 and this court has not adopted a single, all-encompassing definition of the phrase. Instead, we have considered the question of what is “coercion” through analysis of case law from other jurisdictions, most prominently
[24] In Tenorio, we promoted a non-exhaustive, multi-factor “totality of the circumstances” test as a method for determining whether there was sufficient evidence of coercion:
[F]actors indicative of forcible compulsion (or the threat of forcible compulsion) include, but are not limited to, “the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress.
Id. ¶ 20 (quoting Commonwealth v. Titus, 556 A.2d 425, 427 (Pa. Super. Ct. 1989)). The trial court cited Tenorio and applied this multi-factor test against Bosi‘s motion for judgment of acquittal:
[T]he Court finds that the coercive element is satisfied. Here, the acts Defendant was found guilty of occurred when the victim was fourteen years old, and Defendant was fifty-six years old; Defendant held both a pastoral and custodial role with the victim; the victim stayed at the Defendant‘s home on weekends and stayed overnight; the incidents occurred at Defendant‘s home; and testimony provided that Defendant had the power to make decisions on a number of very intimate matters in the victim‘s life, including dating, dress code, and spending time with siblings. Testimony also provided that Defendant had the power to go into the victim‘s cell phone and read private messages, as well as order her to delete certain emails and messages.
Record on Appeal (“RA”), tab 89 at 3-4 (Dec. & Order, June 13, 2019). The trial court also noted that while there was conflicting testimony on some of these facts, it was within the power of the jury to resolve such conflicts for itself. Id. at 4.
[26] Our review of the sufficiency of evidence is “highly deferential” in favor of upholding the jury‘s determinations. Campbell, 2006 Guam 14 ¶ 10 (quoting People v. Sangalang, 2001 Guam 18 ¶ 20). Thus, “the People ‘must be afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn therefrom.’” Song, 2012 Guam 21 ¶ 28 (quoting Sisk, 343 S.W.3d at 65). Viewing the evidence in the light most favorable to the People and drawing all reasonable inferences in their favor, a rational jury could have found coercion through inferential reasoning.
[28] We typically find Michigan case law persuasive in criminal sexual conduct cases, and Michigan case law supports the premise that “implied, legal or constructive” coercion may be found through inferences drawn from circumstance. For example, in People v. Premo, the defendant, a high school teacher, was charged with CSC IV for pinching the buttocks of three students on separate occasions. 540 N.W.2d 715, 716 (Mich. Ct. App. 1995). The defendant contended that pinching the students’ buttocks was insufficient to satisfy the requirement of “force or coercion” necessary for a CSC IV conviction. Id. The Premo court determined that the defendant‘s actions were coercion by virtue of his position of authority over the students. Id. at 717-18. The court held that the “defendant‘s actions constituted implied, legal, or constructive coercion because, as a teacher, defendant was in a position of authority over the student victims
[29] In People v. Reid, the victim‘s father knew the defendant through work and confided in him that his son was having problems in school. 592 N.W.2d 767, 770 (Mich. Ct. App. 1999). Eventually, Reid offered to help talk to the victim, telling the father he used to be a counselor at church and had dealt with kids before. Id. at 770-71. One night, Reid invited the victim to spend the night at his home, gave the victim several glasses of soda spiked with alcohol, and engaged in multiple acts of sexual penetration with the victim, who did not resist the acts. Id. at 771-72. The Reid court found sufficient evidence proving the defendant was in a position of authority over the victim and used this position of authority to coerce the victim to submit to the sexual penetration. Id. at 773-75. Viewing the evidence in a light most favorable to the prosecution, the court found that Reid was placed in a “position of practical authority” over the victim because the victim had been entrusted by his parents to Reid‘s care and was alone with Reid at a location where he was isolated from others and subject to Reid‘s general control. Id. at 775. Likening the case to the situation with the high school teacher in Premo, the court determined there was sufficient evidence that the victim was in a position of special vulnerability as to Reid, and that “a reasonable jury could have found that [Reid] exploited the special vulnerability attendant to his relationship with the [victim] to abuse him sexuаlly.” Id.
[30] In People v. Knapp, the defendant was a reiki5 instructor, and the victim was the defendant‘s underage student. 624 N.W.2d 227, 233 (Mich. Ct. App. 2001). Under the guise of spiritual instruction, the defendant persuaded the victim to remove his clothing and to touch the
[T]he characteristic dominant and subordinate roles in any teacher-student relationship places the student in a position of special vulnerability. We find the circumstances of this case particularly illustrative of this point. Complainant was the only young adolescent in a class taught and attended by adults. Given his age, the unconventional nature of the “curriculum,” and the trust defendant fostered with complainant‘s mother, complainant was highly susceptible to abuse. Under these circumstances, we find that defendant exploited and abused his position of authority to compel an extremely vulnerable youth to engage in sexual contact. This clearly constitutes coercion for purposes of this section of the CSC II statute.
Id. at 236. We agree with the reasoning of the Premo, Reid, and Knapp courts: there is sufficient evidence of coercion where there is evidence to support the premise that the victim was in a position of special vulnerability to the defendant, and the defendant exploited that special vulnerability to overcome the free will of the victim. These casеs support upholding the conviction here. The evidence presented below, that Bosi held a mentorship and almost custodial position over A.D.G., and the inferences advanced by the People regarding that evidence, may not have overwhelmingly compelled such a finding, but it was sufficient to allow for it. A jury is “free to choose among reasonable interpretations of the evidence.” Jesus, 2009 Guam 2 ¶ 62 (quoting United States v. Boskic, 545 F.3d 69, 85 (1st Cir. 2008)). The jury did that here, and we affirm its ability to have done so.
[31] Bosi also raises a factual impossibility argument: he suggests that A.D.G. could not have been “coerced into submission” because, in his view, “[A.D.G.] testified that both incidents involved abrupt, momentary groping. [She] did not ‘submit’ in any sense—it all happened too quickly.” Appellant‘s Br. at 10. However, the questions of whether the incidents were “abrupt” and “momentary,” and whether the touching occurred “too quickly” for A.D.G. to have submitted, are questions of fact committed to the jury. A.D.G. did not specifically testify that the incidents
[32] Bosi further challenges the sufficiency of the evidence supporting his convictions for CSC IV, but this challenge fails for the same reason as his challenge to the CSC II convictions. To prove CSC IV, as charged, the People had to prove that Bosi engaged in sexual contact with A.D.G. and that “force or coercion [was] used to accomplish the sexual contact.”
[33] Drawing all inferences for the People, and with proper deference to the findings of the jury, we conclude the trial court did not err in denying Bosi‘s motion for judgment of acquittal on the criminal sexual conduct charges.
B. The Trial Court Did Not Abuse its Discretion in Reducing Bosi‘s CSC II Convictions to CSC IV Convictions
[34] While there was sufficient evidence to support the CSC II convictions, the trial court did not enter judgment for CSC II; instead, it exercised discretion under
[36] To determine what
If, when a person has been convicted of an offense, the court, having regard to the nature and circumstances of the offense and to the history and character of the offender, is of the view that it would be unduly harsh to sentence the offender in accordance with the code, the court may enter judgment for a lesser included offense and impose sentence accordingly.
[37] We are satisfied the trial court considered the nature and circumstances of the offense, and the history and character of the offender, in reducing Bosi‘s CSC II convictions. As for the nature and circumstances of the offense, the trial court considered and made findings on these factors: (1) the sexual touching was made over A.D.G.‘s clothing; (2) the sexual contact occurred in an open space rather than a secluded area; and (3) the sexual contact could be characterized as “slight” in nature compared to other acts amounting to CSC II. Tr. at 4-5 (Cont‘d Sent‘g Hr‘g, Aug. 8, 2019). As for the history and character of the offender, the trial court noted considerable testimony showing Bosi had been a positive influence on others in the community. Id. at 5. These findings fall within what the statute commands the trial court to consider.
[38] The People, however, read these and similar comments by the trial court to suggest the reduction was based at least in part on the trial court‘s view of the weight of the evidence. See Appellee‘s Br. at 52; Appellee‘s Reply Br. at 9-10. The allegedly problematic comments made by the trial court include:
- “The use of authority to coerce for submission is really the element that presents perhaps the most challenge. The Court appreciates the ability to appeal matter subsequently. Notwithstanding that, in review of the facts, there‘s certainly tenable argument that can be made in a way against that finding. The Court can and would understand that. At the same time, the Government would believe that that was perhaps the most appropriate hence the charging as a first degree felony.” Tr. at 4 (Cont‘d Sent‘g Hr‘g, Aug. 8, 2019).
- “In reviewing the facts, the Court is aware that the sexual contact that occurred could be characterized as follows: that that contact occurred in an open space, I believe it would be the kitchen area of the household; that that contact was made in a matter over clothing and can be characterized potentially as slight but importantly perhaps the fact that it was over clothing is to a degree significant and that it was in an open space is also significant.” Id. at 4-5.
“If I were to go forward [with reducing the CSC II offenses under 9 GCA § 80.22], the exposure would be essentially for three distinct misdemeanors, each punishable up to one full year in prison, аnd I am inclined to do that.” Id. at 5. - “The age of the minor is really what drove the charges, and I understand that. And albeit she may be a bit older now, the fact that this occurrence of a criminal act was perpetrated against a minor, 14 to 16, is most significant.” Id. at 6.
- “As far as the Court is concerned, I‘ve heard much about what [Bosi had] done in the past. I acknowledge that, but even the best people will make mistakes.” Id. at 9.
[39] None of these comments—whether read individually or cumulatively—support the aggressive inferences that the People ask the court to draw as to the trial court‘s motivation for reducing Bosi‘s convictions. We are unpersuaded, for example, that the trial court‘s use of the word “slight” in the second comment proves that the trial court “impermissibly attempted to weigh the sufficiency of the evidence,” Appellee‘s Reply Br. at 9-10, or that the third comment proves the trial court “tried to . . . make two of the convictions disappear,” id. at 10. The People‘s position is not well-supported by the record; it amounts to little more than speculation about the trial court‘s internal motivations. We are disinclined to engage in such speculation.
[40] The People also argue that the trial court erred by not making an explicit finding that the sentence associated with CSC II would be “unduly harsh” under the circumstances. While we agree that the best practice for the trial courts is to make this finding еxplicitly, we decline to adopt a “magic words” requirement. See State v. Ziller, 807 N.W.2d 241, 245 (Wisc. Ct. App. 2011) (“While a [trial] court must articulate the basis for its sentence, it is not required to use magic words.”); cf. People v. Enriquez, 2014 Guam 11 ¶ 19 (rejecting a “magic words” approach in another context). Here, it is clear from the record that the trial court applied
C. Bosi Waived His Challenge to the Indictment
[42] Next, Bosi claims error in the indictment, arguing it “did not properly state the alternative elements of the offense” of CSC II. Appellant‘s Br. at 18. Although he does not use the term, Bosi seems to argue the indictment was duplicitous, meaning that “a single count combines two or more different offenses.” People v. Quenga, 2015 Guam 39 ¶ 52 (quoting United States v. Renteria, 557 F.3d 1003, 1007-08 (9th Cir. 2009)). Wе do not reach the issue, however, because Bosi‘s failure to raise the issue in a timely manner constitutes a waiver.
[43] Bosi‘s indictment set forth the charges of CSC II:
On or about the period between May 1, 2016 through May 31, 2016, inclusive, in Guam, RENATO CAPILI BOSI (aka Ray) did commit the offense of Second Degree Criminal Sexual Conduct (As a 1st Degree Felony), when he intentionally engaged in sexual contact with another, to wit: by touching the primary genital area of A.D.G. . . . a minor at least fourteen (14) but less than sixteen (16) years of age, and RENATO CAPILI BOSI (aka Ray), was a member of the same household as of [sic] A.D.G. . . ., or was related to A.D.G. . . ., by blood or affinity to the fourth degree or was in a position of authority over A.D.G. . . ., and used this authority to coerce A.D.G. . . . to submit, in violation of
9 GCA §§ 25.20(a)(2) and(b) .
RA, tab 12 at 1-2 (Indictment, Oct. 27, 2017). This tracks the language of
[44] However, a defendant must object to an indictment before trial, unless his objection is that the indictment either fails to show jurisdiction or fails to charge an offense.
[45] Bosi argues that the waiver rule does not apply, or there is good cause to set aside his waiver, because his challenge to the indictment was not a “defense, objection or request . . . capable of determination without the trial of the general issue.”
[46] Although we have “discretion to review plain errors or defects affecting substantial rights, even when not raised at trial,” we exercise this discretion “sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” Martin, 2018 Guam 7 ¶ 11 (quoting People v. Ueki, 1999 Guam 4 ¶ 17). We strictly interpret the timing requirement of
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[47] Bosi next argues the trial court committed plain error by failing to “instruct the jury properly regarding proof of the victim‘s residence at the time of the offenses.” Appellant‘s Br. at 15. Bosi assigns plain error to the trial court‘s omission of the following jury instruction:
Evidence has been admitted that the complainant and defendant [were] not present at the time and place of the commission. The Government has the burden of proving beyond a reasonable doubt defendant and complainant were present at the time and place. If after consideration of all the evidence you have a reasonable doubt that the defendant and complainant were present at the time the crime was committed, you must find the defendant not guilty.
Tr. at 68 (Jury Trial, Apr. 24, 2019). While Bosi requested this instruction, he ultimately did not object to its exclusion. Id. at 75. Because there was no objection, our review is for plain error. See, e.g., Gargarita, 2015 Guam 28 ¶ 11. “Plain error is highly prejudicial error, which this court ‘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.‘” Id. (quoting Felder, 2012 Guam 8 ¶ 19). Under the plain error standard, the defendant bears the burden of proving that reversal is warranted. People v. Borja, 2017 Guam 20 ¶ 14.
[48] The first prong of plain error analysis requires the defendant to prove there was error. People v. Katzuta, 2016 Guam 25 ¶ 22. We find no error in excluding this jury instruction. The transcripts show that Bosi‘s trial counsel proposed the instruction to instruct the jury about an alibi defense. The trial court then rejected the alibi instruction based on its interpretation of People v. Muritok, 2003 Guam 21. Tr. at 71-75, 79 (Jury Trial, Apr. 24, 2019). In Muritok, this court held that if a defendant presents no evidence or argument he was “at the relevant time, somewhere other than the scene of the crime,” then an alibi instruction would not be available to the defendant. 2003 Guam 21 ¶ 30. Here, it is unclear what evidence showed that Bosi was somewhere other than
[49] On appeal, Bosi offers a new interpretation of the same instruction: he argues the trial court plainly erred in omitting the instruction because it was needed to inform the jury “that prosecution had to prove beyond a reasonable doubt that the victim had to have been living in defendant‘s household at the time of the crime.” Appellant‘s Br. at 18. However, the instruction is ill-suited to that purpose; it speaks of Bosi and A.D.G.‘s presence at the time and place of the crime, not the place of residence of either party at the time and place of the crime. Bosi partially concedes this point but argues thе instruction still “came closer to stating the law than any instructions requested by the prosecution or enunciated by the trial court.” Id. at 17. We disagree this instruction “came close” to instructing the jury about Bosi‘s or A.D.G.‘s place of residence, and we find no plain error in excluding the instruction on this basis either.
[50] The trial court did not err in excluding the proposed jury instruction because an alibi instruction was not warranted, and it did not err in failing to sua sponte include the instruction about Bosi and A.D.G.‘s places of residence; the instruction does not serve that purpose. Because the trial court did not err in omitting the instruction, Bosi‘s argument fails plain error review and does not merit reversal on this basis.
E. The Emails Were Not Properly Authenticated, but the Error Was Harmless
[51] Bosi next argues that the trial court erred by admitting four emails sent by him to A.D.G. Bosi mainly focuses on one email, calling it “damaging” to his cause because the email appears to show him speaking obliquely about A.D.G. having “‘kissable’ lips.” Appellant‘s Br. at
[52] “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”
[53] The People elected to authenticate the four emails through the testimony of A.D.G.‘s father. However, A.D.G.‘s father was neither the author of the emails, a direct recipient of the emails, nor a witness to Bosi composing or sending the emails. A.D.G.‘s father did not even receive the emails directly from A.D.G., but instead received the emails at least third-hand from either A.D.G.‘s mother or A.D.G.‘s sister, who themselves were neither author nor witness to the production of the emails. Tr. at 25 (Jury Trial, Apr. 15, 2019). We agree with Bosi‘s argument that A.D.G.‘s father lacked personal knowledge that the emails he was asked to authenticate were what they were purported to be; thus, his authentication efforts were not sufficient under
[54] Beyond
[55] A.D.G.‘s father was not asked, and did not volunteer, that he recognized any unique characteristics, contents, or appearance of the emails that allowed him to identify the emails as authentic. Likewise, our review of the evidentiary exhibits reveals no obvious details that establish Bosi as the author of the emails. Although the emails were apparently sent from an email account using the name “Renato Bosi,” the evidentiary exhibits do not show the email address from which the emails were sent. The emails are brief and reflect no content that could have only been known by Bosi. Finally, while the writing style of the emails is somewhat idiosyncratic, the People offered no further evidence to corroborate the assumption this writing style is Bosi‘s own. Thus, the emails were not properly authenticated under
[56] Because the emails were not properly authenticated under
[57] The first prong of this test is satisfied when the prosecution‘s case was strong enough to support a conviction even without the erroneously admitted evidence. See Perez, 2015 Guam 10 ¶ 36. Applying this test in People v. Perez, another criminal sexual conduct case, we held that “the testimony of a sexual assault victim does not need to be corroborated, and a victim‘s testimony alone can support a criminal sexual conduct conviction.” Id. (citing Campbell, 2006 Guam 14 ¶ 40). The testimony of the victim in Perez was independently sufficient evidence to survive the first prong of the harmless error test. See id. Here, likewise, we have determined above that A.D.G.‘s testimony was sufficient to establish all elements of CSC II and CSC IV, as charged, and because Bosi did not challenge the sufficiency of evidence supporting his Child Abuse conviction, we assume he concedes A.D.G.‘s testimony was sufficient to establish all elements of that offense as well. Thus, like in Perez, the People‘s case against Bosi was strong enough to support the convictions despite the email evidence.
[58] The second prong of the harmless error test—prosecutorial conduct regarding the evidence—weighs against a finding of harmless error. The prosecutor repeatedly referenced and emphasized the four emails, using part of his closing arguments to impugn Bosi‘s credibility by suggesting he was “feign[ing] surprise” on the witness stand when asked about the emails. Tr. at 18-21 (Jury Trial, Apr. 25, 2019). The “kissable lips” email also played a non-trivial role in the People‘s overall trial strategy, as the prosecutor elicited testimony from many witnesses about it. See Tr. at 22-25 (Jury Trial, Apr. 15, 2019) (A.D.G.‘s father); id. at 91 (A.D.G.); id. at 120-22 (Pastor Puckett).
[60] An additional factor persuades us that the trial court‘s authentication error was harmless: Bosi does not deny sending the contents of the “kissable lips” email to A.D.G., but only argues he sent the message through a Facebook post rather than by email. Thus, there seems to be no debate
[61] While the trial court abused its discretion by admitting the emails, we conclude the error was harmless. A non-constitutional error of this nature requires reversal “unless it is more probable than not that the error did not materially affect the verdict.” Jesus, 2009 Guam 2 ¶ 54. Here, because there was sufficient evidence other than the email exhibits to establish the elements of the crime, because the email exhibits were not highly important to the convictions and were cumulative of other evidence, and because there has been no argument advanced that the email exhibits were inauthentic, it is more probable than not that the admission of the email exhibits did not materially affect the verdict. The trial court‘s authentication error therefore does not require reversal.
F. The Trial Court Did Not Abuse its Discretion by Admitting the Spandex into Evidence
[62] Finally, Bosi argues that the trial court abused its discretion by admitting into evidence several pairs of “Spandex” undergarments. During the People‘s case-in-chief, A.D.G. testified that “[Bosi] bought a Spandex [for her] one time.” Tr. at 90 (Jury Trial, Apr. 15, 2019). A.D.G. then explained that Bosi “came over to our house to give it to me [and] told me to hide it from my parents and not tell his wife because he bought it secretly.” Id. at 91. Bosi did not оbject to this testimony or request the testimony be stricken under any evidentiary theory. See id. at 90-91. Later, during Bosi‘s case-in-chief, Bosi denied buying Spandex for A.D.G.; he testified, however,
[63] At the close of Bosi‘s case-in-chief, the People recalled A.D.G. as a rebuttal witness “for the limited purpose of introducing the Spandex [into evidence].” Tr. at 4 (Jury Trial, Apr. 24, 2019). The People introduced no physical evidence of the Spandex during A.D.G.‘s original testimony, apparently because the People did not know before trial that A.D.G. still had the Spandex or that she intended to testify about it. Id. at 5-7. Bosi objected to the admission of the Spandex, arguing he was not aware of the Spandex exhibit before trial and was therefore prejudiced.
[64] On appeal, Bosi renews his argument against the admission of the Spandex for violation of the trial court‘s discovery order. He also argues two additional evidentiary theories which he did not raise at trial: that the Spandex was improper character evidence under
1. The trial court did not abuse its discretion by imposing no sanction for the People‘s violation of the discovery order
[65] Bosi first argues that the trial court abused its discretion by admitting the Spandex exhibit into evidence because information about the Spandex was untimely disclosеd to Bosi. The discovery order required the People to disclose to Bosi all evidence the People intended to use at trial by April 2018. The People did not notify Bosi about the Spandex by that date. Bosi therefore argues the trial court abused its discretion by not excluding the Spandex exhibits as a sanction for this error.
[66] When so ordered, the People must “disclose to the defense certain discoverable ‘material and information within [the People‘s] possession or control, the existence of which is known, or by the exercise of due diligence may become known to the [People].‘” People v. Naich, 2013 Guam 7 ¶ 25 (alterations in original) (quoting
[67] When there is a violation of discovery obligations, “the court must determine whether the sanction employed [by the trial court] to remedy the infraction was appropriate.” Nego, 2021 Guam 3 ¶ 15 (alteration in original) (quoting People v. Martinez, 2017 Guam 23 ¶ 14). “This requires that the sanction chosen be ‘proportionate to the misconduct’ and ‘affect the evidence at trial and the merits of the case as little as possible.‘” Id. (quoting Tuncap, 1998 Guam 13 ¶¶ 23-24). “Because the goal of sanctions is to get ‘prompt and full compliance with the court‘s discovery orders,’ the court should ‘impose the least severe sanction that will [achieve that purpose].‘” Id. (quoting Tuncap, 1998 Guam 13 ¶ 24).
[68] When analyzing the trial court‘s exercise of discretion regarding a discovery order, we typically consider four factors: “(1) reasons why the disclosure was not made; (2) the extent of the prejudice, if any, to the opposing party; (3) the feasibility of rectifying that prejudice by a
[69] Given the lack of explicit findings by the trial court regarding the Tuncap factors, we approach the question from a different angle. Bosi proposes that the trial court abused its discretion by not excluding the Spandex exhibit. Appellant‘s Br. at 27. However, if we accepted this proposition, we would in effect create a rule of mandatory exclusion—if we held that the trial court was required to exclude, we would create a rule that the trial court lacks discretion to determine whether to exclude. But such a rule would conflict with
[70] Instead, we return to the basic principle of discretion: that a trial court‘s exercise of discretion is lawful if its decision is “within the outer limits of the range of choices appropriate to the issue at hand.” Eastway Constr. Corp., 821 F.2d at 123. Here, while we agree with Bosi that “[e]xclusion of [the Spandex exhibit] would have been an appropriate sanction for the prosecution‘s dilatory conduct,” Appellant‘s Br. at 24 (emphasis added), we cannot say that exclusion was the only decision permissible under the circumstances. The only specific prejudice Bosi claims because of the discovery order violation is that “the defense was compelled to scramble” to find witnesses who could rebut the Spandex exhibit. Appellant‘s Br. at 25. However, as we held in People v. Martinez, “prejudice” in this context refers to “prejudice to the defendants’ substantial rights, . . . and [it] does not encompass putting trial preparation into minor disarray.” 2017 Guam 23 ¶ 18 (quoting United States v. Garrett, 238 F.3d 293, 299 (5th Cir. 2000)). Thus, “‘[w]hether some extra effort was required by the defense counsel’ is irrelevant to our consideration of [prejudice].” Id. (quoting Garrett, 238 F.3d at 299). Because there was no clear prejudice to Bosi besides his counsel‘s “scramble” to find and call rebuttal witnesses, a sanction less severe than exclusion could have been viable. And if a lesser sanction was viable under the circumstances, then we cannot say that the sanction of exclusion was mandatory.
[71] On abuse of discretiоn review, this court will not simply “substitute its judgment for that of the trial court.” People v. Quintanilla, 2001 Guam 12 ¶ 9 (citation omitted). While it was within the discretion of the trial court to exclude the Spandex exhibit, it was also within the
2. The admission of the Spandex evidentiary exhibit was not plainly erroneous under GRE 404(b) or GRE 403
[72] Finally, Bosi argues two additional theories against the admission of the Spandex exhibit. He asserts the admission of that exhibit was erroneous under
[73] As Bosi briefed these issues under the abuse of discretion standard, his argument does not graft well onto the plain error standard. But even if we assume the errors he asserts under
[74] Bosi has not articulated a theory that but for the Spandex evidentiary exhibit, he would not have been convicted. Bosi asserts without detail that the Spandex exhibit was prejudicial because it gave rise to the inference he is a “dirty old man.” Appellant‘s Br. at 24. We find this bald assertion insufficient to prove his substantial rights were affected. First, it is not clear to the court that the Spandex exhibit compelled such an inference. In Bosi‘s own words, the Sрandex exhibit consisted of garments which are “worn over the ladies’ customary underwear but which covers more of her legs.” Id. at 23. It is not obvious to the court why such an exhibit inherently gives
V. CONCLUSION
[75] The evidence of coercion was sufficient to sustain Bosi‘s criminal sexual conduct convictions, and none of the other errors Bosi assigns amount to reversible error. And the trial court‘s reduction of Bosi‘s CSC II convictions under
/s/
ROBERT J. TORRES
Associate Justice
/s/
KATHERINE A. MARAMAN
Associate Justice
/s/
F. PHILIP CARBULLIDO
Chief Justice