### IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,

Plaintiff

- Appellee

,



### v.

NORMANDY ILAGAN PENAFLORIDA

,

Defendant

- Appell ant

.

Supreme Court Case No

. CRA22

- 001

Superior Court Case No. CF0 734

- 1 8



### OPINION

Cite as: 2022 Guam 14

Appeal from the Superior Court of Guam

Argued and submitted on August 11, 2022

Via Zoom video conference

Appearing for Defendant

- Appell ant :

Brian E. Kegerreis

, Esq.

Assistant Public Defender

Public Defender Service Corporation

779 Rte. 4

Sinajana

, GU 96910 Appearing for Plaintiff

- Appell ee :

Woodrow D. P e ngelly, Esq.

Assistant Attorney General

Office of the Attorney General

Prosecution Division

590 S. Marine Corps Dr.

Tamuning, GU 96913People v. Penaflorida

, 2022 Guam 14 , Opinion Page 2 of 11

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

and KATHERINE A. MARAMAN, Associate Justice.

TORRES, J.:

[1] Defendant

- Appellant Normandy Ilagan Penaflorida appeals his conviction for F ourth

D egree C riminal S exual C onduct (As a Misdemeanor). On appeal, Penaflorida asserts that the

government failed to provide sufficient evidence that the element of force or coercion was used to

accomplish sexual contact under 9 GCA § 25.30(a)(1). We affirm the trial court’s judgment of

conviction.

I. F ACTUAL AND PROCEDURAL BACKGROUND

[2] In December 2018, the then

- fourteen

- year

- old victim, A.C.C., reported that Penaflorida

had inappropriately touched her. Penaflorida was charged with Second Degree Criminal Sexual

Conduct ( “CSC”) (As a First Degree Felony), and Fourth Degree CSC (As a Misdemeanor).

[3] A.C.C. testified that, on the day of the incident, she was in the living room when

Penaflorida

— her uncle

—

began “wiggling the door” to be let in after she greeted him. Transcript

(“Tr.”) at 99 (Jury Trial, July 26, 2021)

. A.C.C.’s father, who suffers from kidney failure, was

asleep in another room. A.C.C. testified that, after she let Penaflorida in, Penaflorida hugged her

for about 20

- 30 seconds and that his hand was on her buttocks

— specifically, on her “butt cheek”

—

during that hug. Id. at 99

- 100

. A.C.C. testified that when Penaflorida put his hand on her buttocks,

she “didn’t know what to think,” id. at 99, and that it made her “feel really shocked and

uncomfortable ,” id. at 102. When asked “what was happening with [her] upper body” during the

hug, A.C.C. testified, “Nothing, I was just really shocked.” Id. She said that before releasing her,

Penaflorida told h er, “ You are sexy.” Id. at 99. A.C.C. then testified that before leaving,

Penaflorida asked her not to tell her father, and that when she went to kiss Penaflorida goodbye onPeople v. Penaflorida

, 2022 Guam 14 , Opinion Page 3 of 11

the cheek out of respect, he kissed her on the lips. When asked how she felt when Penaflorida

kissed her, A.C.C. testified, “I didn’t know what to think. I was just really shocked.” Id. at 100.

[4] Guam Police Department Officer Donny T. Pangelinan also testified to details Penaflorida

shared in an interview after being read his Miranda rights. Pangelinan testified that Penaflorida

a sked “if he was going to receive a long jail time.” Id. at 55

. Pangelinan testified that Penaflorida

said that “ he [knew he was] in trouble, because his niece , [A.C.C.], was angry about him kissing

her.” Id. at 56

. Pangelinan testified that Penaflorida admitted to saying A.C.C. looked sexy, and

that Penaflorida said he “accidentally rested his left hand right above [ A.C.C.’s ] b utt area ” for “ [ a ]

few seconds” before “he moved it away and apologized.” Id. at 57

. Fina lly, Pangelinan testified

that, after asking Penaflorida why he instructed A.C.C. not to inform her father, Penaflorida said

it was “b ecause he knew what he did was wrong.” Id. at 58.

[5] The jury found Penaflorida not guilty of Second Degree CSC and guil ty of Fourth Degree

CSC (“CSC IV”)

. Penaflorida was sentenced to one year of imprisonment with all but 60 days

suspended and with credit for time served. He was ordered to pay a fine, found liable for restitution

in an amount to be determined at a later hearing, and ordered to perform community service

.

Penaflorida timely appealed his conviction

.

II. JURISDICTION

[6] T his court has jurisdiction to hear appeals from a final judgment of the Superior Court

under 48 U .S.C.A. § 1424

- 1(a)(2) (Westlaw current through Pub. L. 117

- 240 ) , 7 GCA §§ 3107

and 3108(a) (2005) , and 8 GCA § 130.15(a) (2005)

.

III. S TANDARD OF REVIEW

[7] “Where a defendant raised the issue of sufficiency of the evidence by a motion for

judgment of acquittal, we review the trial court’s denial of the motion de novo .” People v. Song

,People v. Penaflorida

, 2022 Guam 14 , Opinion Page 4 of 11

2012 Guam 21 ¶ 26 (citing People v. Anastacio , 2010 Guam 18 ¶ 10). A sufficiency

- of

- the

evidence analysis requires us to “ review the evidence presented at trial in the light most favorable

to the People and determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. This is a ‘highly deferential standard of

review. ’ ” Id. (internal citations omitted). “ [T]he People ‘must be afforded the strongest legitimate

view of the evidence and all reasonable inferences that may be drawn therefrom.’” Id. ¶ 28

(quoting State v. S isk , 343 S.W.3d 60, 65 (Tenn. 2011)). “It is not the province of the court . . . to

resolve conflicts in the evidence, to pass upon the credibility of witnesses, to determine the

plausibility of explanations, or to weigh the evidence; such matters are for the jury.” Id. ¶ 29

(quoting State v. Williams , 695 N.W.2d 23, 28 (Iowa 2005)).

IV. A NALYSIS

[8] Under 9 GCA § 25.30, a person is guilty of CSC IV “if he or she engages in sexual contact

with another person and if

. . . (1) force or coercion is used to accomplish the sexual contact

. . . . ”

9 GCA § 25.30(a)( 1) (2005)

. 1 Under 9 GCA § 25.10, force or coercion includes, but is not limited

to, a non

- exhaustive list of circumstances , the most pertinent of which to this case are : “ ( A ) when

the actor overcomes the victim through the actual application of physical force or physical

1 At the time of the incident underlying this case, 9 GCA § 25.30(a) provided two alternative circumstances

that would constitute CSC IV : when “(1) force or coercion is used to accomplish the sexual contact,” or when “(2) the

actor knows or has reason to kn ow that the victim is mentally defective, mentally incapacitated or physically helpless.”

9 GCA § 25.30(a) (1)

- (2) (2005). Earlier this year , the statute was amended to add a third alternative: when “(3) the

victim is at least fourteen (14) years of age a nd under sixteen (16) years of age.” 9 GCA § 25.30(a)(3) (added by

Guam Pub. L. 36

- 079:1 (Feb. 9, 2022)). The penalty portion of the statute was also amended to allow for a reduction

from a felony of the third degree to a misdemeanor only when the defend ant is a first

- time offender and the victim is

at least 18 years old, see 9 GCA § 25.30(b) (as amended by Guam Pub. L. 36

- 079:1 (Feb. 9, 2022)); the prior statute

allowed such a reduction for all first

- time offenders regardless of the age of the victim

, se e 9 GCA § 25.30(b) (2005)

. The statute was further amended a few months later to change the phrase “mentally defective” to “mentally impaired.”

9 GCA § 25.30(a)(2) (as amended by Guam Pub. L. 36

- 101:6 (June 15, 2022)). While these amendments are irrelev ant

to this appeal because they predated the sexual contact underlying Penaflorida’s conviction , the court notes the recent

developments in the statute, as the first set of amendments became law a week after Penaflorida filed this appeal.People v. Penaflorida

, 2022 Guam 14 , Opinion Page 5 of 11

violence ; ” and “(E) when the actor, through concealment or by the element of surprise, is able to

overcome the victim.” 9 GCA § 25.10(a)(2)(A)

, (E) (2005)

.

[9] Penaflorida argues that the trial court’s denial of his motion for judgment of acquittal was

improper because Plaintiff

- Appellee People of Guam (“the People”) did not satisfy the “force or

coercion” element of CSC IV under 9 GCA §§ 25.30 and 25.10. Ap pellant’s Br. at 4

- 9 (May 2,

2022). Specifically, Penaflorida states that A.C.C. did not present evidence that Penaflorida used

force or coercion in accomplishing the alleged sexual contact. Id. at 5. He claims a lack of force

or coercion based on this court’s holding in People v. Tenorio , 2007 Guam 19, and the Michigan

cases cited there

. Appellant’s Br. at 7

- 9.

[10] In Tenorio , we cited to People v. Kusumoto

, 215 Cal. Rptr. 347 (1985), a California Court

of Appeal case which held that the force requi re d in a California rape statute was not met where

“the victim’s will was not overcome by any physical force substantially different from or greater

than that necessary to accomplish the act itself.” Tenorio

, 2007 Guam 19 ¶ 44 (quoting Kusumoto

,

215 Cal. Rptr. at 351)

. The Kusumoto court cited Wharton on Criminal law for the proposition

that force is not the force inherent in the sexual act itself, but the force used or threatened to prevent

or overcome resistance. Kusumoto

, 215 Cal. Rptr. at 350.

[11] We recognize that Kusumoto ’s test for “force” in forcible rape cases is no longer good law.

T he California Supreme Court implicitly disapproved the holding in Kusumoto in People v. Griffin

,

94 P.3d 1089 (Cal. 2004). In Griffin

, the court examined the force necessary for forcible rape

under California law. Id. at 1093. The term “force” in the California rape statute was not explicitly

defined. Id. Griffin rejected the argument that the offense requires the use of physical force

“substantially different from or substantially greater than” that necessary to accomplish the act

itself. Id. at 1094. “To the contrary,” the court explained, “it has long been re cognized that ‘inPeople v. Penaflorida

, 2022 Guam 14 , Opinion Page 6 of 11

order to establish force within the meaning of [California’s forcible rape statute], the prosecution

need only show the defendant used physical force of a degree sufficient to support a finding that

the act of sexual intercourse was again st the will of the [victim].’” Id. at 1094 (second alteration

in original) (quoting People v. Young

, 235 Cal. Rptr. 361, 366 (Ct. App. 1987)). The Griffin court

explained:

W hen two adults engage in consensual sexual intercourse, whether with or without

physical force greater than that normally required to accomplish an act of sexual

intercourse, the forcible rape statute is not implicated. Instead, the gravamen of the

crime of forcible rape is a sexual penetr ation accomplished against the victim ’ s will

by means of force

. . . .”

Id. at 1096.

[12] The Griffin court did not explicitly cite Kusumoto when rejecting the “substantially

different from or substantially greater than” definition of force in forcible rape cases. Instead, it

cited People v. Cicero , 204 Cal. Rptr. 582 (Ct. App. 1984), a case from a California Court of

Appeal decided a year be fore Kusumoto , as Cicero was the first case to articulate the “substantially

different from or substantially greater than” definition of force and was the case upon which the

lower court principally relied when it reversed Griffin’s conviction. 2 Griffin

, 94 P.3d at 1091,

1095

. Recently, in People v. McCann

, 254 Cal. Rptr. 3d 51, 55

- 57 (Ct. App. 2019), the California

Court of Appeal recognized that Kusumoto ’s use of the “substantially different from or

substantially greater than” definition of “force” in forcible rape cases was implicitly disapproved

by Griffin

.

2 Griffin did not reject the Cicero definition of force in all cases. Rather, the Griffin court distinguished the

type of cases in which Cicero ’s definition was meant to apply. Griffin

, 94 P.3d at 1096

- 97. Cicero involved the crime

of commission of a lewd act by force upon a child under the age of 14. 204 Cal. Rptr. at 586. Griffin recognized the

reasoning behind Cicero ’s application of a “substantially different from or substantially greater than” definition of

force in lewd act prosecutions and explained why such a definition does not apply in forcible rape cases. Griffin , 94

P.3d at 1096

- 97

.People v. Penaflorida

, 2022 Guam 14 , Opinion Page 7 of 11

[13] In Tenorio

, this court examined the Michigan Supreme Court case of People v. Carlson

,

644 N.W.2d 704 (Mich. 2002) (per curiam), through the lens of Kusumoto

. This court noted that

the Carlson court rejected Kusumoto and held that the equivalent Michigan statute for CSC III did

not require the use of force to “overcome” the victim. Tenorio , 2007 Guam 19 ¶ 46 (citing Carlson

,

644 N.W.2d at 709)

. This court also stated that the Carlson c ourt “did not address the statutory

language requiring that ‘force or coercion’ based on actual physical force be sufficient to

‘overcome[] the victim.’” Id. (alteration in original) (emphasis added) (citing Mich. Comp. Law

Ann. § 750.520b(1)(f)(i); 9 GCA § 25.10(a)(2)(A) (2005)). T his court ultimately found that “the

force used by Tenorio was not sufficient to ‘ overcome[] the victim, ’ and was ‘ nonviolent ’ and

‘ incidental to [the] act of sexual penetration. ’” Id. ¶ 48 (first quoting 9 GCA § 25.10(a)(2)(A )

(2005); and then quoting Carlson

, 644 N.W.2d at 709). We recognize the possible implication in

Tenorio that the force used must be sufficient to overcome the victim, and we acknowledge that

such an implication contradicts the non

- exhaustive nature of 9 GCA § 25.10(a)(2)’s list of

circumstances demonstrating force or coercion. See 9 GCA § 25.10(a)(2) (2005) (“ Force or

Coercion includes but is not limited to any of the following circumstances: (A) when the actor

overcomes t he victim

. . . .” (third emphasis added)).

[14] To the extent Tenorio can be read to suggest that the force used must always be sufficient

to “overcome the victim,” see id. ¶¶ 48

- 49, we overrule this part of Tenorio

. While we often treat

California case law as persuasive authority because many of our statutes derive from California,

see In re Moylan

, 2021 Guam 15 ¶ 21

, our CSC statutes differ from California’s and were instead

patterned after Michigan’s statutes, see People v. Ehlert

, 2019 Guam 3 ¶ 20 (citing People v.

Cummins , 2010 Guam 19 ¶ 21)

. Thus, we look to Michigan cases to aid us in interpreting our CSC

statutes. Id. Any reliance in Tenorio on California case law was misplaced.People v. Penaflorida

, 2022 Guam 14 , Opinion Page 8 of 11

[15] Turning now to this appeal, Penaflorida references Tenorio ’ s discussion of People v.

Berlin , 507 N.W.2d 816, 819 (Mich. Ct. App. 1993) (per curiam), in which the Michigan Court of

Appeals held that no force was used when the defendant placed the victim’s hand on the

defendant’s crotch without resistance, and Peopl e v. Patterson , 410 N.W.2d 733, 734 (Mich.

1987), in which the Michigan Supreme Court held that there was insufficient evidence of physical

force when the defendant placed his hand on the victim’s underwear but removed it when she

turned away

. See Appella nt’s Br. at 7. But Berlin and Patterson were both decided before the

amendment of Michigan’s CSC IV statute to include concealment and the element of surprise as

methods of proving force or coercion. The more relevant Michigan case cited in Tenorio is

Ca rlson

.

[16] In Carlson , the court noted that the “force” contemplated in Michigan’s CSC III statute

“does not mean ‘force’ as a matter of mere physics.” 644 N.W.2d at 709. The court held:

[T]he requisite “force” for [CSC III] does not encompass nonviolent physical

interaction in a mechanical sense that is merely incidental to an act of sexual

penetration. Rather, the prohibited “force” encompasses the use of force against a

victim to eithe r induce the victim to submit to sexual penetration or to seize control

of the victim in a manner to facilitate the accomplishment of sexual penetration

without regard to the victim’s wishes.

Id.

[17] S everal Michigan cases have been decided clarifying t he Carlson test, particularly as it

applies to CSC IV, rather than the CSC III application we used in Tenorio

.

[18] Of these cases, the most on point is People v. Witt , No. 316272, 2014 WL 6066934 (Mich.

Ct. App. Nov. 13, 2014) (per curiam)

. In Witt

, t he Michigan Court of Appeals held that the

defendant exerted force as required by CSC IV when he touched the victim on top of and then

inside the victim’s shorts during a hug. Id. at *1. In applying t he Carlson test to the Michigan

CSC IV statute, the Witt court held that whether force or coercion exists is determined consideringPeople v. Penaflorida

, 2022 Guam 14 , Opinion Page 9 of 11

all the circumstances, id. (citing People v. Brown , 495 N.W.2d 812 , 813 (Mich. Ct. App. 1992)),

and that “[ t ] he actor’s ‘ force ’ need only be sufficient to induce the victim to subm it to the sexual

act or to seize control of the victim in a manner to facilitate the accomplishment of the sexual act

without regard to the victim’s wishes ,” id. (quoting Carlson , 644 N.W.2d at 707

- 09 ). The Witt

court held that, viewed in a light most fav orable to the prosecution, the victim’s testimony showed

that the “ defendant used the pretext of a hug to seize control of the victim in a manner that

facilitated the accomplishment of sexual contact without regard to the victim’s wishes. ” Id. at *2.

Tha t evidence was found sufficient to support the defendant’s two convictions for CSC IV. Id.

[19] Other Michiga n cases corroborate this interpretation in CSC IV cases

. In People v. Premo

,

the Michigan Court of Appeals h eld that a teacher who pinched students on the buttocks exerted

physical force under CSC IV beca u se “the act of pinching requires ‘the actual application of

physical force.’” 540 N.W.2d 715, 717 (Mich. Ct. App. 1995)

. I n People v. Lechner , the Michigan

Cour t of Appeals held that “ [ l ] ike the act of pinching at issue in Premo , defendant’s act of grabbing

the victim’s breasts was ‘an act of physical force because it require[d] a person to exert strength

or power on another person.’” No. 288569, 2009 WL 3981021 , at *1 (Mich. Ct. App. Nov. 19,

2009) (per curiam)

. The court noted that “ [a] lthough defendant claims a ‘touch’ does not constitute

force sufficient for a CSC IV charge, [the court] find [s] that the victim’s testimony established that

defendant grabbed h er breasts

. . . , with further clarification that contact

. . . was actually made.

.

. . Contrary to what the [trial] court apparently believed, the ‘force’ required by the CSC IV statute

does not have to ‘be so great as to overcome’ the victim. ” Id. at *2 (quoting Carlson , 644 N.W.2d

at 709)

. As Guam CSC laws are based upon those of Michigan, so, too, do we adopt this

interpretation.People v. Penaflorida

, 2022 Guam 14 , Opinion Page 10 of 11

[20] With these considerations in mind, we find that the evidence is sufficient to satisfy the

“force or coercion” element of CSC IV

. During direct examination, A.C.C. testified that during

the hug, Penaflorida’s hand was on her “butt cheek” for 20

- 30 seconds. Tr. at 100 (Jury Trial, July

26, 2021). She said that during the hug, Penaflorida told her, “You are sexy,” and that before he

left, Penaflorida asked her not to tell her father. Id. at 99. A.C.C. also testified that when she tried

to kiss Penaflorida goodbye on the cheek out of respect, he kissed her on the lips. Id. A.C.C. said

that while Penaflorida’s hand was on her buttocks, she “didn’t know what to think,” id. , and that

she felt “really shocked and uncomfortable,” id. at 102. Although some con tradictory evidence

was presented

— e.g., Penaflorida’s statements to Officer Pangelinan that Penaflorida

“accidentally” placed his hand “above [A.C.C.’s] butt area” and that he thereafter apologized, id.

at 57

— Officer Pangelinan also testified that Penaflor ida admitted to telling A.C.C. that she looked

sexy, id. , said that “ he [knew he was] in trouble, because his niece, [A.C.C.], was angry about him

kissing her” id. at 56, and admitted that he told A.C.C. not to tell her father “because he knew what

he did was wrong,” id. at 58. Viewing the evidence in the light most favorable to the People, a

rational trier of fact could have found that Penaflorida used the pretext of a hug to seize control of

A.C.C. in order to touch her buttocks, without regard to her wi shes, thus satisfying the element of

“force or coercion” beyond a reasonable doubt.

[21] Finally, we note that throughout his brief, Penaflorida points to inaction on the part of

A.C.C. to support his insufficiency claim. See Appellant’s Br. at 6 (“She di d not scream or jump

back when the hug occurred.”); id. at (“There is nowhere in the evidence that A.C.C. screamed,

said stop, yelled for help, pushed the Defendant’s hand away, or ran away.”); id. at 8 (“She never

did scream, run away, or yell for help.”)

. Penaflorida relies in part on language in Tenorio that

suggests a lack of evidence of resistance supports a finding of insufficient evidence of force orPeople v. Penaflorida

, 2022 Guam 14 , Opinion Page 11 of 11

coercion. See Appellant’s Br. at 7

- 8. However, Guam’s CSC statutes

— and modern rape reform

laws in other jurisdictions

— do not require a victim to resist

, as such a requirement shifts the focus

from the defendant’s conduct to the victim’s reaction to the sexual contact or penetration. Cf. State

v. Knapp

, 486 P.3d 113, 120

- 121 (Wash. 2021) (en banc)

. Title 9 GCA § 25.45 states, “A victim

need not resist the actor for a proper prosecution under §§ 25.15 through 25.35.” 9 GCA § 25.45

(2005). To the extent Tenorio could be read to suggest that absence of evidence of resistance or

of an expression of lack of consent supports a finding of insufficient evidence of force or coercion,

we clarify that resistance is not required for a finding of guilt under Guam’s CSC statutes. See id.

[22] Viewing the evidence in the light most favorable to the prosecution, we find that a rational

jury could find Penaflorida’s hug and subsequent touching of A.C.C.’s buttocks to constitute an

application of actual force , thereby satisfying the “ force or coercion” element of CSC IV

.

V. CONCLUSION

[23] The evidence of actual force was sufficient to sustain Penaflorida’s criminal sexual conduct

conviction. We therefore AFFIRM the trial court’s judgment of conviction.

/s/ /s/

ROBERT J. TORRES KATHERINE A. MARAMAN

Associate Justice Associate Justice

/s/

F. PHILIP CARBULLIDO

Chief Justic e