People of Guam v. Redtwelve Tfong, aka Redtwelve Tefong, aka Luke West, aka Nois West, aka Retwen Defang

IN THE SUPREME COURT OF GUAM
PEOPLE OF GUAM,
Plaintiff-Appellee,
v.
REDTWELVE TFONG,
aka Redtwelve Tefong, aka Luke West,
aka Nois West, aka Retwen Defang,
Defendant-Appellant.
Supreme Court Case No. CRA20-002
Superior Court Case No. CF0586-18
OPINION
Cite as: 2021 Guam 13Appeal from the Superior Court of Guam
Argued and submitted on January 29, 2021
Via Zoom video conference
Appearing for Defendant-Appellant: Appearing for Plaintiff-Appellee:
Peter C. Perez, Esq. Marianne Woloschuk, Esq.
Law Office of Peter C. Perez Assistant Attorney General
DNA Bldg. Office of the Attorney General
238 Archbishop Flores St., Ste. 802 Prosecution Division
Hagåtña, GU 96910 590 S. Marine Corps Dr., Ste. 901
Tamuning, GU 96913
People v. Tfong, 2021 Guam 13, Opinion Page 2 of 19
BEFORE: F. PHILIP CARBULLIDO, Chief Justice; ROBERT J. TORRES, Associate Justice;
and KATHERINE A. MARAMAN, Associate Justice.
MARAMAN, J.:
[1] Defendant-Appellant Redtwelve Tfong appeals his convictions for Terrorizing (as a Third
Degree Felony), with a Special Allegation of Possession or Use of a Deadly Weapon in the
Commission of a Felony, and Assault (as a Misdemeanor). On appeal, Tfong argues the evidence
was insufficient to sustain his convictions and that the terrorizing statute under which he was
convicted, 9 GCA § 19.60, is facially invalid for being unconstitutionally vague. For the reasons
below, we affirm the judgment of conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
[2] A grand jury returned an indictment charging Tfong with Second Degree Robbery (as a
Second Degree Felony) (two charges), Terrorizing (as a Third Degree Felony), and Assault (as a
Misdemeanor). Each felony charge came with a Special Allegation of Possession or Use of a
Deadly Weapon in the Commission of a Felony. The charges stem from an incident at the Hong
Kong Center in Maite involving Ety Atipas Albert1, Jenny Singky, and the named victim, Chris
John.
[3] At trial, the following evidence was presented. John recalled that she and Singky met in
Maite near the Hong Kong Center and had a six-pack of beer outside a convenience store. After
the two finished drinking, they walked towards the Chamorro Village, when they encountered
Tfong and Albert. John testified that, sometime during the encounter, Tfong and Albert asked her
to buy the men beer at a store. When John told the two men she had no money, John testified that
1
Albert was a co-defendant with Tfong and charged in the same indictment with Second Degree Robbery
(as a Third Degree Felony), Third Degree Robbery (as a Third Degree Felony), and Criminal Mischief (as a
Misdemeanor). However, the trial court entered a directed verdict acquitting Albert of his charges, except for the
charge of Third Degree Robbery, which was later reduced to Theft (as a Petty Misdemeanor).
People v. Tfong, 2021 Guam 13, Opinion Page 3 of 19
“[Tfong] said he’s going to use [a] machete to cut me and [Singky].” Transcript (“Tr.”) at 103
(Jury Trial, Nov. 26, 2018). John testified that Tfong had a machete with him under his clothing,
and that he took the machete out but did not use it or touch her with it. John also testified that
Tfong threatened to cut her belly and neck with the machete, threatened to kill her, and that she
told police that Tfong kicked her in the face. Following the incident, John testified that she was
“scared” and that she ran to the Hong Kong Center with Singky and called the police. Id. at 104,
120, 126. Wilson Ng, who owns the Hong Kong Center, testified that the two women rushed into
his store and asked him to call the police.
[4] Singky, who was with John at the time of the encounter with Tfong and Albert, testified
about the incident:
Yeah, we walking there and then we buy drink, and then we sitting down
and drink. And then they walking up and then they come with us, we drink together,
and then [Albert] say something to [John]. . . . [T]hen the other one [referring to
Tfong] he was getting mad, then he -- he have the knife, then he take it out walking
up on the stairs, we sitting down at the stairs, and then he’s telling [John] to stop
talking. And then he’s saying . . . he want to cut me with the knife to cut me like
half and half, and then telling [John] he want to cut his (sic) neck off from her body.
Id. at 79.
[5] Following the incident, law enforcement officers responded to the scene after being alerted
of a disturbance involving two men, one of whom was said to be brandishing a machete. Officer
Kristoffer Castro testified that when he arrived on scene, he conducted a pat-down search of Tfong
for the officer’s safety after he had been informed by John that Tfong had threatened to cut her
with a machete. Officer Castro stated that Tfong “reeked of alcohol” and that during the pat-down
search, he discovered on the right side of his shorts “a machete of about 25 inches long that was
hidden” and “tucked in his shorts.” Id. at 48-49, 60. Officer Keith Jason Corpuz, who arrived
with Officer Castro at the scene, testified that he saw John and Singky on the left side of the Hong
People v. Tfong, 2021 Guam 13, Opinion Page 4 of 19
Kong Center, and that John was screaming, yelling, and pointing at Tfong. Officer Corpuz also
testified that he observed that Albert had a bag on his person, and that Albert admitted to him that
the bag had belonged to John.
[6] After the close of the prosecution’s case-in-chief, Tfong moved for a directed verdict of
acquittal. Upon hearing arguments, the trial court granted the motion as to Tfong’s two robbery
charges and their accompanying special allegations. The jury thereafter deliberated and returned
guilty verdicts against Tfong on the remaining charges: Terrorizing (as a Third Degree Felony)2
with a Special Allegation of Possession or Use of a Deadly Weapon in the Commission of a Felony,
and Assault (as a Misdemeanor). For these crimes, the trial court sentenced Tfong to 48 months
in prison, with all but 30 months suspended and with credit for time served. Following entry of
the judgment of conviction, Tfong timely appealed.
II. JURISDICTION
[7] The court has jurisdiction over appeals from a final judgment of conviction entered by the
Superior Court of Guam. See 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 117-50
(2021)); 7 GCA §§ 3107(b), 3108(a) (2005); 8 GCA §§ 130.10, 130.15(a) (2005).
III. STANDARD OF REVIEW
[8] When a defendant challenges the sufficiency of the evidence by a motion for judgment of
acquittal, the court reviews the trial court’s denial of the motion de novo. People v. Martin, 2018
Guam 7 ¶ 8.
[9] “The constitutionality of a statute is a question of law reviewed de novo.” People v.
Shimizu, 2017 Guam 11 ¶ 11 (quoting People v. Perez, 1999 Guam 2 ¶ 6).
2
In instructing the jury as to Terrorizing (as a Third Degree Felony), the trial court stated that the People
must prove beyond a reasonable doubt that Tfong “knowingly” communicated a threat to John “to commit a crime of
violence dangerous to human life” against her, “the natural and probable consequence of such threat being to place
[her] in reasonable fear that the crime will be committed.” Tr. at 52-53 (Jury Trial, Nov. 28, 2018).
People v. Tfong, 2021 Guam 13, Opinion Page 5 of 19
IV. ANALYSIS
[10] Tfong raises two issues on appeal. First, he alleges the evidence adduced at trial was
insufficient to sustain each of his convictions. Appellant’s Br. at 13 (July 29, 2020). Second,
Tfong argues that his “Terrorizing conviction must be reversed because the statute under which he
was convicted, 9 GCA § 19.60, was facially invalid.” Id. at 27. Before deciding whether the
evidence was sufficient to sustain the convictions, we will review the terrorizing statute’s
constitutionality under the vagueness doctrine.
A. The Terrorizing Statute Is Not Unconstitutionally Vague3
[11] Tfong was charged with Terrorizing under 9 GCA § 19.60, which provides:
(a) A person is guilty of terrorizing if he communicates to any person a
threat to commit or to cause to be committed a crime of violence dangerous to
human life, against the person to whom the communication is made or another, and
the natural and probable consequence of such a threat, is to place the person to
whom the threat is communicated or the person threatened in reasonable fear that
crime will be committed.
(b) Terrorizing is a felony of the third degree.
9 GCA § 19.60 (2005).
[12] Tfong argues the terrorizing statute is “vague on its face as it provides neither fair notice
as to the type of conduct prohibited by the statute nor minimal guidelines to govern law
enforcement.” Appellant’s Br. at 32. To support his arguments, Tfong asserts, without authority,
that the statute is vague “because it does not state a mens rea, require criminal intent, establish a
3
To clarify, “[i]mprecise laws can be attacked on their face under two different doctrines: overbreadth and
vagueness.” People v. Shimizu, 2017 Guam 11 ¶ 18. “To explain the inherent difference between vagueness and
overbreadth as simply as possible, ‘vagueness pertains to a lack of clarity in the actual content of a statute. In contrast,
overbreadth is present when a statute’s language is so far reaching that it applies to conduct the state is not entitled to
regulate.’” Id. ¶ 18 n.5 (quoting John F. Decker, Overbreadth Outside the First Amendment, 34 N.M. L. Rev. 53, 61
(2004)).
People v. Tfong, 2021 Guam 13, Opinion Page 6 of 19
standard of conduct, require that the threat be imminent, require an overt act, and [that] it
encompasses innocent and criminal conduct alike.” Id. at 28.4
[13] In response, the People argue the statute is not void for vagueness because it “gives
adequate notice of the proscribed conduct.” Appellee’s Br. at 27 (Nov. 3, 2020). The People also
argue the objective standard that the threat communicated place a person in reasonable fear
“ensures even-handed enforcement.” Id. We agree with the People’s argument despite the failure
in their brief to respond to Tfong’s unsupported contentions.
[14] The void for vagueness doctrine, as adopted in this jurisdiction, is a long-standing principle
in due process jurisprudence which rests on the premise that “[n]o one may be required at peril of
life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be
informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U.S. 451, 453
(1939).
[15] In Shimizu, this court laid out a test for determining whether a statute is void for vagueness:
“Generally stated, the void for vagueness doctrine requires that a penal statute
define the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement.” Although the doctrine focuses both on
actual notice to citizens and arbitrary enforcement, it has been recognized that the
more important aspect of [the] vagueness doctrine “is not actual notice, but the
4
Tfong does not attack 9 GCA § 19.60 as being facially invalid on overbreadth grounds. See Appellant’s
Br. at 28 (“[Tfong] asserts that the Terrorizing statute is facially invalid and unconstitutionally vague.”). While Tfong
states repeatedly that the terrorizing statute is facially invalid because “it encompasses innocent and criminal conduct
alike,” e.g., Appellant’s Br. at 12, he provides no arguments, examples, or case law to support this statement or why
the statute otherwise contravenes the overbreadth doctrine. He also provides no arguments on how the First
Amendment is implicated or inhibited by the statute. See Shimizu, 2017 Guam 11 ¶ 20 (“[T]he overbreadth doctrine
permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible
applications of the law are substantial when ‘judged in relation to the statute’s plainly legitimate sweep.’” (alteration
in original) (quoting City of Chicago v. Morales, 527 U.S. 41, 52 (1999))).
Furthermore, “[t]he communication of terroristic threats to another person to commit a crime of violence
upon that person clearly falls outside of those communications and expressions which are protected by the First
Amendment to the Constitution.” Lanthrip v. State, 218 S.E.2d 771, 773 (Ga. 1975); see also R.A.V. v. City of St.
Paul, Minn., 505 U.S. 377, 388 (1992) (explaining that threats of violence enjoy no protections under First
Amendment). Therefore, we decline to analyze 9 GCA § 19.60 under the overbreadth doctrine.
People v. Tfong, 2021 Guam 13, Opinion Page 7 of 19
other principal element of the doctrine – the requirement that a legislature establish
minimal guidelines to govern law enforcement.
2017 Guam 11 ¶ 24 (alteration in original) (quoting Perez, 1999 Guam 2 ¶ 7). Accordingly,
“[v]agueness may invalidate a criminal law for either of two independent reasons. First, it may
fail to provide the kind of notice that will enable ordinary people to understand what conduct it
prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.”
Id. ¶ 28 (quoting City of Chicago v. Morales, 527 U.S. 41, 56 (1999)).
1. Fair notice
a. Title 9 GCA § 19.60 properly establishes a standard of conduct and requires
an overt act
[16] On appeal, Tfong asserts that 9 GCA § 19.60 does not “establish a standard of conduct” or
“require an overt act.” Appellant’s Br. at 28, 30-32. This argument is erroneous because a plain
reading of the statute shows the requirement of an overt act and a standard of conduct that is
prohibited.
[17] The terrorizing statute requires an overt act, namely “communicat[ing] to any person a
threat to commit or to cause to be committed a crime of violence dangerous to human life, against
the person to whom the threat is made or another.” 9 GCA § 19.60(a). The terrorizing statute also
links the overt act with the requirement that the “natural and probable consequence of such a threat
is to place the person to whom the threat is communicated . . . in reasonable fear that [the] crime
will be committed.” Id. The link between the overt act—the threat—and the requirement that the
threatened person be placed in reasonable fear because of such conduct, was an element the court
considered absent in Shimizu, where it ruled for the first time that a statute was unconstitutionally
vague. See Shimizu, 2017 Guam 11 ¶¶ 24, 41. In Shimizu, we held that a portion of the family
People v. Tfong, 2021 Guam 13, Opinion Page 8 of 19
violence statute, 9 GCA § 30.10(a)(2) (2005),5 “does not adequately inform citizens of what
conduct is prohibited by the statute.” 2017 Guam 11 ¶ 34. We contrasted 9 GCA § 30.10(a)(2)
with the terrorizing statute, implying that 9 GCA § 19.60 adequately describes a standard of
conduct that is prohibited. Id. (explaining that appellant’s conduct “may have been a clear
violation of other laws, such as terrorizing,” and then citing to 9 GCA § 19.60).
[18] While communication of “a threat to commit or to cause to be committed a crime of
violence dangerous to human life,” 9 GCA § 19.60(a), encompasses a wide variety of behavior, it
still provides a “sufficiently definite warning as to the proscribed conduct when measured by
common understanding and practices,” Lanthrip v. State, 218 S.E.2d 771, 772 (Ga. 1975) (quoting
United States v. Petrillo, 332 U.S. 1, 8 (1947)) (finding that Georgia’s similarly-worded terrorizing
statute was not unconstitutionally vague).6 Thus, the statute provides fair notice of prohibited
conduct and “can be read and understood by a person of ordinary intelligence seeking to avoid its
violation.” Id. at 773.
b. The lack of a mens rea or mental state requirement does render 9 GCA § 19.60
unconstitutionally vague
[19] Tfong argues that 9 GCA § 19.60 is vague because it “does not state a mens rea” or
“require criminal intent.” Appellant’s Br. at 28, 30-32. These assertions are true. However, while
a statute without an expressed intent requirement to do a prohibited act may render a vague statute
invalid, the lack of a mens rea in 9 GCA § 19.60 alone does not render the statute
unconstitutionally vague. “Many criminal statutes in Guam explicitly contain a mens rea or mental
5
At the time, 9 GCA § 30.10(a)(2) provided that the crime of Family Violence included “[p]lacing a family
or household member in fear of bodily injury.” 9 GCA § 30.10(a)(2) (2005). After issuance of our opinion in Shimizu,
the Legislature amended subsection 30.10(a)(2) to proscribe “placing another family or household member in
reasonable fear of imminent bodily injury.” 9 GCA § 30.10(a)(2) (as amended by Guam Pub. L. 34-062:2 (Nov. 9,
2017)) (emphases added).
6
Georgia’s terrorizing statute at the time, which was found to be permissible in Lanthrip, read in part: “A
person commits a terroristic threat when he threatens to commit any crime of violence, or to burn or damage property,
with the purpose of terrorizing another . . . .” Ga. Code Ann. § 26-1307.
People v. Tfong, 2021 Guam 13, Opinion Page 9 of 19
state requirement. However, some do not. For these statutes, the Legislature has enacted a catch-
all provision.” People v. White, 2020 Guam 6 ¶ 12. Under 9 GCA § 4.40 (2005), “if the definition
of a crime does not expressly prescribe a culpable mental state, a culpable mental state is
nonetheless required and is established only if a person acts intentionally, knowingly or
recklessly.” But a culpable mental state is not required “if the offense is a violation or if the law
defining the offense clearly indicates a purpose to dispense with any culpable mental state
requirement.” 9 GCA § 4.45 (2005). By its very wording, 9 GCA § 19.60 does not expressly
require a culpable mental state.
[20] In State v. Porter, 384 A.2d 429, 433-34 (Me. 1978), the Supreme Judicial Court of Maine
considered the constitutionality of a similarly-worded terrorizing statute, which, like 9 GCA §
19.60, did not expressly include a mens rea requirement.7 In applying Maine’s version of the
catch-all provision for statutes without a culpable mental state requirement, the court held that
“[a]lthough [the terrorizing statute] does not otherwise expressly state the legislature’s intention
to impose liability without culpability, such an intention appears upon fair examination of the
language of [the statute].” Id. at 433-34. The Porter court explained that “no culpable mental
state need be pleaded or proven by virtue of [its catch-all mens rea provision]” because “[i]t matters
not whether the defendant had or had not the intention later to carry out the threat.” Id. at 434
(quoting State v. Lizotte, 256 A.2d 439, 442 (Me. 1969)). The Porter court also reasoned that
7
Maine’s terrorizing statute, which was found to be permissible in State v. Porter, 384 A.2d 429 (Me. 1978),
reads in part:
1. A person is guilty of terrorizing if that person in fact communicates to any person a
threat to commit or to cause to be committed a crime of violence dangerous to human life, against
the person to whom the communication is made or another, and the natural and probable
consequence of such a threat, whether or not such consequence in fact occurs, is:
A. To place the person to whom the threat is communicated or the person threatened in
reasonable fear that the crime will be committed . . . .
Me. Rev. Stat. tit. 17-A, § 210(1)(A).
People v. Tfong, 2021 Guam 13, Opinion Page 10 of 19
“whether a communication constitutes a ‘threat’ within the plain meaning of that word does not
depend upon the subjective motivation (or intention) of the communicator.” Id.[21] Similarly, the lack of a culpable mental state in 9 GCA § 19.60 is not merely inadvertent.
Although the statute does not otherwise reflect the Legislature’s intent to dispense with any
culpable mental statute requirement, such an intention appears upon examination of how the statute
operates, regardless of the mens rea of the person who makes the threat. But whether or not the
catch-all provision applies or whether no culpable mental state need be pleaded to find a person
guilty of terrorizing under 9 GCA § 19.60 is not a question that needs to be answered in this appeal.
Rather, this inquiry shows that the lack of a mens rea does not render the terrorizing statute
unconstitutionally vague because 9 GCA § 4.40 provides a mechanism in those situations.8
c. Imminence is not statutorily required under 9 GCA § 19.60
[22] Tfong argues that 9 GCA § 19.60 is unconstitutionally vague because it does not explicitly
require that a threat be imminent. The offense of terrorizing, however, does not require that the
threat communicated be imminent or even actual. Rather, the statute requires only that the “natural
and probable consequence of such a threat [be] to place the person to whom the threat is
communicated or the person threatened in reasonable fear that crime will be committed.” 9 GCA
§ 19.60(a). The argument by Tfong that a threat be imminent or actual for the statute to be
constitutionally permissible would exclude false threats of violence, such as a false bomb threat,
or threatening communications of future violence from the conduct prohibited by 9 GCA § 19.60
in contravention of legislative intent. It is clear from the language of the statute that the Legislature
intended to penalize a person who communicates a threat9 whether imminent or actual, so long as
8
The trial court seemed to use the catch-all provision under 9 GCA § 4.40 to instruct the jury by attaching
the culpable mental state of “knowingly” to the offense of terrorizing.
9
The term “threat” as defined in Black’s Law Dictionary means “[a] communicated intent to inflict harm or
loss on another or on another’s property, esp. one that might diminish a person’s freedom to act voluntarily or with
People v. Tfong, 2021 Guam 13, Opinion Page 11 of 19
the other statutory elements are met. See also Porter, 384 A.2d at 431 (upholding similarly-worded
terrorizing statute and explaining that statute requires no showing of actual fear).
[23] For these reasons, 9 GCA § 19.60 provides fair notice that “enable[s] the ordinary citizen
to conform his or her conduct to the law.” Shimizu, 2017 Guam 11 ¶ 28 (quoting Morales, 527
U.S. at 58). Next, we address whether the terrorizing statute authorizes or even encourages
arbitrary and discriminatory enforcement.
2. Arbitrary and discriminatory enforcement
[24] As we explained in Shimizu, “it has been recognized that the more important aspect of [the]
vagueness doctrine ‘is not actual notice, but the other principal element of the doctrine—the
requirement that a legislature establish minimal guidelines to govern law enforcement.’” 2017
Guam 11 ¶ 36 (alteration in original) (quoting Perez, 1999 Guam 2 ¶ 7). This requires that the law
provide “ascertainable standards of guilt” to avoid the danger of arbitrary and discriminatory
enforcement of the law. Id. (quoting John F. Decker, Overbreadth Outside the First Amendment,
34 N.M. L. Rev. 53, 61 (2004)). “‘The absence of an ascertainable standard of guilt in a given
legal proscription gives police officers, prosecutors, and the triers of fact unlimited discretion to
apply the law and, thus, there is a danger of arbitrary and discriminatory enforcement of such a
law.’” Id. (quoting Decker, supra at 61).
[25] While Tfong makes no specific arguments about how the statute provides for arbitrary and
discriminatory enforcement, he does assert that it “encompasses innocent and criminal conduct
alike,” and then repeats his arguments on why the statute is void for vagueness. Appellant’s Br.
at 31. Tfong suggests that “[b]ecause a substantial amount of conduct is implicated by the broad
terms of the statute, and because the statute is so imprecise, it is essentially up to law enforcement
lawful consent; a declaration, express or implied, of an intent to inflict loss or pain on another.” Threat, Black’s Law
Dictionary (11th ed. 2019).
People v. Tfong, 2021 Guam 13, Opinion Page 12 of 19
to decide which violations are worthy of punishment and which are not.” Id. We disagree with
this argument for two reasons: first, the statute prescribes minimal guidelines to govern law
enforcement; and second, the statute requires that the threatened person be placed in “reasonable
fear,” thus providing an objective standard by which to evaluate the victim’s state of mind.
[26] As stated previously, the statute includes the requirement of an overt act, i.e., the
communication of a threat. This provides law enforcement with the ability to immediately
differentiate at the onset between conduct that either falls under 9 GCA § 19.60 or not. The
statute’s requirement that the threat have certain probable disruptive consequences, i.e., that “the
natural and probable consequence of [the] threat . . . place the . . . person threatened in reasonable
fear that crime will be committed,” 9 GCA § 19.60(a), further restricts application of the statute,
see, e.g., Porter, 384 A.2d at 432 (explaining requirement of “reasonable fear” restricts application
of Maine’s terrorizing statute). Once these elements and minimum guidelines have been met, the
crime has been consummated, and there is no speculation on law enforcement’s part to encourage
arbitrary and discriminatory enforcement.
[27] And, as the People appropriately argue, the objective standard within the statute requiring
the threatened person be placed in “reasonable fear” provides an objective standard that “ensures
even-handed enforcement.” Appellee’s Br. at. 27. The “reasonable fear” requirement in 9 GCA
§ 19.60 restricts application of the statute by “requiring the trier of fact to consider the defendant’s
conduct in context and to sift out idle threats from threats that warrant the mobilization of penal
sanctions.” See State v. Alvarez, 872 P.2d 1123, 1129 (Wash. Ct. App. 1994) (holding that
requirement of “reasonable fear” in malicious harassment statute provided an objective standard
which limited statute’s application), aff’d, 904 P.2d 754 (Wash. 1995); Parker v. Commonwealth,
485 S.E.2d 150, 153-54 (Va. Ct. App. 1997) (finding “reasonable fear” requirement in stalking
People v. Tfong, 2021 Guam 13, Opinion Page 13 of 19
statute provides law enforcement with considerable guidance to evaluate victim’s complaint); State
v. Talley, 858 P.2d 217, 229 (Wash. 1993) (en banc) (holding that hate crimes statute with
“reasonable fear” requirement gave “adequate standards to ensure proper enforcement” and was
not unconstitutionally vague). Because 9 GCA § 19.60 provides fair notice of the type of conduct
prohibited and offers minimal guidelines to govern law enforcement, it is not unconstitutionally
vague.
B. Sufficient Evidence Supports Tfong’s Convictions
[28] Tfong appeals from the denial of his motion for judgment of acquittal, challenging the
sufficiency of evidence to sustain his convictions. Appellant’s Br. at 13. To analyze this claim,
“we 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.” People v. Kotto, 2020 Guam 4 ¶ 29 (quoting People v. Song, 2012 Guam 21¶ 27); see also People v. Camacho, 2015 Guam 37 ¶ 9; People v. Tennessen, 2009 Guam 3 ¶ 14
(quoting People v. Cruz, 1998 Guam 18 ¶ 9), overruled on other grounds by Barrett-Anderson v.
Camacho, 2018 Guam 20 ¶¶ 18-19. This is a “highly deferential standard of review,” Kotto, 2020
Guam 4 ¶ 29 (quoting People v. Wusstig, 2015 Guam 21 ¶ 8), and the defendant bears the burden
“to establish ‘that the evidence was legally insufficient to sustain a guilty verdict,’” id. (quoting
Song, 2012 Guam 21 ¶ 28). Accordingly, “[the court’s] review must ‘give [] full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.’” People v. Anastacio, 2010
Guam 18 ¶ 18 (second alteration in original) (quoting People v. Jesus, 2009 Guam 2 ¶ 60). With
these standards in mind, we address the sufficiency of evidence for each of Tfong’s convictions.
People v. Tfong, 2021 Guam 13, Opinion Page 14 of 19
1. Sufficient evidence supports Tfong’s conviction for Terrorizing
[29] Tfong was charged with Terrorizing (as a Third Degree Felony) in violation of 9 GCA
§ 19.60(a) and (b). The People had to prove these elements beyond a reasonable doubt: (1) that
Tfong did communicate a threat to John; (2) to commit a crime of violence dangerous to human
life; (3) the natural and probable consequence of such a threat being to place John in reasonable
fear that the crime would be committed. See 9 GCA § 19.60(a). These elements track the
terrorizing statute and were provided to the jury, the exception being that the trial court included
in its instructions that Tfong communicate the threat “knowingly,” as charged in the indictment.10
See Record on Appeal (“RA”), tab 14 at 3 (Indictment, Oct. 5, 2018); Tr. at 52 (Jury Trial, Nov.
28, 2018); see also 9 GCA § 19.60.
[30] In challenging the sufficiency of evidence to support his conviction, Tfong argues that
“[n]one of the witnesses established that [Tfong’s] statements were communicated as an actual or
imminent threat,” that the statements attributed to him were “innocuous, made in a non-serious
manner,” and that the People did not establish that “[Tfong] had criminal intent or that his conduct
was criminal.” Appellant’s Br. at 16. These arguments, however, refer to elements that the People
were not expected or required to prove at trial beyond a reasonable doubt. Title 9 GCA § 19.60
proscribes criminal conduct and does not require that a communicated threat be actual or imminent.
See supra Part IV.A.1.a-c. By making these arguments, Tfong fails to meet his burden in
explaining “specific . . . elements [that] were not supported by sufficient evidence.” See Jesus,
2009 Guam 2 ¶ 62.
10
Because 9 GCA § 19.60 does not expressly require a culpable mental state, 9 GCA § 4.45 acts as a catch
all-provision, providing that a “culpable mental state is nonetheless required and is established only if a person acts
intentionally, knowingly or recklessly.” 9 GCA § 4.45 (2005).
People v. Tfong, 2021 Guam 13, Opinion Page 15 of 19
[31] Based on our review of the record, there is sufficient evidence to sustain Tfong’s conviction
as to the offense of terrorizing. At trial, John testified that during the incident, “[Tfong] said he’s
going to use [a] machete to cut me and [Singky],” Tr. at 103 (Jury Trial, Nov. 26, 2018), that Tfong
threatened to cut her belly and neck with the machete, and that he threatened to kill her. John’s
testimony was largely corroborated by Singky, who testified that Tfong told John that “he want[s]
to cut [John’s] neck off from her body.” Id. at 79. John also testified that Tfong had a machete
with him under his clothing, and that he took the machete out but did not use it or touch her with
it. She explained that she felt “scared” after being threatened by Tfong. Id. at 104. These specific
facts go against Tfong’s argument that “[John] was not placed in fear or reasonable fear,”
Appellant’s Br. at 17, and that “any alleged threat was not genuine,” id. at 16.
[32] Tfong also seems to suggest that John “was not placed in fear or reasonable fear” because
“[Tfong] did not cut her with the machete,” “touch[] her with it,” or “swing it at her,” even if “he
took it out but he didn’t use it.” Appellant’s Br. at 17. Because “reasonable fear” is an objective
standard, see supra Part IV.A.2, any person who had just been threatened with having their neck
or belly cut would have been placed in reasonable fear under the circumstances, considering John’s
testimony that Tfong “took [the machete] out” from under his clothing during the encounter, Tr.
at 103, 116-17 (Jury Trial, Nov. 26, 2018). In addition, Officer Castro testified that upon arriving
at the scene of the crime and conducting a pat-down of Tfong, he found a machete hidden on
Tfong’s person.11 The discovery of the machete on Tfong’s person provides even more credence
11
In his brief, Tfong states that Officer Corpuz and Officer Castro’s testimony established that John was not
in fear, that she did not appear to be in reasonable fear, and that there did not appear to be an imminent threat.
Appellant’s Br. at 19-20. Such assertions are contradicted by the record. Officer Corpuz testified that when he arrived
at the scene, John was screaming, yelling, and pointing at Tfong. He also testified that “[John] may have been crying
at the time,” considering his observation that she had “watery eyes.” Tr. at 19 (Jury Trial, Nov. 26, 2018). Officer
Castro, on the other hand, made no observations as to the immediacy of the threat or John’s demeanor, other than that
she “was screaming from the top of her lungs” when he arrived. Id. at 53.
People v. Tfong, 2021 Guam 13, Opinion Page 16 of 19
to the argument that a person in John’s situation would have been placed in reasonable fear
following Tfong’s threats.
[33] While there are conflicts in the evidence between Singky’s and John’s versions of the event
and issues of witness credibility raised during trial, “[i]t 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.” Kotto, 2020
Guam 4 ¶ 34 (omission in original) (quoting People v. Taisacan, 2018 Guam 23 ¶ 17). Viewing
the evidence in the light most favorable to the People, a rational trier of fact could have found each
of the essential elements of the crime of Terrorizing beyond a reasonable doubt.
2. Sufficient evidence supports the Special Allegation for Possession or Use of a
Deadly Weapon in the Commission of a Felony
[34] Accompanying the charge of Terrorizing was a sentencing enhancement under the Special
Allegation of Possession or Use of a Deadly Weapon in the Commission of a Felony. This
enhancement states:
(a) Whoever unlawfully possesses or uses a deadly weapon in the
commission of a felony punishable under the laws of Guam shall,
(1) in addition to the punishment imposed for the commission of
such felony, be imprisoned for a term of not less than five (5) years nor
more than twenty-five (25) years . . . .
9 GCA § 80.37(a)(1) (2005). In the indictment, the People elected to pursue this enhancement
based solely on the theory that Tfong “did knowingly and unlawfully possess or use a deadly
weapon, that is, a machete, in the commission of a felony.” RA, tab 14 at 3 (Indictment).
//
//
//
//
People v. Tfong, 2021 Guam 13, Opinion Page 17 of 19
[35] In his brief, Tfong argues “there was insufficient evidence of possession of a deadly
weapon,” no actual weapon was preserved as evidence or either presented or admitted at trial,12
and there was insufficient evidence of use or unlawful use of the machete. Appellant’s Br. at 12,
22. These arguments are misleading as John specifically testified that at the time of the threat,
Tfong had a machete with him under his clothing, and that he “took it out, but he didn’t use it,” or
touch her with it. Tr. at 103, 116-17 (Jury Trial, Nov. 26, 2018). Officer Castro also testified that
upon arriving at the scene of the crime and conducting a pat-down of Tfong, he discovered on the
right side of Tfong’s shorts “a machete of about 25 inches long that was hidden” and “tucked in
his shorts.” Id. at 48-49, 60. This evidence is sufficient to establish that a deadly weapon was
used when Tfong communicated his threat of violence to John. See People v. Meseral, 2014 Guam
13 ¶¶ 23-24 (finding that testimonial evidence was sufficient to prove special allegation that deadly
weapon was used).
[36] Tfong also argues that “[e]ven if possession was proved, the possession was not unlawful.”
Appellant’s Br. at 22. This may be true; however, the People had to prove either unlawful
possession or use of a deadly weapon in the commission of a felony. John’s testimony that, at the
time of the threat, Tfong took out the machete from under his clothing, qualifies as use, even if
Tfong did not touch her with it, swing it at her, or carry out his threat of cutting her neck and belly.
See Plummer v. State, 410 S.W.3d 855, 858 (Tex. Crim. App. 2013) (explaining that “use” in
sentencing enhancement concerning use of deadly weapon means weapon was “employed or
utilized” in order to achieve its purpose). And because the court “is not concerned with the weight
of the evidence, but with its existence or non-existence,” People v. Enriquez, 2014 Guam 11 ¶ 22,
12
Tfong’s assertion that that no actual weapon was preserved as evidence or either presented or admitted at
trial is error. The machete confiscated by Officer Castro from Tfong’s person was presented and admitted without
objection at trial. See Tr. at 50-51 (Jury Trial, Nov. 26, 2018).
People v. Tfong, 2021 Guam 13, Opinion Page 18 of 19
John’s testimony that Tfong took the machete out and threatened to cut her with it is sufficient to
sustain the special allegation. Therefore, viewing the evidence in the light most favorable to the
People, a rational trier of fact could have found the elements of the Special Allegation for
Possession or Use of a Deadly Weapon in the Commission of a Felony beyond a reasonable doubt.
3. Sufficient evidence supports Tfong’s conviction for Assault
[37] Tfong was charged with Assault (as a Misdemeanor) in violation of 9 GCA § 19.30(a)(1)
and (e). For this offense, the People had to prove beyond a reasonable doubt that Tfong did
recklessly cause or attempt to cause bodily injury to John. These elements track the assault statute
and were provided to the jury. See 9 GCA § 19.30(a)(1), (e) (2005); Tr. at 49, 53 (Jury Trial, Nov.
28, 2018).
[38] In challenging his conviction, Tfong argues that “[n]o evidence was presented at trial
establishing that [Tfong] recklessly caused or attempted to cause bodily injury to [John],” that
“[John’s] testimony established that there was no actual or imminent threat to [her],” and that John
“was not placed in fear or reasonable fear.” Appellant’s Br. at 26. On the latter two assertions,
Tfong refers to elements in the assault statute that the People were not expected or required to
prove at trial beyond a reasonable doubt. By making these arguments, Tfong again fails to meet
his burden in explaining specific elements for the offense of Assault that were not supported by
sufficient evidence.
[39] Tfong’s assertion that “[n]o evidence was presented at trial establishing that [Tfong]
recklessly caused or attempted to cause bodily injury to [John]” is belied by the record.
Appellant’s Br. at 26. John testified that Tfong threatened to cut her belly and neck with a machete,
which he took out from under his clothing. John also testified that she informed law enforcement
that Tfong kicked her in the face. Considering this testimony, a rational trier of fact could have
found each of the essential elements for the crime of Assault beyond a reasonable doubt.
People v. Tfong, 2021 Guam 13, Opinion Page 19 of 19
V. CONCLUSION
[40] Because the terrorizing statute is not unconstitutionally vague and sufficient evidence
supports each of Tfong’s convictions, we AFFIRM the judgment of conviction.
/s/ /s/
ROBERT J. TORRES KATHERINE A. MARAMAN
Associate Justice Associate Justice
/s/
F. PHILIP CARBULLIDO
Chief Justice