‘Grandpa Ping’ conviction reversed

The CNMI Supreme Court has reversed the convictions and ordered a new jury trial for Jose Ilo Santos, a 63-year-old man who was convicted of sexually abusing a then 7-year-old girl.

The high court ruled that the Superior Court abused its discretion by allowing the victim advocate to accompany the alleged victim to the witness stand.

The CNMI government is unable to meet its burden of proving beyond a reasonable doubt that the error was harmless, according to the high court’s opinion on Tuesday penned by Associate Justice John A. Manglona and concurred by Chief Justice Alexandro C. Castro and Justice Pro Tem Herbert D. Soll.

The Office of the Attorney General charged Santos, also known as Grandpa Ping, with two counts of sexual abuse of a minor in the first degree for molesting the girl on April 23, 2011, and May 7, 2011, at his house in Tanapag.

In October 2012, the jury found Santos, also known as Grandpa Ping, guilty of all charges.

In March 2013, Superior Court Associate Judge Joseph N. Camacho sentenced Santos to the maximum of 60 years in prison, to be served without the possibility of parole.

Camacho noted that the violence done to the girl was so severe that nine days after the incident, doctors at the Commonwealth Health Center could still see the signs.

Santos, through assistant public defender Michael Sato, appealed his conviction to the Supreme Court.

Sato argued that the trial court erred by giving substantive jury instructions at the beginning of the trial, failing to give substantive jury instructions after the parties finished introducing evidence, and allowing a victim advocate to accompany the alleged victim during her testimony.

Santos focused his appeal on the court’s decision to permit a victim advocate to stand by her during her testimony.

Before trial, the court held a hearing on the government’s motion to allow a victim advocate to accompany the girl.

During the hearing, Santos’ counsel contended that a victim advocate was improper without a showing of need.

In response, the government asserted that the victim advocate was appropriate under NMI Rules of Evidence 611 because the girl was young, and testifying about sexual abuse can be embarrassing.

After considering the parties’ arguments, the court granted the government’s request for a victim advocate to accompany the girl.

In reversing the convictions and remanding the case for new trial, the justices said shortly after the hearing on the victim advocate, the trial began with the court providing jury instructions before opening statements.

These instructions, the justices said, told the jury what they needed to find to convict Santos of sexual abuse of a minor in the first degree.

At the end of the trial, the justice said, the trial court provided two supplemental instructions and explained they should be read with the instructions given at the beginning of the trial.

The justices said, however, the judge did not repeat the instructions that were given before opening statements.

Sato asserted in his brief and at oral argument that the trial court violated Rule 30 by giving jury instructions before opening statements.

Sato argued that this rule requires instructions either immediately before or after closing arguments, and it would be absurd to construe “before arguments” to mean before opening statements.

The justices said they agree with Santos’ argument because “it is common ground that [Federal Rule of Criminal Procedure 30] requires definitive instructions after the close of the proof.”

The justices said that, while Sato correctly highlights the court erred, Santos’ argument does not present grounds for reversal because he waived by failing to present it in his opening brief.

Santos also contended that the presence of a victim advocate near the witness is an error because there is no authorization for the practice and the court failed to take the requisite steps before allowing the accommodation.

The justices ruled that a victim advocate can accompany a witness to the stand only after the court has made a finding of need for the accommodation. The justices said the court determined a victim advocate was appropriate without seeing or talking to the witness.

They said the only evidence offered to support that decision was the government’s assertion that the victim was young and the subject matter of her testimony could be embarrassing.

Notably absent, the justices said, were any details about the girl that would indicate she had a specific need for an accommodation and confirmation of the court’s finding of need by actually discussing the matter with the girl when she did come to the courtroom.

The justices said because the trial court did not hear or consider evidence on the girl’s particular needs, there was not an adequate basis to justify a finding of need for her accommodation.

The justices said they must determine whether the government has established the court committed harmless error by allowing the victim advocate to accompany the girl to the witness stand.

The justices said the Commonwealth is unable to prove it is more probable than not that the girl’s testimony was not bolstered.

Second, the justices said, the judge failed to give an instruction that would cure the potential harm.

Ordinarily, the justice said, a judge can prevent harm from improper bolstering by instructing the jury to disregard the presence of a victim advocate when making a credibility determination.

Here, the justices said, the judge did not tell the jury to make their credibility determinations without considering the victim advocate’s presence before the girl testified, immediately after she testified, or before the jury retired to deliberate.

Therefore, they said, the government cannot rely on the judge’s jury instructions to demonstrate the error was harmless.

Third, the justices said, the government cannot show there was sufficient evidence to convict Santos notwithstanding the girl’s testimony.

“Her testimony was essential to the case because the case turned on whether the jury believed her testimony,” the justices said, adding that no other witness independently verified that Santos improperly touched the girl.

Accordingly, they said, the government cannot show that Santos would have been convicted if the jury did not believe the girl’s testimony.