People of Guam v. Philips James Sablan

IN THE SUPREME COURT OF GUAM PEOPLE OF GUAM, Plaintiff-Appellee, v. PHILIPS JAMES SABLAN, Defendant-Appellant. Supreme Court Case No. CRA23-011 Superior Court Case No. CF0248-20 OPINION Cite as: 2026 Guam 7 Appeal from the Superior Court of Guam Argued and submitted on May 29, 2024 Hagåtña, Guam Appearing for Defendant-Appellant: Appearing for Plaintiff-Appellee: David J. Highsmith, Esq. Christine Santos Tenorio, Esq. Assistant Public Defender Assistant Attorney General Public Defender Service Corporation Office of the Attorney General 779 Route 4 General Crimes Division Sinajana, GU 96910 134 W. Soledad Ave. Hagåtña, GU 96910 People v. Sablan, 2026 Guam 7, Opinion Page 2 of 28 BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.1 MARAMAN, J.: [1] Defendant-Appellant Philips James Sablan appeals from the trial court’s judgment of conviction on one count of second-degree criminal sexual conduct (“CSC II”) involving M.T.G. After his conviction, the trial court granted Sablan’s request for a new trial, which the People appealed and which we ultimately reversed in People v. Sablan, 2023 Guam 4 (“Sablan I”). On remand, the trial court reinstated Sablan’s conviction and sentenced him to five years of incarceration. Sablan appealed. [2] Sablan argues that the jury heard testimony that violated Guam Rule of Evidence (“GRE”) 404(b). After a full review of the record, we conclude that M.T.G.’s testimony fell within the scope of GRE 404(b) and overrule Sablan I. The testimony was not admissible under GRE 404(b) because the People did not provide Sablan with GRE 404(b) notice upon request. Because the People failed to meet their burden of showing that the trial court’s delayed striking of unfairly prejudicial, inadmissible evidence did not materially affect the verdict, we reverse. I. FACTUAL AND PROCEDURAL BACKGROUND [3] A grand jury indicted Sablan on one count of CSC II and one count of indecent exposure. Both charges involved the same underage girl, M.T.G., the niece of Sablan’s partner, L.G. The indictment alleged that the conduct occurred between April 1 and April 30, 2020. The CSC II charge was for Sablan “causing [his] hand to touch the primary genital area of M.T.G.,” and the indecent exposure charge was for “intentionally expos[ing] his genitals to M.T.G. . . , under 1 The signatures in this opinion reflect the titles of the Justices at the time this matter was argued and submitted. People v. Sablan, 2026 Guam 7, Opinion Page 3 of 28 circumstances in which his conduct was likely to be observed by any person who would be offended or alarmed.” Record on Appeal (“RA”), tab 72 at 1–2 (Am. Indictment, Apr. 5, 2021). [4] When M.T.G. and her family reported the incident, she told Guam Police Officer Jessilyn Balajadia that Sablan “had touched her primary genital area over her clothing” and “show[ed] her his penis and was shaking it in front of her in an up and down manner.” RA, tab 1 at 2 (Magis. Compl., May 8, 2020); see Tr. at 35, 39 (Day 1 Jury Trial, Mar. 30, 2021). Officer Balajadia testified that M.T.G. told her Sablan had been wearing a blue towel and that she had been watching SpongeBob SquarePants. Tr. at 39 (Day 1 Jury Trial). [5] Nine months before trial, Sablan requested notice of the People’s intent to introduce prior- act evidence under Rule 404(b). RA, tab 8 at 1 (Formal Req. 404(b) Evid., June 24, 2020). Sablan noted that Rule 404(b) “requires not merely a statement of intent to use such evidence, but a general nature as to the kind of evidence that would be offered, such that the Defendant could ascertain whether the evidence is of the kind that is offered for a purpose other than propensity.” Id. The People did not respond to this request. [6] Four months before trial and after Sablan’s request for notice under Rule 404(b), the prosecution conducted a pretrial interview with M.T.G. at the Attorney General’s office, which Investigator Frank R. Santos documented in what the parties have called “the Santos report.” Appellant’s Excerpts of Record (“ER”) at 9 (OAG Rep. of Investigation & Notes of Investigator Frank R. Santos, Nov. 12, 2020); RA, tab 41 at 2 (Def.’s Ex. List Submission, Dec. 18, 2020) (listing Santos report).2 According to the Santos report, M.T.G. revealed the following regarding the indicted incident: M.T. stated that on the day of the incident while she was in her Auntie [L.G.]’s bedroom, her Uncle Phil (Defendant) came out of the shower naked. M.T. indicated that the defendant came up to the bed holding his private with his left 2 Although this report was listed as a defense trial exhibit, it was never admitted into evidence. People v. Sablan, 2026 Guam 7, Opinion Page 4 of 28 hand and playing with himself (M.T. demonstrated clenching her left hand like a “Fist” and motioning her hand) and with his right hand was touching her private over her clothing. M.T. stated that he/she then pushed the defendant away from him/her and left the room to get a drink of water. M.T. stated that when he/she was walking out of the room, his/her Auntie [L.G.] entered the bedroom. M.T. stated that after getting a drink of water, he/she returned to the bedroom and noted that his/her Auntie [L.G.] was not in the room anymore. M.T. stated that at that time the defendant asked M.T. if he/she would like to watch videos. M.T. stated that he/she believes that the above incident happened when he/she was in the 2nd grade because at that time his/her teacher was Mr. Quinata. M.T. also indicated that the incident did not happen around his/her birthday or during Christmas time. ER at 9 (OAG Rep. of Investigation & Notes of Investigator Frank R. Santos) (emphasis omitted). In addition to discussing the indicted conduct, M.T.G. disclosed conduct that had not been previously revealed, allegedly occurring before the indicted offenses: M.T. stated that the above incident was not the first time that the defendant had ever touched him/her in his/her private. M.T. stated that other incidents happened when he/she was four (4) [years of age] and continued up to when he/she was eight (8) [years of age]. M.T. stated that he/she could not give any times and dates of when these incidents happened because he/she was unsure. M.T. did explain that one time when she and his/her Auntie [L.G.] were sleeping on the “Air mattress” on the floor and the defendant was sleeping on the bed, he/she felt someone’s hands touching him/her on her private under her clothes. M.T. stated that whenever the incidents were happening to him/her no one was around, only his/her Auntie [L.G.] who was either sleeping in the bedroom with him/her or Auntie [L.G.] was outside the bedroom. Id. The Santos report became the focal point of multiple challenges to M.T.G.’s testimony. A. The People Anticipated Rule 404(b) Evidence at Trial [7] The People’s opening statement reflects that they expected M.T.G. to testify to multiple incidents: “And it’s also expected that she’ll testify . . . this is not the only incident. Okay. There are other incidents.” Tr. at 23–24 (Day 1 Jury Trial). The prosecutor emphasized that Sablan “has been touching her.” Id. at 22. [8] On direct examination, the prosecutor refreshed L.G.’s recollection with her statement to police that she initially told police that M.T.G. told her that Sablan “touches” her as opposed to People v. Sablan, 2026 Guam 7, Opinion Page 5 of 28 “touched.” Tr. at 70–72 (Day 1 Jury Trial) (“Q: When [M.T.G.] first told you what happened did she say the word he touched me or he touches me?”). B. The Prosecutor Intended to Elicit Prior Act Evidence from M.T.G. [9] M.T.G. identified Sablan in the courtroom. Tr. at 47 (Day 2 Jury Trial, Mar. 31, 2021). She testified that while she was watching SpongeBob SquarePants on the television in L.G. and Sablan’s bedroom, Sablan “came out of the restroom” and “dropped his towel and then started playing with his private.” Id. at 50–52. She testified that his towel was blue or green. Id. at 53. M.T.G. explained that Sablan was facing her during this incident, but she did not know whether he knew she was there. Id. at 53–54. She “just looked away and then ran outside to [her] mom.” Id. at 54. [10] The prosecutor later asked, “Was the time with the towel the only incident with Phil?” Id. at 58. Defense counsel did not object to this question, and M.T.G. had yet to testify to any sexual contact comprising the indicted conduct for CSC II. See id. She testified that after Sablan showed her on his phone “the bad things that he want[ed] to do,” she ran outside and sat with her mom again. Id. [11] M.T.G. then testified that Sablan asked her for her underwear, and when she said no, it went missing. Id. at 59, 61. She said she later found it in Sablan’s bag. Id. at 61. [12] She testified that Sablan touched her “[i]n [her] private,” not on the top of her body or backside, and she pointed to the top of her thighs. Id. at 61–62. The prosecutor then asked M.T.G., “How many times did he touch you there?” Id. at 62. M.T.G. began to respond, “When I was sleeping with my Auntie [L.G.] and then I felt something on my --” Id. Sablan then objected, cutting the testimony short. Id. Sablan argued that M.T.G. was about to testify about prior unindicted conduct that should have been disclosed under GRE 404(b). Id. at 63. Sablan argued that, based on the Santos report, M.T.G. would testify about a prior bad act. Id. at 62–67. People v. Sablan, 2026 Guam 7, Opinion Page 6 of 28 [13] The prosecutor argued, “This is not anywhere near 404(b) territory at all” while describing prior-act evidence: [L.G.] just testified. [L.G.] testified that this girl came to her and said he’s touching me as touches, not touched, touches --” Tr. at 65, 71–72 (Day 2 Jury Trial). And then later: [T]he evidence that we already head [sic] from [L.G.] was that she told it was touches with an S, multiple touches when [sic] is why I asked the question that way. So the evidence the jury heard has already indicated this . . . . Id. at 71 (emphasis added). The prosecutor said his next question would be “was this the only time this happened?” Id. at 63. 1. The trial court sustained Sablan’s Rule 404(b) objection [14] After hearing extensive arguments by both parties and deliberating overnight, the trial court sustained Sablan’s GRE 404(b) objection. Tr. at 7 (Day 3 Jury Trial, Apr. 1, 2021). The trial court considered the narrative in the Santos report and determined that M.T.G.’s potential testimony fell within the scope of GRE 404(b): In this case the People had admitted that they do not know when this happened and they do not know what the . . . alleged victim is going to say. Based on the People’s representations about the alleged victim’s potential testimony . . . , the Court finds that the alleged victim’s potential description of multiple incidents of sexual contact by the Defendant would constitute other acts as described in Rule 404(b). Id. The trial court then determined that M.T.G.’s potential testimony would be inadmissible under GRE 404(b), finding that “the People’s question asking how many times did he touch you does give rise to improper 404(b) [evidence] of other acts not charged in the indictment.” Id. The trial court emphasized that the People had not given proper notice under GRE 404(b) and found that “the People also did not pr[of]fer an admissible purpose of this evidence under Rule 404(b).” Id. at 8. The People did not argue that the testimony was admissible under GRE 413. The court conducted a Rule 403 analysis, agreeing with Sablan that “the probative value of [M.T.G.’s People v. Sablan, 2026 Guam 7, Opinion Page 7 of 28 testimony] is substantially outweighed by the danger of unfair prejudice to the Defendant.” Id. The court concluded that “because the indictment charged one incident of sexual contact, the Court will not allow the People to ask how many times the Defendant touched the alleged victim.” Id. The trial court later clarified its ruling, stating that “the People are not allowed to bring up anything other than an incident that they’re referring to in the indictment. Now what incident that is I don’t think that’s been established at least so far, at least from the testimony.” Id. at 28. 2. M.T.G.’s testimony resumed [15] On direct examination, the prosecutor asked, “So the towel thing happened first and then the touching?” Id. at 44. Before the trial court had an opportunity to rule on defense counsel’s objection to the question as leading, M.T.G. responded, “Yes.” Id. She then testified that after she fell asleep, she “felt something touching [her] lap,” and stated that it was Sablan’s hand. Id. at 46–47. [16] On cross-examination, M.T.G. testified that she thought the touching incident she had described occurred when she was about four years old: Q Okay. The time you talked about when Uncle Phil touched you, how old were you when that happened? A I forgot. Q Okay. Were you like four years old? A I think so. Id. at 51. On redirect examination, however, M.T.G. clarified that she thought the same incident had happened when she had a specific teacher, who was the same teacher she had in second grade: Q . . . . So [defense counsel] asked you a question about whether or not this happened when you were four years old. A Yes Q Okay. What grade are you in now? People v. Sablan, 2026 Guam 7, Opinion Page 8 of 28 A I’m in third grade. Q Third grade. And when you were in second grade who was your teacher? A Mr. Cannato (phonetic). Q Cannato? A Yes. Q Okay. And do you know if the time that Mr. Sablan touched you on your private who was your teacher? A I think still Mr. Cannato. Q Okay. And when you were being touched, was it over your clothes or under your clothes? A Over my clothes. Id. at 56–57. C. Sablan Made Several Motions in the Trial Court [17] After the People’s case-in-chief, Sablan moved to strike parts of M.T.G.’s testimony, arguing that the People did not provide notice of GRE 404(b) evidence and were going into “a prior bad act compared to the allegations in the original complaint” regarding “a completely different incident from the one charged in the indictment.” Tr. at 62–63 (Day 3 Jury Trial). Sablan asked for a curative instruction about M.T.G.’s testimony. Id. at 62. The People agreed to strike some parts of the testimony, including references to the air-mattress incident and “anything that happened on redirect,” but not others. Id. at 66. [18] Sablan also moved for acquittal on both charges. Id. at 67, 74. The court took the motions to strike and to acquit under advisement. Id. at 77–78. The next day, the court granted Sablan’s motion to strike, citing People v. Taitano, 2015 Guam 33, and finding an impermissible material variance existed between the evidence—specifically, M.T.G.’s testimony about extrinsic acts— People v. Sablan, 2026 Guam 7, Opinion Page 9 of 28 and the allegations underlying the CSC II charges. RA, tab 87 at 2–3 (Dec. & Order, Aug. 16, 2021) (citing RA, tab 67 at 1:30:04–1:40:41 (Min. Entry, Apr. 2, 2021)). The trial court “held that the material variance constituted unfair surprise which unconstitutionally deprived [Sablan] of his rights and granted [his] Motion to Strike.” RA, tab 87 at 2–3 (Dec. & Order). [19] When the trial resumed on April 5, the court explained the breadth of its striking, using timestamps from the record. Tr. at 7 (Day 4 Jury Trial, Apr. 5, 2021). The trial court determined “the testimony refers to an incident that occurred on a day different from the indecent exposure incident which is alleged in the indictment.” Id. at 6. The trial court found the People’s direct and redirect on April 1 elicited inadmissible testimony, but the defense’s cross-examination did “not clearly refer[] to touching that occurred on a day different from the indecent exposure incident.” Id. The trial court further ordered that, “in the event the jury requests playback of testimony in this case, the Court will only play back the portions of the record not stricken.” Id. at 8. [20] The trial court “denied [Sablan’s] motion for a judgment of acquittal on both charges finding that there was sufficient evidence for a rational trier of fact to conclude that [he] committed both crimes as charged.” RA, tab 87 at 3 (Dec. & Order); see also Tr. at 12, 17 (Day 4 Jury Trial). [21] The jury remained recessed for four days over a weekend from Thursday afternoon until Monday morning––from April 1, 2021, at 3:11 p.m. until April 5, 2021, at 10:28 a.m. Tr. at 61 (Day 3 Jury Trial); RA, tab 67 (Min. Entry, Apr. 2, 2021) (calling in jury on Friday and immediately dismissing it); Tr. at 23 (Day 4 Jury Trial). The trial court proposed a curative instruction that satisfied both parties. Tr. at 8 (Day 4 Jury Trial). When the jury returned, the trial court gave the jury the following curative instruction: [B]efore the jury recessed last week [M.T.G.] testified on March 31st and April 1st. The Court now instructs the jury that it is striking certain testimony of [M.T.G.]. Accordingly, the jury must disregard and not consider as evidence any testimony of [M.T.G.] that refers to an alleged incident or incidents of touching that occurred on a day different from the alleged exposure by the Defendant of his genitals as People v. Sablan, 2026 Guam 7, Opinion Page 10 of 28 charged in the indictment. All right, jurors. So the Court is giving that instruction at this time. Id. at 23–24. The trial court also provided a similar jury instruction: I have ordered that testimony of [M.T.G.] that refers to an alleged incident, or incidents, of touching that occurred on a day different from the alleged exposure by [Sablan] of his genitals as charged in the Amended Indictment, is stricken from the record. This is not proper evidence in the case. You must disregard it entirely. Do not consider this testimony in reaching your decision. RA, tab 77 at Instr. 3I (Jury Instrs., Apr. 6, 2021); accord Tr. at 72–73 (Day 6 Jury Trial, Apr. 6, 2021). The jury deliberated for about four hours on April 6, 2021. The jury returned its verdicts, finding Sablan guilty of the CSC II charge and not guilty of the indecent exposure charge. [22] Sablan then moved for a judgment of acquittal and for a new trial, based on insufficiency of the evidence and prosecutorial misconduct. RA, tab 81 at 3 (Mot. Acquit & Mot. New Trial, Apr. 13, 2021). Citing People v. Messier, 2014 Guam 34 ¶ 21, Sablan explained that “[a] trial court may not grant a new trial based solely on its disagreement with the jury’s credibility determinations, unless credibility issues arise to ‘exceptional circumstances.’” Id. at 5. He argued, “There are exceptional circumstances here.” Id. Sablan’s initial motion focused on claims of prosecutorial misconduct. Id. at 6–9. [23] The People opposed Sablan’s motion to acquit and for a new trial, arguing that “the Victim’s testimony combined with the information given to the jury about the potential time frame is more than sufficient.” RA, tab 82 at 2 (Opp’n Mot., Apr. 19, 2021). The People argued that the misconduct claims were false. Id. at 5–8. [24] In reply, Sablan claimed the prosecution “conflated [M.T.G.’s] allegations of the[] different incidents” that were described in the Santos report “into one,” which allowed the prosecutor to tell “the jury that it could convict based on the bed incident knowing from [the Santos report] that he was talking about two or three different incidents.” RA, tab 84 at 2–3 (Reply Mem., Apr. 29, People v. Sablan, 2026 Guam 7, Opinion Page 11 of 28 2021) (citing the Santos report). Sablan argued “the prosecutor circumvented the court’s ruling about material variance, unfair surprise and double jeopardy,” claiming that “the defendant was convicted of an offense that he was not charged with, the allegation that he touched [M.T.G.] while she was asleep several years before April 1–30, 2020.” Id. at 3. Sablan claimed this amounted to unfair surprise because “[t]he defense did not expect the prosecution to use the incidents described in [the Santos report] as proof of the actual charges related to April 2020,” claiming that “[s]uch an attempt would have been opposed vigorously.” Id. [25] The trial court denied the motion to acquit, finding sufficient evidence for the CSC II conviction based on M.T.G.’s testimony, but granted a new trial. RA, tab 87 at 1–22 (Dec. & Order). The court concluded that a new trial may be appropriate where “the government’s witnesses lacked credibility and the case has been marked by ‘uncertainties and discrepancies,’” or where the “government’s case depend[ed] upon inferences upon inferences drawn from uncorroborated testimony that . . . [was] subject to questions of credibility.” Id. at 9–10 (quoting People v. Leslie, 2011 Guam 23 ¶¶ 25–26). The court also observed that “the presentation of ultimately impermissible evidence, although subsequently stricken, may be grounds warranting the granting of a new trial.” Id. at 10; see also id. at 10 n.2 (collecting U.S. Supreme Court and Circuit Courts of Appeals cases supporting this position). The court acknowledged that “motions for new trials should be granted sparingly and with caution, doing so only in those really exceptional cases.” Id. at 9 (citation modified) (quoting Leslie, 2011 Guam 23 ¶ 25). [26] The court explained its earlier finding of a material variance and unfair surprise: When the Defendant made his Motion to Strike, the Court compared the evidence proffered to the supporting Declaration to the Magistrate’s Complaint, the People’s asserted theory of the case, and the discovery documents provided to the Court through the parties’ exhibit binders. Based on this comparison, the Court found that the Defendant was reasonably led to conclude that the grand jury had not indicted him on two separate incidents that occurred on two different days or People v. Sablan, 2026 Guam 7, Opinion Page 12 of 28 times. But rather, the Indictment and charges against him referred to a single incident wherein the People alleged that two different crimes were committed. Id. at 11 (citing RA, tab 67 at 1:30:04–1:40:41 p.m. (Min. Entry, Apr. 2, 2021)). The trial court first considered the curative and limiting instructions sufficient “to cure the material variance.” Id. at 12. But it later found that “the delayed striking of M.T.G.’s testimony in this case present[ed] the exceptional circumstance where the subsequent withdrawal of such testimony could not remove the effect caused by its admission.” Id. (citing Throckmorton v. Holt, 180 U.S. 552, 567– 68 (1901); Holt v. United States, 94 F.2d 90, 93–94 (10th Cir. 1937)). The court reasoned that: [T]he instant case presents an example where the Court seriously doubts whether it was possible for the jury to efface, or erase, the stricken testimony from their [sic] minds based on the fact that: the testimony ordered to be stricken was voluminous and complex, it remained before the jury for several days before withdrawn, the stricken testimony was highly prejudicial as it contained serious allegations against the Defendant, and the competent evidence remaining was far from conclusive. Id. at 13 (citing Throckmorton, 180 U.S. at 567–68; Holt, 94 F.2d at 93–94). The court stated that “the jury was able to ponder the improper testimony for nearly four days.” Id. at 14. The trial court concluded that “due to the exceptional circumstances of this case, the withdrawal of the testimony did not cure the effect caused by its admission, thereby warranting the granting of a new trial.” Id. at 16. [27] The trial court also concluded that concerns about M.T.G.’s credibility provided another basis for granting a new trial. Id. at 16–18. Citing People v. Quinata, 1999 Guam 6 ¶ 16, the trial court stated, “In deciding on a motion for a new trial, the Court acts as the ‘thirteenth juror’ to weigh the evidence and evaluate witnesses’ credibility to determine if the evidence ‘preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred.’” Id. at 9. The trial court reasoned that “the uncertainty surrounding” “which incident M.T.G. was referring to during her testimony . . . supports the granting of a new trial.” Id. at 17 (citing Leslie, 2011 Guam 23 ¶ 25). The trial court concluded that “the interests of justice require that a new trial People v. Sablan, 2026 Guam 7, Opinion Page 13 of 28 be granted” because of “the uncertainties surrounding M.T.G.’s testimony,” finding “that the evidence in this case ‘preponderates sufficiently heavily against the verdict [such] that a serious miscarriage of justice may have occurred.’” Id. at 18 (alteration in original) (citation omitted). D. The People Appealed, and We Reversed [28] The People appealed the trial court’s decision and order granting Sablan a new trial. In Sablan I, 2023 Guam 4, we reversed the trial court’s decision and order granting a new trial, concluding it abused its discretion and relied on an incomplete standard by not applying “Guam’s test for ‘exceptional circumstances’ warranting a new trial.” 2023 Guam 4 ¶ 33. We explained: “Messier held that Guam’s standard would bar a trial court from granting ‘a new trial based solely on its disagreement with the jury’s credibility determinations, unless credibility issues arise to . . . ‘exceptional circumstances’ . . . including testimony that is ‘patently incredible or defies physical realities.’” Id. (quoting Messier, 2014 Guam 34 ¶ 21). We were “persuaded that the jury’s traditional and vital role as fact-finder should be protected and trial courts should not serve as ‘thirteenth jurors.’” Id. [29] On remand, the trial court reinstated Sablan’s conviction and sentenced him to five years of incarceration. Sablan timely appealed. [30] The People offered to file under seal discovery, which, in their briefing, they claimed: “clarifies that M.T.G.’s reference to the incident regarding her lap was the same incident alleged in the indictment.” Appellee’s Br. at 14 (Mar. 6, 2024). While under consideration, we ordered the People to file relevant discovery under seal, which the People submitted. II. JURISDICTION [31] This court has jurisdiction over an appeal from a final judgment of conviction. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 119-100 (2026)); 7 GCA §§ 3107, 3108(a) (2005); 8 GCA §§ 130.10, 130.15(a) (2005). People v. Sablan, 2026 Guam 7, Opinion Page 14 of 28 III. STANDARD OF REVIEW [32] “We review questions of law de novo.” Messier, 2014 Guam 34 ¶ 11; see also People v. Felton, 928 N.W.2d 307, 312 (Mich. Ct. App. 2018) (reviewing de novo whether a rule or statute prohibits the introduction of evidence). This court “reviews de novo whether evidence comes within the scope of GRE 404(b).” People v. Camaddu, 2015 Guam 2 ¶ 9. We review for harmless error the prosecution’s failure to provide GRE 404(b) notice upon the defendant’s request. See United States v. Vega, 188 F.3d 1150, 1153–54 (9th Cir. 1999); Mitchell v. State, 2020 WY 142, ¶ 28, 476 P.3d 224, 235 (Wyo. 2020).3 We will reverse unless the People meet their burden of establishing “it is more probable than not that the error did not materially affect the verdict.” 4 People v. Sharpe, 2024 Guam 12 ¶ 58 (quoting People v. Jesus, 2009 Guam 2 ¶ 54). IV. ANALYSIS A. We Overrule Sablan I [33] We have clarified that the “[l]aw of the case does not . . . have the inexorable effect of res judicata and does not preclude the court from reconsidering an earlier ruling if the court feels that the ruling was probably erroneous and more harm would be done by adhering to the earlier rule . . . .” People v. Gutierrez, 2005 Guam 19 ¶ 40 n.7 (per curiam) (second alteration in original) (quoting Chun v. Bd. of Trs. of Emps.’ Ret. Sys., 992 P.2d 127, 136 (Haw. 2000)).5 Courts 3 “Because the Guam Rules of Evidence is based on the Federal Rules of Evidence, cases from state and federal courts are relevant and persuasive when we confront issues of first impression.” People v. Tuncap, 2014 Guam 1 ¶ 31 n.1 (citing People v. Roten, 2012 Guam 3 ¶ 16 & n.3). 4 We find reversal necessary under the lower standard of harmless error for non-constitutional errors. See People v. Pinaula, 2025 Guam 6 ¶ 10 (“The test for harmless error for constitutional error is ‘whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,’ and for a non- constitutional error whether ‘it is more probable than not that the error did not materially affect the verdict.’” (citations omitted)). We therefore do not address whether this error was of a “constitutional magnitude.” See id. ¶ 20 (quoting United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001)). 5 The People argue that because Sablan did not petition for rehearing, any reconsideration of the issues the court addressed in Sablan I is precluded. Appellee’s Br. at 11, 20–22 (Mar. 6, 2024). In his reply brief, Sablan accurately distinguishes each of the cases the People cite for this proposition. Appellant’s Reply Br. at 16–17 (Apr. People v. Sablan, 2026 Guam 7, Opinion Page 15 of 28 recognize exceptions to the law of the case doctrine where “(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial.” Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (quoting Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc)), aff’d sub nom., Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013); see also People v. Katzuta, 2016 Guam 25 ¶ 74 (recognizing exceptions for trial courts when applying law of the case); Johnson v. Cadillac Motor Car Co., 261 F. 878, 883–88 (2d Cir. 1919) (collecting cases where appellate courts did not apply law of the case on second appeal when first decision was erroneous); McGovern v. Kraus, 227 N.W. 300 (Wis. 1929) (providing history of law of the case doctrine and departing from doctrine by instead reserving right to correct prior holdings in the same case). [34] The People argue that the law of the case bars our reconsideration of Sablan I based on the exceptions set forth in People v. Hualde, 1999 Guam 3. See Appellee’s Br. at 10 n.2, 15–20. This court previously articulated this standard based on Ninth Circuit case law and separated the factors requiring that the prior decision be clearly erroneous from those requiring that manifest injustice would otherwise result: A court has discretion to depart from the law of the case where: 1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) the evidence on remand is substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would otherwise result. Hualde, 1999 Guam 3 ¶ 13 (citing United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997)). The Ninth Circuit has since clarified that when sitting en banc, it “has consistently identified only three exceptions, and has treated the ‘manifest injustice’ and ‘clearly erroneous’ inquiries as two 2, 2024). Petitions for rehearing are not required for this court to exercise its discretion to reconsider its prior decision. In other words, Sablan I became the law of the case when no petition for rehearing was filed. But the narrow exceptions for reconsidering an earlier ruling still apply. People v. Sablan, 2026 Guam 7, Opinion Page 16 of 28 parts of the same exception.” United States v. Gartenlaub, No. 22-55799, 2024 WL 4987258, at *1 n.2 (9th Cir. Dec. 5, 2024) (quoting United States v. Jingles, 702 F.3d 494, 503 n.3 (9th Cir. 2012)). A member of this court has previously recognized this distinction. People v. Orallo, 2006 Guam 8 ¶ 11 n.1 (Torres, J., concurring) (“In Hualde, this court provided that a clearly erroneous interpretation of law and manifest injustice are two separate grounds on which a court could depart from the law of the case. However, federal courts have combined the two grounds and held that a court may depart from the law of the case where ‘the previous disposition was clearly erroneous and would work a manifest injustice.’” (quoting Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir. 1995))). Regardless of how the factors are listed, we are convinced that Sablan I was clearly erroneous and would work a manifest injustice. [35] We reserved judgment on whether M.T.G.’s statements were 404(b) evidence and held that “if the testimony was GRE 404(b) evidence, it could have been admissible.” See Sablan I, 2023 Guam 4 ¶ 65. The issue of whether M.T.G.’s statements are 404(b) evidence is now squarely before us. After a thorough review of the record,6 including the prosecutor’s arguments and statements, we conclude that M.T.G.’s testimony fell within the scope of GRE 404(b). We additionally conclude the testimony was inadmissible because the People did not give Sablan notice. This conclusion renders our prior analysis of the 404(b) evidence in Sablan I erroneous, and adhering to that decision would do more harm than correcting our mistake. See, e.g., Ammons v. State, 880 S.E.2d 544, 558 (Ga. 2022) (Pinson, J., concurring) (“[T]he rule of law can also be undermined by perpetuating decisions that are obviously and harmfully wrong. When sticking to 6 On this appeal, we are reviewing for harmless error the prosecution’s failure to provide GRE 404(b) notice upon the defendant’s request. See United States v. Vega, 188 F.3d 1150, 1153–54 (9th Cir. 1999); Mitchell v. State, 2020 WY 142, ¶ 29, 476 P.3d 224, 235 (Wyo. 2020). “‘Harmless error determinations are highly fact-specific,’ and ‘often involve a review of the entire trial record.’” People v. Pugh, 2018 Guam 14 ¶ 26 n.4 (quoting Inthavong v. Lamarque, 420 F.3d 1055, 1060 (9th Cir. 2005)). People v. Sablan, 2026 Guam 7, Opinion Page 17 of 28 such decisions would cause more damage to the rule of law than correcting course, courts may choose overruling as the lesser evil.”). We overrule Sablan I. B. History and Purpose of GRE 404(b) Notice [36] GRE 404(b) permits the admission of evidence that may otherwise raise a propensity inference when it is offered for a non-propensity purpose, subject to the balancing requirements of GRE 403. Guam R. Evid. 404(b)7; see People v. Pinaula, 2025 Guam 6 ¶ 14 n.2 (“Generally, [e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. The circumstantial use of character evidence is generally discouraged because it carries serious risk of prejudice, confusion and delay. It is black-letter law that the government cannot introduce evidence of a defendant’s prior bad acts to show [his] propensity to commit the charged crime.” (alterations in original) (citation modified)); Pinaula, 2025 Guam 6 ¶ 12 (“[A]ll ‘relevant’ evidence is subject to balancing under GRE 403 . . . .”). GRE 404(b) regulates the presentation of evidence involving uncharged conduct—defined as “extrinsic acts”—to prove character. GRE 404(b) is modeled on Federal Rule of Evidence (“FRE”) 404(b) and was initially adopted by the Guam Legislature in 1980 on the advice of the Judicial Council of Guam. See Guam Pub. L. 15-115:8 (Mar. 25, 1980). Because GRE 404(b) is substantively the same as FRE 404(b), the commentary regarding FRE 404(b) and decisions of courts in other jurisdictions that have adopted the provision are persuasive and help 7 Guam Rule of Evidence 404(b) reads in its entirety: Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Guam R. Evid. 404(b). People v. Sablan, 2026 Guam 7, Opinion Page 18 of 28 guide our understanding of Guam’s parallel Rule 404(b). See People v. Chinel, 2013 Guam 24 ¶ 22 (“[W]e look to the federal courts’ interpretations of analogous Federal Rules of Evidence when we lack case law.”). [37] Out of concern that FRE 404(b) evidence was overwhelmingly introduced by the prosecution i