People of Guam v. Ricky Santos Cruz

IN THE SUPREME COURT OF GUAM PEOPLE OF GUAM, Plaintiff-Appellee, v. RICKY SANTOS CRUZ, Defendant-Appellant. Supreme Court Case No. CRA24-006 Superior Court Case No. CF0120-21 OPINION Cite as: 2026 Guam 13 Appeal from the Superior Court of Guam Argued and submitted on February 20, 2025 Hagåtña, Guam Appearing for Defendant-Appellant: Appearing for Plaintiff-Appellee: Braddock J. Huesman, Esq. Christine Santos Tenorio, Esq. Razzano Walsh & Torres, P.C. Assistant Attorney General 139 Murray Blvd., Ste. 100 Office of the Attorney General Hagåtña, GU 96910 General Crimes Division 134 W. Soledad Ave., Ste. 301 Hagåtña, GU 96910 People v. Cruz, 2026 Guam 13, Opinion Page 2 of 43 BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.1 MARAMAN, J.: [1] On March 9, 2021, the People charged Ricky Santos Cruz with four counts of Second Degree Criminal Sexual Conduct (“CSC II”). The charges alleged three instances of Cruz touching I.M.’s vagina and one instance of Cruz forcing I.M. to touch his penis on or about the period between January 1, 2015, and May 30, 2016. The indictment added the Special Allegation of Vulnerable Victim to each count, seeking sentencing enhancements under the Vulnerable Victims Act of 2014. [2] The trial testimony included evidence of an additional, uncharged incident of alleged criminal sexual conduct by Cruz against I.M. The evidence also showed that the five alleged incidents occurred between 2012 and 2016. The jury convicted Cruz on all four counts of CSC II. On appeal, Cruz contends that the discrepancy between the dates alleged in the indictment and those presented at trial—and the introduction of an additional, uncharged incident of alleged criminal sexual conduct—caused confusion in the charges against him. He claims this discrepancy negatively affected his substantial rights by depriving him of proper notice and exposing him to the risk of double jeopardy. [3] There was no violation of Cruz’s due process rights to notice of the charges against him or his constitutional protection against double jeopardy. We affirm. // // // 1 The signatures in this opinion reflect the titles of the Justices at the time this matter was argued and submitted. People v. Cruz, 2026 Guam 13, Opinion Page 3 of 43 I. FACTUAL AND PROCEDURAL BACKGROUND A. Magistrate’s Complaint and Indictment [4] The People filed a magistrate’s complaint alleging three counts of CSC II for three instances of Cruz touching I.M.’s vagina in 2015. The declaration of probable cause attached to the magistrate’s complaint represented that the allegations were based on I.M.’s report to police that the incidents occurred about six years before, when I.M. was in the fourth grade. The three incidents alleged in the complaint were that (1) Cruz touched I.M.’s vagina when she was in the fourth grade, (2) Cruz touched I.M.’s vagina again the following night while playing a video of an adult male massaging the exposed vagina of a female minor, and (3) Cruz touched I.M.’s vagina again the next night while playing a video of two women having sex with a man. [5] A grand jury returned an indictment charging Cruz with four counts of CSC II. Three of the four counts alleged that Cruz intentionally touched the primary genital area of I.M., a minor under fourteen years of age, on or about the period between January 1, 2015, and May 30, 2016, in Guam, in violation of 9 GCA § 25.20(a)(1) and (b). The first three counts were identical, except Count Two and its Special Allegation each stated that the underlying incident occurred “at a time different from Count One above, inclusive,” Record on Appeal (“RA”), tab 10 at 2 (Indictment, Mar. 9, 2021), and Count Three and its Special Allegation each clarified that the underlying incident occurred “at a time different from Count One and Count Two above, inclusive,” id. at 3. The fourth count alleged that Cruz “intentionally . . . caus[ed] the hand of [I.M.], a minor under fourteen (14) years of age, to touch his primary genital area, in violation of 9 GCA § 25.20(a)(1) and (b).” Id. at 3-4. The indictment added a Special Allegation of Vulnerable Victim to each count and expanded the timeframe alleged in the magistrate’s complaint by five months, from People v. Cruz, 2026 Guam 13, Opinion Page 4 of 43 January 1, 2015, through December 31, 2015, to January 1, 2015, through May 30, 2016. Id. at 1- 4. B. Cruz’s Motion In Limine to Exclude “Prior Bad Acts” [6] Before trial, Cruz moved in limine to exclude any evidence of sex acts involving I.M. that pre-dated the timeframe charged in the indictment, on the grounds that such incidents were “prior bad acts” that would be inadmissible under Guam Rule of Evidence (“GRE”) 404(b). RA, tab 61 at 1-3 (Mot. In Limine Exclude 404(b) Evid., Sep. 20, 2023). The People opposed the motion, arguing the incidents that Cruz characterized as “prior bad acts” were in fact the same acts underlying the counts of the indictment. RA, tab 65 at 1-6 (Ppl.’s Resp. Mot. In Limine to Exclude 404(b) Evid., Sep. 20, 2023). The prosecution also asserted that Cruz had long been aware of the basis for the charges because he had authored a written statement admitting to the conduct, which was given to defense counsel in initial discovery on July 28, 2021.2 Id. at 2; RA, tab 73 at 1-3 (Min. Entry, Sep. 22, 2023). In that statement, Cruz wrote: “I sexually touched [I.M.] on her vagina over her clothing and had her touch me on my privet [sic]. . . . This happened around 2011 or 2012.” See RA, tab 107 (Def.’s Sent’g Mem., Feb. 9, 2024), Ex. B at 1 (Def.’s Statement, Feb. 26, 2021). Cruz has not contested that he received this statement in discovery. [7] The People also argued that evidence of any uncharged acts by Cruz against I.M. would be admissible under GRE 413, which permits evidence of similar uncharged sexual conduct in CSC cases, subject to notice and other applicable evidentiary safeguards. See RA, tab 65 at 3-4 (Ppl.’s Resp.); Guam R. Evid. 413. The trial court issued an oral decision before jury selection, denying Cruz’s motion. Transcript (“Tr.”) at 2 (Jury Trial, Day 1, Sep. 25, 2023). In explaining its 2 While the police reports are not part of the record on appeal, Cruz’s statement is attached to his sentencing memorandum. See Record on Appeal (“RA”), tab 107 (Def.’s Sent’g Mem., Feb. 9, 2024), Ex. B at 1 (Def.’s Statement, Feb. 26, 2021). People v. Cruz, 2026 Guam 13, Opinion Page 5 of 43 decision, the trial court accepted the People’s arguments that (1) the acts in dispute were the same acts for which Cruz was charged and therefore were not “prior bad acts” under GRE 404(b), and (2) there was no material variance because time is not an element of CSC crimes. Id. (“When I questioned [the prosecutor], she said those are the same acts. They’re not extra acts.”). The trial court issued a written decision and order memorializing its rejection of Cruz’s motion to exclude. C. Trial Testimony [8] At trial, I.M. was 17 years old. I.M. testified that, while she was living at her grandmother’s house in Dededo, Cruz—her father’s relative—lived with them on and off, sharing a room with her “nina” and her auntie. Tr. at 33-34 (Jury Trial, Day 1). Cruz’s cousin testified that Cruz moved into her home in Pågat, Mangilao, in 2013, where he lived until 2015. Tr. at 35-41, 49, 51-52 (Jury Trial, Day 2, Sep. 26, 2023). Cruz’s cousin added that in 2016, Cruz moved in with her nephew, who lived next door. Id. at 41-42, 51. I.M. indicated that even after Cruz moved out, he sometimes still stayed at her grandmother’s house. See Tr. at 119-22 (Jury Trial, Day 1). Cruz’s cousin also acknowledged that it was possible Cruz occasionally stayed at I.M.’s grandmother’s house, even while living with her. See Tr. at 45, 52-53 (Jury Trial, Day 2). [9] I.M. testified to four incidents in which Cruz touched her vagina and one incident in which Cruz forced her to touch his penis, all occurring in her grandmother’s house. Tr. at 33, 36, 84-85 (Jury Trial, Day 1). [10] I.M.’s testimony about the first incident described how Cruz touched her vagina inside her nina’s room after closing the door and asking to see her private parts. Id. at 44-55. According to I.M., the first incident occurred in 2012 or 2013, when she was six or seven years old. Id. at 36, 38-43, 108, 123. I.M. also testified that the first incident happened around the time her sister was born. Id. at 36-40, 108, 123, 174-76. Her mother confirmed this sister was born in 2012. Id. at People v. Cruz, 2026 Guam 13, Opinion Page 6 of 43 143, 185. Her mother added that I.M. would have been in the first or second grade when she was six or seven years old. Id. at 185-86. [11] I.M. then described the second incident, during which Cruz touched her vagina in the same manner in the same room at night about a year or two later while playing a pornographic video of two women in lingerie “deepthroating” a sex toy. Id. at 55-67. [12] I.M. then explained the third incident, during which Cruz touched her vagina in the same manner in the same room at night about a year or two after the second incident while playing a pornographic video of an adult man touching the vagina of what looked like a six- or seven-year- old girl. Id. at 66-74. I.M. testified that she had gone to Cruz’s room that night to watch a Thomas the Train DVD on the family laptop while her parents were out of the house, but Cruz played the child pornography instead. Id. at 69, 75. [13] I.M. then described the fourth incident, during which Cruz touched her vagina in the same manner in the same room about a year after the third incident while playing an animated zombie movie that featured a shower scene with naked women. Id. at 78-80, 111, 127. I.M. testified that the fourth incident occurred when she was nine years old and in the fourth grade. Id. at 79, 95. [14] I.M. then explained a fifth incident,3 during which Cruz forced her to touch his penis over his pants at night in the room I.M. shared with her siblings. Id. at 81-87. I.M. testified that this incident also occurred when she was nine years old and in the fourth grade. Id. at 78-79, 95-96. [15] I.M. and her mother testified that due to storm damage, the family had to tear down the walls of the room in which the first four incidents allegedly occurred. Id. at 103-04, 150-51. I.M. testified that this construction occurred when she was in the fifth grade. Id. at 112-13. 3 On appeal, Cruz does not contest the fifth incident, reflected in Charge One, Count Four of the indictment. See Appellant’s Br. at 2 n.1 (Aug. 30, 2024). People v. Cruz, 2026 Guam 13, Opinion Page 7 of 43 [16] I.M. testified that she eventually told her mother about the first incident years later when she saw Cruz make her little sister “scratch his arm,” which made her angry and concerned. See id. at 87-88. Her mother testified that, at first, I.M. told her only about the first incident, which I.M. said happened when she was six or seven years old and in the first or second grade. Id. at 174-76, 186. [17] I.M.’s mother told I.M.’s father about the allegation, and I.M.’s father confronted Cruz. I.M. and her mother testified that Cruz tried to apologize to them following that confrontation. Later that night, I.M.’s mother took her to the police station to report the incident, and they returned the next day to file a statement. I.M. testified that she told the police that Cruz touched her four times when she was six or seven years old. Id. at 36-39, 107-10. I.M. further testified that she told the police that Cruz had shown her videos during two of the incidents, one “with the two ladies and then the other one dealing with a child.” Id. at 110. D. Objections and Motion for Acquittal [18] At trial, defense counsel repeatedly objected—and eventually made a continuous objection—to the introduction of evidence of CSC that allegedly occurred before the timeline in the indictment. Tr. at 3-4, 15, 36-37, 40-41 (Jury Trial, Day 1) (noting counsel’s “continuous objection” to evidence falling outside indictment’s timeline). Following the prosecution’s case- in-chief, Cruz moved for a judgment of acquittal on all four counts, claiming that insufficient evidence was presented that any sexual contact occurred in the timeframe between January 1, 2015, and May 30, 2016, alleged in the indictment. The trial court denied his motion. E. Closing Arguments [19] During their closing argument, the People noted that there was testimony of five incidents of CSC but only four charges. Tr. at 19 (Jury Trial, Day 3, Sep. 27, 2023). However, the People People v. Cruz, 2026 Guam 13, Opinion Page 8 of 43 did not specify which of the four incidents of Cruz allegedly touching I.M.’s vagina were associated with Counts One, Two, and Three in the indictment. Even when reciting the charges to the jury, the People did not clarify which incidents were being prosecuted. Id. at 27-29.4 Instead, the People stated that the first three counts had the same elements, “[t]he only difference being that [each] occurred at a time different” from the other counts. Id. at 28-29. Moreover, the People referred to the four or five incidents collectively when discussing the weight of the evidence and I.M.’s credibility. Id. at 20-21, 25, 29. The People assert on appeal that the uncharged act was the fourth incident involving the animated zombie video. See Appellee’s Br. at 27 (Oct. 17, 2024).5 [20] During closing arguments, defense counsel emphasized the variance between the dates in the indictment and the dates elicited at trial, attacked the credibility of the witnesses, and argued that there was a lack of evidence genuinely corroborating I.M.’s testimony. Defense counsel asserted that the CSC could not have occurred during the 2015-2016 time alleged because (1) Cruz had moved out of I.M.’s grandmother’s house by 2013, and (2) the room in which the first four incidents allegedly occurred no longer existed by 2015. Defense counsel also attacked I.M.’s 4 Regarding Count One: “In order to prove Ricky Cruz guilty of Count One of Second Degree Criminal Sexual Conduct, in order to prove . . . Ricky [is] guilty of this Charge, the People must prove . . . : ‘On or about the period between January 1st, 2025 [sic] and May 30th, 2016, inclusive . . . in Guam, that Ricky intentionally engaged in sexual contact with another, to wit, by touching the primary genital area of [I.M.], a minor under fourteen years of age.’ So based on everything you’ve heard, what do you know? You know that these events occurred in Guam, and that Ricky Cruz made sexual contact with [I.M.] by touching her vagina, which is a primary genital area, and that [I.M.] was under -- for well under fourteen years of age at the time.” Transcript (“Tr.”) at 27-28 (Jury Trial, Day 3, Sep. 27, 2023). Regarding Count Two: “Count Two of Second Degree Criminal Sexual Conduct are the same elements. The only difference here is that Count Two relates to an incident that occurred at a time different from Count One. Okay?” Id. at 28-29 (emphasis added). Regarding Count Three: “[T]hese are the elements for Count Three for Second Degree Criminal Sexual Conduct. Once again, the same elements. The only difference being that it occurred at a time different from Count One and Count Two. Now, remember that . . . [I.M.] testified that about four incidents in which Ricky Cruz sexually assaulted her by massaging her vagina, but only three of those incidents have been charged, and those three incidents are Counts One, Two, and Three.” Id. at 29 (emphases added). 5 While the People contend on appeal that the uncharged act was the fourth incident involving the animated zombie video, see Appellee’s Br. at 27 (Oct. 17, 2024), their closing argument devoted more attention to that uncharged incident than to the first charged incident, see Tr. at 20-21 (Jury Trial, Day 3). People v. Cruz, 2026 Guam 13, Opinion Page 9 of 43 assertions that Cruz showed her child pornography, questioning why the police did not engage in their standard search for this pornography. Defense counsel also pointed out that the police did not refer I.M. to the Healing Hearts Crisis Center at the Guam Behavioral Health and Wellness Center (“GBHWC”) for sexual abuse. Defense counsel also noted that when I.M. did eventually go to the crisis center for suicidal ideation, she did not say that the alleged CSC caused her trauma. Defense counsel suggested that her trauma could have instead stemmed from the issues with her father that were evident from both I.M. and her mother’s testimony. F. Jury Instructions and Verdict Forms [21] The jury instructions included an unanimity instruction requiring the jury to come to a “substantial agreement as to the principal factual elements underlying a specified offense.” RA, tab 85 at Instr. 8B (Jury Instrs., Sep. 28, 2023). [22] The verdict forms did not provide any indication of which of the first four incidents to which I.M. testified correspond with Counts One, Two, and Three. G. Verdict and Sentencing [23] On September 28, 2023, the jury found Cruz guilty of all four counts of CSC II and Special Allegations. At the sentencing hearing, the People moved to dismiss the Vulnerable Victim sentencing enhancements because the incidents occurred around 2012 or 2013, and the Vulnerable Victim sentencing enhancement was enacted in 2014. The trial court agreed that the Vulnerable Victim sentencing enhancements would not be used. The trial court sentenced Cruz to ten years of incarceration. Cruz timely appealed. II. JURISDICTION [24] This court has jurisdiction over appeals from final judgments of the Superior Court. 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 119-127 (2026)); 7 GCA §§ 3107, 3108(a) (2005); 8 GCA §§ 130.10, 130.15(a) (2005). People v. Cruz, 2026 Guam 13, Opinion Page 10 of 43 III. STANDARD OF REVIEW [25] Generally, this court reviews de novo material-variance claims that implicate Fifth Amendment considerations regarding fair notice and double jeopardy. See People v. Taitano, 2015 Guam 33 ¶ 9. A variance is material and constitutes a reversible error when it affects the substantial rights of the accused by either: (1) causing unfair surprise that impairs their ability to present a defense or (2) creating a risk of a subsequent prosecution for the same offense. See People v. Campbell, 2006 Guam 14 ¶ 12 (quoting Berger v. United States, 295 U.S. 78, 82 (1935)); Taitano, 2015 Guam 33 ¶¶ 11, 18. But “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” 8 GCA § 130.50(a) (2005). [26] When a defendant fails to object to defects in the indictment before trial, this court reviews for plain error. See People v. Felder, 2012 Guam 8 ¶ 8. Under plain-error review, this court “will not reverse unless (1) there was an error; (2) the error is clear or obvious under current law; (3) the error affected substantial rights; and (4) reversal is necessary to prevent a miscarriage of justice or to maintain the integrity of the judicial process.” People v. Martin, 2018 Guam 7 ¶ 9 (quoting People v. Quitugua, 2009 Guam 10 ¶ 11). [27] The parties dispute the standard of review that applies to Cruz’s material-variance claim. The People argue that Cruz did not object to the language of the indictment before trial, and therefore, this court should invoke the plain-error standard of review. Appellee’s Br. at 10 (citing Felder, 2012 Guam 8 ¶ 31). Title 8 GCA § 65.15, which is based on Federal Rule of Criminal Procedure 12(b), requires a defendant to object to an indictment before trial, unless the objection is that it fails to show jurisdiction or to charge an offense. 8 GCA § 65.15(b) (2005) (“The following shall be raised prior to trial: . . . (b) Defenses and objections based on defects in the indictment . . . . ”); Fed. R. Crim. P. 12(b)(3)(B)(iii) (“The following . . . objections . . . must be raised by pretrial motion . . . : (B) a defect in the indictment . . . including: . . . lack of People v. Cruz, 2026 Guam 13, Opinion Page 11 of 43 specificity.”); see also Martin, 2018 Guam 7 ¶ 11. Failure to raise such an objection in a pretrial motion constitutes waiver absent a showing of good cause. 8 GCA § 65.45 (2005); Martin, 2018 Guam 7 ¶ 11. [28] However, in his pretrial motion to exclude GRE 404(b) evidence, Cruz sought to exclude the introduction of evidence of bad acts committed before the timeframe alleged in the indictment. RA, tab 61 at 1-3 (Mot. In Limine Exclude 404(b) Evid.). Cruz argued that such prior bad acts were “not relevant to the allegations contained in the indictment and appear to be whole new allegations.” Id. at 1. Furthermore, at trial, defense counsel repeatedly objected—and ultimately lodged a continuous objection—to the introduction of evidence predating the 2015-2016 timeframe alleged in the indictment. See Tr. at 3-4, 15, 36-37, 40-41 (Jury Trial, Day 1). Defense counsel again raised this concern when moving for acquittal. See Tr. at 21-25 (Jury Trial, Day 2). Because his pretrial motion to exclude, trial objections, and motion for acquittal were all premised on the alleged variance between the indictment and the evidence the People sought to introduce, we conclude that the issue was preserved. See United States v. Lokey, 945 F.2d 825, 833 n.2 (5th Cir. 1991) (concluding variance issue preserved by defendant’s motion in limine and objections at trial). We therefore review Cruz’s material-variance claim de novo. IV. ANALYSIS A. The Variance Was Immaterial and Does Not Warrant Reversal [29] Cruz’s sole claim on appeal is that a variance between the indictment and the trial evidence deprived him of adequate notice of the charges and exposed him to a risk of double jeopardy. See Appellant’s Br. at 7 (Aug. 30, 2024). He maintains that the dates alleged in the indictment did not align with the proof at trial and that testimony describing more incidents than charged further obscured which underlying acts formed the basis of the convictions. We therefore examine People v. Cruz, 2026 Guam 13, Opinion Page 12 of 43 whether a variance existed, and if so, whether it materially affected Cruz’s substantial rights to notice of the charges or protection against subsequent prosecution. [30] Generally, allegations in an indictment must correspond with the proof offered at trial. Campbell, 2006 Guam 14 ¶ 12 (quoting Berger, 295 U.S. at 82). The purpose of this rule is to protect the accused’s substantial rights enshrined in the Fifth Amendment. See id. (citing Berger, 295 U.S. at 82); Taitano, 2015 Guam 33 ¶ 18. The Due Process Clause of the Fifth Amendment protects an accused’s substantial rights to notice of charges and to protection from double jeopardy. People v. Riosen, 2023 Guam 23 ¶ 38; Taitano, 2015 Guam 33 ¶ 18. [31] A variance occurs when there is a discrepancy between the wording of the indictment and the evidence provided at trial. Taitano, 2015 Guam 33 ¶ 19. As Cruz notes, “proof at trial need not be a precise replica of the charges contained in an indictment.” Appellant’s Br. at 14 (citing Taitano, 2015 Guam 33 ¶ 35). However, a variance is material—and constitutes reversible error— when it affects the defendant’s substantial rights by either: (1) taking them by surprise and hindering their ability to present a defense or (2) exposing them to the risk of another prosecution for the same offense. See Campbell, 2006 Guam 14 ¶ 12 (quoting Berger, 295 U.S. at 82); Taitano, 2015 Guam 33 ¶ 18. 1. There was a variance between the timeline in the indictment and the proof at trial for two of the counts [32] The indictment alleged that the four counts of CSC each occurred between January 1, 2015, and May 30, 2016. The People assert that “the only charge that is not covered by the time period in the indictment is Charge One, Count One; the testimony indicated that the incident would have occurred between 2012 and 2013, approximately two to three years before the time period set out in the Indictment.” Appellee’s Br. at 18. We disagree, as a review of the evidence suggests that both the first and second incidents occurred outside the timeframe alleged in the indictment. People v. Cruz, 2026 Guam 13, Opinion Page 13 of 43 [33] The evidence at trial indicated that the first incident occurred around 2012 or 2013, when I.M. was six or seven years old and in the first or second grade. Tr. at 36-43, 108, 123, 174-76, 184-86 (Jury Trial, Day 1). This means that there was a variance between the timeline established for the first incident by the proof at trial and the 2015-2016 timeline alleged in the indictment. [34] While there is ambiguity regarding the timing of the second and third incidents, I.M. consistently testified that the fourth and fifth incidents occurred when she was in the fourth grade, noting that she was nine years old throughout the entire school year. Id. at 78-79, 95-96. When the prosecution asked her in what year she was nine years old, I.M. said she was unsure. Id. at 95- 96. The prosecution then tried to do the calculation for her, saying she was born in 2006, and that 2006 plus nine was 2014. Id. at 95-97. I.M. seemed to defer to the attorney’s calculation when she responded: “I believe so.” See id. However, the prosecutor’s calculation was mistaken.6 Given I.M’s June 2006 birthdate, it follows that she would have been nine years old from June 2015 until June 2016, and therefore in the fourth grade from fall 2015 to spring 2016. This accurate calculation places the fourth incident squarely within the timeframe of the indictment. But defense counsel continued to rely on the incorrect 2014 date during cross-examination, which—if accepted—would have placed the incident outside the charged timeframe, despite the record supporting that it occurred within it. See Tr. at 109 (Jury Trial, Day 1). [35] I.M. testified that the third incident occurred about a year before the fourth incident and about a year after the second incident. Id. at 67, 79, 110. Because the fourth incident occurred between fall 2015 and spring 2016, the evidence places the third incident roughly between 2014 and 2015. The possible timeframe of the third incident overlaps with the 2015-2016 timeline 6 When trying to calculate dates, the prosecutor noted: “[M]ath is not my strength either.” Tr. at 29 (Jury Trial, Day 1, Sep. 25, 2023). People v. Cruz, 2026 Guam 13, Opinion Page 14 of 43 alleged in the indictment, and the evidence does not establish that this incident occurred outside the charged period. Thus, there is no variance for this count. [36] I.M. further testified that the second incident took place about a year before the third incident and about a year or two after the first incident. Id. at 66-67. Because the first incident occurred in 2012 or 2013 and the third incident occurred around 2014-2015, the evidence suggests that the second incident occurred between 2013 and 2014—outside the 2015-2016 period alleged in the indictment, resulting in a variance for that count. [37] In summary, the proof at trial established that the first incident occurred between 2012 and 2013, the second between 2013 and 2014, the third between 2014 and 2015, and the fourth between 2015 and 2016. Thus, the first and second incidents fell outside the January 1, 2015, to May 30, 2016, timeframe alleged in the indictment, while the fourth incident fell within it and the third incident’s possible timeframe overlapped it.7 Accordingly, the record reflects a variance between the indictment’s alleged timeline and the proof presented at trial as to two of the counts. 2. The variance was not material [38] When presented with a variance claim, this court analyzes it with “two separate but related inquiries.” People v. Wesen, 2022 Guam 18 ¶ 38 (quoting Taitano, 2015 Guam 33 ¶ 11). Under the first inquiry, if the variance claim alleges a lack of proof at trial regarding the essential elements of the charges in the indictment, the court assesses the sufficiency of the evidence supporting the conviction de novo. Taitano, 2015 Guam 33 ¶¶ 9, 11. Under the second inquiry, the court determines whether the variance affected the substantial rights of the defendant, including the rights to proper notice of charges and to protection against double jeopardy. Id. ¶ 11; Wesen, 2022 7 For purposes of this timeline analysis, we refer to the incidents in the sequence in which I.M. described them at trial; as discussed below in our notice analysis, however, the declaration attached to the magistrate’s complaint appears to describe the second and third incidents in a different order. People v. Cruz, 2026 Guam 13, Opinion Page 15 of 43 Guam 18 ¶¶ 39-40. These claims are also reviewed de novo. Taitano, 2015 Guam 33 ¶ 9. Sufficiency-of-the-evidence analysis is unnecessary where the defendant does not contend that the People did not prove the charged offenses and instead argues that the introduction of extraneous acts impaired his substantial rights. See Wesen, 2022 Guam 18 ¶ 38. [39] Here, Cruz concedes that “the sufficiency of the evidence is not at issue.” Appellant’s Br. at 3. Cruz instead argues that the variance between the allegations in the indictment and the evidence presented at trial was material because extraneous proof of other facts affected his substantial rights. See id. at 15; Appellant’s Reply Br. at 4 (Dec. 4, 2024). Thus, we need not engage in analysis under the first inquiry, and our analysis focuses only on the second material- variance inquiry. See Wesen, 2022 Guam 18 ¶¶ 38, 39. [40] A variance constitutes reversible error if it affects the substantial rights of a defendant by denying proper notice of charges against him or exposing him to significant risk of double jeopardy. Taitano, 2015 Guam 33 ¶ 11. Cruz argues that there was a variance between the dates alleged in the indictment and the dates presented at trial that created a lack of clarity in the charges against him and resulted in a lack of proper notice. Appellant’s Br. at 8-15; Reply Br. at 4. Cruz asserts that, although the People charged him with crimes in 2015 and 2016, “when it presented its evidence, most of the crimes it sought a conviction for occurred several years before” the indictment’s timeframe. Appellant’s Br. at 10. Cruz characterizes the first three counts in the indictment as “three identical boilerplate charges for the wrong timeframe” that made it “impossible to tell which allegations go to which crime.” Id. at 8-11. [41] To determine whether an indictment provided adequate notice, the court may first consider whether its charges were sufficiently specific. “[A] charge is sufficiently specific when it contains the elements of the crime, permits the accused to plead and prepare a defense, and allows the People v. Cruz, 2026 Guam 13, Opinion Page 16 of 43 disposition to be used as a bar in a subsequent prosecution.” Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir. 1992) (citations omitted). Here, the charges in the indictment included the essential elements within each count. See generally RA, tab 10 (Indictment). [42] “While ‘prosecutors should be as specific as possible in delineating the dates and times of abuse offenses,’ ‘[f]airly large time windows in the context of child abuse prosecutions are not in conflict with constitutional notice requirements’ because of the inherent difficulties in investigating and prosecuting child abuse.” United States v. Beasley, 688 F.3d 523, 533 (8th Cir. 2012) (alteration in original) (quoting Valentine v. Konteh, 395 F.3d 626, 632 (6th Cir. 2005)). “Courts have recognized that it is difficult for child witnesses to identify exact times, dates, and locations, and thus they have consistently given prosecutors and grand juries leeway in terms of the particularity required in this kind of case . . . .” 157 Am. Jur. Trials 187 § 24 (Aug. 2026 Update). “This is particularly true where the crimes involve a repeated course of conduct over an extended period of time and the accused and the victim are related or reside in the same household, which facilitates the extended period of abuse.” Id. [43] The People argue that “[d]iscrepancies between the dates of the crimes charged and the dates elicited at trial do not constitute a material variance because time is not an element of criminal sexual conduct.” Appellee’s Br. at 15. It is true that time is not an element of criminal sexual conduct, People v. Kusterbeck, 2024 Guam 3 ¶ 16 (collecting cases), and “[a]s long as a defendant is neither surprised nor hampered in preparing his defense, there can be a variance between the dates proved at trial and those alleged in an indictment or information,” Campbell, 2006 Guam 14 ¶ 17 (quoting Tingley v. State, 549 So. 2d 649, 650 (Fla. 1989)). [44] At the same time, due process requires a prosecutor who seeks multiple charges against a defendant to “link those multiple charges to multiple identifiable offenses.” Valentine, 395 F.3d People v. Cruz, 2026 Guam 13, Opinion Page 17 of 43 at 636. While “differentiation will often require reference to date ranges or time ranges or certain locations or certain actions . . . , differentiation does not require overly-burdensome precision.” Id. at 637. This court has concluded that adding language like “at a time different than that alleged in Count One” in otherwise identical charges sufficiently establishes that the counts of an indictment allege offenses for distinguishable acts. See Martin, 2018 Guam 7 ¶ 20 (citation modified). [45] After determining whether the charges were sufficiently specific, the reviewing court may then consider whether the evidence at trial delineates the factual bases for each separate incident alleged in the indictment. See Valentine, 395 F.3d at 634 (“The due process problems in the indictment might have been cured had the trial court insisted that the prosecution delineate the factual bases for the forty separate incidents either before or during the trial.”). In cases of repeat sexual abuse of a child, a “separate incident” of criminal sexual conduct “can be shown by tying each count to a salient fact in the victim’s life.” See Riosen, 2023 Guam 23 ¶ 27 (citing People v. Callahan, 2022 Guam 13 ¶ 26; Campbell, 2006 Guam 14 ¶ 27). a. Cruz had adequate notice of the charges against him8 [46] To determine whether a defendant received adequate notice of the charges against him, a court may consider sources other than the indictment, including a complaint, an arrest warrant, a bill of particulars, information provided during pretrial discovery, and information provided during the course of pretrial hearings. Taitano, 2015 Guam 33 ¶ 19; Wesen, 2022 Guam 18 ¶¶ 40-49; Valentine, 395 F.3d at 633, 636. In People v. Wesen, this court held that the defendant’s substantial rights were not violated when the trial court admitted evidence of uncharged acts of CSC. 2022 8 This analysis concerns a defendant’s constitutional right under the Fifth Amendment to receive adequate notice of the charges against him. We note that this right is distinct from the evidentiary notice requirements of GRE 404(b) and GRE 413, which operate under separate legal frameworks, serve different procedural and constitutional purposes, and generally protect different interests in criminal proceedings. People v. Cruz, 2026 Guam 13, Opinion Page 18 of 43 Guam 18 ¶¶ 40, 49 (citing Guam R. Evid. 413(b)). We reasoned that a declaration attached to the magistrate’s complaint, along with police reports provided during pretrial discovery, gave the defendant sufficient notice of the expected testimony against him. Id. [47] In evaluating whether a variance affected a defendant’s right to notice of the charges, this court may find that any variance between the indictment and the trial evidence is immaterial and is not a constitutional violation where the defendant received adequate notice. See People v. Taisacan, 2018 Guam 23 ¶ 32 (determining that defendant had adequate notice and therefore “any variance between the facts alleged in the indictment and those presented at trial were immaterial and did not rise to the level of a constitutional violation”); see also 8 GCA § 130.50(a) (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”); cf. Indictments, 41 Geo. L.J. Ann. Rev. Crim. Proc. 280, 315-17 & n.962 (2012) (“Unless the defendant can demonstrate substantial prejudice, courts will rarely reverse a conviction on the basis of a variance.”). [48] Cruz argues that there was insufficient notice of the charges against him because the indictment alleged four counts of CSC that occurred during January 1, 2015, and May 30, 2016, “but the testimony at trial suggested that the indicted crimes and the prior bad act happened years earlier.” Reply Br. at 9; Appellant’s Br. at 7, 9-15. Cruz further contends that, for his convictions on the first three counts, there was evidence of four crimes presented at trial, and the lack of specificity in the indictment and jury verdict forms makes it “impossible to link the evidence to the count as convicted.” Appellant’s Br. at 14. Cruz maintains this lack of clarity violated his right to proper notice. Reply Br. at 5. Cruz also asserts that the dates in this case are important for two reasons: (1) they are relevant to his alibi, and (2) they determine whether the Special People v. Cruz, 2026 Guam 13, Opinion