CSC II “Sexual Contact” Requires Only a Reasonably Construed Sexual Purpose (Not Actual Gratification), and “Two-Inference” Reasonable-Doubt Language Is Not Required

I. Introduction

In People of Guam v. Gregorio Trio Denamarquez, Jr., 2025 Guam 18, the Supreme Court of Guam affirmed three convictions for Second-Degree Criminal Sexual Conduct (“CSC II”) involving a complainant under fourteen years old. The case arose from allegations that, on multiple occasions between 2014 and 2021, Denamarquez touched the minor’s buttocks or inner thigh. A jury convicted on three counts (Counts Three to Five) and acquitted on two (Counts One and Two). Denamarquez received a seven-year sentence and appealed.

The appeal primarily challenged two jury-instruction issues:

1. Whether the “sexual contact” element was improperly framed because it allegedly allowed conviction without proof beyond a reasonable doubt that the touching was for the actual purpose of sexual arousal or gratification.
2. Whether deleting the “two inference” language from the reasonable doubt instruction (deleted at defense counsel’s request) lowered the prosecution’s burden and constituted reversible error.

II. Summary of the Opinion

The Supreme Court of Guam affirmed. It held:

• Under Guam law, “sexual contact” is satisfied if intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification; the prosecution need not prove the actor’s actual purpose was sexual arousal or gratification. The court relied on its prior construction of the statutory definition, reaffirming People v. Morales, 2022 Guam 1 ¶ 75.
• The trial court did not err by removing the “two inference” language from the reasonable doubt instruction, particularly because the language is widely criticized as confusing and potentially implying a lesser (preponderance-like) standard. The court held the “two inference” language is not required so long as the reasonable doubt instructions otherwise adequately convey the prosecution’s burden.

A concurrence agreed the convictions should be affirmed on the issues actually argued, but warned that the way “sexual contact” was partially embedded into the elements instruction risked ambiguity and could, in future cases, resemble an impermissible mandatory presumption.

III. Analysis

A. Precedents Cited

1. Guam cases shaping the instruction framework

• People v. Baluyot, 2016 Guam 20 (cited for standards of review and the “instructions as a whole” approach): The court reiterated that unobjected-to instructions are reviewed for plain error and that appellate courts evaluate instructions in their entirety, not in isolation. This supported the court’s selection of plain error review because defense counsel did not object to the challenged “sexual contact” formulation at trial.
• People v. Cox, 2018 Guam 16 (cited on ambiguous charges and presumptions; supplemental briefing requested): Cox supplies the “reasonable likelihood” test (drawn from Estelle v. McGuire, 502 U.S. 62 (1991)) for whether a jury applied an instruction in a constitutionally impermissible manner—especially where presumptions could relieve the prosecution of its burden. The majority ultimately did not apply Cox to reverse because the appellant’s arguments were narrower; the concurrence, however, treated Cox as the key lens for future risk.
• People v. Morales, 2022 Guam 1: Morales was dispositive on the meaning of “sexual contact,” holding that the element is met if the touching can reasonably be construed as being for sexual arousal or gratification even without proof of the actor’s specific subjective purpose. Denamarquez’s “actual purpose” theory directly conflicted with Morales, leading the court to find no error.
• People v. Mendiola, 2023 Guam 12: The court cited Mendiola to reaffirm that even structural constitutional claims, when unpreserved, are evaluated under the plain error framework. That foreclosed Denamarquez’s attempt to avoid plain error review by labeling the claimed defect “structural.”
• People v. Kusterbeck, 2024 Guam 3: Kusterbeck adopted the Ninth Circuit’s modern invited-error formulation, distinguishing waiver from forfeiture. It framed the People’s invited-error response to the “two inference” issue—though the court resolved the point more directly by finding no error at all.
• Additional citations used for plain-error mechanics and instruction review: People v. Gargarita, 2015 Guam 28, People v. Diego, 2013 Guam 15, People v. Aldan, 2018 Guam 19, People v. Soram, 2024 Guam 10. Collectively, these cases structured the court’s burden allocation (appellant must prove error) and the multi-prong plain-error test.

2. U.S. Supreme Court and federal circuit guidance

• Sullivan v. Louisiana, 508 U.S. 275 (1993): Cited by Denamarquez for the proposition that constitutionally deficient reasonable doubt instructions can constitute structural error. The Guam Supreme Court did not dispute Sullivan’s general principle but held the challenged instruction was not deficient (and the “actual purpose” theory was incorrect), removing the predicate for structural-error relief.
• Estelle v. McGuire, 502 U.S. 62 (1991) and Victor v. Nebraska, 511 U.S. 1 (1994): These cases anchor the idea that no particular wording is constitutionally required so long as the instructions, taken as a whole, correctly convey the reasonable doubt concept. They supported the court’s conclusion that omission of “two inference” language does not itself violate due process.
• Criticism of “two inference” language: United States v. Khan, 821 F.2d 90 (2d Cir. 1987); United States v. Blankenship, 846 F.3d 663 (4th Cir. 2017); United States v. Blackwell, 459 F.3d 739 (6th Cir. 2006); United States v. Jacobs, 44 F.3d 1219 (3d Cir. 1995); United States v. Dowlin, 408 F.3d 647 (10th Cir. 2005). These authorities were used to show the “two inference” phrasing is not only unnecessary but can imply a lesser standard of proof; thus, removing it is not error where the rest of the instruction correctly states reasonable doubt.
• State cases on “two inference” language: State v. Gant, 646 A.2d 835 (Conn. 1994); People v. Johnson, 783 N.Y.S.2d 5 (App. Div. 2004); People v. Cruz, 568 N.Y.S.2d 763 (App. Div. 1991); People v. Viloria, No. 92-00023A, 1993 WL 470409 (D. Guam App. Div. Oct. 12, 1993), aff’d, 56 F.3d 73 (9th Cir. 1995). These cases reinforced the rule the court adopted: trial courts are not obligated to give the instruction if the reasonable doubt charge is otherwise adequate.
• Invited error / waiver doctrine: United States v. Staufer, 38 F.3d 1103 (9th Cir. 1994); United States v. Guthrie, 931 F.2d 564 (9th Cir. 1991); United States v. Perez, 116 F.3d 840 (9th Cir. 1997); United States v. Olano, 507 U.S. 725 (1993). These framed the parties’ dispute over whether Denamarquez could complain about deletion of language his own counsel requested; although, again, the court sidestepped the waiver issue by finding no underlying instructional error.

B. Legal Reasoning

1. The “sexual contact” element: rejecting the “actual purpose” requirement

The statutory definition in 9 GCA § 25.10(a)(9) provides that “‘Sexual Contact’ includes the intentional touching … if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.” The court reaffirmed its interpretation from People v. Morales, 2022 Guam 1 ¶ 75: the prosecution need not prove the defendant acted with the subjective, actual purpose of sexual gratification; it is enough that the intentional touching can reasonably be construed that way.

Procedurally, because defense counsel did not object at trial, the court applied plain error review. The first prong—existence of error—failed because the instruction’s legal premise (no “actual purpose” requirement) matched Morales. Without error, the plain error analysis ended.

2. Reasonable doubt and “two inference” language: not mandatory and potentially misleading

The court adopted a clear rule: the “two inference” language is not required if the instructions adequately convey proof beyond a reasonable doubt. It emphasized that numerous jurisdictions disapprove the language because it can suggest a preponderance-like weighing of competing inferences, which is inconsistent with the criminal burden.

Importantly, the court treated the deletion as non-error even though it occurred at defense counsel’s request—meaning the court did not need to decide whether the invited-error doctrine barred review.

3. The concurrence’s warning: partial “sexual contact” wording may create ambiguity/presumption risk

Justice Maraman agreed the court should affirm given the narrow issues raised, but highlighted a separate concern: embedding an incomplete, conclusory fragment of the “sexual contact” definition into the elements instruction (while also providing the full definition elsewhere) could confuse jurors and potentially function like a mandatory presumption. The concurrence tied this risk to the presumption analysis discussed in People v. Cox, 2018 Guam 16 (drawing on Francis v. Franklin, 471 U.S. 307 (1985), Sandstrom v. Montana, 442 U.S. 510 (1979), and Cnty. Ct. of Ulster Cnty. v. Allen, 442 U.S. 140 (1979) as quoted in Cox).

As practical guidance, the concurrence encouraged using a clearer, plain-language, element-by-element instruction modeled on Mich. Model Crim. Jury Instr. 20.2, while noting Guam’s statutory definition is narrower than Michigan’s.

C. Impact

1. Substantive clarification in CSC II prosecutions

This opinion reinforces a defendant-significant and prosecution-significant clarification already present in People v. Morales, 2022 Guam 1: Guam’s CSC II “sexual contact” does not require proving the defendant’s subjective sexual intent as an “actual purpose,” but rather a reasonable construction of the touching’s sexual character. Future litigation is likely to focus less on subjective intent and more on whether the touching, contextually, can reasonably be construed as sexually motivated under the statutory definition.

2. Instruction drafting: “two inference” language is now expressly optional in Guam

The court articulated a prospective rule for trial courts: omission of the “two inference” language is not error if the reasonable doubt instructions remain constitutionally adequate. This reduces the likelihood that appellate challenges will succeed based solely on the absence of that sentence and aligns Guam practice with the prevailing national skepticism about the phrase.

3. A cautionary note for future CSC II instructions

While not the holding, the concurrence signals litigation risk when trial courts partially embed definitional fragments as “elements” in a way that could be read as presuming facts. Prosecutors and trial judges may respond by restructuring CSC II instructions to track the statute in a clearer, sequential manner—minimizing Cox-type due process challenges.

IV. Complex Concepts Simplified

• “Plain error” review: If a party did not object at trial, an appellate court will usually reverse only for an obvious, highly prejudicial mistake that affected the verdict and threatens the fairness of the judicial process.
• “Structural error”: A rare type of error that affects the framework of the trial itself (for example, a truly defective reasonable doubt instruction). If preserved and established, it typically requires reversal without harmless-error balancing—but Guam case law (e.g., People v. Mendiola, 2023 Guam 12) still channels unpreserved claims through plain error review.
• “Invited error”: A party generally cannot seek reversal based on an error it asked the court to make. Under People v. Kusterbeck, 2024 Guam 3, if counsel both invites the error and knowingly relinquishes a right, it is waived and unreviewable; otherwise it may be reviewed as forfeiture under plain error.
• “Mandatory presumption” in jury instructions: Language that effectively tells jurors they must find an element proven (or treat it as established) once some other fact is proven. Such presumptions can violate due process if they relieve the prosecution of proving every element beyond a reasonable doubt.
• “Two inference” language: A sentence sometimes added to reasonable doubt instructions telling jurors that if evidence supports both guilt and innocence inferences, they should adopt innocence. Courts often criticize it as confusing because it can make jurors think the case is decided by weighing which inference is more likely (a civil-style concept), rather than requiring proof beyond a reasonable doubt.

V. Conclusion

People of Guam v. Denamarquez cements two practical rules in Guam criminal practice: (1) CSC II “sexual contact” does not require proof that a defendant acted for the actual purpose of sexual arousal or gratification—only that the touching can reasonably be construed as such under 9 GCA § 25.10(a)(9) and People v. Morales, 2022 Guam 1; and (2) trial courts are not required to include “two inference” language in reasonable doubt instructions so long as the charge otherwise accurately conveys the beyond-a-reasonable-doubt standard.

At the same time, the concurrence underscores a forward-looking caution: imprecise incorporation of partial statutory definitions into “elements” instructions may generate ambiguity and potential due process challenges under the presumption analysis discussed in People v. Cox, 2018 Guam 16. The opinion therefore both affirms these convictions and provides a roadmap—explicitly for reasonable doubt instructions and implicitly for CSC II element drafting—likely to shape future Guam jury-instruction practice.