Vanhorn (Richard) v. State ( 2015 )

 involuntary. He argues that, without evidence in addition to A.R.'s
inconsistent testimony, there was insufficient evidence to convict.
"When reviewing a criminal conviction for sufficiency of the
evidence, this court determines whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt
when viewing the evidence in the light most favorable to the prosecution."
Brass v. State, 128 Nev., Adv. Op. 68, 291 P.3d 145, 149-50 (2012). "This
court will not reweigh the evidence or evaluate the credibility of witnesses
because that is the responsibility of the trier of fact." Clancy v. State, 129
Nev., Adv. Op 89, 313 P.3d 226, 231 (2013) (quoting Mitchell v. State, 124
Nev. 807, 816, 192 P.3d 721, 727 (2008)).
This court has "repeatedly held that the testimony of a sexual
assault victim alone is sufficient to uphold a conviction." LaPierre v. State,
108 Nev. 528, 531, 836 P.2d 56, 58 (1992). Therefore, in this case, the
evidence was sufficient so long as A.R. testified to each count.
Nevertheless, there must be separate, particularized
testimony supporting each count. See id. ("[T]he victim must testify with
some particularity regarding the incident in order to uphold the charge.").
Convictions for sexual abuse and lewdness arising out of the same set of
acts are impermissibly redundant when there is no testimony as to the
specific sequence of events. See Gaxiola v. State, 121 Nev. 638, 652, 119
P.3d 1225, 1235 (2005) (reversing lewdness conviction where "it is
impossible to determine whether the lewdness was incidental to the sexual
assault because the child did not testify regarding the sequence of
events"). However, if the testimony shows the completion of an act and
the beginning of a different act, interrupted by some (however small)
period of time, then the conviction may stand. Cf. Wright v. State, 106
SUPREME COURT
OF
NEVADA
2
(0) 1947A c4e)
Nev. 647, 650, 799 P.2d 548, 549 (1990) ("The testimony of the victim
established that between the attempted and completed assaults, Wright
stopped and waited while a car passed."). In Crowley v. State, this court
held that the defendant's "actions were not separate and distinct" where
the defendant's "touching the victim's penis on the outside of his pants
was a prelude to touching the victim's penis inside his underwear." 120
Nev. 30, 34, 83 P.3d 282, 285 (2004). The court reasoned that the
defendant "sought to arouse the victim and create willingness to engage in
sexual conduct." Id.Here, A.R. testified to at least five distinct incidents of fellatio:
• In her garage;
• In her kitchen;
• In Van Horn's car, while he was driving;
• In Van Horn's car while parked at Durango Hills Park;
• In Van Horn's car while parked at another, unspecified location.
In contrast, the four lewdness counts are not clearly distinguished. A.R.'s
testimony regarding Van Horn's fondling of her breasts and genitals is
vague. Her testimony only distinguishes between touching of the breasts
and genitals. Hence, her testimony justifies two counts, not four. A.R.'s
statement that the acts occurred multiple times per month is insufficient
to justify more convictions. See LaPierre, 108 Nev. at 531, 836 P.2d at 58(stating that something more than a child's speculation is needed to
establish the number of incidents that occurred).
Because Alt's testimony only reveals two distinct acts of
lewdness, a rational trier of fact could only convict Van Horn of two
lewdness counts. We therefore reverse two of the four lewdness
convictions.
SUPREME COURT
OF
NEVADA
3
(0) I947A
Van Horn's statements to police
The district court did not err by admitting Van Horn's
statements to police. First, Van Horn argues that his waiver of his
Miranda rights was not valid because he was hungry and tired, the
officers were coercive, and he suffered from an anxiety disorder. See
Miranda v. Arizona, 384 U.S. 436 (1966). Yet Van Horn's three
affirmative responses after being Mirandized show that he intelligently,
knowingly, and voluntarily waived his Miranda rights.
Second, Van Horn argues that police detectives violated his
right to remain silent by questioning him after he said that he did not
want to talk anymore. But he never unambiguously stated that he did not
wish to speak any more. Therefore, the district court had substantial
evidence to conclude that Van Horn did not invoke his right counsel. See
Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) (requiring simple,
unambiguous statement). Likewise, nothing in the record contradicts the
district court's determination that Van Horn's statements were voluntarily
made.
Third, Van Horn argues that the many omissions in the
interrogation transcript made the entire statement unreliable and
inadmissible. Whether a recording is admissible is reviewed for abuse of
discretion. United States v. Lane, 514 F.2d 22, 27 (9th Cir. 1975). "A
recorded conversation is generally admitted unless the unintelligible
portions are so substantial that the recording as a whole is
untrustworthy." Id. Courts have held that "a partially unintelligible tape
is admissible unless the audible portions of the tape are so incomplete the
tape's relevance is destroyed." People v. Polk, 54 Cal. Rptr. 2d 921, 926
(Ct. App. 1996). Even if some portions of a recording are inaudible, the
SUPREME COURT
OF
NEVADA
4
(()) 1947A
audible portions may still be admissible as probative evidence, provided
that enough of the recording is audible to show that it is on the whole
trustworthy. See Lane, 514 F.2d at 27. Furthermore, both sides may
argue to the judge or jury what the inaudible portions might have
contained. United States v. Nicholson, 815 F.2d 61, 63 (8th Cir. 1987).
Here, parts of the recording are audible, such as Van Horn's
clear responses when he is asked if he understands his Miranda rights. It
is true, as Van Horn argues that there are significant omissions. But
omissions alone do not cast doubt on the overall trustworthiness of a
transcript or recording. See Lane, 514 F.2d at 27. And the parties were
free to argue the content of the omissions to the judge and jury. See
Nicholson, 815 F.2d at 63. Therefore, the district court did not abuse its
discretion by admitting statements made during the custodial
interrogation.
Prosecutorial misconduct
Van Horn argues that prosecutors committed misconduct by
(1) mentioning that A.R.'s mother paid some of his legal expenses, (2)
disparaging him in arguments, and (3) violating Brady obligations and
Nevada law by not informing him of some of A.R.'s contradictory
testimony.
First, Van Horn is incorrect that references to the retention of
counsel are categorically improper. See Bruno v. Rushen, 721 F.2d 1193,
1194 (9th Cir. 1983).
Second, the State did not disparage Van Horn by referencing
his age. The prosecutor was appealing to common experience by arguing
that an 11-year-old girl would probably not consent to a sexual
relationship with a 50-year-old man. Jurors may consider life experience
SUPREME COURT
OF
NEVADA
5
(0) 1947A
and general knowledge in forming their opinions. Maestas v. State, 128
Nev., Adv. Op. 12, 275 P.3d 74, 84 (2012).
Finally, the State did not violate Brady v. Maryland, 373 U.S.
83, 87 (1963), or Nevada law. Federal courts have held that there is no
Brady violation as long as the evidence is disclosed before the defense can
no longer use it. See, e.g., Madsen v. Dormire, 137 F.3d 602, 605 (8th Cir.
1998). Here, the defense discovered A.R.'s new disclosure during opening
arguments and was able to cross-examine A.R. regarding it.
NRS 171.1965(1)(a) requires disclosure, at least five days
before a preliminary examination, of "written or recorded statements
made by a witness or witnesses, or any reports of statements or
confessions, or copies thereof, within the possession or custody of the
prosecuting attorney." And NRS 174.235(1)(a) requires disclosure, at the
request of the defendant, of "written or recorded statements made by a
witness the prosecuting attorney intends to call during the case in chief of
the State, or copies thereof."
In this case, the record does not show a written or recorded
statement taken by the prosecution before trial that included A.R.'s
expected testimony. If a simple conversation with A.R. revealed more
information, the defense could have also interviewed her. But a simple
conversation is not a "written or recorded statement[ ]." NRS
174.235(1)(a). Therefore, the State did not violate NRS 174.235(1)(a) or
NRS 171.1965(1)(a).
SUPREME COURT
OF
NEVADA
6
(0) 1947A ea
Van Horn's other arguments
We conclude that Van Horn's other arguments lack merit.
Van Horn argues that the justice court should have continued the
preliminary hearing for further competency proceedings because defense
counsel was unable to communicate with Van Horn. The court did not
abuse its discretion in denying Van Horn's request. He did not show
changed circumstances or new evidence, and the justice court applied the
correct legal standard when it noted that the circumstances of Van Horn's
competency had not changed. See People v. Huggins, 131 P.3d 995, 1028
(Cal. 2006).
We reject Van Horn's argument that the district court abused
its discretion by giving improper jury instructions. Sexual seduction is not
a lesser-included offense of sexual assault because the elements of each
crime are different. See Smith v. State, 120 Nev. 944, 946, 102 P.3d 569,
571 (2004). Thus, Van Horn was not entitled to a jury instruction on
sexual seduction. In addition, the court correctly instructed the jury that
consent is not a defense to lewdness. See State v. Koseck, 113 Nev. 477,
479, 936 P.2d 836, 838 (1997) (stating that lewdness "is a felony even if
the sex was consensual"). Finally, the district court did not err by refusing
to give Van Horn's proposed instruction on two reasonable interpretations
of the evidence because the court had properly instructed the jury on
reasonable doubt. See Hooper v. State, 95 Nev. 924, 927, 604 P.2d 115, 117
(1979).
The district court also did not err when it refused Van Horn's
motion to ban the use of the term "victim" during trial. Just as when the
term is used in Nevada statutes, see NRS 50.090, the term "victim" simply
helped define sexual assault and lewdness in general terms. See Server v.
SUPREME COURT
OF
NEVADA
7
(0) 194Th
Mizell, 902 F.2d 611, 615 (7th Cir. 1990) ("The wording of the instructions
merely posits that if an act of sexual conduct or sexual penetration
occurred, it must have been perpetrated on a victim.").
Van Horn argues that the district court erred by preventing
him from asking the interrogating officer whether Van Horn had told the
officer that he had been held in a police car, with the windows up, before
questioning. The question asked for hearsay because defense sought to
prove that Van Horn was actually held in a police car. And the statement
does not qualify for the mental state exception because whether Van Horn
told the interrogating officer that he had been in a police car is a
recollection explaining a mental state (i.e., why he felt tired or hungry),
not a statement of his current mental state. See Wagner v. Cnty. of
Maricopa, 747 F.3d 1048, 1052-53 (9th Cir. 2013). Therefore, the district
court did not abuse its discretion by excluding the hearsay statement.
The district court did not commit plain error by admitting
photographs of A.R. and Van Horn. It is not plain from the record, and
Van Horn does not explain, how the photographs were inflammatory,
especially considering that the jury observed A.R. and Van Horn during
trial. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) ("It is
appellant's responsibility to present relevant authority and cogent
argument; issues not so presented need not be addressed by this court.").
Van Horn argues that the district court abused its discretion
by overruling the defense objections to (1) A.R.'s testimony that she
performed fellatio on Van Horn to prevent him from leaving her mother
and (2) the prosecution mentioning A.R.'s statement that she comforted
her mother when her mother was upset with Van Horn. But this evidence
and argument was introduced to show Alt's motive to perform fellatio,
SUPREME COURT
OF
NEVADA
8
(0) 1947A ser,
not to show that Van Horn was guilty of sexual assault. Further, Van
Horn does not explain the connection between one who would leave a
relationship and the character of one who sexually assaults children. We
conclude that the district court did not abuse its discretion by admitting
the evidence. See Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109
(2008) (stating that a district court's decision to admit or exclude evidence
is reviewed for an abuse of discretion).
As for cumulative error, we have concluded that there was
insufficient evidence to support two of the four lewdness convictions. Van
Horn did not show that any other errors affected trial so as to cast doubt
on his other convictions. Thus, there is no cumulative error affecting his
remaining convictions. Accordingly, we
ORDER the judgment of the district court REVERSED IN
PART as to two lewdness counts AND AFFIRMED in all other respects
AND REMAND this matter for the entry of an amended judgment of
conviction consistent with this order.
Wt_
Parraguirre
J.
Douglas
C11ry
SUPREME COURT
OF
NEVADA
9
(0) 1947A e
cc: Hon. Douglas W. Herndon, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
10
(0) 1947A e•