Lara (Francisco) v. State ( 2013 )

 has called or obtained some benefit from a psychological or psychiatric
expert, (2) whether the evidence of the crime "is supported by little or no
corroboration beyond the testimony of the victim," and (3) whether a
reasonable basis exists to believe that the mental or emotional state of the
victim may have affected his or her veracity. Koerschner, 116 Nev. at
1116-17, 13 P.3d at 455. Here, the State did not benefit from a
psychological expert on the victim's mental state. While the State did
present expert testimony, that testimony addressed the techniques
employed in an interview conducted by the defense investigator. Further,
Lara was convicted, not solely on the testimony of the victim, but also on
his own admissions. Lastly, Lara did not demonstrate a reasonable basis
to believe that the victim had any underlying condition that could have
affected her veracity and thus necessitate such testimony. While Lara
pointed to factors such as a contentious relationship between him and the
victim's mother, inconsistent reports of abuse, and trouble in the victim's
home, these issues did not demonstrate that the victim suffered from a
psychological condition that necessitated an examination in order to
assess her credibility.
Hearsay
Lara contends that the district court erred in admitting
testimony about the victim's reports of abuse as well as the victim's
recorded statement. He asserts that the statements constituted hearsay
and were unnecessarily cumulative. The district court held a
trustworthiness hearing outside the presence of the jury to assess the
admissibility of the statements. The court determined that the challenged
statements regarding the initial disclosures of the sexual abuse and the
recorded interview contained sufficient indicia of reliability. The
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statements were spontaneous, not the result of repetitive questioning,
without apparent motive to fabricate, the terminology was consistent with
a child of that age and did not appear rehearsed, and the child was in a
mental state consistent with the nature of the event. See NRS 51.385(2)
("In determining the trustworthiness of a statement [by a child describing
sexual abuse], the court shall consider, without limitation, whether: (a)
The statement was spontaneous; (b) The child was subjected to repetitive
questioning; (c) The child had a motive to fabricate; (d) The child used
terminology unexpected of a child of similar age; and (e) The child was in a
stable mental state."). Furthermore, the victim testified and was
subjected to cross-examination at trial. Based on our review of the
hearing and the district court's findings, we conclude that the district
court did not abuse its discretion in admitting the statements pursuant to
NRS 51.385. See Pantano v. State, 122 Nev. 782, 790-91, 138 P.3d 477,
482-83 (2006) (reviewing decision to admit testimony under NRS 51.385
for abuse of discretion). Lara also did not demonstrate that the
statements were unnecessarily cumulative. See NRS 48.035(2) (providing
that relevant evidence "may be excluded if its probative value is
substantially outweighed by considerations of undue delay, waste of time
or needless presentation of cumulative evidence"); see also Felix v. State,
109 Nev. 151, 200, 849 P.2d 220, 253 (1993) ("[T]he unlimited admission of
repetitive hearsay testimony can jeopardize the fundamental fairness of
the entire trial proceeding."), superceded by statute as stated in Evans v.
State, 117 Nev. 609, 625, 28 P.3d 498, 509 (2001). We have recognized
that once a child victim's accusations of abuse have been "presented by one
or more witnesses as to the time, the place, and the incident and any
challenges to the victim's credibility are fairly met, additional hearsay
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allegations should be restricted." Felix, 109 Nev. at 200, 849 P.2d at 253.
In Felix, this court concluded that the defendant was unfairly prejudiced
by repeating the child victim's accusations six times through witnesses
and a videotape of the victim's preliminary hearing testimony. Id. at 202-
03, 849 P.2d at 254-55. In contrast, the victim's accusations in this case
were only repeated by the two witnesses to whom the victim initially
reported the abuse in addition to the introduction of her voluntary
statement. Further, the additional testimony about the victim's
statements identified instances of abuse beyond those described in the
victim's testimony. See id. at 200, 849 P.2d at 253 (noting that testimony
introduced pursuant to NRS 51.385 is not impermissibly cumulative when
it includes details as to the time and place of abuse which were not
provided by other witnesses).
Lara's statements to police
Lara argues that the district court erred in admitting his oral
and written statements. He asserts that the oral statements were
involuntary and that he wrote the letter to the victim under the direction
of the police. See generally Miranda v. Arizona, 384 U.S. 436 (1966). We
disagree. "[V oluntariness determinations present mixed questions of law
and fact subject to this court's de novo review." Rosky v. State, 121 Nev.
184, 190, 111 P.3d 690, 694 (2005). "[T]he voluntariness analysis involves
a subjective element as it logically depends on the accused's
characteristics." Id. at 193, 111 P.3d at 696; Passama v. State, 103 Nev.
212, 214, 735 P.2d 321, 323 (1987) (listing factors relevant to
voluntariness determination); see also Mendoza v. State, 122 Nev. 267,
276, 130 P.3d 176, 181-82 (2006) (Miranda waiver is voluntary "if, under
the totality of the circumstances, the confession was the product of a free
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and deliberate choice rather than coercion or improper inducement"
(quoting United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998))).
The district court conducted a hearing on Lara's motion to
suppress and determined that his Miranda waiver was voluntary based on
the totality of the circumstances. The district court found that Lara was
informed of his rights pursuant to Miranda and the police did not engage
in coercive activity that overpowered his will. We agree and conclude that
the district court did not err by admitting Lara's statement and letter.
Sufficiency of the evidence
Lara argues that one of his convictions for sexual assault of a
minor under the age of fourteen is not supported by the evidence. He
asserts that the victim testified that digital penetration only occurred one
time and therefore no evidence supports the second charge alleging digital
penetration. We review the evidence in the light most favorable to the
prosecution and determine whether "any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt."
Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008) (emphasis
and internal quotation marks omitted); Jackson v. Virginia, 443 U.S. 307,
319 (1979). Here, the victim testified that Lara digitally penetrated her
genital opening once. However, in the victim's statement to police, she
stated that Lara put his hand down her pants twice and on two or three
other occasions he applied lotion to the inside of her genital area. The
victim's mother testified that the victim told her that Lara put his hands
down her pants "[a111 the time." We conclude that a rational trier of fact
could reasonably infer from this evidence that Lara digitally penetrated
the victim more than once, see NRS 200.366(1), and that substantial
evidence supports the verdict. See McNair v. State, 108 Nev. 53, 56, 825
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P.2d 571, 573 (1992). Although some evidence may have suggested that
Lara only abused the victim once in this fashion, it was for the jury to
assess the weight and credibility of that evidence. See Buchanan v. State,
119 Nev. 201, 217, 69 P.3d 694, 705 (2003).
Having considered Lara's contentions and concluding that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
Parraguirre
J.
cc: Hon. Ronald J. Israel, District Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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