Scott E. v. State , 113 Nev. 234 ( 1997 )

OPINION

By the Court,

Young, J.:

FACTS

On May 6, 1993, the State charged Scott E. (“Scott”) with three counts of lewdness with a minor under the age of fourteen. The charges stemmed from accusations made by Tristain S. (“Tristain”) alleging, among other things, that Scott touched her “between [her] legs.”

On August 19, 1993, the court attempted to conduct a contested hearing. Defense counsel, along with Scott’s family and witnesses, arrived prepared to proceed. The State, however, arrived with no witnesses. The State claimed that it did not subpoena its witnesses because it had agreed with defense counsel to make a joint request for a continuance. In addition, the State claimed that after it failed to subpoena its witnesses, defense counsel reneged and said that she would oppose any request by the State for a continuance. Defense counsel, however, subsequently informed the State that Scott and his family did not want a continuance. The State claimed that because the victim and her mother could not be found, this was not enough time to have them subpoenaed.

Defense counsel moved to dismiss the case against Scott and objected to a continuance because the State had not filed a motion in accordance with Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969). The district court, however, responded that a “continuance is a discretionary call” and granted a continuance.

On September 9 and 16, 1993 a hearing was finally conducted. Robin S. (“Robin”), Tristain’s mother, testified that she and Tristain lived in Las Vegas between December 1988 and December 1992. During that time, Scott lived in Las Vegas with his father, Chris E. (“Chris”), and step-mother, Lyndia E. (“Lyndia”). Robin knows Scott because she is engaged to Jonathan E. (“John”) — Scott’s uncle and Chris’s brother.

Robin testified that once while at Scott’s house, when Tristain was either seven or eight years of age, Robin “saw Scotty and Tristain on the top bunk. Tristain had her hands underneath him. The instant I opened the door, they’d both — like nothing happened. They both moved instantly.” Before that incident, Robin noticed that Tristain engaged in “odd behavior.” Robin described this behavior as “rebellious.” Tristain did not want to take care of her room or take care of anything. Robin also testified that twice Tristain acted out sexually with her sister, Rebecca. They got on top of each other like they were having sex. Tristain explained that she did this because her best friend, “Destiny,” told her to.

Robin also testified that when she first moved to Las Vegas, she and John took John’s daughter, Alicia, from Colorado without permission. The court in Colorado eventually compelled Robin and John to return Alicia. There is evidence in the record that Alicia’s step-grandfather (i.e., Robin’s father)¹ molested Alicia while she was in Las Vegas with John and Robin.

At the time of the hearing, Tristain was nine years old. Tristain testified that Scott did bad things to her beginning when she was six years of age. Tristain testified that Scott played with the spot “between [her] legs” with his finger. Tristain could not testify how often Scott touched her between the legs. Tristain testified that “three or four” times Scott pulled down his pants and showed her his “private part.” In addition, Tristain testified that Scott made her touch his private part. Tristain did not tell Robin about Scott’s behavior until Robin spanked Tristain for acting out sexually with Rebecca.

William B. (“William”), Scott’s uncle and Lyndia’s brother, testified that he lived with his wife, Lisa B. (“Lisa”), and his son, Brian B. (“Brian”), at the home of Chris, Lyndia and Scott between July 1990 and October 1990. William witnessed Tristain get on top of Brian, then two years of age, “and start humping him.” Lisa testified that she also witnessed the incident where Tristain “humped” Brian. Lisa testified that when Robin reprimanded Tristain, she said that she did it because “she saw mom and dad doing it.”

Scott emphatically denied that he ever did anything sexually inappropriate with Tristain. Scott also testified that there were no bunk beds in his house. A few weeks after Robin and Tristain moved to Las Vegas, Scott and his family gave them the bunk beds. In addition, Scott testified that Robin would always try to get him in trouble. Scott stated, “She’d say I said something or do something when I actually didn’t.” Scott was grounded seven times because of disagreements with Robin. Once Robin asked Scott to fix her kids something to eat and he responded that he was not going to do it. Robin then told Scott, “I’ll have your uncle [John] beat your ass.” Scott testified that everyone in the family said Robin was going to get him.

Chris testified as to many other causes of friction between his family and Robin. First, Robin was arrested at a funeral in Colorado and Chris advised Greg (another brother of Chris and John) not to bail Robin out of jail because he would lose the money. Second, John and Robin borrowed the car of Chris’s and John’s mother to get from Colorado to Nevada; and when the car broke down, John and Robin did not attempt to fix it. Third, Chris needed John to stay overnight at their mother’s trailer after the trailer had been vandalized and because the back window was broken. John and Robin, however, refused to help. Because of this feuding, the families did not have any contact with each other from October 1989 to May 1991.

After the families began talking again, John and Robin asked Chris for money to pay their rent. When Chris said he did not have enough money, John and Robin “were kind of hateful” toward Chris. Subsequently, Chris did not hear from John or Robin until Detective Tina Sweeney (“Detective Sweeney”) called Chris and informed him of the allegations against Scott.

In addition, Chris testified that Robin had told him in early 1989 that Tristain had been molested by either her father or father-in-law. Debra D. (“Debra”), Scott’s aunt, confirmed Chris’s story by testifying that in August 1991 Robin told her that Tristain had been molested. Lyndia also testified that even before Robin and Tristain moved to Las Vegas, Robin told her that Tristain had been molested by either Robin’s father or father-in-law. This story may also be supported by the fact that Alicia alleged that when she was in Las Vegas she was molested by Robin’s father.

The district court concluded that Scott committed the three acts of lewdness, adjudicated Scott a delinquent because he was between eleven and thirteen years of age when the acts occurred, and placed him on three years’ probation. Scott appealed, arguing that the district court erred by (1) granting the State a continuance when the State had not filed a motion in accordance with Hill; (2) excluding the result of his first polygraph test, but admitting the result of his second polygraph test; (3) adjudicating him a delinquent when there was insufficient evidence to support his conviction; and (4) allowing Robin to remain in the courtroom during Tristain’s testimony.

We conclude that Scott’s first argument has merit. Because we find that the district court should not have continued Scott’s hearing, it is unnecessary for us to reach Scott’s remaining arguments. Accordingly, we reverse the district court’s judgment and vacate Scott’s adjudication as a delinquent.

DISCUSSION

Scott first argues that because the State did not follow the proper procedure in requesting a continuance as required by Hill, the case against Scott should have been dismissed. The preliminary question, however, is if the protections afforded in Hill extend to juvenile proceedings. We conclude that they do. In Hill, this court stated:

[T]he party seeking a continuance of a preliminary examination upon the ground of the absence of witnesses must prepare and submit to the magistrate an affidavit stating: (a) the names of the absent witnesses and their present residences, if known; (b) the diligence used to procure their attendance; (c) a brief summary of the expected testimony of such witnesses and whether the same facts can be proven by other witnesses; (d) when the affiant first learned that the attendance of such witnesses could not be obtained; and (e) that the motion is made in good faith and not for delay.

Hill, 85 Nev. at 235-36, 452 P.2d at 919. We conclude that the reasons underlying these requirements are equally appropriate to the continuance of a proceeding in juvenile court. The granting of continuances without a showing of good cause will frustrate the judicial process. See Bustos v. Sheriff, 87 Nev. 622, 624, 491 P.2d 1279, 1280 (1971). In McNair v. Sheriff, 89 Nev. 434, 514 P.2d 1175 (1973), this court stated that one of the reasons underlying the Hill requirements is that “our criminal justice system can ill afford to bestow on prosecutors, or on defense counsel, largesse through continuances for which no cause is shown.” Id. at 436-37, 514 P.2d at 1176.

In addition, not only do we apply the Hill requirements to juvenile proceedings for the pragmatic reason of judicial economy, but because a failure to do so may infringe on the due process rights of juveniles. Children standing accused in a juvenile court must be accorded due process protections. See In re Two Minor Children, 95 Nev. 225, 229, 592 P.2d 166, 169 (1979).

Because we conclude that the requirements enunciated in Hill apply to juvenile proceedings, we conclude that in the case at bar, the district court erred by not requiring the State to meet those requirements. The State’s only explanation for not filing an affidavit in accordance with Hill was that it thought defense counsel would seek a continuance. The State admitted, however, that at least fourteen days before the hearing, it was aware that the defense did not want a continuance. The State made no effort to inform the court or the defense counsel of its willful failure to subpoena witnesses until the day of the hearing. An oral motion the day of the hearing would have been inappropriate.²

In the words of Justice Cardozo,

Every system of law has within it artificial devices which are deemed to promote . . . forms of public good. These devices take the shape of rules or standards to which the individual though he be careless or ignorant, must at his peril conform. If they were to be abandoned by the law whenever they had been disregarded by the litigant affected, there would be no sense in making them.

Benjamin N. Cardozo, The Paradoxes of Legal Science 68 (1928). The district court should have upheld the requirements mandated in Hill and therefore should have dismissed the case against Scott.

Because we find that the district court should not have continued Scott’s hearing, it is unnecessary for us to reach Scott’s remaining arguments.

In view of the foregoing, we conclude that Scott’s appeal has merit. Accordingly, we reverse the decision of the district court and vacate Scott’s adjudication as a delinquent.³

Rose, J., concurs in result only.

1 Although Robin’s father is referred to as Alicia’s step-grandfather, Robin and John are not actually married.

2 In Bustos, this court concluded that when a party seeking a continuance does not learn until the hearing that his subpoenas were not obeyed, then he could be sworn in and orally testify that he attempted to have his witnesses appear. This procedure was allowed because the party seeking a continuance simply would not have had time to submit a written affidavit as required in Hill. Bustos, 87 Nev. at 624, 491 P.2d at 1280. Bustos, however, is inapplicable to the case at bar because the prosecutor had at least fourteen days to prepare an affidavit as required by Hill.

3 The Honorable A. William Maupin, Justice, did not participate in the decision of this appeal.