Perez (Oreste) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
ORESTE PEREZ, No. 66803
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
JUN 1 6 2016
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, for first-degree kidnapping, battery with intent to commit
sexual assault, sexual assault, and coercion. Eighth Judicial District
Court, Clark County; David B. Barker, Judge.
Appellant Oreste Perez first argues that the district court
abused its discretion in denying his motion to suppress his police
statements on the ground that his arrest warrant was not founded on
probable cause. Statements made to the police following an illegal arrest
may be suppressed. Wong Sun v. United States, 371 U.S. 471, 484-87
(1963). To be legal, an arrest must be based on probable cause. Keesee v.
State, 110 Nev. 997, 1001, 879 P.2d 63, 66 (1994); see U.S. Const. amend.
IV; Nev. Const. art. 1, § 18. Probable cause to arrest exists when the facts
known to police permit a reasonable person to believe that the person to be
arrested has committed a crime. State v. McKellips, 118 Nev. 465, 472,49
P.3d 655, 660 (2002); see NRS 171.106. The reviewing court determines
simply "whether there is a substantial basis for concluding that probable
cause existed." Doyle v. State, 116 Nev. 148, 158, 995 P.2d 465, 472
(2000). Additionally, we review the district court's factual findings
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regarding suppression for clear error and its legal determinations de novo.
State v. Beckman, 129 Nev., Adv. Op. 51, 305 P.3d 912, 916 (2013).
Here, law enforcement officers sought an arrest warrant for
Perez for the charges of kidnapping, battery with intent to commit sexual
assault, sexual assault, and coercion. The declaration of warrant sworn by
the investigating officer referenced (1) the victim's allegations that she
had been a victim of acts constituting kidnapping, battery with intent to
commit sexual assault, sexual assault, and coercion; (2) the corroborative
account of a witness who was in the restroom during the incident; (3) the
findings by the sexual assault nurse examiner that the victim had injuries
consistent with sexual assault; (4) the surveillance video consulted by the
officer, in which the suspect can be seen leaving the restroom; (5) the
anonymous tip in response to a television news segment showing the
suspect's image that alleged that Perez was the suspect and that he had
committed similar acts previously; and (6) the fact that Perez's Facebook
profile contained photos of Perez that matched the suspect in the
surveillance video and depicted Perez wearing a coat that appeared to be
the same as that worn by the suspect in the surveillance video. Perez's
contention that the warrant was based solely on the uncorroborated
allegation of the anonymous tip is belied by the record. The district court
found that the totality of the circumstances supported the magistrate's
determination that the arrest warrant was based on probable cause. As
we conclude that there was a substantial basis for the probable-cause
finding, we determine that the district court did not clearly err in its
finding and that suppression was not warranted on this basis.
Second, Perez argues that the district court abused its
discretion in denying his motion to suppress his police statements and
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testimony from the arresting officer based on issues with the Spanish-
language interpreter. Perez argues that the statement was unreliable
because the interpreter told him to stop and slow down at several points
during the interview. The district court's decision whether to admit
evidence receives great deference and will not be overturned absent
manifest error. Baltazar-Monterrosa v. State, 122 Nev. 606, 613-14, 137
P.3d 1137, 1142 (2006). In considering the admission of translated
testimony, we review "whether the translation was adequate and accurate
on the whole," and the defendant must show that the translation was
inadequate. Id. at 614, 137 P.3d at 1142. The district court concluded
that Perez's challenge to the interpreter's methodology went to the
statement's credibility, but did not render it inadmissible. As Perez
concedes that the translation was accurate and does not identify any
assertion that he was precluded from making due to the interpreter's
methodology, we conclude that Perez has not borne his burden of showing
that the translation was inadequate and thus that its admission was
manifest error.
Third, Perez argues that the district court abused its
discretion in denying his Batson v. Kentucky, 476 U.S. 79 (1986), challenge
regarding an African-American potential juror whom the State removed
by peremptory challenge. A party may not "'challenge potential jurors
solely on account of their race." Watson v. State, 130 Nev., Adv. Op. 76,
335 P.3d 157, 165 (2014) (quoting Batson, 476 U.S. at 89). A Batson
inquiry has three steps: the movant must make a prima facie showing of
discrimination, then the challenging party must provide a race-neutral
reason for the challenge, and then the district court will determine
whether discrimination has been shown. Id. We give great discretion to
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the district court's findings and will not reverse unless its decision was
clearly erroneous. Id. The district court rejected Perez's challenge after
determining that he failed to make a prima facie showing of
discrimination and the State proffered the race-neutral reason that the
potential juror had several bad experiences with the police. Perez offers
only the potential juror's race as evidence that the State's peremptory
challenge was discriminatory. Noting that the empaneled jury included
three African-American jurors and that the State's questioning during voir
dire was not suspect, see id. at 166137 (discussing circumstances to
consider in the absence of a pattern of strikes against a targeted group),
we conclude that the district court did not clearly err.
Fourth, Perez argues that the district court abused its
discretion in denying his proposed jury instructions. We review the
district court's broad discretion in settling jury instructions for an abuse of
discretion or judicial error. Crawford v. State, 121 Nev. 744, 748, 121 P.3d
582, 585 (2005). A defendant is not entitled to instructions that are
"misleading, inaccurate[,] or duplicitous." Carter v. State, 121 Nev. 759,
765, 121 P.3d 592, 596 (2005). The district court found that the first
proposed jury instruction was duplicitous in light of instruction 24, the
second was duplicitous in light of instructions 8 through 12, the third was
duplicitous because the jury instructions already addressed the consent
defense to sexual assault, and the fourth was unwarranted because the
jury had already been instructed on reasonable doubt. See Bails v. State,
92 Nev. 95, 97, 545 P.2d 1155, 1156 (1976). Our review of the record
reveals no abuse of discretion or error in this determination, and we
conclude that this claim lacks merit.
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Fifth, Perez argues that the district court erred in refusing to
dismiss the coercion count when that offense captured the same conduct
as the first-degree-kidnapping count. Double jeopardy precludes multiple
punishments for the same offense. Jackson U. State, 128 Nev. 598, 604,
291 P.3d 1274, 1277-78 (2012). We apply the test outlined in Blockburger
v. United States, 284 U.S. 299 (1932), to determine "whether each offense
contains an element not contained in the other; if not, they are the same
offence and double jeopardy bars additional punishment and successive
prosecution." Id. at 604, 291 P.3d at 1278 (quoting United States v. Dixon,
509 U.S. 688, 696 (1993)). We review de novo issues of double jeopardy.
Id. at 603, 291 P.3d at 1277. The offense of coercion deems unlawful a
person's use or threat of force or deprivation with the intent to compel
another to do or not do an act that the other has a right to do or not do.
NRS 207.190(1). The offense of first-degree kidnapping penalizes one who
confines or carries away another person for the purpose of committing
sexual assault. NRS 200.310(1). Kidnapping includes elements of
confinement or asportation and the intent to commit sexual assault that
are not required to establish coercion. And coercion includes elements of
force or deprivation and the intent to compel another to act or not act that
are not required to establish kidnapping. As each offense contains an
element not contained in the other, we conclude that double jeopardy does
not bar Perez's convictions for coercion and first-degree kidnapping.
Sixth, Perez argues that the evidence presented at trial was
insufficient to support the jury's finding of guilt. Our review of the record
on appeal, however, reveals sufficient evidence to establish guilt beyond a
reasonable doubt as determined by a rational trier of fact. See Jackson v.
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Virginia, 443 U.S. 307, 319 (1979); Origel-Candido v. State, 114 Nev. 378,
381, 956 P.2d 1378, 1380 (1998).
The record shows that Perez grabbed the victim's wrist, pulled
her from the women's restroom to the men's restroom, moved the victim
into a stall in the men's restroom, pulled the victim's hair, shoved and
turned the victim around inside the stall, and caused a pain inside the
victim's vagina. The victim protested and told Perez to stop, that she did
not want this, and that she wanted to go home, to which Perez told her to
shut up. A medical examination revealed contusions inside the victim's
vagina and elsewhere on her body.
The jury could reasonably infer from the evidence presented
that Perez committed first-degree kidnapping by forcibly moving the
victim against her will to a second location for the purpose of committing
sexual assault, see NRS 200.310(1), battery with intent to commit sexual
assault by willfully using force on the victim while intending to commit
sexual assault, see NRS 200.400, sexual assault by penetrating the
victim's vagina against her will, see NRS 200.366(1)(a), and coercion by
using force with the intent to compel the victim to enter and remain in the
restroom stall, see NRS 207.190(1). It is for the jury to determine the
weight and credibility to give witness testimony, and the jury's verdict will
not be disturbed on appeal where, as here, substantial evidence supports
the verdict. McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
Accordingly, we conclude that this claim lacks merit.
Seventh, Perez argues that cumulative error warrants
reversal. Having found no error, we conclude that there is no error to
cumulate.
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Having considered Perez's arguments and concluded that they
are without merit, we
ORDER the judgment of conviction AFFIRMED.
J.
Douglas
Gibbons
cc: Hon. David B. Barker, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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