Villegas (David) v. State ( 2014 )

 Express recognition of witness's expert status
Villegas argues that the district court erred by permitting his
expert witness to give expert opinion testimony but refusing to expressly
acknowledge the witness as an expert in front of the jury.
We review the qualification of experts and the admission of
expert testimony for an abuse of discretion. See Perez v. State, 129 Nev.
, , 313 P.3d 862, 866 (2013). We have previously recognized in dicta
that "court[s] must take care not to use terms such as 'qualified as an
expert' or 'certified as an expert' when referring to the witness in the
presence of the jury" in order to "prevent potential prejudice by either
demeaning or promoting the credibility of the witness." Mulder v. State,
116 Nev. 1, 13 n.2, 992 P.2d 845, 852 n.2 (2000).
In this case, the district court appears to have simply followed
our admonition that it not demean or promote the witness. The court
permitted the expert witness to give expert testimony. Villegas presents
no legal authority requiring the district court to announce to the jury that
his expert was an expert. Thus, we conclude that the district court did not
abuse its discretion.
Jury instruction on particularity of testimony
Villegas argues that the district court abused its discretion by
not giving the following jury instruction: "[T]he alleged victim must testify
with some particularity regarding the incident in order to uphold the
charge."
"The district court has broad discretion to settle jury
instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error." Rose v. State, 123 Nev. 194,
204-05, 163 P.3d 408, 415 (2007) (quoting Crawford v. State, 121 Nev. 744,
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748, 121 P.3d 582, 585 (2005)). A district court abuses its discretion if its
decision regarding a jury instruction is arbitrary or capricious or exceeds
the bounds of law or reason. Crawford, 121 Nev. at 748, 121 P.3d at 585.
In Rose, 123 Nev. at 205, 163 P.3d at 415-16, we held that the
district court did not abuse its discretion by refusing to give an instruction
on the particularity of a victim's testimony because the particularity of
testimony "was sufficiently covered by other jury instructions regarding
the State's burden of proof and the reasonable doubt standard." Here,
Villegas does not challenge the burden of proof or reasonable doubt
instructions. Nor does Villegas cite any authority requiring a jury
instruction on the particularity of testimony. Therefore, we conclude that
the district court did not abuse its discretion in denying the proposed
particularity instruction. 1
Willegas also argues that the instruction on witness
credibility given by the district court was improper and prejudicial. And,
in a footnote, he argues that the no-corroboration-necessary instruction
was also erroneous. We decline to review the witness credibility
instruction because Villegas fails to cite legal authority or present cogent
argument. See, e.g., State v. Eighth Judicial Dist. Court, 129 Nev. ,
n.9, 306 P.3d 369, 385 n.9 (2013) (citing Maresca v. State, 103 Nev. 669,
673, 748 P.2d 3, 6 (1987)). We further decline to review the no-
corroboration-necessary instruction because the instruction's language
was proposed to the district court by Villegas. See Van Valkenberg v.
State, 95 Nev. 317, 318, 594 P.2d 707, 708 (1979) ("[W]e decline to review
the propriety of the instruction . . . because the record indicates
appellant's trial counsel not only failed to object to the instruction, but
agreed to it.").
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A. V. 's competence
Villegas argues that A.V. was not competent to testify.
However, because Villegas made no objection regarding A.V.'s competency
at the competency hearing, we review the issue for plain error. Truesdell
v. State, 129 Nev. „ 304 P.3d 396, 403 (2013). For an error to be
plain, it must be apparent from a casual inspection of the record. Holmes
v. State, 129 Nev. „ 306 P.3d 415, 422 (2013).
A child is competent to testify if "the child [has] the capacity to
receive just impressions and possess[es] the ability to relate them
truthfully." Wilson v. State, 96 Nev. 422, 423, 610 P.2d 184, 185 (1980).
In this case, although some of A.V.'s retellings appear
inconsistent, consistency is not a factor for competency. We have held that
"[i]nconsistencies in the testimony go to the weight of the evidence."
Evans v. State, 117 Nev. 609, 624, 28 P.3d 498, 509 (2001). Weight, or
credibility, is different than competence. See 98 C.J.S. Witnesses § 87
(2013) ("The competency of a witness to testify is to be distinguished from
a witness's credibility. Testimonial competency relates to the capacity of a
witness to recollect and communicate facts and appreciate the obligation
to tell the truth, and it is a test of intellectual capacity, not veracity.").
After questioning A.V. on the difference between truth and
lies, basic facts about her family, and her recollection of school activities,
the district court declared A.V. competent. Our review of the record does
not contradict the district court's determination that A.V. possessed "the
capacity to receive just impressions and . . . the ability to relate them
truthfully." Wilson, 96 Nev. at 423, 610 P.2d at 185. Thus, we conclude
that the district court did not plainly err by determining that A.V. was
competent to testify.
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Admissibility of A. V. hearsay statements
The district court admitted testimony regarding A.V.'s out-of-
court statements to others about her sexual abuse. NRS 51.385 permits a
court to admit such statements provided that the district court finds "that
the time, content and circumstances" of the statements are sufficiently
trustworthy. Villegas argues that A.V's statements were not reliable
because they occurred during a bitter custody dispute, because A.V.
participated in victim's therapy operating under the assumption she had
been abused, and because there was evidence of spousal alienation and
coaching by Villegas's ex-wife. He also notes the many inconsistencies in
A.V.'s several recountings of the alleged abuse.
We will not question a district court's reliability determination
unless the factual determination is obvious, one way or the other." Felix
v. State, 109 Nev. 151, 197, 849 P.2d 220, 251 (1993), superseded on other
grounds by statute as stated in Evans, 117 Nev. at 625, 28 P.3d at 509. In
Felix, we held that the reliability of a child's hearsay statements, wherein
fantastical and incredible statements were interspersed with some more
realistic statements, was a "reasonably close" determination that we left
up to the district court and declined to upset on appeal. 109 Nev. at 197-
99, 849 P.2d at 251-52.
Here, the district court heard the proffered testimony,
considered the factors listed in NRS 51.385(2), and found that the
statements met the criteria. The facts do not show the district court's
interpretation to be manifestly erroneous. Granted, some of A.V.'s
hearsay statements were clearly incredible. For example, she told one
interviewer that Villegas touched her while she was in bed and he was on
the other side of the room on the floor, but she was unable to explain how
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this was possible. A.V. also testified that Villegas called her ugly when
she was in her mother's womb. However, as in Felix, these incredible
statements were accompanied by somewhat more likely statements, such
as consistent testimony that Villegas always touched her vagina at night
while in she was in bed. In this kind of close case, we will not upset the
district court's reliability determination. Felix, 109 Nev. at 197, 849 P.2d
at 251. And although it is true that the hearsay statements of A.V. were
sometimes inconsistent, consistency is not a factor for admissibility under
NRS 51.385(2). Accordingly, we conclude that that the district court did
not abuse its discretion in admitting A.V.'s out-of-court statements.
Issue preclusion
Villegas argues that, under double jeopardy principles, a
juvenile court's dismissal of a child abuse-neglect petition, regarding
Villegas's alleged touching of A.V., precludes relitigation of the same
events in criminal proceedings.
Issue preclusion, commonly known as collateral estoppel, is
embodied in the Fifth Amendment's guarantee against double jeopardy.
Ashe v. Swenson, 397 U.S. 436, 444-45 (1970). "A claim that a conviction
violates the Double Jeopardy Clause generally is subject to de novo review
on appeal." Davidson v. State, 124 Nev. 892, 896, 192 P.3d 1185, 1189
(2008).
Many jurisdictions have held, and we agree, that civil family
court or juvenile court proceedings that do not adequately represent the
State's interest in punishment cannot preclude later criminal prosecution.
See Dranow v. United States, 307 F.2d 545, 556 (8th Cir. 1962) ("There can
be no doubt. . . that res judicata and collateral estoppel are applicable in a
criminal action although a prior proceeding was civil in character. But
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that proposition has this qualification: that both actions are based upon
the same facts and both have as their object, 'punishment.' Where the
object of the prior civil action and subsequent criminal action is not
'punishment,' res judicata is inapplicable"); People v. Wouk, 739 N.E.2d
64, 70 (Ill. App. Ct. 2000); State v. Matson, No. A09-555, 2010 WL 606775,
at *2 (Minn. Ct. App. Feb. 23, 2010); People v. Roselle, 602 N.Y.S.2d 50, 57
(App. Div. 1993), affd, 643 N.E.2d 72 (N.Y. 1994). But see Lockwood v.
Superior Court, 206 Cal. Rptr. 785, 788 (Ct. App. 1984). The State's
interest in punishment is a distinct one that is not adequately represented
in juvenile proceedings. See Wouk, 739 N.E.2d at 70. Without adequate
representation of the State's interest, the traditional issue preclusion
element of privity cannot be satisfied. Cf. Bower v. Harrah's Laughlin,
Inc., 125 Nev. 470, 480, 215 P.3d 709, 717 (2009) (stating that, to establish
privity, federal issue preclusion requires that a "party's interests were
adequately represented in the prior litigation"). Therefore issue
preclusion and its constitutional dimension do not apply to this case.
Sufficiency of the information
Villegas argues that the four lewdness counts were generically
and repetitively worded in the State's information and therefore violated
his due process rights. We review constitutional issues de novo. Jackson
v. State, 128 Nev. „ 291 P.3d 1274, 1277 (2012).
Indictments serve to provide both notice to the accused of the
offense to be charged and protection against possible double jeopardy. See
Russell v. United States, 369 U.S. 749, 763 64 (1962); United States v.
-
Debrow, 346 U.S. 374, 377-78 (1953). In Valentine v. Konteh, 395 F.3d
626, 632 (6th Cir. 2005), the Sixth Circuit held that an indictment did not
provide notice or protect against double jeopardy where it included two
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different sets of 20 indistinguishable counts of sexual abuse. The court
reasoned that the jury would not be able to decide each count individually
because there were "absolutely no distinctions made": Acquitting on some
counts but not others would have been "unintelligible, because the
criminal counts were not connected to distinguishable incidents." Id. at
632-33. The Sixth Circuit panel wrote that "[s]tates have the authority to
enact criminal statutes regarding a 'pattern' or a 'continuing course' of
abuse. They do not have the power to prosecute one for a pattern of abuse
through simply charging a defendant with the same basic offense many
times over." 2 Id. at 634.
The Valentine court also held that the statute did not
adequately protect against double jeopardy because the several charges
were not linked to separate incidents. Id. at 635. It pointed out that it
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cannot be sure what double jeopardy would prohibit because [it] cannot
be sure what factual incidents were presented and decided by this jury."
Id.We find Valentine persuasive and join those jurisdictions
adopting its reasoning. See Goforth v. State, 70 So. 3d 174, 189 (Miss.
2011); State v. Dominguez, 178 P.3d 834, 838 (N.M. Ct. App. 2008).
In this case, Villegas was charged with three identical counts
of lewdness with a child under the age of 14 (counts one, two, and four).
A.V.'s testimony did not differentiate between the counts, stating only that
2 California
and Texas have enacted such "continuing course"
statutes applicable to cases analogous to this one. See, e.g., People v.
Cissna, 106 Cal. Rptr. 3d 54, 68 (Ct. App. 2010); Jacobsen v. State, 325
S.W.3d 733, 739 (Tex. Ct. App. 2010).
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Villegas touched her vagina "[m]ostly every time I kind of went there" over
a 17-month period. At most, the evidence can be interpreted to support
two specific recollections of abuse. A.V. indicated that the abuse occurred
both when Villegas lived with a friend as well as when he lived with his
parents. And A.V.'s sister, S.V., testified that she witnessed a single
occurrence of sexual abuse sometime after A.V. revealed that an initial
incident of abuse had occurred.
Thus, we conclude that one of the three identical counts
violates Villegas's right to due process. The "carbon-copy," Valentine, 395
F.3d at 635, counts in the information did not provide Villegas with notice
to adequately distinguish between the counts. And the evidence presented
at trial only factually distinguished two incidents. Accordingly, we reverse
Villegas's conviction on count 4 of the information.
Redundancy of attempt conviction
Villegas argues that the alleged attempt occurred in the same
continuous act as the alleged lewdness. He asserts that the attempt
merged with the completed act and that the evidence cannot support a
separate attempt conviction.
When testimony or other evidence does not reveal the specific
sequence of events, there is insufficient evidence to support a conviction of
both attempt and completed lewdness arising out of the same acts. Cf.
Gaxiola v. State, 121 Nev. 638, 652-53, 119 P.3d 1225, 1234-36 (2005)
(vacating a lewdness conviction on redundancy grounds 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 there is evidence showing an attempt followed by
completion, but interrupted by some (however small) period of time, then
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an attempt conviction may stand. Cf. Wright v. State, 106 Nev. 647, 650,
799 P.2d 548, 549-50 (1990) ("The testimony of the victim established that
between the attempted and completed assaults, Wright stopped and
waited while a car passed. These facts support separate convictions for
separate acts, even though the acts were the result of a single encounter
and all occurred within a relatively short time.").
Here, A.V. testified that one time that Villegas touched her
she "tried to push his hand away, but it just didn't work." She explained
that by "didn't work" she meant "he just kept doing it, I guess." The State,
in closing arguments, based its attempt argument on this event.
A.V.'s testimony does not provide an exact timeline. She said
that her attempt to push his hand away didn't work because he kept
touching her. This testimony does not temporally distinguish between two
separate acts. As in Gaxiola, the testimony is simply insufficient to
establish the exact sequence of events. Therefore, we hold that the
attempt conviction is redundant and we reverse Villegas's conviction on
count 3.
Conclusion
In sum, we reverse on count 4 because the information was
insufficient and thereby violated Villegas's due process rights. We further
reverse on count 3 because the evidence did not sufficiently distinguish
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between the acts constituting the attempt and those constituting the
completed act. We affirm the judgment of conviction as to all other
counts. 3 Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART.
J.
Hardesty
Douglas
cc: Hon. Valerie Adair, District Judge
Sterling Law, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3We have reviewed Villegas's arguments that the district court
abused its discretion by prohibiting Villegas from impeaching A.V.'s
mother using a prior conviction, that the evidence was insufficient to
support conviction, and that cumulative error warrants reversal. We
conclude that all three arguments lack merit.
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