Renteria-Novoa (Guillermo) v. State ( 2014 )

 R.P.'s Testimony
During cross-examination, Renteria-Novoa sought to reveal
inconsistencies in R.P.'s previous recountings of the alleged abuse. On
redirect, the State asked R.P. leading questions about her past statements
in order to show that those statements were consistent. On appeal,
Renteria-Novoa argues that this part of R.P.'s trial testimony was
inadmissible hearsay.
Under NRS 51.035(2)(b), an out-of-court statement is not
hearsay if it is "[c]onsistent with the declarant's testimony and offered to
rebut an express or implied charge against the declarant of recent
fabrication. . . ." Here, the State offered the prior consistent statements
in order to rebut the defense's attempts to show fabrication. Thus, the
statements were admissible.
Renteria-Novoa also argues that the State improperly used
leading questions to elicit testimony during redirect. NRS 50.115(3)(a)
states that "[heading questions may not be used on the direct examination
of a witness without the permission of the court." (Emphasis added).
"Whether leading questions should be allowed is a matter mostly within
the discretion of the trial court, and any abuse of the rules regarding them
is not ordinarily a ground for reversal." Barcus v. State, 92 Nev. 289, 291,
550 P.2d 411, 412 (1976) (internal quotations omitted). Here, the court
decided that the leading questions were a permissible way to bring out the
prior consistent statements. Because leading questions are only
prohibited without permission of the trial court, and the trial court gave
permission, we do not find the use of leading questions to be grounds for
reversal.
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Use of "victim"
Renteria-Novoa argues that the prosecutor's use of the term
"victim" throughout trial was improper because it was an assertion of his
personal opinion that Renteria-Novoa was guilty of the charged crimes.
He alleges that the prosecutor's repeated uses of "victim" were
interjections of opinion, constituted vouching, and minimized the
prosecution's burden of proof, all of which are examples of prosecutorial
misconduct. See, e.g., Rowland v. State, 118 Nev. 31, 39-40, 39 P.3d 114,
119 (2002); McGuire v. State, 100 Nev. 153, 158-59, 677 P.2d 1060, 1064
(1984).
In the present case, the prosecutor's use of "victim" was not
misconduct. First, it was not interjecting• opinion because the prosecutor
was not asking the jury to convict based upon the prosecutor's personal
opinions. Second, Renteria-Novoa has not shown that the prosecutor had
any intent to mislead. McGuire, 100 Nev. at 158-59, 677 P.2d at 1064.
Third, the prosecutor's use of the term "victim" was not vouching because
the jury would not reasonably infer that the prosecutor meant to speak to
the veracity of the accuser. See Rowland, 118 Nev. at 39, 39 P.3d at 119.
Finally, the Nevada Revised Statutes use "victim" to refer to the accuser,
not only in defining crimes but also in setting forth procedures. See, e.g.,
NRS 50.090. Therefore, we conclude that the use of the term "victim" was
not prosecutorial misconduct.
Renteria-Novoa also contests the use of "victim" in the jury
instructions and in the witnesses' testimony. For similar reasons, namely
that the term was used to define sexual assault and not to express the
opinion of the speaker, we also conclude that the use of "victim" in the jury
instructions and by the witnesses was not improper.
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Brady violations
Renteria-Novoa argues that the State violated his
constitutional rights, under Brady v. Maryland, 373 U.S. 83 (1963), by
suppressing evidence of the U-visa that R.P. received as a result of the
charges in this case.
To demonstrate a Brady violation, "the accused must make
three showings: (1) the evidence is favorable to the accused, either because
it is exculpatory or impeaching; (2) the State withheld the evidence, either
intentionally or inadvertently; and (3) prejudice ensued, i.e., the evidence
was material." State v. Huebler, 128 Nev. „ 275 P.3d 91, 95 (2012)
(internal quotations omitted). On the issue of prejudice, federal courts
have held that there is no Brady violation so long as the evidence is
eventually disclosed at a time when the defense can still use it. Madsen v.
Dormire, 137 F.3d 602, 605 (8th Cir. 1998); see also United States v.
Scarborough, 128 F.3d 1373, 1376 (10th Cir. 1997); United States v. Word,
806 F.2d 658, 665 (6th Cir. 1986); cf. Weatherford v. Bursey, 429 U.S. 545,
559 (1977) ("There is no general constitutional right •to discovery in a
criminal case, and Brady did not create one . . . ."). Here the defense
discovered R.P.'s U-visa during trial and was able to present it to the jury
through cross examination. There was no prejudice and, therefore, no
Brady violation.
Renteria-Novoa's call logs and R.P.'s phone number
Renteria-Novoa argues that the evidence of his phone records
were not relevant at the time that they were admitted, because the jury
did not yet hear testimony as to R.P.'s phone number. Evidence is
relevant if it has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than
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it would be without the evidence." NRS 48.015. Renteria-Novoa's call logs
were relevant because his numerous calls to R.P.'s phone tended to show
that he had some kind of relationship with R.P.
Renteria-Novoa also argues that a witness's testimony
revealing R.P.'s phone number was hearsay because the witness only
learned the number through R.P. telling him what it was. Evidence is
inadmissible hearsay if it is an out-of-court "statement offered in evidence
to prove the truth of the matter asserted" and it does not qualify for any
exemption to the hearsay definition or exception to the hearsay rule. See
NRS 51.035; NRS 51.065; NRS 51.075-.385.
We conclude that the witness testimony providing R.P.'s phone
number was not hearsay. The witness testified that he knew her phone
number belonged to her because he called her using the number. Thus, he
was not testifying to an out-of-court statement about the number, but
rather to his recollection of the number See NRS 51.035. Accordingly, the
district court did not abuse its discretion. Chavez v. State, 125 Nev. 328,
344, 213 P.3d 476, 487 (2009).
Admission of prior bad acts
Renteria-Novoa also argues that R.P.'s testimony, stating that
he abused her two or three times a week, was inadmissible prior bad act
evidence.
"[Wile review a district court's decision to admit or exclude
evidence for abuse of discretion." Id. Prior bad act evidence is presumed
inadmissible. Ledbetter v. State, 122 Nev. 252, 259, 129 P.3d 671, 677
(2006). However, prior bad acts are admissible when they show a common
scheme or plan. See id. at 260, 129 P.3d at 677-78; see also NRS 48.045(2).
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In Daly v. State, we held that uncharged acts of sexual abuse
to which the child victim testified "fell within the 'common scheme or plan'
exception to the general rule excluding evidence of prior bad acts." 99
Nev. 564, 567, 665 P.2d 798, 801 (1983), holding modified on other
grounds by Richmond v. State, 118 Nev. 924, 59 P.3d 1249 (2002). The
child victim "testified that she had performed fellatio on appellant at his
request an average of once or twice a week since she was about eight years
old." Id. at 566, 665 P.2d at 800. We noted that "[a]t least some of the
uncharged acts allegedly occurred within the same time period as the
charged acts, all alleged acts were between the appellant and his
stepdaughter, and both the charged and uncharged acts allegedly occurred
under very similar circumstances." Id. at 567, 665 P.2d at 801.
The facts of this case are analogous to Daly. R.P. testified that
the abuse occurred two or three times a week. The acts to which R.P.
testified allegedly occurred at the time she lived at the University
apartments, the same timeframe about which the jury heard that
Renteria-Novoa committed other acts. The acts to which R.P. testified all
involved her and Renteria-Novoa. And, according to R.P., the acts
occurred in the same way every time. Under Daly, the uncharged acts of
sexual abuse against R.P. fell within the common-scheme-or-plan
exception to the rule against admitting prior bad acts. The district court
did not abuse its discretion.
Other issues
Renteria-Novoa also argues that the State illegally excluded
minority veniremembers from the jury, the information was insufficient
and violated his constitutional rights, the district court misapplied
Nevada's rape-shield statute, his statement to police was not voluntary
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and was given prior to him being mirandized, the evidence was
insufficient to support the convictions, the convictions violated redundancy
or double jeopardy principles, the district court's jury instructions
misstated the law, the prosecution committed misconduct, and cumulative
error warrants reversal. We find no merit in his arguments and affirm the
judgment of the district court.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
L.Q.c.4-tt , J.
Hardesty
CDtrAfret 4A.
Douglas
I J.
J.
Cherry
cc: Hon. Jerome T. Tao, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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