RODRIGUEZ (ISAAC) v. STATE , 140 Nev. Adv. Op. No. 47 ( 2024 )

140 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
ISAAC ANTONIO RODRIGUEZ, No. 86524
Appellant,
vs.
THE STATE OF NEVADA, FILE
Respondent.
EF DEPUrf CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of five counts of sexual assault of a child under the age of 14,
lewdness with a child under the age of 14, and possession of visual
presentation depicting sexual conduct of a person under 16 years of age.
Second Judicial District Court, Washoe County; David A. Hardy, Judge.
Affirmed.
Evelyn A. Grosenick, Public Defender, and Erica P. Roth, Appellate Deputy
Public Defender, Washoe County,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Marilee Cate, Appellate Deputy District Attorney,
Washoe County,
for Respondent.
BEFORE THE SUPREME COURT, HERNDON, LEE, and BELL, JJ.
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OPINION
By the Court, HERNDON, J.:
Issac Antonio Rodriguez appeals a judgment of conviction for
five counts of sexual assault of a child under the age of 14, lewdness with a
child under the age of 14, and possession of visual presentation depicting
sexual conduct with a child under the age of 16. His conviction sterns from
his sexual relationship with a minor, A.F., from 2017 to 2019. Rodriguez
now appeals on three grounds. First, Rodriguez argues that the district
court erred in admitting text messages (the State's exhibits 9 and 16) over
his objection. Next, he argues that the State committed prosecutorial
misconduct in its closing argument when it argued that the jury could draw
inferences from the time gaps between text messages. Finally, Rodriguez
argues the district court erred in denying his request for a jury instruction
regarding the edited nature of the admitted text messages.
We conclude that the district court properly admitted the
State's exhibits 9 and 16, and we clarify that the rule of completeness is a
rule of admission, not of exclusion. Additionally, the prosecution did not
commit misconduct in its closing argument. Finally, the district court did
not err in failing to instruct the jury regarding the edited nature of the
State's exhibits 9 and 16. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
Rodriguez briefly lived with A.F. and her family before his
relationship with A.F. began. In November 2017, Rodriguez moved out of
A.F.'s horne and began communicating regularly with A.F. via social media
and text messages. When they first began messaging, A.F. was 11 years old
and Rodriguez was an adult. Over time, the relationship became romantic
and sexual in nature. A.F. began sending nude photographs of her chest
and buttocks to Rodriguez. The two also began sexting and role-playing
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fantasy sexual scenarios. About eight months into the relationship,
Rodriguez and A.F. started to meet in person. On December 31, 2018, the
evening before A.F.'s thirteenth birthday, Rodriguez and A.F. engaged in
sexual intercourse for the first time. Over the next five months, Rodriguez
and A.F. met regularly to engage in sexual intercourse. The two met three
or four times per week and engaged in sexual intercourse, according to A.F.,
"most of the time" they met. On at least one occasion, Rodriguez and A.F.
met and did not engage in intercourse but still had sexual contact.
In April 2019, A.F.'s parents discovered the relationship and
contacted the police. A.F. was interviewed by a child advocacy center, and
law enforcement confiscated A.F.'s cell phone for the investigation. Later,
the police brought Rodriguez in for a voluntary interview and advised him
of his rights. During the interview, Rodriguez admitted to having sexual
intercourse with A.F. approximately 17 times. Rodriguez also consented to
a search of his cell phone and iPad. The police forensically examined A.F.'s
cell phone and Rodriguez's cell phone and iPad. The forensic examination
yielded thousands of text messages, some sexually explicit, as well as nude
photographs of A.F. on one of Rodriguez's devices. The admitted evidence
of the text conversations also indicated that there were time gaps between
messages after the two discussed meeting in person.
The State charged Rodriguez with five counts of sexual assault
against a child under the age of 14. It brought one count for each month
that Rodriguez engaged in the sexual relationship with A.F. The State also
charged Rodriguez with lewdness with a child under the age of 14 and
possession of visual presentation depicting sexual conduct of a child.
Rodriguez pleaded not guilty and proceeded to trial.
On the first day of trial, the district court identified concerns
regarding the rule of completeness because only portions of the voluminous
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number of text messages between A.F. and Rodriguez were submitted as
evidence by the State. Prior to the State's case-in-chief, Rodriguez
expressed to the court that while he had originally intended to seek
introduction of some additional text messages through proposed defense
exhibits 78 and 79 to complete the State's proposed exhibits 9 and 16, he
had since decided that he would not seek to admit those additional
messages. At the same time, Rodriguez objected to the State's possible
introduction of its proposed exhibits 9 and 16 on the basis that they were
"redacted to such an extent that they mischaracterize[d] evidence." The
district court overruled the objection. During the State's case-in-chief, the
State moved to admit exhibit 9, and Rodriguez objected again on the bases
of authentication and "mischaracterization." Outside of the presence of the
jury, the court held a hearing on the matter and overruled Rodriguez's
objection. The district court admitted the State's exhibits 9 and 16.
Rodriguez never moved to admit proposed defense exhibits 78 and 79 for
any purpose.
During the State's closing argument, the State noted that in
A.F. and Rodriguez's text conversations, they often texted back and forth
about meeting in person, and there would then be gaps of time with no text
messages. The State argued that these gaps in time with no text messages
supported the inference that they had indeed met in person. Rodriguez
objected to the argument; the district court overruled the objection.
Rodriguez also sought a jury instruction explaining that the text messages
in the State's exhibits 9 and 16 were only a sampling of the full
conversations between A.F. and him, but the district court declined to
instruct the jury on the matter.
At the close of trial, the jury returned a verdict of guilty on all
counts. On counts 1-5, the five sexual assault charges, Rodriguez was
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sentenced to concurrent sentences of life in prison with the possibility of
parole after 35 years. For count 6, the lewdness charge, Rodriguez was
sentenced to a concurrent term of life in prison with the possibility of parole
after 10 years. For count 7, the possession charge, Rodriguez received a
consecutive sentence of 30 months in prison with the possibility of parole
after 12 months.
DISCUSSION
The district court did not err in admitting the State's exhibits 9 and 16,
which contain text rnessages between Rodriguez and A.F.
Rodriguez argues that the district court erred in admitting the
State's exhibits 9 and 16 over his objection, asserting that the rule of
completeness bars their admission. The State contends that Rodriguez
failed to preserve this error because his objection was based on
authentication and mischaracterization. We agree with the State, as
Rodriguez did not frame his objection at trial as being based on the rule of
conipleteness. Rodriguez's objection was based on the form of the State's
exhibits, and more narrowly, the way the redactions appeared in the text
message exchanges. Thus, Rodriguez did not object on the grounds that
NRS 47.120(1), the rule of completeness, barred the admission of the State's
exhibits. Because Rodriguez failed to object below on the same grounds
urged here, we review his argument for plain error. Pantano v. State, 122
Nev. 782, 795, 138 P.3d 477, 485 (2006). "In conducting plain error review,
we must examine whether there was error, whether the error was plain or
clear, and whether the error affected the defendant's substantial rights."
Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (internal quotation
marks omitted). Also, Rodriguez has the burden of proof to demonstrate
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Here, Rodriguez fails to demonstrate error. NRS 47.120(1)
codifies the rule of completeness: "When any part of a writing or recorded
statement is introduced by a party, the party may be required at that time
to introduce any other part of it which is relevant to the part introduced,
and any party may introduce any other relevant parts." Rodriguez argues
that without defense exhibits 78 and 79, the State's exhibits 9 and 16 were
inadmissible. But Rodriguez misunderstands the purpose of NRS
47.120(1). This rule is one of admission, not of exclusion. See Collman v.
State, 116 Nev. 687, 707, 7 P.3d 426, 439 (2000) (explaining that under NRS
47.120(1), a party is permitted to introduce other relevant parts of a
writing). It functions as a mechanism for an adverse party to introduce
additional statements to complete portions of a written or recorded
statement. Thus, a party's failure to move for admission of additional
statements under NRS 47.120(1) will not render the initial statements
inadmissible. Rodriguez never sought to introduce exhibits 78 and 79 to
complete the State's exhibits.' Since the State's exhibits were otherwise
admissible under the Nevada rules of evidence, the district court did not err
in admitting them.
The State did not commit prosecutorial rnisconduct in its closing argument
Next, Rodriguez argues that the prosecution engaged in
misconduct during its closing argument by arguing that every gap between
text messages was proof that A.F. and Rodriguez were together and
"We note as well that even if Rodriguez had moved to admit defense
exhibits 78 and 79 and the court had granted their admission, the additional
statements would not have changed the outcome of the trial due to the
overwhelming evidence of Rodriguez's guilt. See Tavares v. State, 117 Nev.
725, 732, 30 P.3d 1128, 1132 (2001) (holding that a nonconstitutional error
is harmless unless it had a substantial and injurious effect on the jury's
verdict); NRS 178.598.
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engaging in sexual conduct. The State asserts that Rodriguez failed to
preserve this error because his objection was untimely.
Untimely objections preclude appellate review. Pasgrove v.
State, 98 Nev. 434, 435, 651 P.2d 100, 101 (1982). Here, Rodriguez made
his objection after the State finished its closing argument, when the court
invited counsel to address any issues before the defense closing argument
began. Accordingly, we review the claim for plain error.
Even if we reviewed the merits of Rodriguez's claim under a
more favorable standard, Rodriguez would not prevail. We engage in a two-
step analysis when considering prosecutorial misconduct claims: we
determine (1) whether the prosecutor's conduct was improper, and (2) if the
conduct was improper, whether the conduct warrants reversal. Valdez v.
State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). We have long held
that the prosecution has "a right to comment upon the testimony and to ask
the jury to draw inferences from the evidence, and has the right to state
fully [its] views as to what the evidence shows." State v. Green, 81 Nev. 173,
176, 400 P.2d 766, 767 (1965). The prosecution may "argue inferences from
the evidence and offer conclusions on contested issues." Miller v. State, 121
Nev. 92, 100, 110 P.3d 53, 59 (2005) (quoting Jones v. State, 113 Nev. 454,
467, 937 P.2d 55, 63 (1997)).
The prosecution's conduct was proper, so Rodriguez cannot
demonstrate error. Rodriguez contends that the prosecution argued that
every gap in text messages was proof that A.F. and Rodriguez were together
and engaging in sexual conduct. This assertion is disproved by the record.
The prosecution's closing argument walked through each month of A.F. and
Rodriguez's sexual relationship, linking the events with each count of
sexual assault. In doing so, the prosecution addressed the text messages
that involved Rodriguez and A.F. discussing meeting up in person. The
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State then identified gaps in time, with no text messaging, that occurred
after these text exchanges. The State argued that, in conjunction with other
evidence, the jury could infer frorn the gaps between messages after
discussions of meeting up that A.F. and Rodriguez did in fact meet up in
person. In examining the entire closing argument, the prosecution
permissibly argued that the jury could use its common sense to draw a
reasonable inference that the evidence presented—which included the gaps
in text messages—demonstrated that A.F. and Rodriguez were together and
engaging in sexual intercourse. Accordingly, we conclude that the
prosecution did not engage in misconduct.
The district court did not err in instructing the jury
Rodriguez argues that the district court erred in denying his
request for a jury instruction explaining that the text messages introduced
in the State's exhibits 9 and 16 were only a sampling of the conversations
between A.F. and Rodriguez. But the record is devoid of any jury instruction
language that he may have proposed to the district court. There was no
proposed written instruction provided in the record, and there is no
transcript wherein proposed language for an instruction was offered or
discussed. Moreover, Rodriguez fails to cite any relevant legal authority for
the inclusion of his alleged proposed instruction. See Jeremias v. State, 134
Nev. 46, 59, 412 P.3d 43, 54 (providing that we may decline to consider
arguments that are not supported by cogent argument or authority). Thus,
we decline to consider the contention.2
2 We note that A.F. testified that the messages in exhibits 9 and 16
were not all of the messages that the two exchanged. Rodriguez argued to
the jury that the messages were "cherrypick[ed]." Thus, the jury clearly
was made aware that the text messages introduced were but a sampling of
all the messages Rodriguez and A.F. had exchanged.
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CONCLUSION
The rule of completeness does not prohibit the admission of
otherwise admissible statements. Instead. NRS 47.120(1) provides the
adverse party the opportunity to introduce additional material relevant to
complete the already admitted statements. Thus, the district court did not
err in admitting the State's exhibits 9 and 16. Regarding prosecutorial
misconduct, the State is permitted to argue that the jury may draw
reasonable inferences from the evidence. Here, the prosecution did not
commit misconduct in its closing argument by arguing that gaps in text
messages indicated A.F. and Rodriguez had met in person. Finally,
Rodriguez fails to cogently argue that the district court erred in failing to
provide the jury with an instruction that the text messages were a sampling
of communications between A.F. and himself. Accordingly, we affirm the
judgment of conviction.
Herndon
We concur:
J.
Lee
, J.
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