Dorado (Ramon) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
RAMON MURIL DORADO, No. 79556
Appellant,
VS.
THE STATE OF NEVADA,
FILED
Respondent. FEB 2 5 2022
ELIZABETH A. BROWN
CLERK2F‘9UPREME COURT
ORDER OF REVERSAL BY •Y
CLERP
DEPUTT' -4-4
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of three counts of sexual assault. Eighth Judicial District
Court, Clark County; David M. Jones, Judge.
One evening in April 1999, Michelle L. went out with some
friends to the Silver Saddle Saloon, where she met appellant Ramon
Dorado. Sometime in the early morning hours the next day, believing that
she and Dorado would eventually join her friends at another bar, Michelle
drove Dorado to either his or his friend's apartment so that he could call out
from work. Dorado invited Michelle inside the apartment where she says
he sexually assaulted her. Later that day, she went to a police substation
to report the assault and completed a rape kit. Four months after Michelle
reported the assault, a detective cleared the case due to a lack of leads in
the investigation. In 2016, about 17 years after the assault occurred,
Michelle's rape kit was tested and inputted into the police's database, which
led to the identification of Dorado as a potential match. Police executed a
warrant to obtain a fresh DNA sample from Dorado and confirmed the
match with Michelle's rape kit.
.2,2-0Q)1(9S
In April 2017, the State charged Dorado by way of indictment
with three counts of sexual assault. Dorado filed various motions to dismiss
the indictment for preindictment delay, failure to preserve evidence, and
destruction of evidence. The district court denied the motions. Following a
three-day trial, the jury returned a guilty verdict on the charges against
Dorado.
Dorado argues on appeal that he was prejudiced by the State's
failure to preserve material evidence; namely, Michelle's clothing worn at
the time of the assault and an audio recording from her initial statement to
police. Although the written transcription of Michelle's statement was
retained, it was determined that the audio recording was destroyed. The
State argues that it did not fail to preserve exculpatory evidence and that
Dorado failed to demonstrate that any missing evidence was material to his
defense. We disagree with the State.
"We review a district court's decision to grant or deny a motion
to dismiss an indictment for abuse of discretion." Hill v. State, 124 Nev.
) "A conviction may be reversed when the
546, 550, 188 P.3d 51, 54 (2008.
'Dorado also contends that he was prejudiced by the loss of a 911 call
because 911 calls are "often more truthfur and, assuming the call would
have contradicted Michelle's testimony, he argues that he could have used
it to impeach her. As an initial matter, it is unclear from the record whether
a 911 call even existed. Michelle testified that she never made a 911 call
because she went directly to a police substation to report the incident. But
counsel for the State indicated that the 911 call had been lost. However,
even assuming such a call did exist, Dorado has failed to establish that this
call had any exculpatory value or that it would have been material to his
defense. See Mortensen v. State, 115 Nev. 273, 285, 986 P.2d 1105, 1113
(1999) CPVIJere assertions by the defense counsel that an examination of the
evidence will potentially reveal exculpatory evidence does not constitute a
sufficient showing of prejudice?' (alteration in original) (internal quotation
marks omitted)). Thus, we conclude this argument is without merit.
2
state loses evidence if the defendant is prejudiced by the loss or the state
acted in bad faith in losing it." Cook v. State, 114 Nev. 120, 125, 953 P.2d
712, 715 (1998) (emphasis added). A defendant bears the burden to
establish prejudice by demonstrating "that it could be reasonably
anticipated that the evidence [lost] would have been exculpatory and
material to the defense." Id. When considering the materiality of the lost
evidence, "[t]he question is whether when . . . evaluated [in the context of
the entire record] a reasonable doubt exists which was not otherwise
present." Sparks v. State, 104 Nev. 316, 319, 759 P.2d 180, 182 (1988).
In Cook v. State, we explained that the loss of corroborating
evidence for sexual assault cases is particularly concerning because
[t]he crime of rape is rarely perpetrated in the
presence of witnesses other than the defendant and
the victim and great reliance must be placed on the
testimony of the victim, and, if given, the
defendant. Thus, the presence or absence of other
evidence which would support or refute the
testimony of the involved parties has the potential
for great significance.
114 Nev. at 126, 953 P.2d at 716 (quoting State v. Havas, 95 Nev. 706, 708,
601 P.2d 1197, 1198 (1979), disapproved of in part by Deere v. State, 100
Nev. 565, 566-67, 688 P.2d 322, 323 (1984) (disapproving of Havas to the
extent that it contradicts the rule that "[t]he materiality and potentially
exculpatory character of lost or destroyed evidence must be determined on
an ad hoc basis on the facts of each particular case)).
Dorado first contends that he was prejudiced by the State's loss
of Michelle's clothing she was wearing at the time of the assault because
the clothing would have supported his defense theory of consent. Dorado
argued at trial that the sexual contact was consensual and, based on
Michelle's testimony, her clothing would have either buttressed or belied
3
the defense theory. See Cook, 114 Nev. at 125, 126, 953 P.2d at 715, 716(concluding that the defendant made the requisite showing of prejudice
where he asserted, contrary to the victim's testimony, "that the victim's nose
began to bleed after the [sexual contact], when she was not wearing her
sweatee but the State failed to preserve the sweater, among other items).
Further, the State should have reasonably anticipated that Michelle's
clothing would have been exculpatory and material to Dorado's defense
because in sexual assault cases a victim's clothing often contains DNA
evidence or can show signs of struggle, which can corroborate or disprove a
victim's testimony. Here, Michelle testified at trial that Dorado ripped her
pantyhose during her assault and having the pantyhose would have either
corroborated or belied her testimony.
The State argues that at the time, the exculpatory nature of
Michelle's clothing was not apparent, and even if it were, there is other
evidence demonstrating that Michelle fought off Dorado. While the State
did present evidence showing that Michelle had bruises, a scratch on her
chest, a red mark on her back from a carpet burn, and broken fmgernails,
Dorado demonstrated that Michelle's initial statement may have been
inconsistent with her trial testimony because she did not mention in her
initial statement that Dorado ripped her pantyhose but at trial she did. Cf.
Deere, 100 Nev. at 566, 688 P.2d at 323 (concluding that the defendant did
not establish prejudice due to missing undergarments "where[ ] the victim's
testimony was not ambiguous and was amply corroborated by other
testimony and by physical evidence). Moreover, this compounded the
prejudice to Dorado from the State's loss of Michelle's clothing as he was
unable to use the pantyhose to impeach Michelle regarding this
discrepancy. See Sparks, 104 Nev. at 319, 759 P.2d at 182 ("The State
SUPREME COURT
OF
NEVADA
4
(0) I947A '40.
cannot be allowed to benefit . . . from its failure to preserve evidence.").
Thus, we conclude that, based on the record as a whole, Dorado has shown
that it could be reasonably anticipated that lost clothing would have been
exculpatory and material to his defense. See Cook, 114 Nev. at 125, 953
P.2d at 715; Sparks, 104 Nev. at 319, 759 P.2d at 182.
Dorado next argues that he was prejudiced by the State's loss
of the audio recording of Michelle's initial statement because without it he
was unable to impeach Michelle's testimony. We agree. Although the
written transcript of Michelle's initial statement was available, there were
numerous blanks throughout the transcript. There is independent evidence
that Michelle's testimony may have been inconsistent with her initial
statement and that at least one of those inconsistencies led to an additional
count of sexual assault. See Cook, 114 Nev. at 125, 953 P.2d at 715(reversing the defendant's conviction based in part on the State's loss of the
victim's initial statement to police). For example, there was no mention of
digital penetration in Michelle's initial statement, whereas she testified to
digital penetration during trial. Likewise, there is no mention in Michelle's
statement that Dorado ripped her pantyhose, but she testified at trial that
he did. We thus conclude that Dorado has also shown that it could be
reasonably anticipated that lost audio recording of Michelle's voluntary
statement would have been exculpatory and material to his defense. See
Cook, 114 Nev. at 125, 953 P.2d at 715; Sparks, 104 Nev. at 319, 759 P.2d
at 182.
For these reasons, we conclude that Dorado has established
that he was prejudiced by the State's failure to preserve evidence that could
reasonably have been anticipated to be both exculpatory and material
evidence, and reversal is thus warranted. Accordingly, we
5
ORDER the judgment of the district court REVERSED.2
Parraguirre
J.
Hardesty
J.
Cadish
cc: Hon. David M. Jones, District Judge
Michael Lasher LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2 Givenour disposition in this matter, we need not address Dorado's
remaining arguments raised on appeal.
SUPREME COURT
OF
NEVADA
6
(0) 1947A A4Eittr,