Rimer v. State

131 Nev., Advance Opinion 54
IN THE SUPREME COURT OF THE STATE OF NEVADA
STANLEY EARNEST RIMER, No. 58711
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. JUN 1 1 2015
E K. LINDEMAN
CL R OF
CA
BY %mod
YCLE
CHILO
Appeal from a judgment of conviction, pursuant to jury
verdict, of involuntary manslaughter, child abuse or neglect resulting in
substantial bodily harm, and five counts of child abuse or neglect. Eighth
Judicial District Court, Clark County; Douglas W. Herndon, Judge.
Affirmed.
Philip J. Kohn, Public Defender, and Nancy Lemcke, Deputy Public
Defender, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
David L. Stanton, Deputy District Attorney, Clark County,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, DOUGLAS, J.:
Appellant Stanley Earnest Rimer raises numerous claims of
error on appeal. We focus on two: (1) whether child abuse and neglect is a
continuing offense for purposes of the statute of limitations, and (2)
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whether multiple charges can be properly joined in a single trial if they
evince a pattern of abuse and neglect.
To determine whether child abuse and neglect is a continuing
offense, we apply the legislative-intent test set forth in Toussie v. United
States, 397 U.S. 112 (1970). We conclude that the Legislature intended for
child abuse and neglect to be treated as a continuing offense and therefore
the statute of limitations did not begin to run until the last act of abuse or
neglect was completed.
To determine whether multiple charges can be properly joined
in a single trial if they evince a pattern of abuse and neglect, we revisit
our joinder jurisprudence. We explain that charges are connected together
if evidence of either charge would be admissible for a relevant,
nonpropensity purpose in a separate trial for the other charge. We
conclude that multiple charges that evince a pattern of abuse and neglect
are connected together and can be properly joined in a single trial to show
intent or lack of accident or mistake. And we reiterate that even when
charges have been properly joined, some form of relief may be necessary to
avert unfair prejudice to the defendant There was, however, no unfair
prejudice demonstrated in this case sufficient to warrant severance.
We conclude that none of the many claims that Rimer
presented for our review warrant relief, and we affirm the judgment of
conviction.
FACTS
Stanley and Colleen Rimer had eight children: Jason, Spencer,
Enoch, Quaylyn, Aaron, Crystal, Brandon, and Stanley, III. Their
youngest child, Jason, was born on March 11, 2004, and was found dead
on June 9, 2008. At the time of Jason's death, Spencer was 9, Enoch was
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11, Quaylyn was 14, Aaron was 15, and Crystal was 17 years old, and
Brandon and Stanley were adults.
Jason was born with congenital myotonic dystrophy, a chronic
condition that affected his muscles and made it difficult for him to
breathe, swallow, talk, and walk. Even at four years old, he walked like a
baby, required diapers, and communicated mostly by fussing or screaming.
He was treated by a neurologist, a gastroenterologist, a cardiologist, an
orthopedist, a speech pathologist, a physical therapist, and a nutritionist.
For a while, he was fed through a gastrostomy tube (G-tube) that was
inserted through his abdomen so that food could be delivered directly to
his stomach. He was happy and liked to play with other children.
During Jason's lifetime, the Rimer home was frequently
cluttered: the kitchen and bathrooms went days without being cleaned,
the kitchen sink was often filled with dirty dishes, and the laundry room
and bedrooms were normally piled with dirty clothing. There were also
occasions where dog and bird excrement dirtied the carpet and remained
there for days without being removed. Although the Rimers routinely
hired housekeepers and carpet cleaners, the house and its carpets quickly
became dirty again.
The clutter increased with the decline of Rimer's construction
business and the financial slump that followed. Rimer closed his office
and vacated his storage units and moved their contents into the house.
The presence of construction tools and paint buckets in the house created
obvious safety hazards. Although the Rimer family tried to reduce some of
the clutter and generate revenue through yard sales, the house was
extremely cluttered at the time of Jason's death: the household furniture
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had been moved or stacked for carpet cleaning, the kitchen sink was full of
dirty dishes, and the fish tanks were green with algae.
The Rimer family continuously struggled with lice. The
children were often sent home from school because they had head lice.
Usually, they were treated with a lice-killing shampoo and sent back to
school, where they were inspected by a nurse before being allowed back in
the classroom. For a while, the children's grandmother contributed to this
recurring problem by refusing to be treated for lice. There also came a
time when the lice-killing shampoo was no longer strong enough to kill the
lice, but Rimer was able to find a product online that solved the problem.
The Rimer family did not go hungry. They had refrigerators
downstairs in the kitchen and upstairs in the master bedroom. And there
were also cases of food in the garage and pallets of food in the living room.
They had frozen, refrigerated, canned, and dried food. The children
routinely ate food that required little preparation or cooking, and when
that sort of food ran out, they went upstairs and asked their parents for
more. There was always food downstairs, but sometimes it was only the
sort of food that required cooking and no one wanted to cook. Colleen did
most of the cooking for the family. On one or two occasions, Quaylyn was
punished by receiving only bread and water.
Rimer had a tiered approach to disciplining his children.
First, he would place his children in a "timeout" by requiring them to
stand in a corner for 5 to 30 minutes, then he would take away their video-
game privileges, and finally he would spank them. But if a timeout was
not severe enough for the level of misbehavior, the child might be sent to
bed without dinner, and if the child's misbehavior involved fighting, the
initial punishment might be a spanking.
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Rimer spanked his children on their behinds with boat
paddles, paint sticks, belts, and his bare hands. The number of spanks in
a spanking could range from 1 to 50. Rimer had two wooden boat paddles:
one was three to four feet long and the other was two to three feet long.
He purchased the second paddle to replace the first paddle and drew
shark's teeth on it with a permanent-ink marker. He broke both paddles
while spanking his children and repaired them with duct tape. Rimer
explained to his children what they did wrong and why they were getting
spanked before he spanked them.
Rimer also struck his children. Crystal had seen her father
strike Aaron, Quaylyn, Enoch, and Spencer on the chest, stomach, back,
and arms for fighting, stealing, or displaying a bad attitude, and she had
observed bruises on their arms. Quaylyn said that his father once
punched him with a closed fist for misbehaving. Brandon testified that it
was pretty common for his father to mete out discipline in anger and
before he had calmed down. The worst word that Rimer's children recall
him using was "damn," but he sometimes asked his children if they were
stupid when they had done something wrong, and he occasionally called
Quaylyn "the devil."
Child Protective Services (CPS) received reports accusing
Rimer and Colleen of neglecting their children. Walter Hanna, a special
education teacher, made several reports concerning Aaron. Aaron suffered
from a severe learning disability and was assigned to Hanna's classroom.
Hanna called CPS when Aaron came to school with body lice,' without
'Although Aaron came to school with head lice four or five times a
year, both Hanna and the school principal were alarmed when Aaron came
to school with body lice.
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shoes, or without lunch money or a free-lunch form so that he could eat.
Likewise, Nicole Atwell, a Nevada Early Intervention Services employee,
reported her concerns about Jason. Atwell had previously warned Colleen
that Jason should not be fed through his mouth because there was a
danger that he might aspirate the food, which could lead to pneumonia or
feeding difficulties. When Atwell learned that Jason was being bottle-fed
instead of being fed through his G-tube, she felt that Colleen's failure to
heed her warning was medical neglect and reported that neglect to CPS.
CPS investigated these and other allegations of neglect and
went to the Rimers' house on several occasions. Rimer told his children
not to speak with CPS and even rewarded one his sons for refusing to
speak to an investigator. He would not allow CPS investigators to go
beyond the house's foyer or to speak with his children outside his
presence. He also threatened the investigators and complained about
their investigations to their supervisors and an assistant manager.
Ultimately, CPS investigators concluded that the children were not
neglected or at risk and closed the investigations.
Jason was cared for by his mother, brothers, and sister. They
changed his diapers, they bathed him, and they fed him Often, however,
Jason's diapers were full and needed changing, the area around his G-tube
had not been adequately cleaned and was unsanitary, and his fingernails
were dirty. Colleen suffered from adult-onset myotonic dystrophy,
digestive tract ailments, and incontinence. She complained that she did
not have the strength to lift Jason and stated that she relied upon her
sons to get Jason in and out of the family vehicles. Nothing in the trial
transcript indicates that Rimer had an active role in Jason's care.
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On Sunday, June 8, 2008, Rimer brought Brandon, Aaron,
Quaylyn, Enoch, and Spencer to church in his pickup truck. Rimer gave
the opening prayer during the church service and then returned home
alone. Colleen brought Jason to church in her Ford Excursion. She later
brought Aaron, Quaylyn, Enoch, Spencer, and Jason home from church
while Brandon remained behind to talk with the bishop about his
upcoming church mission. Colleen and the children arrived home at 2:15
p.m. Colleen told Aaron to get Jason out of the Excursion, but neither she
nor anyone else ensured that Jason was actually out of the vehicle.
Unable to unfasten his seatbelt and open the door, Jason was left trapped
and helpless inside the vehicle.
As the afternoon progressed, the children played video games
inside and Colleen went upstairs to take a nap. At some point, Colleen
asked the children about Jason and asked for their help finding him. She
then returned upstairs Towards evening, Colleen left the house to give
Brandon a ride home from the church. She drove the pickup truck
because the Excursion was low on gas. Upon returning home, she went
back to sleep. Quaylyn wondered where Jason was and looked for him in
the rooms downstairs. He did not tell anyone that he could not find Jason,
and he assumed that Jason was upstairs with his parents. Quaylyn later
went upstairs to speak with his parents about Boy Scout camp. He spoke
to his father through a partially opened door and was unable to tell if
Jason was in the bedroom. The children made peanut butter and jelly
sandwiches for dinner and slept in the family room because their
bedrooms were too hot. They did not consider Jason's absence unusual
because he routinely stayed with his parents in their bedroom. Nothing in
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the trial transcript indicates that Rimer left the bedroom after coming
home from church.
On Monday, June 9, 2008, Quaylyn began the morning by
getting ready for Boy Scout camp. Colleen was going to take him to the
bishop's house and from there they would go to the campground. They
were running late, so Colleen told Quaylyn to get in the Excursion.
Quaylyn used the key pad to unlock the driver's door and pushed the
unlock button to open the passenger doors. When he opened the back
door, he saw Jason. At first he thought Jason was sleeping, but when he
touched him he knew that Jason was dead.
Brandon awoke to Quaylyn screaming that Jason was dead.
Brandon did not believe Quaylyn and went to see for himself. He peered
inside the Excursion and saw Jason's body lying on the middle seat.
Rimer asked Brandon if Jason was dead and then started the Excursion
and rolled down the windows; he did not touch Jason. Brandon returned
to the house. He tried to call the bishop, but Rimer took the phone away,
told him that his mother was on the phone with the authorities, and asked
him to bring Jason's body into the house.
Clark County Fire Department rescue personnel arrived on
the scene as Brandon was carrying Jason's body into the house. The
rescue personnel observed that Brandon was visibly upset, Quaylyn was
crying, and Colleen was upset and sobbing. They described Rimer's
demeanor variously as calm, emotionless, in disbelief, and in shock. They
entered the house and found Jason laid face up on a couch in the front
room. Jason was not breathing, his face had a blanched appearance, his
nose was obscured by a "white mucus type substance," and his body was in
rigor mortis. They preserved the scene for the police.
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Thereafter, Las Vegas Metropolitan Police Department crime
scene analysts documented the scene, police detectives interviewed
Colleen, and a county medical examiner conducted a forensic autopsy of
Jason's body. The medical examiner, Dr. Kane Olsen, determined that
the manner of death was homicide because it occurred when other people
left the small, disabled child in a car from which he could not escape, and
she concluded that the cause of death was environmental heat stress that
was brought on by the build-up of heat inside the car. She did not detect
any other trauma to Jason's body, but she observed that his fingernails
were dirty and his shirt was filthy.
After eight days of trial and three days of deliberation, a jury
found Rimer guilty of involuntary manslaughter, child abuse and neglect
causing substantial bodily harm, and the five child-abuse-and-neglect
counts. The district court imposed various consecutive and concurrent
sentences amounting to a prison term of 8 to 30 years. This appeal
followed.
DISCUSSION
I. Continuing offenses doctrine
Rimer claims that the district court erred by refusing to
dismiss child-abuse-and-neglect counts 3 through 7 because they violated
the statute of limitations by relying upon conduct that occurred outside
the three-year statutory limit The State responds that the district court
properly denied the motion to dismiss after concluding that MRS 200.508
plainly contemplates that child abuse and neglect is a continuing offense
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and the statute of limitations does not begin to run until the commission of
an offense is completed. 2
"Statutes of limitation ordinarily begin to run when a crime
has been completed." Campbell v. Griffin, 101 Nev. 718, 722, 710 P.2d 70,
72 (1985). "A crime is complete as soon as every element in the crime
occurs." United States v. Musacchio, 968 F.2d 782, 790 (9th Cir. 1991).
The statute of limitations for felony child abuse and neglect is three years.
NRS 171.085(2). Here, the indictment was filed on July 23, 2008, and it
alleged that Rimer had committed five felony counts of child abuse and
neglect through various acts that occurred between March 11, 2004, and
June 9, 2008. Because the alleged period of misconduct exceeded the
three-year statute of limitations and the indictment left open the
possibility that some of the misconduct occurred outside of the statute,
prosecution of the child-abuse-and-neglect counts was barred unless child
abuse and neglect is a continuing offense.
"The hallmark of the continuing offense is that it perdures
beyond the initial illegal act, and that each day brings a renewed threat of
the evil [the Legislature] sought to prevent even after the elements
necessary to establish the crime have occurred." United States v. Yashar,
2 Child-abuse-and-neglect counts 3 through 7 were charged as
violations of NRS 200.508(1), which provides in relevant part that
[a] person who willfully causes a child who is less
than 18 years of age to suffer unjustifiable
physical pain or mental suffering as a result of
abuse or neglect or to be placed in a situation
where the child may suffer physical pain or
mental suffering as the result of abuse or
neglect. . . is guilty of a. . . felony.
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166 F.3d 873, 875 (7th Cir. 1999) (internal quotations omitted). To this
end, we have determined that insurance fraud, failure to appear, and
escape are continuing offenses. Although our decisions have not
articulated a standard for identifying continuing offenses, they have
focused on the relevant statutory language and legislative intent based on
the nature of the offense. See Perelman v. State, 115 Nev. 190, 192, 981
P.2d 1199, 1200 (1999) ("[T]he statutory language of NRS 686A.291, taken
as a whole, treats insurance fraud as a continuing offense."); Woolsey v.
State, 111 Nev. 1440, 1444, 906 P.2d 723, 726 (1995) ("[B]ased on the fact
that NRS 199.335 is intended to punish those on bail who violate the
conditions of their bail by failing to appear before the court when
commanded, we conclude that failure to appear is a continuing
offense .. ."); Campbell v. Griffin, 101 Nev. 718, 721-22, 710 P.2d 70, 72
(1985) (adopting the reasoning in United States v. Bailey, 444 U.S. 394,
413 (1980), to conclude that the Legislature intended for escape to be
treated as a continuing offense). Consistent with those decisions, we hold
that the proper standard for identifying a continuing offense is the
legislative-intent test set forth in Toussie v. United States, 397 U.S. 112
(1970). Under this test, we will consider an offense to be a continuing
offense only when "the explicit language of the substantive criminal
statute compels such a conclusion, or the nature of the crime involved is
such that [the Legislature] must assuredly have intended that it be
treated as a continuing one." Toussie, 397 U.S. at 115 (emphasis added).
The explicit language of NRS 200.508 does not compel a
conclusion that child abuse and neglect is a continuing offense; however,
the nature of the offense demonstrates that the Legislature must have
intended for child abuse and neglect to be treated as a continuing offense.
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Child abuse and neglect "is damage to a child for which there is no
reasonable explanation. Child abuse is usually not a single physical
attack or a single act of molestation or deprivation. It is typically a
pattern of behavior. Its effects are cumulative. The longer it continues,
the more serious the damage." Brian G. Fraser, A Glance at the Past, a
Gaze at the Present, a Glimpse at the Future: A Critical Analysis of the
Development of Child Abuse Reporting Statutes, 54 Chi.-Kent L. Rev. 641,
643 (1978) (footnotes omitted); see also Lloyd Leva Plaine, Comment,
Evidentiary Problems in Criminal Child Abuse Prosecutions, 63 Geo. L.J.
257, 258-59 (1974) ("The parents or parent substitutes are the
perpetrators in the vast majority of the cases [and] ... [p]rosecution
usually occurs only after a child is killed or so seriously injured that the
state decides the welfare of the child would be served best by prosecution
of the alleged perpetrator.").
The cumulative nature of the offense is reflected in many of
the statutory provisions. For example, individual injuries to a child may
not rise to thefl level of abuse because they do not fit the definition of
"physical injury" set forth in NRS 200.508(4)(d), but the cumulative effect
of those injuries may be permanent or temporary disfigurement or
impairment of a bodily function or organ of the body, and therefore it is
the continuing course of conduct that amounts to "abuse or neglect" under
the statute. Similarly, it typically would require a pattern of behavior to
cause "an injury to the intellectual or psychological capacity or the
emotional condition of a child" that is "evidenced by an observable and
substantial impairment of the ability of the child to function within a
normal range of performance or behavior." NRS 432B.070 (defining
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"mental injury"), referenced in NRS 200.508(4)(a) (defining "abuse or
neglect").
Given the nature of this offense, it is apparent that the child-
abuse-and-neglect statute may be violated through a single act but is more
commonly violated through the cumulative effect of many acts over a
period of time See People v. Ewing, 140 Cal. Rptr. 299, 301 (Ct. App.
1977) (discussing child abuse based on a course of conduct). Consequently,
we conclude that the Legislature intended for child-abuse-and-neglect
violations, when based upon the cumulative effect of many acts over a
period of time, to be treated as continuing offenses for purposes of the
statute of limitations. We further conclude that the district court did not
err by ruling that counts 3 through 7 of the amended indictment were
continuing offenses and that the statute of limitations did not begin to run
until the last alleged act of abuse or neglect was completed.
II. Joinder and severance
Rimer claims that the district court erred by denying his
pretrial motion to sever the child-abuse-and-neglect counts (the abuse
charges) from the second-degree-murder and child-abuse-and-neglect-
causing-substantial-bodily-harm counts (the death charges). Rimer
argued in the court below that the abuse charges and the death charges
were improperly joined under NRS 173.115 and, alternatively, even if the
initial joinder was proper, severance was required by NRS 174.165(1)
because the joinder was unfairly prejudicial.
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A. Standard of review
The decision to join or sever charges falls within the district
court's discretion. Weber v. State, 121 Nev. 554, 570, 119 P.3d 107, 119
(2005). We review the exercise of this discretion by determining whether a
proper basis for the joinder existed and, if so, whether unfair prejudice
nonetheless mandated separate trials. Id. at 571, 119 P.3d at 119. We
base our review on the facts as they appeared at the time of the district
court's decision. See People v. Boyde, 758 P.2d 25, 34 (Cal. 1988); People v.
Brawley, 461 P.2d 361, 369-70 (Cal. 1969) ("[Tille propriety of the denial of
a motion for separate trials must, of course, be tested as of the time of the
submission of the motion, and the question of error cannot be determined
in the context of subsequent developments at the trial." (citations
omitted)). And, if we conclude that the charges were improperly joined, we
review for harmless error and reverse only if "the error had a substantial
and injurious effect or influence in determining the jury's verdict." Tabish
v. State, 119 Nev. 293, 302, 72 P.3d 584, 590 (2003) (internal quotations
omitted); see also United States v. Lane, 474 U.S. 438, 449 (1986).
B. Bases for joinder
A proper basis for joinder exists when the charges are "[biased
on the same act or transaction; or, . . [biased on two or more acts or
transactions connected together or constituting parts of a common scheme
or plan." NRS 173.115. Here, the abuse charges and the death charges
are not based on the same act or transaction and the facts do not
demonstrate that Rimer had a single scheme or plan encompassing the
abuse of his children and the death of his four-year-old son. Consequently,
the charges are only properly joined if they are "connected together."
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1. Connected together
In Weber, we clarified that "for two charged crimes to be
'connected together' under NRS 173.115(2), a court must determine that
evidence of either crime would be admissible in a separate trial regarding
the other crime." 121 Nev. at 573, 119 P.3d at 120. We also stated that
evidence of a crime may be admissible in a trial for another crime if it is
admissible under NRS 48.045(2) and satisfies the requirements in Tinch
by being "relevant, .. . proven by clear and convincing evidence, and
[having] probative value that is not substantially outweighed by the risk
of unfair prejudice." Id. (citing Tinch v. State, 113 Nev. 1170, 1176, 946
P.2d 1061, 1064-65 (1997)). However, in stating this test for the
admissibility of evidence of other crimes, we failed to consider the
difference between the procedural issue of joinder of offenses and the
evidentiary issue of admitting evidence of "other crimes." See Solomon v.
State, 646 A.2d 1064, 1066 (Md. Ct. Spec. App. 1994) (observing that the
procedural issues of joinder and severance are not the same as the
evidentiary issue of "other crimes" evidence and they call for different
analyses).
The admissibility of evidence of 'other crimes, wrongs or acts'"
is an evidentiary issue that may arise at any time during the course of a
trial, and the district court's evaluation of that evidence's relevance,
reliability, and risk of unfair prejudice is necessary to ensure that the
evidence is subjected to some form of procedural safeguard before it has a
chance to influence the jury. See Petrocelli v. State, 101 Nev. 46, 51 n.3,
51-52, 692 P.2d 503, 507 n.3, 507-08 (1985) (quoting MRS 48.045(2)),
superseded in part by statute as stated in Thomas v. State, 120 Nev. 37, 45,
83 P.3d 818, 823 (2004). In contrast, the joinder of offenses is a procedural
issue that is decided before a trial and does not compel the same
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safeguards as evidence that is introduced after a trial has started. See
generally Brown v. State, 114 Nev. 1118, 1126, 967 P.2d 1126, 1131 (1998)
(recognizing joinder as a procedural rule).
In a joinder decision there is no need to prove a defendant's
participation in the charged crimes by clear and convincing evidence
because "[aill crimes charged, and, therefore, amenable to the possible
joinder, are the considered products of grand jury indictments or criminal
informations" and therefore are "of equal stature." Solomon, 646 A.2d at
1070; accord State v. Cutro, 618 S.E.2d 890, 894 (S.C. 2005). Similarly,
weighing the probative value of the evidence against the danger of unfair
prejudice does not provide a meaningful safeguard against improper
joinder because it fails to account for the public's weighty interest in
judicial economy, see Tabish, 119 Nev. at 304, 72 P.3d at 591; Solomon,
646 A.2d at 1071, and the question of unfair prejudice can be addressed
separately through the prejudicial joinder statute, NRS 174.165(1).
However, the district court must still consider whether the evidence of
either charge would be admissible for a relevant, nonpropensity purpose in
a separate trial for the other charge, see generally Bigpond v. State, 128
Nev., Adv. Op. 10, 270 P.3d 1244, 1249-50 (2012) (modifying the first
Tinch factor to reflect the narrow limits of the general rule of exclusion),
but we conclude that this is the only Tinch factor that the district court
must consider when deciding whether charges are "connected together" for
purposes of joinder.
2. Admissibility and relevancy
"The admissibility of evidence of other crimes, wrongs, or acts
to establish intent and an absence of mistake or accident is well
established, particularly in child abuse cases," United States v. Harris, 661
F.2d 138, 142 (10th Cir. 1981), where the State must often "prove its case,
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if at all, with circumstantial evidence amidst a background of a pattern of
abuse," United States v. Merri weather, 22 M.J. 657, 663 (A.C.M.R. 1986)
(Naughton, J., concurring). See Bludsworth v. State, 98 Nev. 289, 291, 646
P.2d 558, 559 (1982) (evidence of prior injuries is admissible as
"independent, relevant circumstantial evidence tending to show that the
child was intentionally, rather than accidently, injured on the day in
question"); Ashford v. State, 603 P.2d 1162, 1164 (Okla. Crim. App. 1979)
(evidence of "past injuries [is] admissible to counter any claim that the
latest injury happened through accident or simple negligence. The
pattern of abuse is relevant to show the intent of the act."); State v.
Widdison, 4 P.3d 100, 108 (Utah Ct. App. 2000) ("Evidence of prior child
abuse, both against the victim and other children, is admissible to show
identity, intent, or lack of accident or mistake."); see also State v. Taylor,
701 A.2d 389, 395-96 (Md. 1997) (gathering cases). Here, the abuse
charges and the death charges were connected together because evidence
from these charges demonstrated a pattern of abuse and neglect that
would have been relevant and admissible in separate trials for each of the
charges. Accordingly, we conclude that the joinder of these charges was
permissible under NRS 173.115.
C. Prejudicial joinder
Even when charges have been properly joined, some form of
relief may be necessary to avert unfair prejudice to the defendant. NRS
174.165(1) provides that la it appears that a defendant. . . is prejudiced
by a joinder of offenses. . . in an indictment. . , the court may order an
election or separate trials of counts, . . . or provide whatever other relief
justice requires." The defendant must demonstrate to the district court
that the joinder would be unfairly prejudicial; this requires more than a
mere showing that severance may improve his or her chances for
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acquittal. Weber, 121 Nev. at 574-75, 119 P.3d at 121. Courts construing
NRS 174.165(1)'s federal cognate
have identified three related but distinct types of
prejudice that can flow from joined counts: (1) the
jury may believe that a person charged with a
large number of offenses has a criminal
disposition, and as a result may cumulate the
evidence against him or her or perhaps lessen the
presumption of innocence; (2) evidence of guilt on
one count may "spillover" to other counts, and lead
to a conviction on those other counts even though
the spillover evidence would have been
inadmissible at a separate trial; and (3) defendant
may wish to testify in his or her own defense on
one charge but not on another.
1A Charles Alan Wright & Andrew D. Leipold, Federal Practice and
Procedure § 222 (4th ed. 2008). We have recognized that the first of these
types of prejudice may occur when charges in a weak case have been
combined with charges in a strong case to help bolster the former. Weber,
121 Nev. at 575, 119 P.3d at 122.
Like its federal counterpart, NRS 174.165(1) "does not require
severance even if prejudice is shown; rather, it leaves the tailoring of the
relief to be granted, if any, to the district court's sound discretion." Zafiro
v. United States, 506 U.S. 534, 538-39 (1993). "To require severance, the
defendant must demonstrate that a joint trial would be manifestly
prejudicial. The simultaneous trial of the offenses must render the trial
fundamentally unfair, and hence, result in a violation of due process."
Honeycutt v. State, 118 Nev. 660, 667-68, 56 P.3d 362, 367 (2002)
(emphasis added) (internal quotations omitted), overruled on other
grounds by Carter v. State, 121 Nev. 759, 765, 121 P.3d 592, 596 (2005).
To resolve a motion to sever, the district court must first determine
whether the joinder is manifestly prejudicial in light of the unique facts of
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the case and then decide "whether. [the] joinder is so manifestly prejudicial
that it outweighs the dominant concern [of] judicial economy and compels
the exercise of the court's discretion to sever." Tabish, 119 Nev. at 304, 72
P.3d at 591 (internal quotations omitted).
Here, the district court expressly rejected the argument that
the abuse charges unfairly bolstered the death charges because Rimer was
directly implicated in the abuse charges but only indirectly implicated in
the death charges. Our review of the record shows that all of the charges
were strong and none of the charges were so weak as to suggest a due
process violation. Accordingly, we conclude that the district court did not
abuse its discretion in this regard.
III. Remaining claims
We briefly address Rimer's remaining claims although none of
them warrant reversal.
A. Sufficiency of the evidence
Rimer claims that the State failed to present evidence that he
caused his children to suffer unjustifiable physical pain or mental
suffering, permitted or allowed the abuse or neglect that resulted in
Jason's death, and committed an act that led to Jason's death. We review
the evidence in the light most favorable to the prosecution and determine
whether a "rational trier of fact could have found the essential elements of
the crime[s] beyond a reasonable doubt." Jackson v. Virginia, 443 U.S.
307, 319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727
(2008). Here, the jury heard testimony that revealed a pattern of child
abuse and neglect. Rimer placed his children in harm's way by subjecting
them to deplorable living conditions, dispensing excessive corporal
punishment, and concealing their unsafe and unhealthy environment from
CPS. Rimer failed to provide adequate care and supervision for his
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special-needs child, Jason, who required constant attention and yet was
often left filthy, in need of clean diapers, and suffering from an unhealthy
G-tube site. And, Rimer withdrew to his bedroom and failed to check on
the condition and whereabouts of his special-needs child during the 17-
hour period that preceded the discovery of the child's body. We conclude
that sufficient evidence supports Rimer's convictions for child abuse and
neglect and involuntary manslaughter. See MRS 200.070; NRS 200.508.
It is for the jury to determine the weight and credibility to give conflicting
testimony, and the jury's verdict will not be disturbed on appeal where, as
here, substantial evidence supports its verdict. See Bolden v. State, 97
Nev. 71, 73, 624 P.2d 20, 20 (1981).
B. Sufficiency of the indictment
Rimer claims that the indictment failed to articulate
cognizable offenses of second-degree murder and child abuse and neglect
resulting in substantial bodily harm, failed to give sufficient notice of the
charges that he had to defend against at trial, and contained
inflammatory surplusage because it described Jason as a "baby." We
review constitutional challenges to the sufficiency of an indictment de
novo. West v. State, 119 Nev. 410, 419, 75 P.3d 808, 814 (2003). Here, the
indictment made reference to the statutes under which Rimer was
charged; alleged the time, place, and method or manner in which the
offenses were committed, and advised Rimer of what he needed to know to
prepare his defense. We conclude that the indictment satisfies the
constitutional and statutory notice requirements, see U.S. Const. amend.
VI; Nev. Const. art. 1, § 8; NRS 173.075(1); Jennings v. State, 116 Nev.
488, 490, 998 P.2d 557, 559 (2000), and, further, that the district court did
not abuse its discretion by ruling that the term "baby" was not surplusage,
see NRS 173.085.
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C. Constitutionality of NRS 200.508
Rimer claims that NRS 200.508 is unconstitutionally vague
because no reasonable person would understand the prohibition on child
abuse and neglect to include leaving a child in the care of his or her
mother or criminalizing foul odors, cluttered houses, dirty aquariums, low
food supplies, sending children to bed without supper, calling children
nonprofane names, spanking children, or failing to expediently eradicate a
lice problem. "We review the constitutionality of a statute de novo,
presuming that a statute is constitutional." Clancy v. State, 129 Nev.,
Adv. Op. 89, 313 P.3d 226, 231 (2013). Nevada's child-abuse-and-neglect
statute plainly authorizes criminal penalties for an adult who either
willfully or passively places a child "in a situation where the child may
suffer physical pain or mental suffering as the result of abuse or neglect,"
NRS 200.508(1), (2), and adequately defines its terms so that a person of
ordinary intelligence would have notice of the prohibited conduct. Smith
v. State, 112 Nev. 1269, 1276, 927 P.2d 14, 18 (1996), abrogated on other
grounds by City of Las Vegas v. Eighth Judicial Dist. Court, 118 Nev. 859,
862-63, 59 P.3d 477, 480 (2002), abrogated on other grounds by State v.
Castaneda, 126 Nev. 478, 482 n.1, 245 P.3d 550, 553 n.1 (2010).
Consequently, we conclude that Rimer has failed to make a clear showing
that the statute is unconstitutional as applied to him or otherwise
overcome the statute's presumed constitutionality. See Clancy, 129 Nev.,
Adv. Op. 89, 313 P.3d at 231 (setting forth the test for unconstitutional
vagueness).
D. Joinder of codefendant
Rimer claims that the district court's failure to sever the joint
trial deprived him of a fair trial because Colleen's inculpatory statement to
police detectives was admitted into evidence, he and Colleen had mutually
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exclusive defenses, and the nature of their defenses gave rise to an
inference that they were both guilty. We review a district court's
determination of whether to sever a joint trial for abuse of discretion.
Chartier v. State, 124 Nev. 760, 763-64, 191 P.3d 1182, 1184-85 (2008). A
joint trial must be severed "`if there is a serious risk• that [it] would
compromise a specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or innocence." Marshall
v. State, 118 Nev. 642, 647, 56 P.3d 376, 379 (2002) (quoting Zafiro, 506
U.S. at 539). Here, Rimer informed the district court that there were no
Bruton-type problems, see Bruton v. United States, 391 U.S. 123, 126
(1968) (holding that a defendant's constitutional right to confront his
accusers is violated when a nontestifying codefendant's statement
incriminates him and is used at their joint trial), and the district court
determined that Rimer's defense—that he was sick in bed and
relinquished all parenting responsibilities to Colleen—and Colleen's
defense—that she had myotonic dystrophy and relied on others in the
household to care for Jason—were not so inconsistent or inherently
prejudicial that they require severance, see generally Marshall, 118 Nev.
644-48, 56 P.3d 377-80 (discussing inconsistent defenses). We conclude
that the district court did not abuse its discretion in this regard.
E. Counsel of choice
Rimer claims that the district court interfered with his
constitutional right to counsel of his choice by denying his motion for a
continuance. Although the Sixth Amendment right to counsel includes the
right to retain counsel of one's own choosing, this right is not absolute.
United States v. Gonzales-Lopez, 548 U.S. 140, 144 (2006). For example,
"the denial of a continuance may infringe upon the defendant's right to
counsel of choice, '[but] only an unreasoning and arbitrary insistence upon
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expeditiousness in the face of a justifiable request for delay violates the
right to the assistance of counsel." United States v. Carrera, 259 F.3d 818,
825 (7th Cir. 2001) (citation omitted) (quoting Morris v. Slappy, 461 U.S.
1, 11-12 (1983)). Here, Rimer informed the district court on the eve of trial
that he was substituting his court-appointed counsel with private counsel.
He explained that private counsel had a different strategy and asked for a
90-day continuance. The district court denied the continuance because the
case was old and had been pending since 2008, a firm trial date that fit
everyone's schedules was set on November 4, 2010, and Rimer had known
since November that his case would go to trial on February 14, 2011. We
conclude that the district court did not abuse its discretion in this regard.
See United States v. Garrett, 179 F.3d 1143, 1144-45 (9th Cir. 1999)
(reviewing a district court's decision to deny a continuance that implicated
defendant's right to counsel of choice for abuse of discretion).
F. Peremptory challenge
Rimer claims that the district court erred by overruling his
objection to the prosecutor's use of a peremptory challenge. "An equal-
protection challenge to the exercise of a peremptory challenge is evaluated
using the three-step analysis adopted. . . in Batson [v. Kentucky, 476 U.S.
79 (1986)]." Nunnery v. State, 127 Nev., Adv. Op. 69, 263 P.3d 235, 257-58
(2011). The Batson analysis requires that the opponent of the peremptory
challenge make a prima facie case of discrimination (first step) before the
proponent of the challenge must assert a neutral explanation for the
challenge (second step). Purkett v. Elem, 514 U.S. 765, 767 (1995). "[Al
defendant satisfies the requirements of Batson's first step by producing
evidence sufficient to permit the trial judge to draw an inference that
discrimination has occurred." Johnson v. California, 545 U.S. 162, 170
(2005); see also Watson v. State, 130 Nev., Adv. Op. 76, 335 P.3d 157, 166-
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67 (2014) (discussing Batson's first step). Rimer lodged his Batson
challenge on the record after jury selection was settled off the record.
Rimer challenged the prosecutor's decision to strike an African-American
woman because "there was such limited contact during the jury selection,
[and] so few questions asked of her." The prosecutor expressly declined to
give reasons for his peremptory challenge until the district court
determined whether a prima facie case of discrimination had been made.
The district court found that one of the two African Americans in the
venire had been seated on the jury, there was no showing that the
prosecutor systematically excluded anybody, the challenged veniremember
had in fact been questioned, and she had made statements that provided a
sufficient reason for excluding her from the jury panel. This record
supports our conclusion that Rimer's challenge was decided and denied at
the first step of the Batson analysis. We see no clear error in that
decision. See Watson, 130 Nev., Adv. Op. 76, 335 P.3d at 165 (observing
that appellate court will not reverse district court's decision as to
discriminatory intent unless it is clearly erroneous).
G. Evidentiary rulings
Rimer claims that the district court made several erroneous
evidentiary rulings. He preserved two of these alleged errors for appellate
review. See NRS 47.040(1). "We review a district court's decision to admit
or exclude evidence for an abuse of discretion." Mclellan v. State, 124 Nev.
263, 267, 182 P.3d 106, 109 (2008).
Rimer claims that the district court erred by refusing to admit
statements that Colleen made against her penal interests because they
supported his defense. "[Although] the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense,"
Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotations omitted),
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defendants must comply with established evidentiary rules "designed to
assure both fairness and reliability in the ascertainment of guilt and
innocence," Chambers v. Mississippi, 410 U.S. 284, 302 (1973). "[T]he
statutory test for determining the admissibility of statements against
penal interest under NRS 51.345 is whether the totality of the
circumstances indicates the trustworthiness of the statement or
corroborates the notion that the statement was not fabricated to exculpate
the defendant." Walker v. State, 116 Nev. 670, 676, 6 P.3d 477, 480 (2000).
Here, the district court found that Colleen's statements were not made
under circumstances that dispelled the notion that they were fabricated,
and Rimer has not demonstrated an abuse of discretion in this regard.
Rimer also claims that the district court erred by refusing to
admit church records into evidence because they were records of a
regularly conducted activity. 3 Reports maintained "in the course of a
regularly conducted activity, as shown by the testimony or affidavit of the
custodian or other qualified person, [are] not inadmissible under the
hearsay rule unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness." NRS
51.135 (emphasis added). The term "qualified person" is broadly
interpreted and the proponent of the record need only make a prima facie
3 To the extent that Rimer claims that the church records were
admissible under NRS 51.185 (records of religious organizations), he did
not argue this hearsay exception in the court below and we decline to
consider it on appeal. See Davis v. State, 107 Nev. 600, 606, 817 P.2d
1169, 1173 (1991) (holding that this court need not consider arguments
raised on appeal that were not presented to the district court in the first
instance), overruled on other grounds by Means v. State, 120 Nev. 1001,
1012-13, 103 P.3d 25, 33 (2004).
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showing of its authenticity so that a reasonable juror could find that the
record is what it purports to be. Thomas v. State, 114 Nev. 1127, 1148,
967 P.2d 1111, 1124 (1998). Here, a ward bishop testified that he had no
personal knowledge of whether the proffered record was an accurate copy
of the records kept by the church. The district court reasonably concluded
from this testimony that Rimer failed to make a prima facie showing of
authenticity. Rimer has not demonstrated an abuse of discretion in this
regard.
H. Negative inference argument
Rimer claims that the district court erred by refusing to allow
him to argue that the jury could draw negative inferences from the State's
failure to call Spencer and Enoch as witnesses, present evidence regarding
the contents of the second refrigerator and freezer on the first floor, and
present evidence regarding the chemical containers that allegedly
endangered the Rimer children. A defense attorney is permitted to argue
all reasonable inferences that arise from the evidence presented at trial,
including negative inferences that may arise when the State fails to call
important witnesses or present relevant evidence and has some special
ability to produce such witnesses or evidence. Glover v. Eighth Judicial
Dist. Court, 125 Nev. 691, 705, 220 P.3d 684, 694 (2009). However,
prosecutors and defense attorneys may not premise their arguments on
facts that have not been admitted into evidence. Id. Here, the State
decided not to call Spencer and Enoch as witnesses, and defense counsel
decided not to hold the children over the weekend and call them to testify
during the following week. The district court ruled that Rimer could
argue that the State had the ability to call Spencer and Enoch as
witnesses and its decision not to call them as witnesses is something that
the jury should consider when evaluating whether there is sufficient
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evidence to sustain guilty verdicts. The district court further ruled that
Rimer could not comment on the evidentiary value of evidence that was
not admitted into evidence. We conclude that the district court did not
abuse its discretion in this regard.
I. Proposed jury instruction
Rimer claims that the district court erred by rejecting his
proposed instruction on the statute of limitations as it pertained to child-
abuse-and-neglect counts 3 through 7. Rimer asserts that the district
court's rejection of this instruction and its refusal to require the jury to be
unanimous as to the theory of conduct that it finds to be abusive or
neglectful deprived him of the ability to present a statute-of-limitations
defense. It appears that jury instructions were settled off the record and
then the parties' objections and the rejected instructions were
memorialized on the record. However, the record does not include the
rejected defense instructions nor indicate why they were rejected.
Without an adequate record, we are unable to resolve this claim on the
merits. See Thomas v. State, 120 Nev. 37, 43 & n.4, 83 P.3d 818, 822 &
n.4 (2004) ("Appellant has the ultimate responsibility to provide this court
with 'portions of the record essential to determination of issues raised in
appellant's appeal.' (quoting NRAP 30(b)(3))); Greene v. State, 96 Nev.
555, 558, 612 P.2d 686, 688 (1980) ("The burden to make a proper
appellate record rests on appellant.").
J. Prosecutorial misconduct
Rimer claims that the prosecutor committed various acts of
misconduct throughout the trial. He preserved four of these claims for
appeal. We analyze claims of prosecutorial misconduct in two steps: first,
we determine whether the prosecutor's conduct was improper, and second,
if the conduct was improper, we determine whether it warrants reversal.
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() 1947A anaZW.
Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). "[We] will
not reverse a conviction based on prosecutorial misconduct if it was
harmless error." Id.
First, Rimer claims that the prosecutor committed misconduct
by characterizing spankings as beatings. However, any harm arising from
the prosecutor's use of the term "beatings" during his examination of the
witnesses was cured when the district court sustained Rimer's objections,
and the prosecutor did not commit misconduct by using the term during
closing argument because he was free to argue facts or inferences
supported by the evidence and to offer conclusions on disputed issues
during closing argument. See Miller v. State, 121 Nev. 92, 100, 110 P.3d
53, 59 (2005).
Second, Rimer claims that the prosecutor committed
misconduct by eliciting testimony that a CPS investigator went to the
Rimer home in response to a complaint involving Crystal. The record
reveals that the district court determined that nothing was said that
would lead the jury to believe that there was a bad act involving Crystal,
cautioned the prosecutor to avoid situations involving other bad acts, and
overruled Rimer's objection. Nothing in the record suggests that the
prosecutor's conduct was improper in this regard.
Third, Rimer claims that the prosecutor committed
misconduct by conveying facts not in evidence through a hypothetical
question posed to a defense expert. Dr. Carl Dezenberg testified that he
did not have any concerns about the care that Jason was receiving from
his family. In an attempt to undermine Dr. Dezenberg's testimony, the
prosecutor asked,
Would it have caused you concern if you had
learned that on the day that Jason was presented
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to have his G-tube removed by Dr. Reyna that Dr.
Reyna refused to do surgery because Jason was so
dirty he needed to have him bathed before [he]
was willing to perform the surgery?
The district court allowed the question after determining that it was being
posed as a hypothetical question. The prosecutor's question did not
constitute misconduct because opposing parties are allowed to explore and
challenge the basis of an expert witness's opinion See NRS 50.285(2) (an
expert may base his opinion on facts and data that are not admissible in
evidence); Blake v. State, 121 Nev. 779, 790, 121 P.3d 567, 574 (2005) ("It
is a fundamental principle in our jurisprudence to allow an opposing party
to explore and challenge through cross-examination the basis of an expert
witness's opinion."); Anderson v. Berrum, 36 Nev. 463, 469, 136 P. 973, 976
(1913) ("On cross-examination it is competent to call out anything to
modify or rebut the conclusion or inference resulting from the facts stated
by the witness on his direct examination.").
Fourth, Rimer claims that the prosecutor committed
misconduct by arguing that the defense failed to prove that the Rimers
were sick on the day of Jason's death. During the opening statements,
both Rimer and Colleen claimed that the evidence would show that they
were sick and spent most of the day in bed. The prosecutor acknowledged
these statements during closing argument and asked, "what evidence is
there to suggest that they were sick. How about a witness." This
argument was not misconduct because the prosecutor was merely pointing
out "that the defense failed to substantiate its theory with supporting
evidence." Evans v. State, 117 Nev. 609, 631, 28 P.3d 498, 513 (2001); see
Leonard v. State, 117 Nev. 53, 81, 17 P.3d 397, 415 (2001).
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K. Felony adjudication
Rimer argues that the district court erred by adjudicating him
guilty of felony child abuse and neglect as to counts 3 through 7 because
the State failed to request a special verdict form so that the jurors could
designate the theories of liability they found beyond a reasonable doubt,
the Department of Parole and Probation treated the counts as gross
misdemeanors, and defense counsel asked the district court to adjudicate
the counts as gross misdemeanors. However, the plain language of the
amended indictment demonstrates that Rimer was accused of committing
a felony under NRS 200.508(1) because it states that he committed the
child abuse and neglect by causing a child to suffer harm or by placing a
child in a situation where he may have suffered harm. See Ramirez v.
State, 126 Nev. 203, 208-09, 235 P.3d 619, 623 (2010) (explaining the
difference between the criminal offenses described in NRS 200.508
subsections (1) and (2)). Rimer was not accused of committing child abuse
and neglect under NRS 200.508(2), the jury was properly instructed on
counts 3 through 7, and the jury found Rimer guilty of each of these
counts. Accordingly, the district court did not abuse its discretion by
adjudicating Rimer guilty of felony child abuse and neglect. See Chavez v.
State, 125 Nev. 328, 348, 213 P.3d 476, 490 (2009) (reviewing a district
court's sentencing decision for abuse of discretion).
L. Double jeopardy
Rimer argues that his involuntary-manslaughter and child-
abuse-and-neglect-resulting-in-substantial-bodily-harm convictions violate
the Double Jeopardy Clause and are redundant because they punish the
exact same act—Jason's death. However, each of these offenses requires
proof of an element that the other does not: involuntary manslaughter
requires proof of a homicide, see NRS 200.070, and child abuse and neglect
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requires proof of an intentional act that either causes or allows a child to
suffer harm or be placed in a situation where he or she may suffer harm,
see NRS 200.508(1), (2). Accordingly, Rimer's convictions do not violate
the Double Jeopardy Clause's prohibition against multiple punishments
for the same offense, see Blockburger v. United States, 284 U.S. 299, 304
(1932) (establishing an elements test for determining whether separate
offenses exist for double jeopardy purposes), and they are not redundant
because neither statute indicates that cumulative punishment is
precluded, see Jackson v. State, 128 Nev., Adv. Op. 55, 291 P.3d 1274,
1282 (2012) (applying the Blockburger test to redundancy claims when the
relevant statutes do not expressly authorize or prohibit cumulative
punishment).
M. Plain error review
Many of Rimer's claims of error were not preserved for
appellate review. He either failed to object and state the specific grounds
for his objection during trial, or the grounds that he now urges on appeal
are different from those he presented below. See Thomas v. Hardwick,
126 Nev. 142, 155-57, 231 P.3d 1111, 1120-21 (2010) (discussing
unpreserved challenges to the admission of evidence); Valdez v. State, 124
Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (discussing unpreserved
challenges to prosecutorial conduct); Green v. State, 119 Nev. 542, 545, 80
P.3d 93, 95 (2003) (discussing unpreserved challenges to jury
instructions). Nonetheless, we have discretion to review for plain error.
See NRS 178.602; Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239
(2001), abrogated on other grounds by Nunnery v. State, 127 Nev., Adv.
Op. 69, 263 P.3d 235, 253 & n.12(2011). "An error is plain if the error is
so unmistakable that it reveals itself by a casual inspection of the record.
At a minimum, the error must be clear under current law, and, normally,
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the defendant must show that an error was• prejudicial in order to
establish that it affected substantial rights." Saletta v. State, 127 Nev.,
Adv. Op. 34, 254 P.3d 111, 114 (2011) (citations omitted) (internal
quotations omitted).
Rimer claims that the district court erred by allowing portions
of the grand jury transcript to be read into the record and admitting
evidence of other bad acts, evidence of purported misconduct that occurred
outside the time frame alleged in the indictment, the opinion testimony of
lay witnesses, and photographs that were prejudicial and cumulative.
Rimer also claims that the district court improperly instructed the jury on
child endangerment, the definition of the statutory term "permit," the
presumption of innocence, and the unanimous verdict requirement. And
Rimer further claims that the prosecutor committed misconduct by
inviting references to Rimer's custodial status, eliciting testimony that a
crime scene investigator was treated for scabies, arguing facts not in
evidence, arguing that the State did not need to prove each allegation as to
each named victim, arguing that Rimer had no choice but to speak to
authorities after Jason's death, and exhorting the jurors not to let the
system fail Jason again.
We have carefully reviewed each of these claims and, to the
limited extent that there was error, we conclude that the error did not
affect Rimer's substantial rights and therefore he has not demonstrated
plain error. See United States v. Plano, 507 U.S. 725, 734 (1993) (An error
that affects the substantial rights of a defendant is one that "affected the
outcome of the district court proceedings.").
N. Cumulative error
Rimer claims that cumulative error requires reversal of his
convictions. However, because Rimer has failed to demonstrate any trial
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error, we conclude that he was not deprived of a fair trial due to
cumulative error.
CONCLUSION
Having determined that the district court did not err by
concluding that child abuseS and neglect is a continuing offense for
purposes of the statute of limitations, that the criminal counts were
properly joined because they evinced a pattern of abuse and neglect that
would have been relevant and admissible in separate trials for each
charge, and that none of the remaining claims warrant relief, we affirm
Rimer's judgment of conviction.
J.
We concur:
A-L12.07—a-N C.J.
Hardesty
COL* ot_Q 6 11
- , J.
Parraguirre
, J.
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CHERRY, J., with whom SAITTA, J., agrees, dissenting:
While the majority characterizes the procedural and
prosecutorial errors during Rimer's trial as innocuous, the cumulative
effect of these errors warrants reversal. Rimer's trial was unfairly
prejudiced from the outset due to the misjoinder of counts and trials. The
district court failed to take the most basic precautions of a limiting
instruction or a Petrocelli hearing. Moreover, because the State decided to
prosecute Rimer for child abuse or neglect under the continuing offense
doctrine, Rimer's rights under the Double Jeopardy Clause, see U.S. Const.
amend. V, were violated when he was twice convicted for abuse and
neglect of four-year-old Jason. Therefore, I dissent.
Continuing offense doctrine
Even assuming that child abuse or neglect is a continuing
offense and therefore extends the statute of limitations in the instant case,
I would nonetheless reverse one of the charges against Rimer for acts of
abuse and neglect against Jason. If child abuse or neglect is a continuing
offense, then both charges against Rimer for abusing and neglecting Jason
cannot stand.
The Double Jeopardy Clause "protects against a second
prosecution for the same offense after conviction. And it protects against
multiple punishments for the same offense." North Carolina v. Pearce,
395 U.S. 711, 717 (1969) (footnote omitted). Other appellate courts have
held that continuing offenses are, by definition, single offenses, even
though comprised of multiple, discrete acts. State v. Adams, 24 S.W.3d
289, 294 (Tenn. 2000) ("In cases when the nature of the charged offense is
meant to punish a continuing course of conduct, . . . election of offenses is
not required because the offense is, by definition, a single offense."
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(emphasis added)); see also People v. Ewing, 140 Cal. Rptr. 299, 301 (Ct.
App. 1977) (holding that lallthough the child abuse statute may be
violated by a single act, more commonly it covers repetitive or continuous
conduct" (citation omitted)); People v. Hogle, 848 N.Y.S.2d 868, 871 (N.Y.
Crim. Ct. 2007) (holding that "[Ondangering the welfare of a child may be
characterized as a continuing offense over a period of time 'made up of a
continuity of acts or of omissions, neither of which may be enough by
itself, but each of which comes in with all the rest to do the harm and
make the offense' (citation omitted) (quoting Cowley v. People, 83 N.Y.
464, 472 (N.Y. 1881))). Here, Rimer was convicted of two counts of
abusing or neglecting Jason under a single course of conduct. Rimer's acts
and omissions of abuse or neglect that led to Jason's death are therefore
included within the same course of conduct as those of failing to provide
the proper care necessary for Jason's well being. Because it is all part of a
single course of conduct, only one conviction is permitted.
Because a course of conduct is a "single offense," see Adams,
24 S.W.3d at 294, Rimer cannot be punished twice for a single course of
conduct. I would therefore reverse the redundant conviction for child
abuse or neglect of Jason.
Misjoinder of charges and codefendant's trial
Under NRS 173.115, NRS 48.045(2), and the admissibility
standards delineated in Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d
1061, 1064-65 (1997), evidence of Rimer's abuse of Jason's older siblings
unfairly prejudiced Rimer. Accordingly, the district court should have
severed the abuse counts from those pertaining to Jason's death. Evidence
that Rimer abused the older children is not cross-admissible because it
lacks relevancy to Jason's death. Such evidence only "show[s] an accused's
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criminal character and the probability that he committed the crime."
Shults v. State, 96 Nev. 742, 748, 616 P.2d 388, 392 (1980).
Rimer's alleged abuse of his other children cannot be linked to
Rimer's failure to inquire into Jason's whereabouts on the day of Jason's
death. NRS 48.045(2). A parent's motive to inflict physical abuse on his
or her child is not remotely similar to a parent's motive to neglect his or
her child's whereabouts—especially when, as here, the evidence shows
that the parent believes that others are caring for the child.
Similarly, evidence that Rimer abused his older children does
not demonstrate "absence of mistake or accident" for the charges involving
Jason's death. Id. Not only does the evidence of abuse pertain to other
alleged victims, the acts that the majority believes to be related—corporal
punishment and ignoring a child's whereabouts—are clearly distinct.
They cannot possibly constitute part of a single series of events. Evidence
"that a child has experienced injuries in many purported accidents is
evidence that the most recent injury may not have resulted from yet
another accident." Bludsworth v. State, 98 Nev. 289, 292, 646 P.2d 558,
559 (1982). However, instances of intentional acts against older children
lack relevance when the youngest child was the subject of an
unintentional accident.
Evidence of additional abuse beyond Rimer's alleged abuse of
Jason unfairly portrayed Rimer as a "bad father." Allowing this evidence
implied that he was an abusive father, in general, by suggesting that he
was prone to do that which "bad fathers" may do. Even if evidence for the
counts of the older children's physical abuse might have some probative
value for the charges pertaining to Jason's death, joinder of these counts
terminally infected the proceedings with "the danger of unfair prejudice."
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The substantial and injurious effect of the evidence should have compelled
the trial judge to exercise his discretion to sever the charges. Tinch, 113
Nev. at 1176, 946 P.2d at 1064-65; see Tabish v. State, 119 Nev. 293, 304,
72 P.3d 584, 591 (2003); Bludsworth, 98 Nev. at 292, 646 P.2d at 559.
The inappropriate joinder of Rimer's and Colleen's trials is of
equal and weighty concern. These defendants had antagonistic,
irreconcilable, and mutually exclusive defenses. See Marshall v. State,
118 Nev. 642, 645-46, 56 P.3d 376, 378 (2002); Rowland v. State, 118 Nev.
31, 45, 39 P.3d 114, 122-23 (2002). Rimer's defense (that he relied on
Colleen to take care of Jason) directly contradicts Colleen's defense (that,
because she suffered from adult-onset myotonic dystrophy, she relied on
others to care for Jason). While Colleen's defense diffused her individual
responsibility among other members of the household, Rimer's defense
turned on Colleen's role as Jason's caretaker. Thus, if the jury accepted
Colleen's defense, it would inevitably reject Rimer's defense.
This misjoinder compromised Rimer's right to a fair trial. See
Marshall, 118 Nev. at 646, 56 P.3d at 379 (stating that joinder is
"prefer[able] as long as it does not compromise a defendant's right to a fair
trial"). The joinder also unfairly prejudiced Rimer because the jury could
not reasonably be expected to "compartmentalize the evidence as it
relate [d] to separate defendants." Lisle v. State, 113 Nev. 679, 689, 941
P.2d 459, 466 (1997) (internal quotation omitted), overruled on other
grounds by Middleton v. State, 114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315
n.9 (1998). In a decision requiring such a delicate determination as
whether a defendant's negligence is criminal and requires conviction, the
distortion of a jury's ability to evaluate guilt or innocence demands
reversal. See, e.g., Tabish, 119 Nev. at 305, 72 P.3d at 591 ("[Plrejudice
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created by . . . failure to sever the charges is more likely to warrant
reversal in a close case.").
Omission of a limiting instruction to the jury
Next we consider the omission of a limiting instruction for the
prior bad acts evidence admitted against Rimer. See Mclellan v. State, 124
Nev. 263, 269, 182 P.3d 106, 110-11 (2008) (holding that admission of prior
bad acts evidence requires a limiting instruction, unless waived by the
defendant prior to admission). Both the State and the district court share
blame for this error. See id. After the district court admitted such
evidence, the prosecutors ignored their duty "to request that the jury be
instructed on the limited use• of prior bad act evidence." See id. More
importantly, the district court failed to heed this court's direction and
"raise the issue sua sponte" after the State neglected its duty to do so. See
Id.
This court has recognized that "[w]hen . potential prejudice
is present, it can usually be adequately addressed by a limiting instruction
to the jury." Tabish, 119 Nev. at 304, 72 P.3d at 591. Particularly in the
face of imminent unfair prejudice, the district court should have taken
appropriate steps to properly instruct the jury. Though this procedural
safeguard would not have been adequate to ameliorate the unfair
prejudice arising from joinder of counts and trials, the court nonetheless
should have taken steps to inhibit any possible prejudice resulting from
joinder. See id. (holding that, given the graphic nature of the evidence, a
limiting instruction was insufficient "to mitigate the prejudicial impact of
the joinder on the jury's consideration of appellants' guilt on the
remaining counts"). Not doing so is an additional ground for reversal.
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Prosecutorial misconduct
Three statements made by the prosecutor constitute
egregiously improper conduct. First is the State's use of the term "beat" in
reference to corporal punishment. This was an impermissible
mischaracterization of the testimony. See Valdez v. State, 124 Nev. 1172,
1188, 196 P.3d 465, 476 (2008). The district court acknowledged the
prosecution's mischaracterization and sustained objections to the use of
"beat." The court additionally instructed the prosecution to use the word
"discipline" instead of the word "beat." Regardless, the prosecutor
continued to use the word "beat" and refused to alter his vocabulary
despite the court's instructions. This is blatant misconduct.
Second, the prosecution committed misconduct by suggesting
facts not in evidence when it posed hypothetical questions involving
Jason's G-tube. Though the prosecutor correctly stated that NRS
50.285(2) permits the use of hypothetical questions, such questions cannot
contain facts that are not supported by the evidence. See Wallace v. State,
84 Nev. 603, 606, 447 P.2d 30, 32 (1968) This is also misconduct.
Finally, the prosecutor's argument that the defense failed to
present witnesses establishing that Rimer was ill on the day that Jason
died impermissibly shifted the burden of proof. This court has determined
that it is generally improper to comment on the defense's failure to call
witnesses or produce evidence, yet this is exactly what the prosecutor did.
See Whitney v. State, 112 Nev. 499, 502, 915 P.2d 881, 883 (1996). This,
too, constitutes misconduct.
Plain errors
Several instances of unobjected-to procedural errors are
equally troublesome. First, the district court should have sua sponte
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ordered a Petrocelli hearing for the unobjected-to prior bad acts, namely
that Rimer threatened CPS, paid or asked his children not to speak to
CPS, and allegedly hit his daughter. Without a Petrocelli hearing to
determine whether (1) the evidence is relevant, (2) the prior bad act "is
proven by clear and convincing evidence," and (3) the danger of unfair
prejudice substantially outweighs the evidence's probative value, Tinch,
113 Nev. at 1176, 946 P.2d at 1064-65, "this court [has] be[en] deprived of
the opportunity for meaningful review of the trial court's admissibility
determination." Qualls v. State, 114 Nev. 900, 903, 961 P.2d 765, 766-67
(1998).
Under plain error review, the failure to conduct a Petrocelli
hearing and the prosecutorial misconduct warrant reversal. We note, that
reversal is not always necessary when a district court fails to hold a
Petrocelli hearing. McNelton v. State, 115 Nev. 396, 405, 990 P.2d 1263,
1269 (1999). However, the district court's failure here compels reversal as
"(1) the record is [not] sufficient to determine that the [prior bad act]
evidence is admissible under Tinch; [and] (2) the result would [not] have
been the same if the trial court had not admitted the evidence." Id.
Evidence of threats to CPS and allegedly asking his children not to speak
to CPS solely served as character evidence by framing Rimer as a bad
person. Rimer's actions and frustrations toward an agency interested in
protecting children does not automatically indicate that he did not
properly protect his children. Because the evidence bears no relevance to
the issue of whether he committed acts of abuse, neglect, or homicide, the
evidence is inadmissible under the first Tinch standard. See 113 Nev. at
1176, 946 P.2d at 1064-65 (holding that the prior bad act evidence must,
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first, be relevant to be admissible). Next, even assuming relevance, the
prejudicial effect of the evidence far outweighs its probative value. See id.
Two additional unobjected-to prosecutorial statements are
erroneous, as the record did not support the assertions. See Guy v. State,
108 Nev. 770, 780, 839 P.2d 578, 585 (1992). First, the prosecutor's
statement that the house was a "house of horrors" is neither substantiated
by the evidence nor a permissible inference. Second, the State's claim that
the system failed Jason and its exhortation that the jury prevent this from
occurring again is severely inflammatory. This court has held that
It] here should be no suggestion that a jury has a duty to decide one way
or the other; such an appeal is designed to stir passion and can only
distract a jury from its actual duty: impartiality." Evans v. State, 117
Nev. 609, 633, 28 P.3d 498, 515 (2001) (emphasis added) (internal
quotations omitted).
The unobjected-to prosecutorial misconduct warrants reversal
because the error Thad a prejudicial impact on the verdict when viewed in
context of the trial as a whole." See Gaxiola v. State, 121 Nev. 638, 654,
119 P.3d 1225, 1236 (2005) (quoting Rowland, 118 Nev. at 38, 39 P.3d at
118). Given the extremely inflammatory nature of those statements, "the
misconduct is 'clearly demonstrated to be substantial and prejudicial."
Miller v. State, 121 Nev. 92, 99, 110 P.3d 53, 58 (2005) (quoting Sheriff v.
Fullerton, 112 Nev. 1084, 1098, 924 P.2d 702, 711 (1996)). The jury's
return of a lesser offense of involuntary manslaughter may reflect that
this misconduct was ineffective, however, the prosecutor's inappropriate
statements may have compelled the jury to return some sort of guilty
verdict.
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Cumulative error
Under a cumulative error analysis, (1) the misjoinder of counts
and trials, (2) the erroneous omission of a limiting instruction on prior bad
acts evidence, and (3) the numerous instances of prosecutorial misconduct
are grounds for reversal because of their "substantial and injurious effect
or influence in determining the jury's verdict." Tavares v. State, 117 Nev.
725, 732, 30 P.3d 1128, 1132 (2001) (internal quotations omitted).
Conclusion
Given the breadth of the numerous, unfair, and dangerous
prejudicial errors that impacted Rimer's trial, the conviction should have
been reversed. Therefore, I dissent.
tUt J.
Cherry
I gctlt
Saitta
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GIBBONS, J., dissenting:
I dissent.
J.
Gibbons
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