State v. Scafidi (Marino)

 does not challenge this omission on appeal. To demonstrate undue
prejudice, a defendant must show "that it could be reasonably anticipated
that the evidence sought would be exculpatory and material to [his]
defense" and that when evaluated in the context of the entire record, the
lost evidence creates a reasonable doubt that was not otherwise present.
Sparks v. State, 104 Nev. 316, 319,759 P.2d 180, 182 (1988) (quoting
Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979)). This court
reviews a district court's dismissal of a charging document for an abuse of
discretion. Hill v. State, 124 Nev. 546, 550, 188 P.3d 51, 54 (2008). "An
abuse of discretion occurs if the district court's decision is arbitrary or
capricious or if it exceeds the bounds of law or reason." Nunnery v. State,
127 Nev. „ 263 P.3d 235, 247 (2011) (quoting Jackson v. State, 117
Nev. 116, 120, 17 P.3d 998, 1000 (2001)).
After a sexual encounter with Scafidi, the alleged victim, S.
Carter, locked herself in Scafidi's hotel bathroom and dialed 911,
explaining that she feared Scafidi would hurt her but not alleging sexual
assault. After responding to the call, police escorted S. Carter to the
hospital for a sexual-assault examination and to interview her. During
her hospital interviews with• Detective Pool, S. Carter indicated she had
been using her phone to text one or more friends shortly before the alleged
sexual assault. S. Carter's phone had been seized from the hotel room
while she was at the hospital and was returned to her that afternoon by
Detective Pool without his first reviewing or recording the text messages.
The messages were deleted sometime prior to the preliminary hearing and
are now irretrievable. S. Carter told Detective Pool that she took
Wellbutrin, and she gave blood and urine samples to be tested for alcohol
and a variety of illicit drugs, including "roofies," as part of the hospital's
SUPREME COURT
OF
NEVADA
2
(01 19474
sexual-assault examination. Soon after his arrest, a blood sample was
taken from Scafidi in order to test him for sexually transmitted diseases
pursuant to NRS 441A.320(1).
In his motion to dismiss filed on April 11, 2014, Scafidi
claimed that he was unduly prejudiced by the State's failure to preserve S.
Carter's blood and urine samples taken by the hospital as part of her
sexual-assault examination. The district court found that the samples,
which revealed a blood alcohol content of 0.173 and tested negative for
illicit drugs, were not tested for Wellbutrin and were destroyed in the
hospital's ordinary course of business before the defense was able to have
them independently tested. The district court also found that officers were
aware that S. Carter was taking Wellbutrin, whose possible side effects
include delusions and paranoia, and that she believed she had been
drugged. Finally, the district court found that S. Carter's blood alcohol
content was inconsistent with her statements that she consumed only four
drinks over the course of the evening.
Evidence that merely impeaches a witness but does not tend
to establish innocence is not exculpatory. Orfield v. State, 105 Nev. 107,
110, 771 P.2d 148, 150 (1989). Although the testing Scafidi sought may
have helped his defense, it would not have established his innocence but,
at best, would reveal evidence that could be used to impeach S. Carter.
Accordingly, S. Carter's biological samples were not exculpatory. Further,
a defendant is not unduly prejudiced by the destruction of a biological
sample where the test is considered to be generally reliable, regulations
ensure proper maintenance of equipment, and there are alternative means
to impeach the reliability of the tests. Hall, 105 Nev. at 9-10, 768 P.2d at
350-51. Scafidi did not allege facts that would implicate the first two
SUPREME COURT
OF
NEVADA
3
(0) 1947A oft,A)
factors, and as in Hall, Scafidi has other means of impeaching the
accuracy of the blood tests that were performed. Scafidi also failed to
present any evidence indicating a correlation between the possible levels
of Wellbutrin in S. Carter's blood and potential side effects, either with or
without the consumption of alcohol. Scafidi thus failed to demonstrate
that S. Carter's Wellbutrin levels would have created a reasonable doubt
that did not otherwise exist. See Sparks, 104 Nev. at 319, 759 P.2d at 182.
We therefore conclude that the district court abused its discretion in
granting the motion.
In his motion to dismiss filed on May 15, 2014, Scafidi claimed
that he was unduly prejudiced by the State's failure to preserve his blood
sample. The district court found that Scafidi's blood was drawn and
placed into evidence. The district court also found that Scafidi told police
that "roofies" were involved; alcohol exaggerates the drug's effects, which
include impaired judgment, loss of inhibition, confusion, and memory
impairment; and that the presence of alcohol or drugs in Scafidi's blood
would have implicated his state of mind.
The record does not support the district court's finding that
Scafidi's blood was collected as, or placed into, evidence. Rather, Scafidi's
blood was drawn pursuant to NRS 441A.320(1) to screen for sexually
transmitted diseases. Accordingly, Scafidi's sample was not evidence in
the possession of the State. Further, "[at is not sufficient that the showing
disclose merely a hoped-for conclusion from examination of the destroyed
evidence." Boggs, 95 Nev. at 913, 604 P.2d at 108. And Scafidi's motion
described merely a hoped-for conclusion that testing of his blood would
reveal a "plausible" plot by S. Carter to gain financially from falsely
SUPREME COURT
OF
NEVADA
4
(011947k
accusing him of sexual assault. We therefore conclude that the district
court abused its discretion in granting the motion.
Finally, in his motion to dismiss filed on November 22, 2013,
Scafidi argued that he was unduly prejudiced by Detective Pool's failure to
preserve S. Carter's text messages because they were foreseeably
exculpatory. The district court found that Detective Pool knew of the text
messaging and seized S. Carter's phone, and that the messages were
relevant to the issue of whether S. Carter did or could have consented to
Scafidi's actions.
The record supports the district court's findings that the
evidence was foreseeably exculpatory. Detective Pool acknowledged at the
evidentiary hearing the importance of the element of consent in sexual-
assault cases in general and testified that S. Carter's text messages,
including their coherence, could be indicative of whether she consented to
the sexual encounter with Scafidi. S. Carter never said why she felt afraid
of Scafidi but that she "willingly" went with him to his hotel room.
Detective Pool also testified that S. Carter reported telling Scafidi, "No,"
but always in a joking or laughing manner and that in his initial interview
with her, she did not allege any facts that would constitute a crime.
Looking at the entire record, there was sufficient evidence of consent and
thus reason to preserve evidence of S. Carter's state of mind that the
district court's finding of foreseeable exculpability was not arbitrary or
capricious.
However, we cannot determine whether the district court
abused its discretion when it concluded that dismissal was warranted.
The district court dismissed the charges against Scafidi because it
concluded that the cumulative effect of the destroyed pieces of foreseeably
SUPREME COURT
OF
NEVADA
5
(0) 1947A
exculpatory evidence rendered a curative jury instruction insufficient to
overcome the prejudice. In light of the above findings that only the text
messages were foreseeably exculpatory, we reverse the district court's
decision and remand this matter for the district court to consider whether
the appropriate remedy is to dismiss the information or to give a curative
jury instruction. See Sanborn v. State, 107 Nev. 399, 407-08, 812 P.2d
1279, 1285-86 (1991) (discussing when each remedy is appropriate).
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Ppo,,
Parraguirre
cc: Hon. Michael Villani, District Judge
Attorney General/Carson City
Clark County District Attorney
Potter Law Offices
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
6
[947A e