Johnson (James) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES G. JOHNSON, No. 66201
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
APR 1 4 2016
ClE e144LIN
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of 3 counts of sexual assault of a child under 14, 3 counts of
lewdness with a child under 14, and 1 count of sexual assault of a child
under 16. First Judicial District Court, Carson City; James Todd Russell,
Judge.
Appellant James Johnson first argues that the district court
abused its discretion in admitting evidence of his having shown a
pornographic movie to the victim.' The district court may admit evidence
of another act that is so closely related to the crime charged that the
witness cannot describe the crime charged without referring to the other
act or crime. NRS 48.035(3); Bellon v. State, 121 Nev. 436, 444, 117 P.3d
176, 181 (2005). We review the district court's decision whether to admit
evidence for an abuse of discretion. McleIlan v. State, 124 Nev. 263, 267,
'Though Johnson argues that this constituted evidence of prior bad
acts and should not have been admitted after the district court conducted
a hearing pursuant to Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985),
the record clearly shows that a prior-bad-acts analysis did not apply
because the evidence was admissible as res gestae under NRS 48.035(3).
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182 P.3d 106,109 (2008). The record shows that Johnson woke the victim
by placing his fingers in her vagina and asked her to watch a movie with
him. The movie was pornographic, and, during the movie, Johnson placed
his mouth on the victim's vagina, which the State charged in the third
count. As the crime of sexual assault could not be described without
referring to the contextual act of showing the pornographic movie, we
conclude that this testimony was properly admitted under the res gestae
statute and that the district court did not abuse its discretion.
Second, Johnson argues that the district court abused its
discretion in admitting expert testimony on grooming behavior because
the expert's testimony was not relevant. Grooming describes a variety of
behaviors and practices that an offender uses to prepare a child for
victimization. Perez v. State, 129 Nev., Adv. Op. 90, 313 P.3d 862, 866
(2013). This court reviews a district court's decision to admit expert
testimony for an abuse of discretion. Id. at 866. The district court found
that the expert's testimony would aid the jury in assessing the victim's
credibility in light of the effect of grooming on reducing a victim's
resistance and delaying a victim's disclosure. Unlike evidence of grooming
that is readily explicable by common sense (e.g., by analogy to a dating
relationship) and for which expert testimony would not assist the jury, see
United States v. Raymond, 700 F. Supp. 2d 142, 150-51 (D. Me. 2010), the
evidence of grooming conduct in this case• normalized the sexual content of
the conduct, leading to the victim's acquiescence to the conduct for several
years, and expert testimony was relevant to the jury's assessment of the
victim's credibility. The victim here described how Johnson's conduct
began when she was eight years old and progressed from his applying
lotion to her legs and back to his touching her vagina and breasts. The
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expertS testified that a perpetrator may use physical contact that is
progressively more sexual to make a victim believe that the contact was
normal and acceptable and may show a child pornographic material to
convey that sexualized conduct is normal and acceptable. Based on the
circumstances of this case, we conclude that the expert's testimony was
sufficiently relevant to assist the jury in assessing the victim's credibility
and that the district court did not abuse its discretion in admitting expert
testimony on grooming.
Third, Johnson argues that the district court abused its
discretion in admitting expert testimony that was not based on a reliable
methodology when the expert's review was limited to the police report. 2
Johnson has not provided cogent argument in support of his attack on the
methodology or foundation supporting the expert's testimony, and we need
not consider his claim. See Maresca u. State, 103 Nev. 669, 673, 748 P.2d
3, 6 (1987).
Fourth, Johnson argues that the expert testimony was
unnecessary because the victim was able to explain her own motivations
for her delayed reporting. Johnson concedes that the victim never
explained how the alleged grooming behavior contributed to her delayed
disclosure, and we have observed above that the expert testimony was
relevant to assessing the victim's testimony. As Johnson otherwise fails to
2We review Johnson's argument that the expert's testimony had
insufficient foundation as a claim that the expert's testimony was not
based on a reliable methodology. Expert testimony must be based on a
reliable methodology to be admissible. Perez, 129 Nev., Adv. Op. 90, 313
P.3d at 867. We note that, in basing her testimony on the police report,
the expert has based her testimony on particularized facts and not
assumption, conjecture, or generalization. See id. at 869.
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provide cogent argument supporting this contention, we need not address
this claim. See id.
Fifth, Johnson argues that the expert improperly vouched for
the victim's credibility when the expert stated on cross-examination that
"[the victim's] history was consistent with her behavior, as she stated that
she had been molested and sexually abused." While a witness may not
vouch for the testimony of another, an expert may testify as to whether a
victim's behavior is consistent with that of a victim of sexual abuse. NRS
50.345; Perez, 129 Nev., Adv. Op. 90, 313 P.3d at 870. Unlike an outright
assertion by an expert that a victim testified truthfully, see Lickey v. State,
108 Nev. 191, 196, 827 P.2d 824, 826-27 (1992), the expert here testified
regarding the consistency between the victim's behavior and her alleged
history of sexual abuse. Moreover, on direct examination, the expert
identified particular elements of the victim's behavior that were consistent
with the behavior of a sexual assault victim, specifically noting the
victim's delayed reporting, desire to keep the matter a secret, and clarity
on the acts themselves in her• accounts of the crimes in the police report.
We conclude that the district court did not admit improper vouching
testimony and did not abuse its discretion.
Having considered Johnson's contentions and concluded that
they are without merit, we
ORDER the judgment of conviction AFFIRMED.
1
LA-3
Douglas
Cherry I)
Gibboris
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cc: Hon. James Todd Russell, District Judge
Waters Law Firm LLC
Attorney General/Carson City
Carson City District Attorney
Carson City Clerk
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