Bigpond v. State

• Citation: 128 Nev. Adv. Op. 10,270 P.3d 1244
• Decision Date: 01 March 2012
• Docket Number: No. 57558.,57558.
• Parties: Donald Lee BIGPOND, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

128 Nev. Adv. Op. 10

270 P.3d 1244

Donald Lee BIGPOND, Appellant,

v.The STATE of Nevada, Respondent.

No. 57558.

Supreme Court of Nevada.

March 1, 2012.

Robert B. Walker, Carson City, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Neil A. Rombardo, District Attorney, and Mary–Margaret Madden, Deputy District Attorney, Carson City, for Respondent.

BEFORE DOUGLAS, HARDESTY and PARRAGUIRRE, JJ.

OPINION

By the Court, DOUGLAS, J.:

In this appeal, we address whether evidence of “other crimes, wrongs or acts” may be admitted for a nonpropensity purpose other than those listed in NRS 48.045(2). Appellant Donald Lee Bigpond contends that evidence of prior acts of domestic violence is per se inadmissible under NRS 48.045(2) when it is not offered for a purpose listed in the statute. We disagree.

We hold that evidence of “other crimes, wrongs or acts” may be admitted for a nonpropensity purpose other than those listed in NRS 48.045(2). To the extent that our prior opinions indicate that NRS 48.045(2) codifies the broad rule of exclusion adopted in State v. McFarlin, 41 Nev. 486, 494, 172 P. 371, 373 (1918), we overrule those opinions. See, e.g., Rowbottom v. State, 105 Nev. 472, 485, 779 P.2d 934, 942 (1989), overruled on other grounds by Jezdik v. State, 121 Nev. 129, 139 n. 34, 110 P.3d 1058, 1065 n. 34 (2005); Willett v. State, 94 Nev. 620, 622, 584 P.2d 684, 685 (1978); Theriault v. State, 92 Nev. 185, 189, 547 P.2d 668, 671 (1976), overruled on other grounds by Alford v. State, 111 Nev. 1409, 1415 n. 4, 906 P.2d 714, 717 n. 4 (1995). Consistent with this view of NRS 48.045(2), we clarify the first factor of the test set forth in Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064–65 (1997), for determining the admissibility of prior bad act evidence to reflect the narrow limits of the general rule of exclusion and that the prosecution must demonstrate that the evidence is relevant for a nonpropensity purpose.

With respect to this case, we conclude that the district court did not abuse its discretion. The evidence of prior acts of domestic violence involving the victim and defendant were relevant where the victim recanted her pretrial accusations against the defendant because the evidence placed their relationship in context and provided a possible explanation for the recantation, which assisted the jury in evaluating the victim's credibility. The prior acts were proven by clear and convincing evidence, and the district court properly weighed the probative value against the danger of unfair prejudice, giving an appropriate limiting instruction. Because the evidence was properly admitted, we affirm the judgment of conviction.

FACTS AND PROCEDURAL HISTORY

Bigpond was charged with battery constituting domestic violence, third offense within seven years, for striking his wife in the jaw with a closed fist, causing her to fall to the ground and lose consciousness. Before trial, the State filed a motion to admit evidence of prior incidents of domestic violence involving Bigpond and the victim. The State, anticipating that when the victim took the stand at trial she would recant her pretrial statements implicating Bigpond, argued that the evidence was not being offered to show Bigpond's propensity to commit domestic violence but to explain the relationship between Bigpond and the victim and provide a possible explanation for the victim's anticipated recantation. Bigpond argued that the evidence was inadmissible because it was not being offered for a relevant purpose listed in NRS 48.045(2). The district court reserved judgment on the State's motion in limine and indicated that it would make its decision and hold the appropriate hearing if the victim took the stand and recanted her pretrial statements.

During direct examination, the victim recanted her previous statements to law enforcement, paramedics, and an emergency room physician that Bigpond struck her in the jaw with a closed fist and knocked her to the ground. Consistent with its pretrial decision, the district court conducted a hearing outside the presence of the jury pursuant to Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), and determined that the victim's prior allegations of domestic violence against Bigpond were relevant to explain the relationship between the victim and Bigpond and provide a possible explanation for her recantation, and that the evidence's probative value was not outweighed by the danger of unfair prejudice. The court thus decided to admit the victim's prior allegations and issued a limiting instruction to the jury before allowing the State to reexamine the victim.

Bigpond was convicted of battery constituting domestic violence, third offense within seven years. This appeal followed.

DISCUSSION

Bigpond contends that the district court abused its discretion by admitting evidence of his prior acts of domestic violence for the purpose of explaining the relationship between himself and the victim in order to provide a possible explanation for the victim's recantation during trial. Bigpond argues that admitting evidence for this purpose pursuant to NRS 48.045(2) is precluded by our opinion in Rowbottom v. State, 105 Nev. 472, 485, 779 P.2d 934, 942 (1989), overruled on other grounds by Jezdik v. State, 121 Nev. 129, 139 n. 34, 110 P.3d 1058, 1065 n. 34 (2005). In Rowbottom, we decided that testimony admitted to show the relationship between the defendant and his family was inadmissible under NRS 48.045(2) because that is not one of the purposes listed in the statute. Id. Although dicta, this statement reflects an understanding of Nevada's prior bad act jurisprudence that does not take account of a significant change in the approach to prior bad act evidence that was codified when the Legislature adopted NRS 48.045 in 1971. We now correct this misunderstanding.

Common law

The controversy over uncharged misconduct evidence dates back to the English common law and developed contemporaneously in both England and America. See Julius Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv. L.Rev. 954 (1933); Julius Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv. L.Rev. 988 (1938) [hereinafter Stone, Similar Fact Evidence: America ]: Thomas J. Reed, Trial by Propensity: Admission of Other Criminal Acts Evidenced in Federal Criminal Trials, 50 U. Cin. L.Rev. 713 (1981). This controversy has coalesced around two divergent views. What Professor Julius Stone referred to as the “original rule” reflects a narrow rule of exclusion that excludes uncharged misconduct evidence that is only relevant to prove a defendant's criminal disposition but allows such evidence for any other relevant purpose. See Stone, Similar Fact Evidence: America, supra, at 1004. The alternative view reflects a broad rule of exclusion in which evidence of uncharged misconduct is inadmissible unless it fits within a narrow list of exceptions. See id. at 1005.

The broad rule of exclusion, with its narrow list of exceptions, took root in America with the New York Court of Appeals' landmark opinion by Judge Werner in People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 293–94 (1901). See generally Stone, Similar Fact Evidence: America, supra, at 1023 (discussing the significance of Molineux ). After Molineux, a majority of jurisdictions adopted Judge Werner's broad exclusionary approach.

This court followed that trend. Citing Molineux, we adopted the broad rule of exclusion, with a narrow list of exceptions, in our 1918 decision in State v. McFarlin:

It is the general rule that evidence of the perpetration of distinct crimes from those for which a defendant is being tried will not be considered. There are, however, exceptions to this general rule. In the well-known case of People v. Molineux, [61 N.E. 286 (N.Y.1901),] this question was considered at length, and it was held that, generally speaking, evidence of other crimes might be considered only when it tends to establish either (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan, embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; or (5) the identity of the person charged with the commission of the crime for which the defendant is being tried. Such is, we think, the correct rule.

41 Nev. 486, 494, 172 P. 371, 373 (1918) (emphasis added). While we later acknowledged in Nester v. State of Nevada, 75 Nev. 41, 51, 334 P.2d 524, 529 (1959), that the narrow rule of exclusion, which had been followed in California, was likely the common law rule, we continued to adhere to the broad rule of exclusion announced in Molineux. See, e.g., Fairman v. State, 83 Nev. 137, 139, 425 P.2d 342, 343 (1967) (citing Molineux ); Lindsay v. State, 87 Nev. 1, 2–3, 478 P.2d 1022, 1022 (1971) (“Nevada follows the rule of exclusion concerning evidence of other offenses, unless such evidence is relevant to prove the commission of the crime charged with respect to motive, intent, identity, the absence of mistake or accident, or a common scheme or plan.” (footnotes omitted)).

Codification

The narrow rule of exclusion experienced a resurgence when the Model Code of Evidence and the Uniform Rules of Evidence were adopted in 1942 and 1953. See Edward J. Imwinkelried, Uncharged Misconduct Evidence § 2:29 (2009); 22 Charles Alan Wright et al., Federal Practice and Procedure § 5239 (1978). The narrow rule is reflected in the comment by the drafters of Uniform Rule 55 that “ ‘the [exceptions] are only exemplary and not exclusive.’ ” See 22 Wright et al., supra, § 5240 (quoting the National Conference of Commissioners on Uniform State Laws, Handbook 193 (1953)). These model rules were the precursors to the Federal Rules of Evidence as initially proposed in 1969 and adopted in 1975. During debate on Federal Rule of Evidence 404(b), the House Judiciary Committee specifically rejected an...