40 P.3d 413 (Nev. 2002), 35968, Braunstein v. State

Docket Nº:35968.
Citation:40 P.3d 413, 118 Nev. 68
Opinion Judge:[7] The opinion of the court was delivered by: Agosti, J.
Party Name:Steven Samuel BRAUNSTEIN A/K/A Steven Samuel Jalbert, Appellant, v. The STATE of Nevada, Respondent.
Case Date:February 13, 2002
Court:Supreme Court of Nevada

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40 P.3d 413 (Nev. 2002)

118 Nev. 68

Steven Samuel BRAUNSTEIN A/K/A Steven Samuel Jalbert, Appellant,


The STATE of Nevada, Respondent.

No. 35968.

Supreme Court of Nevada

February 13, 2002.

Page 414

[Copyrighted Material Omitted]

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Marcus D. Cooper, Public Defender, and Drew R. Christensen, Deputy Public Defender, Clark County, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

[118 Nev. 70] Before the Court En Banc.



Appellant Steven Samuel Braunstein was convicted by a jury of two counts of sexual assault of a minor under the age of fourteen and two counts of lewdness with a child under the age of fourteen.

We conclude that (1) the district court did not abuse its discretion in admitting evidence of one prior act of molestation committed by Braunstein; (2) although a trustworthiness hearing must be held before the admission of a child-victim's hearsay statements, failure to conduct such a hearing does not necessarily require reversal, and in this case, reversal is not warranted; (3) the district court did not err in denying Braunstein's motion for a new trial where the jury returned guilty verdicts for both sexual assault and lewdness; and (4) sufficient evidence supports Braunstein's conviction.


On June 14, 1999, Braunstein was charged with two counts of sexual assault upon a minor under fourteen years of age. The victim, J.P., was born November 17, 1990. Braunstein pleaded not guilty at his arraignment.

Prior to trial, the district court ruled that the State was entitled to offer evidence of a prior molestation, allegedly committed by Braunstein, of another young female, A.M. Trial commenced January 18, 2000.

J.P.'s mother testified at trial that she met Braunstein and became his friend in 1992. Braunstein's daughter, K.B., who is four years older than J.P., had been injured in a horse-riding accident in 1996 and was left with severe brain damage. J.P.'s mother would watch K.B. in Braunstein's absence, and Braunstein became accustomed to watching J.P.

J.P. testified that Braunstein began touching her inappropriately when she was four years old. She testified that he touched her in [118 Nev. 71] the "wrong places" by putting his hand under her panties and placing his fingers inside her vagina. She testified that she did not tell any adults because she was afraid that Braunstein would hurt her. She also testified that she told her cousin about these incidents when she was four years old. Her cousin testified that J.P. was about five years old when she first confided in her. J.P. would cry when telling her cousin about these incidents.

In January 1999, J.P.'s mother became involved with the Girl Scouts organization, which required her to attend administrative meetings during which she left J.P. alone with Braunstein. J.P. testified to instances of sexual assault that occurred while her mother was away from the home attending these meetings.

On May 14, 1999, the evening before they planned to vacation at Disneyland, J.P. and her mother stayed the night at Braunstein's home. On this occasion, J.P. testified that she was climbing and jumping on Braunstein's back while he lay on his stomach. She testified that this helped his back to feel better when it hurt. J.P.'s mother was not present in the room at the time. J.P. testified that while she was clothed in a long t-shirt and underwear, Braunstein digitally

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penetrated her. She testified that the experience was painful. Early the next day, on the way to Disneyland, J.P. told her mother about the incident, but her mother did not believe her.

On May 20, 1999, J.P. told her school counselor, Nancy Gentis, about the May 14 incident. Gentis had previously taught a sexual abuse awareness class at J.P.'s school. Gentis reported the incident to the police. Gentis testified as to her involvement and also as to the statements J.P. made to her concerning Braunstein's conduct. The jury also heard the testimony of J.P.'s cousin, who testified to statements made to her by J.P. over the course of three years, all concerning Braunstein's conduct.

On May 27, 1999, J.P. was examined by Phyllis Suiter, a board-certified pediatric and family nurse practitioner at SAINT (Sex Abuse Investigative Team), a program designed to perform examinations on suspected child-victims. Suiter testified that her physical examination of J.P. revealed clear evidence of a penetrating injury that could only have been caused by sexual abuse. 1

The jury also heard testimony concerning a prior bad act by Braunstein. A.M. testified that between June and October 1997, when she was thirteen years old, Braunstein repeatedly made sexual advances toward her. A.M. testified that she frequently babysat Braunstein's daughter, K.B. A.M. testified to several incidents where Braunstein touched her inappropriately, put ice into her underpants and retrieved it, frisked her, and touched her breasts. On one occasion, A.M. was playing on the computer at [118 Nev. 72] Braunstein's home when Braunstein, who was alone with her at the time, accessed some pornographic materials and made repeated sexual comments to her. At the same time, Braunstein touched A.M.'s vagina through her clothes and fondled her breasts.

The jury ultimately returned guilty verdicts on both sexual assault counts and on two lesser included counts of lewdness with a minor under the age of fourteen. 2 After the district court had excused the jury, Braunstein objected that the verdicts were inconsistent. Braunstein also moved for a new trial. After hearing arguments, the district court struck the convictions for the two counts of lewdness.

On March 14, 2000, the district court sentenced Braunstein to two consecutive prison terms of life with parole eligibility after twenty years. The judgment was entered on March 17, 2000, and Braunstein filed this timely appeal on April 13, 2000.


Braunstein first argues that the district court improperly admitted A.M.'s testimony. Braunstein argues that the district court did not explicitly determine the relevance of the evidence, state specifically why the evidence was clear and convincing, and only slightly referenced the probative value of the evidence. In addition, Braunstein argues that the incident was not similar to those with which he was charged.

The trial court's determination to admit or exclude evidence of prior bad acts is a decision within its discretionary authority and is to be given great deference. It will not be reversed absent manifest error. 3 We conclude that the district court, after conducting a hearing outside the presence of the jury, did not abuse its discretion in admitting A.M.'s testimony.

The general rule for admitting evidence of prior bad acts is set forth in NRS 48.045(2). 4 In determining whether such

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acts are admissible, the district court must conduct a hearing and determine whether "(1) the incident is relevant to the crime charged; [118 Nev. 73] (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." 5 court has generally held inadmissible prior acts that are remote in time and involve conduct different from the charged conduct. 6 This court has stated that the use of uncharged bad acts is heavily disfavored and is likely to be prejudicial or irrelevant. 7 Prior bad act evidence forces the accused to defend himself against vague and unsubstantiated charges and may result in a conviction because the jury believes the defendant to be a bad person. 8 Thus, using uncharged bad acts to show criminal propensity is forbidden and is commonly viewed as grounds for reversal. 9

We perceive no error in the district court's decision to admit A.M.'s testimony. In so ruling, however, we specifically do not rely upon and today repudiate the legal proposition stated in McMichael v. State 10 that evidence showing an accused possesses a propensity for sexual aberration is relevant to the accused's intent.

In McMichael, the court quoted a 1956 Arizona case, State v. McDaniel, for the proposition that

"[c]ertain crimes today are recognized as stemming from a specific emotional propensity for sexual aberration .... Even granting the general rule of inadmissibility of evidence of independent crimes to prove the offense charged, many courts recognize a limited exception in the area of sex crimes to prove the nature of the accused's specific emotional propensity." 11

The McMichael court then noted that "in sex crimes generally a more liberal judicial attitude exists in admitting evidence of prior [118 Nev. 74] and subsequent proscribed sexual conduct." 12 In McMichael, we upheld the trial court's decision to admit evidence of other acts committed by the accused upon the complaining witness. In McMichael, the trial court had analyzed the admissibility of the offered evidence by careful application of NRS 48.045(2). The trial court had determined that the evidence was admissible because it was probative of the issues of intent and absence of mistake or accident. Resort by the McMichael court to McDaniel was as unnecessary as its conclusion that no abuse in the admission of the evidence had occurred "since the acts were similar, were committed within a period immediately preceding and following the instant offense, and involved sexual aberration. " 13 note that McDaniel was decided well before the promulgation of the first draft of the Federal Rules of Evidence. 14 This case

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represents a common law approach that...

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