Honea v. State
| Decision Date | 18 June 2020 |
| Docket Number | No. 76621,76621 |
| Citation | 466 P.3d 522 |
| Parties | Joshua Ray HONEA, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Jonathan E. MacArthur, P.C., and Jonathan E. MacArthur, Las Vegas; Monique A. McNeill, Las Vegas, for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Alexander G. Chen, Chief Deputy District Attorney, and Stacy L. Kollins, Deputy District Attorney, Clark County, for Respondent.
BEFORE HARDESTY, STIGLICH and SILVER, JJ.
In this opinion, we are asked to examine a previous version of NRS 200.366 (2007),1 Nevada's sexual assault statute, to determine whether age alone was determinative of nonconsent or of the victim's ability to resist or understand the nature of the sexual conduct. Because NRS 200.366 did not contain an age of consent, the mere fact of a victim's age did not establish a lack of consent or an inability to resist or understand the nature of the conduct. Therefore, the district court's instructions to the jury that 16 was the age of consent to sexual penetration and that consent in fact by a child under 16 years of age was not a defense to the crime of sexual assault of a minor under 16 were incorrect statements of law and given in error. Additionally, the district court erred in failing to give an inverse jury instruction supporting the defendant's theory of defense. Because we cannot say these errors were harmless beyond a reasonable doubt, we reverse and remand for a new trial.
The State filed 52 charges against appellant Joshua Honea, all relating to his relationship with the victim, a minor. Honea was in his late teens and early twenties during his relationship with the victim, who was 11 when she met Honea and 15 when their relationship concluded. The victim told investigating officers, and testified at the preliminary hearing, that she and Honea had a sexual relationship for years. However, when the victim was 18 years old, she recanted her story during trial and stated the two were just friends.
Before the district court submitted the case to the jury, Honea requested the following jury instruction:
The State proposed an instruction declaring, "[c]onsent in fact of a minor child under the age of 16 years to sexual activity is not a defense to a charge of Sexual Assault with a Minor Under Sixteen Years of Age." Over Honea's objection, the district court gave the State's instruction and rejected his instruction. The district court also instructed the jury that, "[i]n Nevada, the age of consent to sexual penetration is sixteen." A jury acquitted Honea of all but one of the 52 charges, convicting him of Count 39, sexual assault of a minor under 16 years of age.2
The victim's age, by itself, was not dispositive of any element of sexual assault
Honea argues the district court erred by instructing the jury that the age of consent to sexual penetration is 16 years old and that consent is not a defense to the crime of sexual assault of a minor under the age of 16. While we review a district court's decision to give a particular instruction for an abuse of discretion or judicial error, we review de novo whether a particular instruction is a correct statement of law. Cortinas v. State, 124 Nev. 1013, 1019, 195 P.3d 315, 319 (2008). We agree with Honea that the challenged jury instructions were incorrect statements of law.
In relevant part, the version of NRS 200.366(1) in effect when Honea was charged defined sexual assault as:
A person who subjects another person to sexual penetration, or who forces another person to make a sexual penetration on himself[,] ... against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his conduct, is guilty of sexual assault.
(Emphasis added.) This language provides two theories of criminal liability for sexual assault. The first theory criminalizes sexual penetration made against the victim's will. The second theory criminalizes sexual penetration made under conditions in which the perpetrator knew or should have known that the victim was mentally or physically incapable of resisting or understanding the nature of the conduct. Neither theory mentions the victim's age.
We recognized the omission of the victim's age in Alotaibi v. State , where we considered the same statutory language and concluded statutory sexual seduction was not a lesser-included offense of sexual assault of a minor. 133 Nev. 650, 404 P.3d 761 (2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 1555, 200 L.Ed.2d 743 (2018). We clarified that the age of the victim only served to increase the maximum sentence the district court could impose for sexual assault of a minor. Id. at 654, 404 P.3d at 766. Specifically, we stated the following:
[T]he offense of sexual assault, regardless of whether it was committed against a minor, has two statutory elements: "(1) subject[ing] another person to sexual penetration ... (2) against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his conduct."
Id. at 655-56, 404 P.3d at 766 (alteration in original) (emphasis added) (quoting 2007 Nev. Stat, ch. 528, § 7, at 3255 ( NRS 200.366(1) )). We explained that the victim's age was not an element of sexual assault or "essential to a finding of guilt." Id. at 655, 404 P.3d at 765. Thus, the victim's age, alone, does not establish the victim's ability to consent or the capacity to resist or understand the nature of the sexual conduct.
Nevertheless, the State argues that this court previously determined that minors under 16 were incapable of giving consent when we recognized "sixteen as the age of consent for sexual intercourse, anal intercourse, cunnilingus or fellatio." Manning v. Warden, 99 Nev. 82, 86 n.6, 659 P.2d 847, 849 n.6 (1983). We reject the State's argument that the age of consent from a wholly separate statute could be assigned to the sexual assault statute. The Manning decision referred to a previous version of statutory sexual seduction that contained an element of consent. See 1979 Nev. Stat., ch. 349, § 1(3), at 572 . At the time Honea was charged, the statute had been modified to delete the word "consenting" and criminalized sexual acts based solely on the ages of those involved. See 2013 Nev. Stat., ch. 426, § 34(6)(a), at 2427. The modification eliminated the element of consent and thus any previously recognized age of consent. Any reliance on this language in Manning at Honea's trial for sexual assault was misplaced.
Our sexual assault statute has also undergone modifications, and the legislative history of the most recent amendment supports our conclusion that age was not determinative of any element in the statute at the time Honea was charged. In 2015, the Legislature modified the sexual assault statute to add an additional theory of liability:
2015 Nev. Stat., ch. 399, § 8, at 2235; NRS 200.366(1). The legislative history surrounding this change demonstrates that, prior to 2015, "[t]o prove a sexual assault occurred, the State [had to] show the child could not have consented to the act based on lack of age, life experiences and immaturity." See Hearing on A.B. 49 Before the Senate Judiciary Comm., 78th Leg. (Nev., May 8, 2015) (statement of James Sweetin, Chief Deputy District Attorney, Clark County District Attorney's Office). As explained, the amendment would "no longer require[ ] the State to show a child under the age of 14 ... did not understand the conduct in order to prove a sexual assault." Id . The new theory of liability allowed prosecution without a showing of sexual penetration against the victim's will or under conditions in which the defendant knew or should have known the victim was incapable of understanding or resisting but only where the victim was under the age of 14. Prior to this amendment, the State was required to prove lack of consent or an inability to resist or understand the nature of the sexual conduct, no matter the victim's age. And as...
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