Willett v. State

• Decision Date: 28 September 1978
• Docket Number: No. 9767,9767
• Citation: 584 P.2d 684,94 Nev. 620
• Parties: Thomas WILLETT, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 684

584 P.2d 684

94 Nev. 620

Thomas WILLETT, Appellant, v. The STATE of Nevada, Respondent.

No. 9767.

Supreme Court of Nevada.

Sept. 28, 1978.

Morgan D. Harris, Clark County Public Defender, and James B. Gibson, Deputy, Public Defender, Las Vegas, then Manos & Cherry, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty., and H. Leon Simon, Chief Appellate Deputy Dist. Atty., and L. J. O'Neale, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM.

A jury found appellant Thomas Willett guilty of three counts of violation of NRS 201.190, the infamous crime against nature. He was sentenced to life imprisonment with the possibility of parole on each count with the terms to run concurrently. The sentences were suspended and appellant was placed on probation for a period not to exceed five years with the first year to be served in the Clark County jail. He seeks reversal of his judgment of conviction on the principal ground that the court erred in admitting testimony concerning his illicit sexual relationship with another person other than the victim in the instant case.

1. The record shows that appellant in November, 1973, while playing in a musical group volunteered to entertain the children at Child Haven in Las Vegas. There he met the victim of this crime, a minor boy. He went with the boy to his room to introduce him to the guitar, but the session ended in the first of several acts of oral copulation on the minor. During the same month appellant visited the Eddie Lee Home for boys in Clark County. There he met a minor boy who testified that while the defendant, a volunteer worker, was "helping us to set up for Christmas", the defendant performed an act of oral copulation upon the young man. This testimony was admitted during the State's case-in-chief, and it is the admission of this testimony upon which the appellant seeks reversal of his judgment of conviction.

Appellant, in seeking reversal, relies heavily on Nester v. State, 75 Nev. 41, 334 P.2d 524 (1959), and narrows his argument to that part of the opinion regarding proof of other crimes:

It is a rule of criminal evidence that, on the trial of a person accused of crime, proof of a distinct independent offense is inadmissible.

As exceptions to this general rule, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent (3) the 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; (5) the identity of the person charged with commission of the crime on trial.

75 Nev. at 76, 334 P.2d at 527.

The facts in Nester concerned a charge of forcible rape. The State introduced evidence of a similar, but not identical, rape that was committed by that defendant six months after the rape charged. The evidence was properly admitted to prove the identity of the rapist.

In the case at hand, the sexual acts committed on the victim and the witness were close in time, both occurring in November of 1973; the circumstances were similar, both were minors in homes for boys; and the Modus operandi was the same, both boys were approached while the defendant worked as a "volunteer" at their institutions. This case is squarely within the fourth exception of the criteria listed in Nester, that is, to show "a common scheme or plan".

The rule in Nester is codified at NRS 48.045(2), which states,

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake...