Shannon v. State
| Citation | 783 P.2d 942,105 Nev. 782 |
| Decision Date | 06 December 1989 |
| Docket Number | No. 18316,18316 |
| Parties | John Robert SHANNON aka Kurt Kenya, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
Peter L. Flangas, Las Vegas, for appellant.
Brian McKay, Atty. Gen., Carson City, Rex Bell, Dist. Atty., Michael N. O'Callaghan, Deputy Dist. Atty., Las Vegas, for respondent.
1
This is an appeal from judgments of conviction in cases C74463 and C76901 which were consolidated for trial. Appellant (henceforth referred to simply as Shannon) was convicted of seven counts of lewdness with a minor (felonies), two counts of sexual assault (felonies), and two counts of solicitation of a minor to engage in an infamous crime against nature (felonies).
This appeal involves sexual acts perpetrated by Shannon upon two boys (both age thirteen) while on canoe outings with Shannon. The boys will be identified as Minor A and Minor L. Shannon was convicted in case C74463, involving Minor A, of six counts of lewdness with a minor, two counts of sexual assault and two counts of solicitation of a minor to engage in an infamous crime against nature. Shannon was convicted in case C76901, involving Minor L, of one count of lewdness with a minor.
The record reflects that Shannon developed an intricate scheme to provide himself with access to young boys for the purpose of eventually molesting them. This scheme involved the formation of a canoe club comprised of young boys, many of whom came from disintegrated families or had other physical, psychological or emotional vulnerabilities. Shannon targeted these vulnerabilities and, in turn, created a pseudo-parent dependency. Once this was accomplished, Shannon utilized sexual humor and his role of "teacher" as a tool to molest sexually the boys.
Shannon raises the following issues on appeal.
After the trial had commenced, the state moved to amend the information in Counts VIII and IX, in case C74463, which charged Shannon with sexual assault. Over Shannon's objections, the court allowed the amendment. The effect of the amendment was to transpose the factual sequence in which the act of sexual assault was perpetrated. 2
Shannon contends that the amended information had the effect of charging a different offense. This, Shannon claims, wrongfully denied him a preliminary examination on the new charge, an arraignment and the right to plead. See NRS 171.196(2); NRS 174.015; Snyder v. State, 103 Nev. 275, 738 P.2d 1303 (1987).
The trial court may permit an indictment or information to be amended at any time before a verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. See NRS 173.095(1).
The amended information in this case conforms with this criteria. First, no additional offense was charged in this case. The original information charged Shannon with sexual assault which may be accomplished by a person who subjects another person to sexual penetration, or who forces another person to make a sexual penetration on himself. See NRS 200.366(1). The original information alleged that the act of sexual penetration was accomplished by fellatio. After the amendment, Shannon's charged offense remained sexual assault accomplished by fellatio. The substantial rights of the defendant were not prejudiced by the amendment of this information.
Shannon next argues that it was prejudicial to join case C76901, in which Shannon was charged with two counts of lewdness with a minor upon child L, with case C74463 in which Shannon was charged with eleven counts of sexual crimes involving Minor A. Shannon asserts that the two cases are not proper for joinder because they fail to meet the criteria set forth in NRS 173.115 which states that:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are:
(1) Based on the same act or transactions; or
(2) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Shannon asserts that the incidents with Minor A and Minor L are distinct in nature and time. Shannon also claims that the act between him and Minor L was an act of "horseplay" but when joined with Minor A's eleven counts of sexual crimes created sufficient prejudice to obtain a conviction in Minor L's case.
These acts, although different in time and place, are part of a common scheme or plan devised by Shannon. This is evident by the identical modus operandi utilized with each child. Both boys were members of Shannon's Canoe Club. Both boys were victims of sexual crimes perpetrated by Shannon while on canoe outings. Both boys were of the same age group. Given the closeness of the acts, the similar circumstances, and the same modus operandi, the criterion of a common scheme or plan was sufficiently satisfied.
Joinder is within the discretion of the trial court and will not be reversed absent an abuse of that discretion. See Lovell v. State, 92 Nev. 128, 546 P.2d 1301 (1976). The joinder of these two cases was properly within the trial court's discretion.
Shannon next contends that it was reversible error for the court to give jury The instruction given in this case accurately and amply covered the law. The trial court does not commit reversible error in refusing to instruct the jury on defendant's theory of the case where the offered instructions are substantially covered by the instructions given to the jury. The effect of giving instruction "M" would have been cumulative and was properly refused. See Ford v. State, 99 Nev. 209, 660 P.2d 992 (1983); Roland v. State, 96 Nev. 300, 608 P.2d 500 (1980); Passarelli v. State, 93 Nev. 292, 564 P.2d 608 (1977).
instruction 13 while refusing Shannon's requested instruction "M" in case C74463. 3
Shannon's next claim of error is that expert testimony on pedophilia was impermissibly allowed because it was introduced to show evidence of Shannon's character or a trait of his character to prove that he acted in conformity therewith. See NRS 48.045. Shannon asserts that this testimony resulted in a "trial by a psychologist."
In essence, the expert witness testified that in her opinion Minor A showed symptoms of one who was sexually abused. In response to a hypothetical, she also responded that the befriending of young men, isolation, sexual humor, and creating teaching situations as a means of touching young men were all consistent with pedophilia. The expert also clearly stated that she was only testifying as to characteristics of a victim and to characteristics of somebody with a pedophilic disorder. When asked if she thought that Shannon committed the offenses, she stated that she had never met Shannon and could make no assumptions as to who abused the child.
Contrary to Shannon's assertions, we find that this was acceptable expert testimony. Shannon mischaracterizes the testimony set forth at the trial. Pursuant to NRS 50.345, if relevant, expert testimony is allowable to show that the victim's behavior or mental condition is consistent with the behavior or condition of a victim of sexual assault. It is equally proper for the state's expert to express an opinion about whether or not a child has been sexually abused. As we stated in Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987): "[s]uch an opinion, although embracing an ultimate issue, represents both the peculiar expertise and consummate purpose of an expert's analysis."
Expert testimony is proper only when it is more relevant than prejudicial and helps educate lay jurors on specific areas of expertise. The objective is to aid jurors in their fact finding process. One clear limitation on such testimony is the conclusion of facts that are within the jury's province. The expert testimony in this case stayed within the boundaries of relevant, informative and permissible testimony. There was no error in allowing such testimony.
An additional claim of error made by Shannon is that comments made by the trial judge in the jury's presence denied him a fair trial in case C74463, involving Minor A.
The comments at issue were made during the course of formulating a hypothetical question for the expert witness. The trial judge's statement was as follows:
It says,--Well, we don't know three to four, we know it was during the course of the night. We know he was masturbated a minimum of three times and ejaculated and he could not recall if he did it the second time and fell asleep.
Shannon contends that the Judge's comments prefaced with the words "we know" unequivocally informed the jury that the facts of masturbation and fellatio had been proven.
After a careful review of the comments in their full context, it appears that they Stating the evidence is permissible pursuant to NRS 3.230. In contrast, charging the jury as to facts is specifically prohibited by article 6, section 12 of the Nevada Constitution and its statutory counterpart NRS 3.230. This court cautions trial judges against making comments concerning the facts of any case at trial. Additionally, when a judge's comments may be susceptible of charging juries on the facts, a curative instruction is required. Such actions are necessary in order to prevent the invasion of the jury's province. However, the facts in this case do not constitute a violation.
were made in a conversation between the court and defense counsel in order to settle properly a hypothetical posed to the expert witness, not as a comment on the facts. In fact, defense counsel made his objection to the hypothetical because it was not based on the facts of the case. Counsel also offered additional facts that had been left out of the hypothetical.
Shannon next asserts that the...
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Floyd v. Baker
...jury must be avoided. Such comments clearly exceed the boundaries of proper prosecutorial conduct.” [Footnote: Shannon v. State, 105 Nev. 782, 789, 783 P.2d 942, 946 (1989).] Here, given the overwhelming evidence of Floyd's guilt, we conclude that the error was harmless. [Footnote: See NRS ......
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Floyd v. Baker
...jury must be avoided. Such comments clearly exceed the boundaries of proper prosecutorial conduct." [Footnote: Shannon v. State, 105 Nev. 782, 789, 783 P.2d 942, 946 (1989).] Here, given the overwhelming evidence of Floyd's guilt, we conclude that the error was harmless. [Footnote: See NRS ......
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