864 P.2d 1272 (Nev. 1993), 23324, Bradley v. State

Docket Nº:23324.
Citation:864 P.2d 1272, 109 Nev. 1090
Party Name:Phillip Curtiss BRADLEY, Appellant, v. The STATE of Nevada, Respondent.
Case Date:November 29, 1993
Court:Supreme Court of Nevada
 
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Page 1272

864 P.2d 1272 (Nev. 1993)

109 Nev. 1090

Phillip Curtiss BRADLEY, Appellant,

v.

The STATE of Nevada, Respondent.

No. 23324.

Supreme Court of Nevada.

Nov. 29, 1993.

Morgan D. Harris, Public Defender, and Robert L. Miller, Deputy Public Defender, Clark County, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., and James Tufteland, Deputy Dist. Atty., Clark County, for respondent.

Page 1273

[109 Nev. 1091] OPINION

PER CURIAM:

Appellant Phillip Bradley was convicted by a jury of four counts of attempted sexual assault on a minor, seven counts of sexual assault on a minor, and one count of lewdness with a minor. Each of the counts involved one of Bradley's two young stepdaughters. Bradley alleges four assignments of error on appeal: 1) the district judge erred in admitting testimony that Bradley had disciplined one of the victims by beating her with a belt; 2) the written judgment of conviction was inconsistent with the sentence orally imposed at the sentencing hearing; 3) Nevada's reasonable doubt standard is unconstitutional; and 4) there was insufficient evidence adduced at trial to support three of Bradley's twelve convictions. We conclude that Bradley's first three assignments of error are without merit. However, our review of the record indicates that Bradley was unfairly convicted of one count. We therefore reverse and vacate Count VIII.

FACTS

The particular acts for which Bradley was convicted occurred during the period of July 20, 1990, to February 12, 1991. Sometime in February of 1991, Bradley's two stepdaughters met with a Clark County school counselor and recounted numerous acts of sexual assault performed upon them by Bradley. The young girls were immediately removed from the home, and Bradley was arrested.

We limit our recitation of the facts to those that are necessary for this appeal. McIntosh v. Knox, 40 Nev. 403, 408, 165 P. 337, 337 (1917). Counts V, VI, and VIII involve Bradley's nine-year-old stepdaughter, whom we will refer to as "Victim." Counts V and VI result from acts that occurred on or about July 20, 1990, which was memorable to the Victim because it was her ninth birthday. Using anatomically correct dolls, the Victim testified [109 Nev. 1092] that Bradley forced her to sit on his penis while he moved "up and down," causing a great deal of vaginal pain. Unfortunately, the girl was unable to confirm that Bradley's penis had penetrated her vagina. However, Bradley's "up and down" motion was "hurtful" to the Victim and more painful than a "sock in the arm." The Victim further testified that Bradley used one or two fingers to caress her vagina. When asked if the fingers ever went "inside" her vagina, the Victim could only respond that she did not remember, but that it hurt "in all of [her] vagina" and "in [her] heart."

Count VIII resulted from an incident that allegedly occurred on or about December, 1, 1990. The Victim's testimony regarding the incident is scant. After a lengthy and detailed recitation of the July 20, 1990, assault, the last twenty-two questions having dealt with fellatio, the prosecutor asked the Victim if anything ever happened on December 1st. The Victim responded, "the same thing as my birthday." The Victim's birthday is July 20th. The Victim offered no other testimony of the December 1, 1990 incident.

The prosecution called Patricia Merrifield as an expert in the treatment of children who have been sexually assaulted. Merrifield...

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