91 P.3d 599 (Nev. 2004), 38315, Ebeling v. State

Docket Nº38315.
Citation91 P.3d 599, 120 Nev. 401
Opinion Judge[10] Per curiam.
Party NameGregg E. EBELING, Appellant, v. The STATE of Nevada, Respondent.
Attorney[7] Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for Appellant.
Case DateJune 15, 2004
CourtSupreme Court of Nevada

Page 599

91 P.3d 599 (Nev. 2004)

120 Nev. 401

Gregg E. EBELING, Appellant,

v.

The STATE of Nevada, Respondent.

No. 38315.

Supreme Court of Nevada.

June 15, 2004

Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for Appellant.

Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.

Before BECKER, AGOSTI and GIBBONS, JJ.

Page 600

OPINION

PER CURIAM.

Appellant Gregg E. Ebeling was convicted of multiple counts arising from sexual acts involving five minor victims. Ebeling contends that his convictions for sexual assault and lewdness with a minor under the age of fourteen arising from one instance of anal penetration are redundant and the lewdness conviction must be reversed. Ebeling also asserts that only one conviction can result from a single act of indecent exposure regardless of the number of persons who viewed the act. 1

We conclude that a defendant cannot be convicted of both sexual assault and lewdness with a minor under the age of fourteen when those convictions involve a single act. We also conclude that NRS 201.220 allows for only one charge of indecent exposure, regardless of the number of victims. Therefore, we vacate one conviction of lewdness with a minor under the age of fourteen and one conviction of indecent exposure. We remand this case to the district court for resentencing in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

The State charged Gregg E. Ebeling with four counts of sexual assault, seven counts of lewdness with a child under fourteen, one count of attempted sexual assault, and three counts of indecent exposure. Following a lengthy jury trial, the jury convicted Ebeling on all fifteen charges. The district court sentenced Ebeling to eleven life sentences with the possibility of parole after eighty years.

Redundant convictions

Before trial, the district court filed an order stating that Ebeling could not be convicted of both sexual assault and lewdness with a minor under the age of fourteen as alleged by the State in counts twelve and fourteen, because those charges are based on a single incident. The information alleged in count twelve that Ebeling committed sexual assault by engaging in anal intercourse with W.C. Count fourteen alleged that Ebeling committed lewdness with a minor under the age of fourteen by placing his penis on W.C.'s buttocks.

At trial, W.C. testified that Ebeling showered with him, and during that shower, Ebeling performed anal sex on him. W.C. also indicated that Ebeling's penis touched W.C.'s buttocks just before it penetrated his anus. Based on this testimony, the jury convicted Ebeling of sexual assault and lewdness with a minor under the age of fourteen as alleged in counts twelve and fourteen. Despite the pretrial order, the district court sentenced Ebeling to life in the Nevada State Prison with the possibility of parole after ten years for the lewdness with a minor under the age of fourteen conviction, and to life in the Nevada State prison with parole eligibility after twenty years for the sexual assault conviction.

Multiple indecent exposure charges

The State alleged in the information that Ebeling indecently exposed himself to N.E. and F.P. at the Peppermill Hotel and Casino (Peppermill) located in Reno, Nevada. The allegations involved one act witnessed by both N.E. and F.P.

At trial, N.E. testified that around January 2000, a pipe broke at Ebeling's house. As a

Page 601

result, Ebeling, F.P., and N.E. spent the night at the Peppermill. F.P. and N.E. testified that while they were in their room at the Peppermill, Ebeling exposed his penis to them. The jury found Ebeling guilty of two counts of indecent exposure for this incident at the Peppermill. The district court sentenced Ebeling to twelve months in the Washoe County Jail for each indecent exposure conviction.

DISCUSSION

Ebeling contends that the district court erred in sentencing him on both the sexual assault and lewdness with a minor under the age of fourteen convictions involving the shower incident. We agree.

"When a defendant receives multiple convictions based on a single act, this court will reverse 'redundant convictions that do not comport with legislative intent.' " 2 "[M]ultiple convictions for lewdness and sexual assault based on the same act would not comport with legislative intent and would be unlawful ...." 3 The State argues that Ebeling's penis rubbing against W.C. is a separate act of lewdness and is distinct from Ebeling's insertion of his penis into W.C.'s anus. The testimony does not support such a conclusion. The record reflects the touching of the buttocks was incidental to the...

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