Alfaro v. State

• Docket Number: 83316
• Decision Date: 24 August 2023
• Citation: 139 Nev.Adv.Op. 24
• Parties: WILLIAM RENE ALFARO, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

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139 Nev.Adv.Op. 24

WILLIAM RENE ALFARO, Appellant,
v.
THE STATE OF NEVADA, Respondent.

No. 83316

Supreme Court of Nevada

August 24, 2023

Appeal from a judgment of conviction, pursuant to jury verdict, on seven counts of sexual assault against a child under 14 and three counts of lewdness with a child under 14. Second Judicial District Court, Washoe County; Barry L. Breslow, Judge.

Las Vegas Defense Group, LLC. and Michael V. Castillo and Michael L. Becker, Las Vegas, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks, District Attorney, and Jennifer P. Noble, Deputy District Attorney, Washoe County, for Respondent.

BEFORE THE SUPREME COURT, CADISH and PICKERING, J J., and GIBBONS. Sr. J.^[1]

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OPINION

PICKERING, J.:

A jury convicted appellant William Alfaro of seven counts of sexual assault against a child under 14 and three counts of lewdness with a child under 14 for acts committed against ED, the daughter of a family friend, between June and December 2015. Alfaro denies the charges and raises insufficiency of the evidence as a principal issue on appeal. He also argues that the district court erred in not dismissing the lewdness counts as redundant to the sexual assault counts; in admitting evidence that he committed other uncharged bad acts against ED; in giving and refusing certain jury instructions; and in imposing the maximum sentence allowed by law, for an aggregate total of 275 years to life. We reverse one of the lewdness convictions as redundant to a sexual assault involving the same episode. And, while we agree with Alfaro that the district court erred in admitting two of the uncharged bad acts and in issuing a jury instruction unnecessarily defining "lewdness" separate from the statutory definition provided by NRS 201.230. we find those errors harmless. Finding no reversible error except the redundant lewdness count, we otherwise affirm.

I.

A.

Alfaro was a family friend of ED's mother, Sara, and ED grew up calling him "Uncle Bill." ED's parents struggled with homelessness and addiction. When Sara, ED, and ED's younger brother found themselves with no place to live, Sara turned to Alfaro, who drove to California, picked them up, and brought them to Fernley, Nevada, In Fernley, Sara and the children lived with Alfaro, first at a house he had been sharing with a friend and, later, at the Lazy Inn motel.

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ED's father, Naylan, followed Sara and the children to the Lazy Inn. A heavy drinker, Naylan often fought with Sara and occasionally hit the children. When money for the motel ran out, Sara returned to California, and Naylan and the children moved from Fernley to a rehabilitation shelter in Reno. The shelter evicted them after Naylan violated its ban on drugs and alcohol. Again without a place to live, Naylan and the children rejoined Alfaro, who had by then rented a room at the Gateway Inn in Reno.

The family stayed with Alfaro at the Gateway Inn from June 1 through December 31, 2015. During this time, ED turned ten and entered the fourth grade. The room had one bed, which ED shared with Alfaro, while her brother slept on the floor with Naylan (or Sara, when she visited). Alfaro's charged acts of sexual assault and lewdness against ED all occurred at the Gateway Inn during this seven-month span, either at night while ED's father and brother were sleeping or when she and Alfaro were alone in the room together. The State would later charge Alfaro with, among other acts, forcing ED to fellate him and penetrating her vaginally with his penis and fingers and anally with his penis, his fingers, and a Sharpie pen.

ED said nothing about the abuse until Naylan moved the children from the Gateway Inn to the home of his girlfriend, Rochelle. Months later, the couple left the children with a friend of Rochelle's, to whom ED disclosed Alfaro's abuse. The friend called Child Protective Services, which interviewed ED and referred the case to law enforcement. Detective Ashley Harms interviewed ED and had her examined by Dr. Kristen MacLeod, a pediatrician board-certified in child abuse and neglect. The examination revealed no genital trauma, which Dr. MacLeod described

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as normal in child sex abuse cases, especially those involving delayed reporting.

Alfaro voluntarily submitted to an interview with Detective Harms, which lasted more than three hours. In the interview, Alfaro adamantly denied abusing ED but corroborated basic details of ED's account, including date range, location, that the two shared a bed, that they occasionally engaged in what he characterized as horseplay, and that he had a prescription for Soma, a muscle relaxant that ED told Harms Alfaro would give her to facilitate his assaults. Alfaro also consented to a search of his personal storage unit and his room at the Gateway Inn. The searches turned up Sharpie pens, which ED had said Alfaro used to assault her, but did not uncover any nude pictures of ED, which ED also referenced in speaking to Detective Harms.

B.

The State charged Alfaro with eight counts of sexual assault against a child under 14 and three counts of lewdness with a child under 14 for his acts at the Gateway Inn in Reno between June and December 2015. He was not charged for any acts in Fernley, located about 30 miles outside of Reno in Lyon County. Before trial, the district court granted the State's motion to admit evidence at trial of four uncharged acts: that Alfaro took nude photographs of ED, gave her Soma, showed her pornography, and had her dress in fishnet stockings. The former two acts were admitted as prior uncharged sexual offenses under NRS 48.045(3), and the latter two as res gestae under NRS 48.035(3).

Although the charged acts dated back to 2015, trial did not occur until 2021. At trial, the State presented testimony from ED, who was by then 15 years old. It also called the woman to whom ED confided the

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abuse, Detective Harms, and Dr, MacLeod. The State did not call Rochelle or any members of ED's family, and the defense called no witnesses. On stipulation of the parties, the State played a videotape of Alfaro's interview with Detective Harms during its case-in-chief.

The jury convicted Alfaro on all counts, except one the State abandoned during closing. Alfaro filed a motion for acquittal under NRS 175.381(2) and for a new trial under NRS 176.515(4) on the bases of insufficient evidence and conflicting evidence, respectively. Alfaro also challenged his lewdness convictions as redundant to his convictions for sexual assault. The motions were denied. Rejecting both Alfaro's and the State's recommendations, the district judge imposed the maximum sentence allowed by law, 10 consecutive terms of incarceration totaling 275 years, in the aggregate, to life. This appeal timely followred.

II.

Alfaro argues that we must reverse his convictions because they are not supported by sufficient evidence. The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction "except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense." Jackson v. Virginia, 443 U.S. 307, 316 (1979). In deciding a challenge to the sufficiency of the evidence, the reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. at 318-19 (internal quotation omitted). Instead, it asks "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. See Franks v State, 135 Nev. 1, 7, 432 P.3d 752, 757 (2019)

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(stating that the "test for sufficiency upon appellate review is not whether this court is convinced of the defendant's guilt beyond a reasonable doubt, but whether the jury, acting reasonably, could be convinced to that certitude by evidence it had a right to accept") (quoting Edwards v. State, 90 Nev. 255, 258-59, 524 P.2d 328, 331 (1974)).

A.

Alfaro makes two distinct sufficiency-of-the-evidence arguments. First, he argues, as he did in district court, that the State did not prove he subjected ED to the "sexual penetration" required by NRS 200.366(1) to convict him of the sexual assaults charged in count I (alleging that Alfaro "put his penis into ED's anus on multiple occasions"), counts III and IV (alleging that he "put his penis into ED's vagina" two different times), and count VII (alleging that he "put his finger(s) into ED's anus"). See Kassa v. State, 137 Nev. 150, 152, 485 P.3d 750, 755 (2021) (noting that appellate review of an order denying a motion for a judgment of acquittal is essentially the same as a review for the sufficiency of the evidence). Second, citing LaPierre v. State, 108 Nev. 528, 531, 836 P.2d 56, 58 (1992), and the lack of independent, corroborating evidence, Alfaro argues that ED's testimony lacked the specificity needed to support the convictions, requiring reversal on all counts.

The State sufficiently proved penetration for a rational juror to convict Alfaro on the contested sexual assault counts. As written at the relevant time, NRS 200.366(1) (2007) defined sexual assault as "subjectfing] another person to sexual penetration." while NRS 200.364(5) (2013) defined "[s]exual penetration" to mean "cunnilingus, fellatio, or any intrusion, however slight, of any part of a person's body or any object m anipulated or inserted by a person into the genital or anal openings of the body of another,

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including sexual intercourse in its ordinary meaning." (emphases added). Alfaro points to instances during ED's testimony where she answered, "I can't remember" to a question about Alfaro putting "his front private part, his penis, into your body." or denied that he was able to "get any of his penis into your...