Bautista-Eredea v. State
| Decision Date | 21 March 2012 |
| Docket Number | No. 55178.,55178. |
| Citation | 381 P.3d 593 (Table) |
| Parties | Eberto BAUTISTA–EREDEA, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Attorney General/Carson City
Jeffrey S. Rogan Clark
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree kidnapping and sexual assault. Eighth Judicial District Court, Clark County; James M. Bixler, Judge.
Although we affirm the judgment convicting appellant Eberto Bautista–Eredea of sexual assault, we reverse his conviction of first-degree kidnapping and remand for a new trial on that count.
The issues presented by this appeal are heavily fact-dependent. The alleged victim of Bautista's assault was M.C., a 35–year–old mentally and physically handicapped woman who lived in Mesquite, Nevada, and used a scooter for transportation. One day, her scooter broke down on Mesquite Boulevard. Bautista was driving on Mesquite Boulevard, saw M.C. and her broken-down scooter, and pulled over to speak to her.
Bautista's and M.C.'s accounts of their roadside encounter differ. M.C. testified that Bautista forced her into his SUV; Bautista testified that M.C. voluntarily got in. Both agree that, at some point, Bautista loaded M.C.'s scooter into his SUV.
M.C. testified that, instead of taking her to her home as she asked, Bautista drove her to an abandoned restaurant. Once there, he pulled down her pants and penetrated her anus with his penis. Bautista denies that the abandoned-restaurant encounter occurred, and the jury acquitted him of the sexual assault count based on it.
M.C. testified that, from the abandoned restaurant, Bautista drove her to a residential neighborhood, forced her to walk with him to a burned-out car parked on a dirt lot, and again anally penetrated her. The assault was interrupted when Bautista received a cell phone call. M.C. claims she tried to run away during the call, but Bautista stopped her. Bautista took M.C. back to his SUV and drove her to her home, where he unloaded the scooter and left.
Bautista admitted having sex with M.C. by the burned-out car but asserts it was consensual. He maintains that they were talking and kissing in the SUV and that M.C. voluntarily got out of Bautista's SUV and walked with him to the burned-out car. Bautista testified that he did not realize he entered her anus and thought it was her vagina.
When she finally reached home, M.C. took a bath, washed her clothes, and made several phone calls. She did not tell anyone that night about the sexual assault. The next day at work, however, she told her boss that she had been raped, and her employer called the police. M.C. showed the police where the alleged assaults occurred; the police then took her to a hospital for a rape examination. The sexual assault nurse observed lacerations and tearing
of M.C.'s anus but did not look for semen because M.C. had already bathed. Other than the anal trauma, the nurse did not observe any bruising or scratching on M.C.
The abandoned-restaurant scene yielded no physical evidence. At the burned-out car scene, police found tire marks and fresh footprints in the dirt. They also detected dust displacement on the burned-out car, as if someone had put their hands on the vehicle, all of which they photographed.
Four months later, Bautista and M.C. crossed paths at a local Maverik convenience store. Bautista approached M.C. and asked her if she remembered him; thus prompted, she said she did. Bautista proceeded to rub her neck and kiss her. M.C. did not repel his advances. Eventually, she paid for her soda and left on her scooter, with Bautista following in his SUV. At trial, a store clerk testified that the two acted like “old friends” and that, from what she saw, she thought M.C. “had found herself a boyfriend.”
Bautista acknowledges the Maverik store encounter. He testified that M.C. seemed happy to see him again and that she agreed to go to the Virgin River Casino with him. He testified that he followed her home so she could drop off her scooter and, when she did not come outside after ten minutes, that he went on to the casino without her. From inside her house, M.C. called the police.
Acting on M.C.'s call, the police went to the Virgin River Casino and found Bautista, who gave them a false name, “Jose.” They detained him while a detective drove M.C. to the casino. When M.C. arrived, she identified Bautista as her assailant. Asked if he recognized M.C, Bautista said he had given her a ride several months earlier.1
Bautista was arrested, charged with kidnapping and two counts of sexual assault, and read his rights. Bautista was carrying false identification bearing his picture but the name Miguel Angel Avenivar.
Bautista's girlfriend gave police permission to search her home, which turned up a pair of men's shoes. A forensic expert determined that the shoes' soles resembled the footprints in the dust by the burned-out car. However, the photographs of the footprints were not clear enough to make a definitive match.
Roughly four months after Bautista's arrest and eight months after the charged assaults and kidnapping, police were again summoned to the Virgin River Casino, this time to process a theft report by M.C. to casino security. M.C. complained that her wallet and camera had been stolen. Police first spoke to the security officer, who related that M.C. had been seen at the casino bar alone and then left with an unidentified Hispanic male. The security officer also told police that, in reporting the theft, M.C. said that the man had forced her into the shower in his hotel room and that, while she was in the shower, the man had stolen her wallet and camera. The police then spoke to M.C. directly.
M.C. appeared mentally handicapped and intoxicated, according to the police report. The report states that M.C. initially told police that she did not enter the man's hotel room. Rather, she stated that she had been standing outside a hotel room door when a Hispanic man reached into her purse and took her wallet and camera. She explained that she did not scream or call for help because “I was afraid of what he could do to me.” After further questioning, M.C. told police that she did go into the hotel room voluntarily, where she had sex with the man in his room for $20. She admitted that the man did not force her into the room or the shower. She stood firm in her theft complaint, stating that when she got out of the shower she found the man gone, along with her wallet and camera.
No arrests or charges came of this episode. The theft allegation was validated several hours later, though, when the police received a call from authorities in a nearby Utah town. The Utah authorities advised that they had arrested two Hispanic men on unrelated local charges and found them in possession of a camera and a wallet containing M.C.'s identification.
Bautista was indicted by grand jury on one count of first-degree kidnapping and two counts of sexual assault.
Before trial, the State filed a motion in limine to exclude evidence concerning M.C.'s theft report, especially that pertaining to her prostitution, as irrelevant, prejudicial, and inadmissible under Nevada's rape shield statute, NRS 50.090
.2 The motion was briefed and argued. During argument, defense counsel stated that “I kind of don't care if the prostitution comes in ... because I understand that's prejudicial [and a]s it talks about prostitution, of course, for rape shield purposes, ... I would be perfectly fine, Your Honor, if you don't want the jury prejudiced that we don't go into this factor [of her engaging in sex] for 20 bucks.” However, he argued that M.C.'s false reports of coercion by Hispanic male strangers bore on her credibility, bias, and motive to lie, and also rebutted the implication she was a guileless innocent, and thus should be admitted. Thereafter, the court issued a split ruling: Bautista could question M.C. about having made false statements to the police on another occasion but could not get into the underlying factual details. Thus, on cross-examination, M.C. was asked if, and admitted that, some months after her encounters with Bautista, she told the police she had been the victim of another crime; that, in reporting the crime, she “gave some statements to the police that were false;” that she “lied to them;” and that she knew the statements were false. No further details were elicited.
Trial took four days. During opening statement, defense counsel stated that, “Mr. Bautista has never had a chance to tell his story about what happened, but he is going to tell it to you in court, and he will tell you his side of the story.” Defense counsel also cross-examined the detectives the State called and had them confirm that they did not ask Bautista questions beyond those related above concerning Bautista being acquainted with M.C. and his name and identification.
Bautista testified at trial. Before he did, the State made a record, outside the presence of the jury, of its agreement with defense counsel that it could question Bautista about his post-arrest silence:
Based on [defense counsel's] opening that the Defendant was not given the opportunity to tell his side of the story until today, based on the questioning of [the detectives] about him not being questioned, it's the State's position that no longer is the State restricted in its comments upon post arrest silence, and I spoke to [defense counsel] about that, and he is in...
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