Brown v. State, 27426
| Citation | 113 Nev. 275,934 P.2d 235 |
| Decision Date | 26 February 1997 |
| Docket Number | No. 27426,27426 |
| Parties | Troy Don BROWN, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Appellant Troy Brown was tried and convicted of sexually assaulting Jane Doe, a nine-year-old girl. 1 Troy was convicted of two counts of sexual assault of a child under fourteen years of age, and one count of child abuse by sexual abuse. He was acquitted of one count of attempted murder. Troy claims on appeal that (1) he was improperly denied bail; (2) the DNA evidence was improperly admitted because no evidentiary hearing was held; (3) sufficient evidence did not exist to support his conviction; (4) double jeopardy barred his convictions for both sexual assault and child abuse by sexual abuse; and (5) the district judge abused his discretion during the sentencing phase of the trial.
We conclude that the district judge properly denied bail for Troy, that the DNA evidence was properly admitted at trial, and that sufficient evidence existed to support Troy's conviction. However, we conclude that Troy's conviction for both sexual assault and child abuse by sexual abuse violated the double jeopardy provision of the Constitution and that the conviction for child abuse must be vacated. Finally, we conclude that the district judge abused his discretion during the sentencing phase of the trial and the case must be remanded to the district court for a new sentencing hearing on the remaining sexual assault conviction.
In the early morning hours of January 29, 1994, Jane Doe was sexually assaulted in the bedroom of her trailer home at 1637 Pruett Street in Carlin. Jane Doe and her four-year-old sister were home alone while their mother, Pam, was drinking at a bar, and their step-father, Wayne, was working the night shift at his job. Troy was arrested, tried, and convicted for the crime.
On January 28, 1994, before Wayne went to work, Pam received a telephone call from Raquel Brown. Raquel was married to Trent Brown, Troy's brother. Raquel wanted to know if Pam would like to join Raquel and Trent at a local bar named "CG's" for a drink and also to know if Jane Doe could babysit her children for the approximately one-half hour they expected to stay at the bar. Pam agreed that Jane Doe could babysit the children for that short amount of time and at approximately 6:30 p.m. Pam took Jane Doe and her sister over to Raquel's house located across the street at 1709 Pruett Street. Pam and Raquel then went to CG's to meet Trent.
Raquel and Trent stayed at CG's for a very short time and returned home at approximately 7:30 p.m. Pam, however, remained at the bar. When Raquel and Trent returned home, all of the children were watching a movie; when the movie ended at approximately 9:30 p.m., Raquel took Jane Doe and her sister back to their trailer. When Jane Doe got back to the trailer, she attempted to call her mother at CG's to tell her that she and her sister were home, but the telephone line at CG's was busy. Jane Doe then called the Peacock Bar to see if Pam was there; Troy, who was drinking at the Peacock Bar, answered the phone. Jane Doe asked Troy if Pam was there, and Troy stated that he thought that she was at CG's. Jane Doe said that she was trying to find Pam in order to tell her that she and her sister were home safely, and Troy said that he would go to CG's to deliver Jane Doe's message. Troy then went to CG's, but when he arrived, Pam was already talking to Jane Doe on the telephone. Jane Doe had already informed Pam that she and her sister were home safely.
Pam stated that after she finished talking to Jane Doe, she and Troy went to the Peacock Bar where they had a drink and played a game of pool. Pam stated that Troy was drunk but that he behaved like a gentleman and made no sexual advances toward her. Pam stated that the last time she saw Troy was sometime between 11:00 p.m. and midnight. Pam stated that at approximately midnight or 12:30 a.m. she received a call at the Peacock Bar from Jane Doe 2 who told Pam that some man was at the trailer looking for Pam and that the man had hurt her. Pam immediately left the bar and drove home, which was a short distance away, where she found Jane Doe covered in blood from the waist down.
Pam called 911, and police officer Michael Terry and the paramedics responded to the scene at approximately 1:15 a.m. Michael Skinner, an emergency medical technician, assessed Jane Doe's injuries, and Jane Doe told Skinner that she felt pain in her vaginal area. While the police and the paramedics were present, Pam stated that her ex-husband had done this because he had threatened to "f--- [Pam's] daughter in order to get back at [Pam]." Trial testimony indicated that the police attempted to locate Pam's ex-husband, but the results of their efforts were not admissible at trial because of the hearsay rules. 3
Jane Doe was taken to the hospital where it was confirmed that she had been penetrated both vaginally and anally. Jane Doe had lost about fifteen percent of her blood and required a vaginal reconstruction. She also had bruises on her neck and had scratches on her face. A "sexual assault kit" was taken at the hospital, which included a vaginal smear (because sperm was present) and a blood sample. Debris was also collected from Jane Doe's teeth because she stated that she had bitten her assailant.
Jane Doe described to Connie Walker, a police officer specialized in questioning child victims, what had happened in the trailer. The interview took place in the early morning hours of January 29, 1994, shortly after the sexual assault had occurred, and a second interview took place on February 1, 1994. Jane Doe stated that she fell asleep with a night light on, but that the man who assaulted her must have turned it off because it was off when the man left. Jane Doe said that the man touched her "butt" and then put his "thingy" into her vagina. She also stated that the man placed his fingers into "the front and back" of her. Jane Doe described the assailant as follows: he did not wear a hat and had blonde or sandy-colored hair which was curly at the bottom and thinning on top; she thought he had a small moustache; he was wearing dark jeans, a black jacket with "a zipper for sure," a western type shirt, boots, and a watch which scraped her face. At the trial, Jane Doe had difficulty remembering the details of what had happened and stated that what she had told Walker at the interviews was probably correct.
When pressed by police to tell who the assailant reminded her of, Jane Doe stated "Troy," and when the police said, "Who?," Jane Doe said, Jane Doe stated that Trent was Raquel's husband, Trent Brown. Jane Doe also stated that the assailant's hair looked like Troy's but then changed her mind and said that the hair looked like Trent's hair. Finally, Jane Doe stated that the assailant smelled like cologne but that it was an "awful smell," and that it was "gross smelling ... [like] beer or puke or something." Jane Doe was shortly thereafter admitted to a hospital where she stayed for twelve days and was diagnosed with post-traumatic stress disorder.
By the late hours of January 28, 1994, Troy was very intoxicated. He testified that he had been drinking steadily at several different bars and had consumed ten shots of hard liquor, each followed by a beer chaser--a total of twenty drinks. Testimony indicated that on the night in question, Troy was wearing dark jeans, a cowboy hat, a black satin jacket with a CG's logo on the back, and boots. Troy stated that he did not wear a watch and therefore did not know what time he had left the Peacock Bar. The bartender on duty stated that Troy left the bar no later than 12:20 a.m. However, another bartender, whose shift had ended but who was still at the Peacock Bar, stated that she believed that she had seen Troy at the bar at approximately 1:30 a.m.
Troy stated that he had left the bar and walked to his trailer on 1717 Pruett Street, approximately ten trailers away from Jane Doe's. Troy stated that because he was so intoxicated, he vomited several times on his way home and some of the vomit got on his pants and shirt. He also stated that because he was going on a one week trip to Utah later in the day on January 29, 1994, he needed all of his clothes which, other than the ones he was wearing, were packed. He washed the pants and shirt he was wearing when he got home because he had vomited on them. Travis Brown, Troy's younger brother, testified that he was sleeping on the couch at Troy's trailer and woke up when Troy got home. Travis stated that he then looked at his digital clock, and it read 1:32 a.m. Travis stated that he saw no traces of blood anywhere in the house.
At 5:00 a.m. on January 29, 1994, Officer Terry went to Troy's home to question him about the sexual assault. Terry awoke and questioned Troy, who was wearing only boxer shorts. Officer Terry stated that he saw no blood on Troy. He also stated that he checked Troy's hands because Jane Doe had told him that she had bitten her assailant's hand, but he found no evidence of any bite marks. Terry also stated that he looked at Troy's boots and saw no blood. After Troy left to go to Utah, the police went back with a search warrant and took Troy's bedding. Troy called the Carlin police to see if he was wanted for arrest, and he was told that he was not. While in Utah, Troy went to a nurse to get a full body examination because Jane Doe had stated that she had bitten and scratched her assailant, and Troy wanted a record of his condition.
Dave Prescott, another of Troy's friends living in Troy's trailer, testified that he had asked Troy on January 29, 1994,...
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