Bubak v. State

Decision Date08 February 2017
Docket NumberNo. 69096,69096
PartiesCHARLES STANLEY BUBAK, Appellant, v. THE STATE OF NEVADA, Respondent.
CourtNevada Court of Appeals

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of possession of a visual presentation depicting sexual conduct of a child. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.

There are two issues before this court.1 The first, concerning the introduction of prior bad act evidence, is resolved on procedural grounds, given the district court's acknowledgment that it had not conducted a Petrocelli2 hearing.3 However, the second issue concerning Bubak's motion for a mistrial is more complex. This court must determineif the late discovery and early admission of inculpatory evidence, combined with the district court's failure to remedy the resulting prejudice, resulted in a trial so fundamentally unfair, as to require a mistrial.

The introduction of prior bad act evidence

As an initial matter, we agree with the appellant that the incomplete folder which contains 128 empty files, with names describing sexual acts with children, is bad act evidence and may have been offered for propensity purposes, and thus improperly admitted.4

As the district court commented, and the State conceded, that a Petrocelli hearing was never held, we conclude that the district court erred. Quails, 114 Nev. at 901-04, 961 P.2d at 766-67 (concluding that a district court erred by failing to hold a Petrocelli hearing to determine whether evidence of a defendant's gang affiliation was admissible). Should the State seek to introduce the evidence at a retrial, it must follow the requirements for the admission of prior bad act evidence under NRS 48.045(2). Specifically, the State must request admission of the evidence and demonstrate prior to trial that: "(1) the prior bad act is relevant to the crime charged and for a purpose other than proving the defendant's propensity, (2) the act is proven by clear and convincing evidence, and (3) the probative value of the evidence is not substantially outweighed by thedanger of unfair prejudice. Bigpond v. State, 128 Nev. 108, 117, 270 P.3d 1244, 1250 (2012).

Our dissenting colleague suggests that on retrial, the evidence presented will mirror the original trial as this court does not rule the file names are inadmissible. However, this court was prevented from conducting its own Petrocelli analysis due to the State's failure to advance any theory for the admission of the files under NRS 48.045(2) below or on appeal. It is the duty of the State to clearly articulate under NRS 48.045(2) the purpose for which admission of uncharged misconduct evidence is sought and to meet the requisite standard of proof. The State has not yet done so in light of its position that the file names are not bad act evidence.

We caution the district court that based upon the shocking and disgusting nature of the names, and the quantity of empty files with those kinds of names, the prejudicial effect of their admission may be high.5 Accordingly, the district court should carefully analyze the probative value when conducting the necessary balancing test. Additionally, should the district court admit the evidence, and this court does not suggest that it should or should not, the district court is required to issue a limiting instruction before the jury hears the bad act evidence. See Tavares v. State, 117 Nev. 725, 733, 30 P.3d 1128, 1133 (2001). Finally we note that the State properly abandoned the argument that thefile names are admissible pursuant to the res gestae doctrine. See NRS 48.035(3).

Bubak's motion for a mistrial

"The decision to deny a motion for a mistrial rests within the district court's discretion and will not be reversed on appeal absent a clear showing of abuse." Ledbetter v. State, 122 Nev. 252, 264, 129 P.3d 671, 680 (2006) (quoting Randolph v. State, 117 Nev. 970, 981, 36 P.3d 424, 431 (2001)) (internal quotation marks omitted).6 "A defendant's request for a mistrial may be granted for any number of reasons where some prejudice occurs that prevents the defendant from receiving a fair trial," Rudin v. State, 120 Nev. 121, 144, 86 P.3d 572, 587 (2004) (footnote omitted). We review the erroneous denial of a mistrial for harmless error. See Parker v. State, 109 Nev. 383, 388-89, 849 P.2d 1062, 1065-66 (1993) (holding that the erroneous denial of a mistrial was harmless because the evidence supporting Parker's guilt was overwhelming).

This case centers on the investigation of a used MacBook computer, purchased by Bubak from an unknown previous owner. LimeWire, a program which allows users to share electronic files, was downloaded on the MacBook prior to Bubak's purchase. The Statecontended that members of the Henderson Police Department observed through special software, someone using LimeWire on Bubak's computer to download a 13-minute child pornographic video (the "PTHC-Open" video). Despite investigating the case and holding the computer for over four years, on the eve of trial, the State again affirmatively represented to Bubak that it could not find any trace of the "PTHC-Open" video on the computer, which constituted the basis for the child pornography charges.

Furthermore, during opening statements to the jury, the State conceded the police never found any trace of the "PTHC-Open" video on the MacBook, but instead argued that Bubak must have deleted the video. Bubak's counsel, however, asserted that police never found the video on Bubak's computer because it was never there, and that even if the video had been there and he had deleted it, "remnants" of the video would remain on the computer, yet there were none. Following opening statements, the district court released the jury for the day.

That evening, the State's expert witness, Detective Holman, decided to further investigate the MacBook in order to better prepare for his court appearance. Holman's investigation led him to discover an image that contained the opening scene of the "PTHC-Open" video (the thumbnail evidence) and search terms used on a LimeWire account. The State informed Bubak's counsel of the newly discovered evidence a few minutes before the second day of trial was to begin. Bubak's counsel immediately requested a continuance, arguing that the continuance was necessary to allow his expert witness to examine the thumbnail evidence. Counsel further argued that allowing Detective Holman to testify about the thumbnail evidence, and the search term evidence, would result in anunfair trial, in part because the defense had yet to receive a copy of the new evidence.

The State acknowledged that Detective Holman had failed to locate the thumbnail even though he had previously conducted several forensic examinations of the MacBook. The State argued, however, that a continuance was unnecessary because the defense expert had access to a copy of the MacBook's hard drive and could have located the evidence himself. Likening the instant matter to a civil case, the State argued that this was similar to a situation in a construction defect case in which thousands of documents are disclosed during discovery, but the opposing party fails to find the damaging evidence revealed on one of the pages. The district court agreed with the State, and concluded that the thumbnail evidence and search terms did not constitute newly discovered evidence. Therefore, the district court denied Bubak's request for a continuance.

The State first informed the defense of the existence of the thumbnail at 1:08 p.m. on June 9th. Detective Holman testified about the thumbnail evidence that day and the defense was not given a copy of the evidence until 4:55 p.m. The trial resumed at 9:32 a.m. on June 10th. At that time, Bubak's counsel brought his motion for a mistrial because his expert had yet to forensically review the evidence and he would be unable to adequately cross-examine Detective Holman. Bubak informed the district court that because his expert's office hours ended at 5:00 p.m. and counsel did not receive the evidence until 4:55 p.m., the expert had been unable to evaluate the evidence.

Further, counsel informed the court that because Bubak was represented by the Clark County Public Defender's Office, counsel must first get any extra expenses approved before agreeing to pay the expert forhis additional time. Finally, to refute the State's argument that the defense expert could have located the evidence himself, counsel represented that because the computer allegedly contained child pornography, his expert must make an appointment and view the evidence at the police laboratory, therefore the nature and impact of the new evidence could not be easily studied. Nevertheless, despite the clear prejudice demonstrated by Bubak in not being able to forensically evaluate the new evidence, the district court denied the motion and allowed Detective Holman to resume his testimony.7

Following the denial of the motion for a mistrial, Detective Holman testified that he discovered during this new investigation that the thumbnail image had been accessed approximately eight times while the computer was in Bubak's possession. Due to the failure to grant even a modest continuance, Bubak's counsel was then forced to cross-examine Detective Holman on this crucial point, without the assistance of his expert witness. Following Detective Holman's testimony, the State rested and the defense was then forced to present its case without ever evaluating the thumbnail evidence.

Bubak attempted to undermine the State's case by calling his own expert, retired LVMPD Detective Larry Smith. Smith was a founder of the Las Vegas Metropolitan Police Department's Internet Crimes Against Children Unit. Smith testified that Detective Holman's forensic investigation had been compromised, as thousands of files had been created, modified, or their access dates had been changed, while the Henderson Police...

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