Cazares v. State, 010419 NVSC, 71728

Docket Nº:71728
Party Name:MANUEL LARA CAZARES, III, Appellant, v. THE STATE OF NEVADA, Respondent.
Judge Panel:Cherry, J., Parraguirre, J., Stiglich, J. Hon. Douglas Smith, District Judge
Case Date:January 04, 2019
Court:Supreme Court of Nevada
 
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MANUEL LARA CAZARES, III, Appellant,

v.

THE STATE OF NEVADA, Respondent.

No. 71728

Supreme Court of Nevada

January 4, 2019

UNPUBLISHED OPINION

ORDER AFFIRMING IN PART, REVERSING IN PART, VACATING IN PART, AND REMANDING

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of fifteen counts of coercion-sexually motivated, six counts of sexual assault, and child abuse. Eighth Judicial District Court, Clark County*, Douglas Smith, Judge.

FACTS AND PROCEDURAL HISTORY

This case concerns the trial of Manuel Cazares for sexual offenses committed against his daughter, R.C., beginning when she was 13 years old. Prior to trial, the State sought to admit testimony from A.W., Cazares' former stepdaughter, that Cazares had forced her to rub lotion on his genitals 20 years prior, when she was 6 years old. The district court found the testimony admissible as evidence of a "propensity to commit sexual acts."

During the jury selection process, the district court asked the jury venire whether they were familiar with members of the court, its staff, counsel for either side, any witnesses scheduled to testify, or the defendant, all before administering the oath required by NRS 16.030(5). The court additionally took three recesses over two days. Before the first recess, the court failed to instruct the jury not to discuss the proceedings, and before the following two recesses, it failed to instruct the jury not to conduct independent research. When the district court announced the adjournment at the conclusion of the first day of jury selection, it failed to admonish the jurors not to conduct independent research. After 14 jurors had been qualified, the court gave them complete admonishments not to discuss the proceedings or consider external evidence.

Following closing arguments, Cazares objected to a jury instruction stating that, while evidence of prior bad acts could not be considered to establish the defendant's bad character or criminal disposition, it could be considered as evidence of the defendant's "propensity to commit sexual acts." The court further instructed the jury that felony coercion includes the immediate threat of physical force. However, the instruction did not explain that the immediate threat of physical force must be determined from the perspective of a reasonable person, and neither the State nor Cazares asked for revision of the instruction.

The jury found Cazares guilty of 15 counts of felony coercion- sexually motivated, 6 counts of sexual assault, and child abuse. On appeal, Cazares argues that (1) the district court's errors during jury selection require reversal, (2) double jeopardy prohibits convictions for both child abuse and sexual assault under the same theories of criminal conduct, (3) the court's failure to instruct the jury that felony coercion requires the immediacy of a threat of physical force from the perspective of a reasonable person requires reversal of those counts, and (4) the admission of A.W.'s testimony regarding a prior bad act for propensity purposes requires reversal of all counts.

DISCUSSION

The district court's instruction errors during jury selection do not warrant reversal

Standard of review

Cazares did not object during jury selection or any time thereafter to any of the three jury instruction omissions to which he assigns error on appeal. Because Cazares failed to preserve these issues for review, we evaluate them for plain error. Jeremias v. State, 134 Nev,, Adv. Op. 8, 412 P.3d 43, 48, cert denied, __U.S.__, 139 S.Ct. 415 (2018). In order for an appellant to be granted relief due to plain error, he or she "must demonstrate that: (1) there was an 'error'; (2) the error is 'plain,' meaning that it is clear under current law from a casual inspection of the record; and (3) the error affected the defendant's substantial rights." Id. (citing Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)). "[A] plain error affects a defendant's substantial rights when it causes actual prejudice or a miscarriage of justice." Id. at 49.

Failure to administer the oath under NRS 16.030 prior to jury questioning

Cazares argues that the district court erred in failing to administer an oath to the jury venire before examining their qualifications as jurors, and that failure constitutes structural error requiring reversal. We disagree that this error automatically requires reversal.

Though failure to timely administer the oath required by NRS 16.030 is a structural error, Barral v. State, 131 Nev. 520, 525, 353 P.3d 1197, 1200 (2015), cert denied, __U.S.__, 136 S.Ct. 2542 (2016), unpreserved structural errors are still subject to plain error review, Jeremias, 134 Nev., Adv. Op. 8, 412 P.3d at 48. NRS 16.030(5) states that "[b]efore persons whose names have been drawn are examined as to their qualifications to serve as jurors, the judge or the judge's clerk shall administer an oath or affirmation to them." This ensures that jurors understand the importance of truthfulness in answering questions "touching upon [their] qualifications to serve as jurors." Id. Because the district court failed to administer the oath until after impaneling the jury, the first two elements of plain error are satisfied...

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