Cipriano v. State
| Citation | 894 P.2d 347,111 Nev. 534 |
| Decision Date | 27 April 1995 |
| Docket Number | No. 24027,24027 |
| Parties | Nicholas CIPRIANO, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
Frankie Sue Del Papa, Atty. Gen., Carson City and Robert E. Estes, Dist. Atty., Lyon County, for respondent.
FACTS
Appellant Nicholas Cipriano ("Cipriano") met the alleged victim ("Jeri") on June 30, 1992, when he was helping her new roommate move into Jeri's residence. The next day, Cipriano returned to Jeri's house at approximately 4:45 p.m. Jeri let Cipriano in, thinking he had returned to offer additional help with the moving process. The two talked for a few minutes, and Cipriano then made some sexually suggestive comments. Jeri rebuked these verbal advances, and Cipriano got up to leave.
Jeri later testified at a preliminary hearing that before leaving, Cipriano bent down toward her chair and tried to kiss her. Jeri refused. Undaunted, Cipriano tried to put his hands down her pants, touched her vaginal area and breasts outside her clothing, and grabbed her buttocks. Jeri struggled with Cipriano for the next few minutes, continually telling him to stop. Cipriano finally complied with these demands and left the house at approximately 5 p.m. He told Jeri not to tell anyone about the incident because he did not want any trouble.
Jeri's roommate returned a short time later and phoned the police. Officer Henry Wessel investigated the incident and eventually arrested Cipriano. Cipriano was charged with one count of attempted sexual assault and one count of open or gross lewdness.
On July 15, 1992, a preliminary hearing was held in justice court. Officer Wessel described an interview he had with Cipriano on the day of the alleged crime. Cipriano told the officer that he went over to Jeri's house to "get lucky." When Officer Wessel asked what that term meant, Cipriano replied that he "was going to try and f[---] her."
Jeri and Officer Wessel were the only witnesses to testify at the preliminary hearing. After considering their testimony, the justice of the peace bound Cipriano over for trial on the open or gross lewdness charge. However, he found that there was no probable cause supporting the attempted sexual assault On July 27, 1992, the prosecutor who had represented the State at the preliminary hearing filed a motion in district court for leave to file an information by affidavit. The prosecutor described the testimony presented at the preliminary hearing and claimed that Cipriano's intent to commit sexual assault was evidenced by his comments made to Officer Wessel. The prosecutor then misquoted the preliminary hearing transcript, informing the court that Cipriano claimed he went over to Jeri's residence "... to f[---] her." Supporting the motion, the prosecutor attached his own affidavit wherein he described the alleged crime by recapping the events of the preliminary hearing. No other affidavits were attached to the motion.
allegation. Accordingly, that charge was dismissed. The justice of the peace reasoned that there was no evidence suggesting that Cipriano had the intent to commit sexual assault.
The State claimed that the justice of the peace erred by failing to bind Cipriano over for trial on the attempted sexual assault charge. The State urged the district court to accept the information by affidavit in accordance with NRS 173.035(2). 1 The district court granted the State's motion, allowed the information, and Cipriano was ultimately tried for both attempted sexual assault and open or gross lewdness.
On October 20, 1992, Cipriano's trial was conducted in district court. Jeri and Officer Wessel essentially offered the same testimony as they had relayed at the preliminary hearing. Cipriano took the stand in his own defense and claimed that Jeri was the sexual aggressor and that he was only responding to suggestive comments she had made. On cross-examination, Cipriano claimed that he had never threatened a woman with violence for sex and that he had always been a "gentleman" around women.
In response to these comments, the State introduced the rebuttal testimony of Toni Cipriano ("Toni"). At the time of trial, Toni was the wife of Cipriano's stepson. Her testimony was admitted over the objections of defense counsel and after the district court conducted a hearing to examine the admissibility of the proffered evidence.
Toni testified that Cipriano had made sexual advances toward her on different occasions. She described the physical encounters as follows:
[T]he more that I would try to tell him he should only think of me as a daughter and nothing else, the more aggressive he would get, grabbing my face and trying to kiss me, or if we were riding in the car, and he was behind me, he would try to slip his hand against the side of the door and touch me.
On one particular occasion, Toni claimed that Cipriano backed her up against a wall, tried to kiss her, and tried to grab her chest.
The jury found Cipriano guilty of both open or gross lewdness and attempted sexual assault. 2 Cipriano appeals and makes We agree with both contentions and accordingly reverse Cipriano's convictions.
the following two arguments: (1) the district court erred by allowing the prosecutor to file an information by affidavit and circumvent the proper pretrial charging process; and (2) the district court abused its discretion by allowing testimony regarding an alleged prior sexual incident involving Cipriano.
NRS 173.035(2) allows the prosecutor to correct egregious errors made by a magistrate in failing to bind an accused over for trial. Cranford v. Smart, 92 Nev. 89, 545 P.2d 1162 (1976). In the event of an egregious error, the prosecutor can file an information by affidavit in the district court. In accordance with the statutory language, the prosecutor must support the information with affidavits of competent trial witnesses who have knowledge of the alleged crimes.
Cipriano claims that the district court erred by allowing the State to file the information by affidavit. He asserts that the prosecutor improperly used NRS 173.035(2) by merely asserting the same evidence that lacked probable cause in justice court.
Cipriano's argument finds support in Murphy v. State, 110 Nev. 194, 871 P.2d 916 (1994), where we reasserted the principle that a prosecutor can only file an information upon affidavit under NRS 173.035(2) to correct egregious errors by the magistrate. In Murphy, appellant was charged with possession of stolen cattle. The justice of the peace refused to bind appellant over for trial because the charge was not supported by probable cause. Thereafter, the State sought leave to file an information by affidavit in accordance with NRS 173.035(2). The district court allowed the filing, and appellant was later tried and convicted of the possession charge. This court reversed the conviction, holding that the State improperly circumvented the pretrial charging process. We reasoned that NRS 173.035(2) was a device to rectify "egregious error" and was not a mechanism for satisfying deficiencies in evidence:
The State has failed to make a showing that Judge Terrell's refusal to bind over Murphy for trial was an egregious error. Moreover, the record supports Judge Terrell's conclusion that the State had utterly failed to produce evidence to show probable cause existed that Murphy had possessed stolen cattle. [Footnote omitted.] Pursuant to our holding in Cranford, the proper way for the State to bring the charges against Murphy would have been by filing a second complaint or by indictment. Instead, the State filed an information upon affidavit. That device is not to be used by a prosecutor to satisfy deficiencies in evidence at the preliminary hearing.
Murphy, 110 Nev. at 198, 871 P.2d at 918.
In addition to this substantive argument, Cipriano maintains that the State failed to comply with the specific filing requirements of NRS 173.035(2). The statute specifically requires that the information be supported by an affidavit of a "person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case." NRS 173.035(2). Cipriano points out that the prosecutor did not comply with this language, but simply attached his own affidavit to support the information.
We agree with both aspects of Cipriano's argument. NRS 173.035(2) clearly requires that the prosecutor attach an affidavit of a competent witness with knowledge of the commission of the offense and who is competent to testify at trial. Contrary to the State's assertions, this does not include the prosecutor, who only had knowledge of the alleged crimes because of his fortuitous presence at the preliminary hearing.
In addition, we cannot conclude that the justice of the peace made an egregious error in finding that the attempted sexual assault charge lacked probable cause. The State's evidence at the preliminary hearing was remarkably weak with respect to that charge. While we may have reached a different conclusion than the justice of the peace, the failure to bind over was not egregious error.
Finally, the underlying premise of Murphy instructs that the State cannot "forum shop" and utilize NRS 173.035(2) to circumvent pretrial charging procedures. Simply because the State is unhappy with a failure to bind over does not mean that it can reassert the same deficient evidence to obtain an information in district court. This is especially true where the prosecutor writes up his own affidavit and describes preliminary hearing evidence recently disposed of by the justice of the peace. In the absence of egregious error, Murphy informs the State that the proper avenue for obtaining a valid charge is for the prosecutor to file a new complaint in justice court or take the matter to the grand jury.
Cipriano's alleged prior bad acts
Evidence of a...
To continue reading
Request your trial
-
Rippo v. State
...in the record, we conclude that the district court did not abuse its discretion in admitting the evidence. See Cipriano v. State, 111 Nev. 534, 541, 894 P.2d 347, 352 (1995) (whether to admit or exclude evidence of other wrongs, crimes, or bad acts is within the trial court's discretion). T......
-
Pickett v. Mccarran Mansion, LLC
... ... MCCARRAN MANSION, LLC, A NEVADA LIMITED LIABILITY COMPANY, Respondent. No. 70127 COURT OF APPEALS OF THE STATE OF NEVADA August 8, 2017 ORDER AFFIRMING IN PART , REVERSING IN PART AND REMANDING This is an appeal from a district court order granting a motion ... ...
-
Bolden v. State
...case, setting forth the offense and the name of the person or persons charged with the commission thereof"); cf. Cipriano v. State, 111 Nev. 534, 540, 894 P.2d 347, 351 (1995) (holding that an affidavit from the prosecutor did not satisfy the statute, since the prosecutor "only had knowledg......
-
Mortensen v. State
...a gun to the head of a man who looked at Brady in a peculiar way. 4. In support of his argument, Mortensen cites to Cipriano v. State, 111 Nev. 534, 894 P.2d 347 (1995), overruled on other grounds by State v. Sixth Judicial District Court, 114 Nev. 739, 964 P.2d 48 (1998), and Crawford, 107......