Felix v. State, s. 18960

• Decision Date: 18 March 1993
• Docket Number: Nos. 18960,19191,s. 18960
• Citation: 109 Nev. 151,849 P.2d 220
• Parties: Martha Helen FELIX, Appellant, v. The STATE of Nevada, Respondent. Francisco J. ONTIVEROS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 220

849 P.2d 220

109 Nev. 151

Martha Helen FELIX, Appellant, v. The STATE of Nevada, Respondent.

Francisco J. ONTIVEROS, Appellant, v. The STATE of Nevada, Respondent.

Nos. 18960, 19191.

Supreme Court of Nevada.

March 18, 1993.

Martillaro & Martillaro, Carson City, and Peter L. Flangas, Las Vegas, for appellant Felix.

Nielsen and Walker, Carson City, Martillaro & Martillaro, Carson City, for appellant Ontiveros.

Frankie Sue Del Papa, Atty. Gen., Carson City, Noel S. Waters, Dist. Atty., Carson City, for respondent.

Annabelle Whiting Hall, Reno, for amicus curiae.

OPINION ¹

PER CURIAM:

The appellants, Martha Helen Felix (Felix) and Francisco J. Ontiveros (Ontiveros), appeal their convictions for sexual assault of children entered against them after a jury trial. The numerous sexual assaults were alleged to have been committed on children attending a day care center in Carson City, Nevada. Felix was convicted of three counts of sexual assault of a person under fourteen years of age and Ontiveros of one count. Both received the maximum sentence permitted under the law. For the reasons expressed in this opinion, we reverse their convictions.

By determining that errors were made by the justice of the peace and the district court judge, some may infer that we are critical of these judicial officers. This is untrue. While we believe the law requires the reversal of these convictions, most of the authority compelling this result was established subsequent to the conclusion of this very difficult and complex trial. Throughout the proceedings, the justice of the peace and the district court judge were competent, hard-working, and accommodating.

INTRODUCTION

This case began in 1984 when one child, Susan Y., in response to her mother's questioning, indicated that she had been sexually molested at least two and one-half years previously at a day care center owned by Felix and where Ontiveros, a relative, occasionally worked. Felix is often referred to as Martha and Ontiveros as Paco. Susan was six years old when she made these accusations against appellants. Susan's mother took her to psychologist Joanne Fisher (Fisher) who reported her suspicions of sexual abuse/molestation to the police. Thus began the most extensive and costly criminal investigation and prosecution in Carson City history.

This investigation began in the wake of two other highly publicized cases involving allegations of child molestation and abuse at children's day care centers, the McMartin case in California and the Montessori case in Reno, Nevada. ² Believing they were facing another case of widespread sexual assault and molestation at a day care center, the Carson City Sheriff's Office contacted the parents of the children who had attended Felix's day care center, informed them of the allegations made by Susan Y., and requested that they question their children or take them to a child therapist or psychologist for questioning. The State assisted in arranging for a psychologist to interview the children if their parents so requested. The investigation eventually involved allegations that as many as nineteen children had been assaulted.

Patricia L. was between three and one-half and five years old when she attended Felix's home day care center. Patricia did not attend regularly, but rather one or two times a week. She never complained of abuse until she was interviewed by psychologist Patricia Bay (Bay) when she was six years old. Like Susan, Patricia first denied that any abuse had taken place. After several interviews with Bay, Patricia made a few accusatory statements in response to leading questions. Subsequently, she again denied that any child sexual assault (CSA) had occurred.

The principal psychologists who interviewed the girls initially were working primarily to assist the police in their investigation and to confirm that a sexual assault had occurred. Most of these interviews were not recorded. As these interviews progressed, the children began to report incredible stories, such as the killing and burying of people and animals in Felix's backyard. Law enforcement officers dug up the backyard and what was believed to be the location of a hillside graveyard outside of town, but found no evidence to support the children's accusations.

The trial in these consolidated companion cases involved twenty-one counts of criminal violations allegedly committed against nine child-victims. Appellants were acquitted on seventeen of the twenty-one counts of CSA. They appeal their convictions of four counts involving two victims, Susan Y. and Patricia L. Ontiveros was convicted of one count of inserting his finger and/or knife into Susan's vagina. Felix was convicted on three counts consisting of: (1) inserting her finger or an unknown object into Patricia's anus; (2) inserting her finger or an unknown object into Patricia's vagina; and (3) inserting her finger into Susan's vagina.

Subsequent to trial, a number of cases were decided by the United States Supreme Court determining the limits which can be placed on a defendant's United States Constitutional right to confront the witnesses against him (Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990)), and the requirements for assessing the reliability of a child's accusatory hearsay statements made against a defendant before their admission into evidence (Idaho v. Wright, 497 U.S. 805, 819-22, 110 S.Ct. 3139, 3148-50, 111 L.Ed.2d 638 (1990); White v. Illinois, 502 U.S. 346, ---- - ----, 112 S.Ct. 736, 742-43, 116 L.Ed.2d 848 (1992)). These cases force us to examine their effect on NRS 51.385, our statute permitting a child's accusatory hearsay statements of sexual assault, and on NRS 174.229, which permits a videotape of a child's preliminary examination testimony concerning sexual assault to be received into evidence. These United States Supreme Court cases and NRS 51.385 compel us to reverse the convictions entered against Felix and Ontiveros.

Further, we conclude that an insufficient showing was made to determine that either Patricia or Susan were competent to testify about the events that occurred at Felix's day care center. Patricia made her accusatory statements to psychologist Bay during two of the ninety-eight interviews she had with Bay and after being subjected to substantial leading questions. She never made these accusations to her parents, and she repudiated them subsequently. Patricia never testified at any of the court proceedings. Faced with such equivocal testimony, the district court should have interviewed Patricia in chambers before determining that she was competent but unable to testify. By finding her competent to testify, Patricia's out-of-court accusatory statements were received into evidence, but finding her unable to testify resulted in the appellants not being able to cross-examine her.

Almost all of the events described in Susan's testimony as occurring at Felix's day care center were false or incredible. The undisputed medical evidence established that most of the assaults Susan alleged could not have happened. Her testimony that animals and people were killed and buried at the day care center is incredible, as was her testimony of being hung by her neck in a closet for hours and being forced to drink gasoline and dog urine. The events she described that occurred at the day care center appear to be more fantasy than fact, and therefore it was not proven that she possessed the capacity to receive just impressions of events that occurred at the day care center and the ability to relate them truthfully.

FACTS

Preliminary Hearing

The justice court conducted a month-long preliminary hearing. The State videotaped this hearing with the intention of showing the videotape at trial, relying upon statutes enacted in 1985 to facilitate the prosecution of CSA cases: (1) NRS 51.385, which authorizes the admission of children's hearsay statements about CSA, and (2) NRS 174.227 ³ and 174.229, which authorize the use of videotaped testimony of child-victims in CSA cases.

At the hearing, the court granted the State's motion to exclude the appellants from the courtroom in order to protect the child witnesses who testified. No affidavits or evidence of any type was presented to support the State's oral motion to bar the appellants from the courtroom to protect the child witnesses. The justice court made no finding that the appellants' exclusion from the courtroom was necessary to protect the children. Defense counsel for appellants remained in the courtroom where they could cross-examine the witnesses. Felix and Ontiveros were permitted to view the proceedings via a one-way video and could communicate with counsel. At the hearing, the State presented testimony from children, parents, doctors, psychologists, and police detectives, which supported the allegations of CSA. Susan testified at the hearing, but Patricia did not. The court concluded there was sufficient evidence to bind appellants over for trial in the district court on twenty-one counts. However, the court did not assess the reliability of the child-declarants' hearsay statements introduced at the preliminary hearing as required by NRS 51.385, ⁴ and did not rule whether any of the children who did not testify, whose hearsay statements were introduced, were legally unavailable.

At the hearing, Susan testified that Ontiveros and Felix did bad things to her and stuck a knitting needle up her crotch. When asked who actually stuck the needle in her, she said that Ontiveros did it and that he also stuck his penis in her crotch. Susan was emphatic that no one else touched her at the day care center. Hearsay accusations made by Susan were testified to by several adults, thereby providing evidence implicating Felix. The evidence involving the counts concerning Patricia was presented exclusively by the testimony of adults...