Fluckiger v. State
Decision Date | 16 April 2020 |
Docket Number | No. 78074,78074 |
Citation | 460 P.3d 994 (Table) |
Parties | Jeffery Lynn FLUCKIGER, Appellant, v. The STATE of Nevada, Respondent. |
Court | Nevada Supreme Court |
Attorney General/Carson City
Washoe County District Attorney
This in an appeal from a judgment of conviction, pursuant to a jury verdict, of four counts of lewdness with a child under the age of fourteen, six counts of sexual assault on a child under the age of fourteen, two counts of using or permitting a minor under the age of fourteen years to produce pornography, and one count of possession of visual pornography of a person under the age of fourteen.1 Second Judicial District Court, Washoe County; Egan K. Walker, Judge. Appellant Jeffery Fluckiger raises four main contentions on appeal.
Fluckiger first argues that the district court erred in admitting victim testimony about undisclosed sexual acts, which resulted in improper admission of bad-act evidence and Brady2 violations. "[T]he trial court’s determination to admit or exclude evidence is to be given great deference and will not be reversed absent manifest error." Bletcher v. State , 111 Nev. 1477, 1480, 907 P.2d 978, 980 (1995). NRS 48.045(2) excludes "[e]vidence of other crimes, wrongs or acts ... to prove the character of a person in order to show that the person acted in conformity therewith." (Emphasis added.) Here, the challenged evidence—the victim’s testimony about certain instances where Fluckiger rubbed his penis against her vagina and twice forced her to fellate him—described acts that fall within the allegations set forth in Counts 1 and 5. Because the evidence therefore was relevant to charged offenses, it was not inadmissible under NRS 48.045(2). That the victim testified about these incidents for the first time during trial does not change this conclusion. See LaPierre v. State, 108 Nev. 528, 531, 836 P.2d 56, 58 (1992) ( ); Cunningham v. State, 100 Nev. 396, 400, 683 P.2d 500, 502 (1984) ( ).
As to Fluckiger’s Brady argument, we first note that Brady violations cannot be evaluated during trial. See Bradley v. Eighth Judicial Dist. Court, 133 Nev. 754, 759-60, 405 P.3d 668, 673-74 (2017) ( ). Regardless, we are not convinced that Fluckiger met the first prong in the Brady analysis—that the State withheld exculpatory evidence—for two reasons. First, the record is not clear that the State had the evidence before the trial, which undermines any argument that the State withheld Brady information. See United States v. Monroe, 943 F.2d 1007, 1011 n.2 (9th Cir. 1991) (); see also Steese v. State, 114 Nev. 479, 491, 960 P.2d 321, 329 (1998) () . Second, the evidence came out during the victim’s testimony and the defense had the opportunity to cross-examine the victim about it. See United State v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000) . Because we perceive no error, reversal is not warranted on this issue.3
Second, Fluckiger argues that the district court abused its discretion in refusing his proffered stipulation regarding the child pornography charges and allowing the State to play certain videos for the jury. We disagree.
Both federal and Nevada courts have established that the government "is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it." Old Chief v. United States, 519 U.S. 172, 186-87 (1997) ; see also Edwards v. State, 122 Nev. 378, 381, 132 P.3d 581, 583 (2006). But that rule gives way when the defendant’s stipulation would not hinder the effectiveness of the government’s case and the probative value of the evidence at issue is substantially outweighed by the danger of unfair prejudice. Edwards, 122 Nev. at 382-83, 132 P.3d at 584-85. Here, the district court did not abuse its discretion because Fluckiger’s proffered stipulation would have hindered the State’s ability to prove scienter and that Fluckiger possessed the child pornography. See id. at 384, 132 P.3d at 585 ( ); cf. United States v. Merino-Balderrama, 146 F.3d 758, 762 (9th Cir. 1998) ( ). That the evidence here was highly offensive does not change our conclusion. Given the child pornography charges at issue here, Fluckiger’s arguments based on cases involving felon-in-possession charges are not convincing. See United States v. Luck, 852 F.3d 615, 619 (6th Cir. 2017) ( ).
Third, Fluckiger argues, and the State agrees, that four of his NRS 200.730 convictions must be vacated pursuant to Castaneda v. State because the State did not prove that he possessed the disputed child pornography at different times or locations. 132 Nev. 434, 444, 373 P.3d 108, 115 (2016) ( ). We agree with the parties that under the circumstances presented, Fluckiger could not be convicted of more than one count of possession of child pornography. But the judgment of conviction is consistent with that conclusion—it reflects a single conviction of possession of child pornography (count 10). The district court did not adjudicate Fluckiger guilty on the other four possession-of-child-pornography counts (14,...
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