Gaxiola v. State

Decision Date22 September 2005
Docket NumberNo. 42258.,42258.
Citation119 P.3d 1225
PartiesJose GAXIOLA, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Philip J. Kohn, Public Defender, and Amy Dreifus Coffee, R. Roger Hillman, and Gary H. Lieberman, Deputy Public Defenders, Clark County, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Thomas M. Carroll, Deputy District Attorney, Clark County, for Respondent.




Appellant Jose Gaxiola was charged with and convicted of five counts of sexual assault of a minor under the age of fourteen years and two counts of lewdness with a child under the age of fourteen years. On appeal, he asserts the following assignments of error: (1) NRS 51.385, which allows admission of a child sexual assault victim's statements to third parties, violates the Confrontation Clause of the United States Constitution;1 (2) jury instructions stating that a sexual assault victim's testimony need not be corroborated unduly emphasize one witness's testimony; (3) one of his lewdness convictions violates the corpus delicti rule; (4) his lewdness convictions are redundant to the sexual assault convictions; and (5) multiple instances of prosecutorial misconduct.2

We conclude that: (1) the admission of a child-victim's statements to third parties pursuant to NRS 51.385 does not violate the Confrontation Clause when the child-victim testifies at trial; (2) the no-corroboration instruction was not improper; (3) one of the lewdness convictions violates the corpus delicti rule; (4) the remaining lewdness conviction was redundant; and (5) while some prosecutorial misconduct occurred, it did not rise to the level of plain error warranting reversal. Accordingly, we affirm the convictions for sexual assault and reverse the convictions for lewdness.


Gaxiola was convicted of sexually assaulting a seven-year-old child related to him. Gaxiola was twenty-one years old at the time of the assaults.

During the summer of 2001, the child was to spend a week at his relatives' home. Two adults, another minor child (E.G.), and Gaxiola resided in the home. E.G., who was related to the child-victim, agreed to babysit the child for the week.

The child, who was nine years old at the time of the trial, testified that Gaxiola sexually assaulted him during his first or second night at the house. The child testified that he and E.G. were asleep in E.G.'s room when Gaxiola came and got him. E.G. did not wake up. Gaxiola called it a game, enticing the child with a promise to allow him to play video games in the morning. The child accompanied Gaxiola to Gaxiola's room and Gaxiola closed the door.

According to the child, Gaxiola had the child perform fellatio on him. Gaxiola then had the child lie down on his side, and Gaxiola lay down behind him. Gaxiola anally penetrated the child. The child testified that the first time Gaxiola anally penetrated him it hurt, but the second time Gaxiola went slowly and it did not hurt. The child clearly stated that the anal penetration occurred on two different occasions, but he was not certain if both occurrences happened that night. After Gaxiola anally penetrated the child, Gaxiola put his penis in the child's mouth. At trial, the child stated that he thought Gaxiola touched the child's penis with Gaxiola's hand, however the child did not give any specifics of when and how this occurred in relation to the other sexual activities.

E.G. and Gaxiola relayed a very different account of that night. E.G. testified that she did not sleep at all that night and that the child only left the room to use the bathroom. When the child did not return from the bathroom within five minutes, E.G. went to check on him. E.G. discovered the child in Gaxiola's room, lying on the bed next to Gaxiola and asking to play video games. When Gaxiola refused to allow the child to play, he became upset, and E.G. returned him to her room.

Gaxiola testified that he called the child's mother the next day to come and pick up the child. Gaxiola claimed that the child said something gross or nasty the night before and Gaxiola did not want him in the house. The child's mother denied that Gaxiola called her. She and her sister stated that when they went by the house to drop off some clothes for the child, the child came out of the house and said that he did not want to stay there any longer.

In August 2001, while the child was staying at his aunt's house, he told his young cousins that he had sex with Gaxiola. The next morning, one of the cousins told the child's uncle about the incident. He initiated a discussion with the child regarding the comment. The child became very emotional and eventually relayed the events of the night at E.G.'s house. The child said that Gaxiola made him perform fellatio on Gaxiola, Gaxiola rubbed the child's penis, and Gaxiola anally penetrated the child. The child claimed that Gaxiola also put the child's penis in his mouth. When asked whether it had only occurred the one time, the child responded that it had been ongoing. The child stated that he had not told anyone because Gaxiola threatened that if he told, the child would go to the devil.

The uncle informed the child's mother about the discussion, and she questioned the child. She testified that the child told her that Gaxiola put his penis in the child's mouth, put the child's penis in his mouth, and anally penetrated the child. The child's mother then called the police.

Phyllis Suiter, a board certified pediatric and family nurse practitioner from the SAINT (Sexual Abuse Investigative Team) program, interviewed and examined the child. The child stated that Gaxiola touched and caressed the child's penis with his hand. The child claimed that Gaxiola anally penetrated him two different times. The child stated the first time was a long time ago and that the first time hurt, but the second time did not. The child stated that Gaxiola put the child's penis in his mouth two different times, but not the same time Gaxiola anally penetrated him. Gaxiola made the child put Gaxiola's penis in his mouth one time.

During the physical examination, Suiter found anal injuries. Suiter discovered that the child's inner sphincter was dilated. Further, she discovered scar tissue from a second-degree injury. The scarring indicated that the injury was approximately one to two months old. Suiter examined the child a second time approximately two weeks later to evaluate the appearance of the scarring after the passage of time. Suiter concluded that it was consistent with her earlier findings. Suiter testified that the child's injuries were consistent with the allegations and made a determination that abuse was probable.

The police also interviewed the child. Detective Gina Chandler testified that the child stated that Gaxiola rubbed the child's penis, anally penetrated him twice, put his penis in the child's mouth, and put the child's penis in his mouth two times.

Subsequently, Gaxiola consented to a police interview. Gaxiola told the police that the child frequently exhibited inappropriate sexual behavior. Originally, Gaxiola told the police that the only sexual contact between him and the child was when the child attempted to touch Gaxiola's penis through his pants. Gaxiola claimed that he told the child not to do that and he informed the child's mother, but she just laughed. Gaxiola told the detectives that he was willing to take a lie detector test.

As the interview progressed, Gaxiola changed his story. He claimed that the child had come into his room when he was asleep, took Gaxiola's penis from his boxers, and touched it. Gaxiola stated that another time the child came into his room when he was asleep, removed Gaxiola's penis from his boxers, and put it in the child's mouth. Gaxiola told the detectives that the child laid down in front of Gaxiola while Gaxiola was sleeping on his side, reached around and put Gaxiola's penis in the child's anus. When the detectives asked how Gaxiola became aroused to enable this act, he stated that every guy gets hard when he sleeps. Gaxiola stated that he woke up before ejaculating. Gaxiola denied any other incidents of anal penetration. Gaxiola stated that the child attempted to put his penis in Gaxiola's mouth a couple of times while Gaxiola was asleep, but Gaxiola woke up when he felt something against his lips and stopped the child. Gaxiola was arrested approximately 1½ months after the interview.

Gaxiola was charged with seven counts. Counts one and two were for sexual assault by Gaxiola committing fellatio upon the child. Count three was for sexual assault by Gaxiola placing his penis in the child's mouth. Counts four and five were for sexual assault by Gaxiola inserting his penis into the child's anal opening. Count six was for lewdness based on Gaxiola fondling the child's penis. Count seven was for lewdness based on making the child fondle Gaxiola's penis.

At the beginning of the trial, outside the jury's presence, the State told the court that it planned to have the child's mother and uncle testify regarding the child's statements. The State and the defense agreed that it was not necessary to have a hearing as required by NRS 51.385 since the child was going to testify. The district court stated that admission of the statements was predicated on the child testifying.

At trial, Gaxiola stated that he never touched the child. Gaxiola testified that he only told a different story to the police because he was willing to say anything to go home because the police were threatening and intimidating him. Gaxiola testified that he was able to provide so many details that were consistent with the child's story because the child's mother had told the details to his mother, who then relayed them to him.

The jury found Gaxiola...

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