Honea v. State, No. 76621

Docket NºNo. 76621
Citation466 P.3d 522
Case DateJune 18, 2020
CourtSupreme Court of Nevada

466 P.3d 522

Joshua Ray HONEA, Appellant,
v.
The STATE of Nevada, Respondent.

No. 76621

Supreme Court of Nevada.

FILED JUNE 18, 2020


Jonathan E. MacArthur, P.C., and Jonathan E. MacArthur, Las Vegas; Monique A. McNeill, Las Vegas, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Alexander G. Chen, Chief Deputy District Attorney, and Stacy L. Kollins, Deputy District Attorney, Clark County, for Respondent.

BEFORE HARDESTY, STIGLICH and SILVER, JJ.

OPINION

By the Court, STIGLICH, J.:

In this opinion, we are asked to examine a previous version of NRS 200.366 (2007),1 Nevada's sexual assault statute, to determine whether age alone was determinative of nonconsent or of the victim's ability to resist or understand the nature of the sexual conduct. Because NRS 200.366 did not contain an age of consent, the mere fact of a victim's age did not establish a lack of consent or an inability to resist or understand the nature of the conduct. Therefore, the district court's instructions to the jury that 16 was the age of consent to sexual penetration and that consent in fact by a child under 16 years of age was not a defense to the crime of sexual assault of a minor under 16 were incorrect statements of law and given in error. Additionally, the district court erred in failing to give an inverse jury instruction supporting the defendant's theory of defense. Because we cannot say these errors were harmless beyond a reasonable doubt, we reverse and remand for a new trial.

BACKGROUND

The State filed 52 charges against appellant Joshua Honea, all relating to his relationship with the victim, a minor. Honea was in his late teens and early twenties during his relationship with the victim, who was 11 when she met Honea and 15 when their relationship concluded. The victim told investigating officers, and testified at the preliminary hearing, that she and Honea had a sexual relationship for years. However, when the victim was 18 years old, she recanted her

466 P.3d 524

story during trial and stated the two were just friends.

Before the district court submitted the case to the jury, Honea requested the following jury instruction:

Physical force is not necessary in the commission of sexual assault. The crucial question is not whether a person was physically forced to engage in a sexual assault but whether the act was committed without her consent or under conditions in which the defendant knew or should have known, the person was incapable of giving her consent or understanding the nature of the act.

Thus, if the State fails to prove beyond a reasonable doubt that the person did not consent or fails to prove beyond a reasonable doubt that the defendant knew or should have known the person was incapable of giving her consent or fails to prove beyond a reasonable doubt that she did not understand the nature of the act, you must find the defendant not guilty of Sexual Assault.

The State proposed an instruction declaring, "[c]onsent in fact of a minor child under the age of 16 years to sexual activity is not a defense to a charge of Sexual Assault with a Minor Under Sixteen Years of Age." Over Honea's objection, the district court gave the State's instruction and rejected his instruction. The district court also instructed the jury that, "[i]n Nevada, the age of consent to sexual penetration is sixteen." A jury acquitted Honea of all but one of the 52 charges, convicting him of Count 39, sexual assault of a minor under 16 years of age.2

DISCUSSION

The victim's age, by itself, was not dispositive of any element of sexual assault

Honea argues the district court erred by instructing the jury that the age of consent to sexual penetration is 16 years old and that consent is not a defense to the crime of sexual assault of a minor under the age of 16. While we review a district court's decision to give a particular instruction for an abuse of discretion or judicial error, we review de novo whether a particular instruction is a correct statement of law. Cortinas v. State, 124 Nev. 1013, 1019, 195 P.3d 315, 319 (2008). We agree with Honea that the challenged jury instructions were incorrect statements of law.

In relevant part, the version of NRS 200.366(1) in effect when Honea was charged defined sexual assault as:

A person who subjects another person to sexual penetration, or who forces another person to make a sexual penetration on himself[,] ... against the will of the victim or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his conduct, is guilty of sexual assault.

(Emphasis added.) This language provides two theories of criminal liability for sexual assault. The first theory criminalizes sexual penetration made against the victim's will. The second theory criminalizes sexual penetration made under conditions in which the perpetrator knew or should have known that the victim was mentally or physically incapable of resisting or understanding the nature of the conduct. Neither theory mentions the victim's age.

We recognized the omission of the victim's age in Alotaibi v. State , where we considered the same statutory language and concluded statutory sexual seduction was not a lesser-included offense of sexual assault of a minor. 133 Nev. 650, 404 P.3d 761 (2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 1555, 200 L.Ed.2d 743 (2018). We clarified that the age of the victim only served to increase the maximum sentence the district court could impose for sexual assault of a minor. Id. at 654, 404 P.3d at 766. Specifically, we...

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1 practice notes
  • McNair v. State, 78871
    • United States
    • Nevada Supreme Court of Nevada
    • February 24, 2022
    ...confident that the "verdict was not attributable to the error," and thus the error is harmless. See Honea v. State, 136 Nev. 285, 289-90, 466 P.3d 522, 526 (2020). Lastly, appellant argues that cumulative error warrants relief. See Valdez, 124 Nev. at 1195, 196 P.3d at 481 (providing the re......
1 cases
  • McNair v. State, 78871
    • United States
    • Nevada Supreme Court of Nevada
    • February 24, 2022
    ...confident that the "verdict was not attributable to the error," and thus the error is harmless. See Honea v. State, 136 Nev. 285, 289-90, 466 P.3d 522, 526 (2020). Lastly, appellant argues that cumulative error warrants relief. See Valdez, 124 Nev. at 1195, 196 P.3d at 481 (providing the re......

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