Jenkins v. State
| Decision Date | 22 June 2022 |
| Docket Number | 83465-COA |
| Citation | 511 P.3d 326 (Table) |
| Parties | Richard Alexander JENKINS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Court of Appeals |
Richard F. Cornell
Attorney General/Carson City
Douglas County District Attorney/Minden
Jenkins coached a recreational volleyball team in Douglas County, and G.W., a 14-year-old minor, played on another team.1 The two teams would often practice at the same time in the Douglas County Community Center (Center); eventually, G.W. and Jenkins met. Jenkins had a daughter that spent time at the Center as well, and G.W. and Jenkins's daughter soon became friends. In addition, G.W.’s stepfather, with whom she was close, passed away earlier that summer. By all accounts, Jenkins stepped into a father figure role for G.W. and Jenkins's daughter was G.W.’s best friend.
By late summer, G.W. and Jenkins were exceptionally close. When at the Center, the two would often be close to one another; they were not secretive about their close relationship. The two could be seen walking into Center rooms alone, playfully bumping into one another on the courts, and leaving the Center while holding hands. Around September 2018, Ashley Gosney, a patron at the Center, noticed a long hug between Jenkins and G.W. near the interior stairs. Security footage from inside the Center captured the hug. Just before the hug, Jenkins can be seen looking over his shoulders. The hug itself lasted nine seconds. After about six seconds, both Jenkins and G.W. nuzzle their faces into one another's necks. During the hug, Jenkins's right arm goes over G.W.’s shoulder, and his left hand is visible wrapping around G.W.’s body in the middle of her back. As they break, Jenkins gives G.W. a pat on the middle of the back and, according to G.W.’s testimony, he touched her buttocks. Concerned by this interaction, Gosney told her then-boyfriend and fitness instructor at the Center, Nicholas Lonnegren of the hug. Lonnegren himself had witnessed interactions between Jenkins and G.W., and he shared Gosney's concerns. Together, Gosney and Lonnegren decided to bring the information to Center staff.
Lonnegren reported the concerns to Jennifer Calabrese, a Center employee. From there, Calabrese and other Center employees informed their supervisors. Lonnegren's report was provided to Scott Doerr and Georgiana Drees-Wasmer, and finally to Community Services Director Scott Morgan. In addition to Lonnegren's report, Center staff also supplied clips of surveillance video showing interactions between G.W. and Jenkins. The individuals reviewing Lonnegren's initial report agreed that the interactions were inappropriate. As a result, Center personnel told Jenkins he was not allowed on the premises during the investigation. Jenkins objected and told the Center of his close relationship with G.W.
The Center permitted Jenkins to return after just one day of investigation; however, around the same time, the Center passed the report and select footage from inside the building to law enforcement. From there, the Douglas County Sheriff's Office (DCSO) started its own investigation. G.W. gave a few interviews to law enforcement. In her first, she did not describe any inappropriate conduct. In her second, she told law enforcement of Jenkins's inappropriate touching. With G.W.’s allegations and the other evidence, a DCSO detective arrested Jenkins. Thereafter, the State charged Jenkins with four counts of lewdness with a minor under the age of 16, each a category B felony, occurring over a three-month period. Each count corresponded to a location of an alleged lewd act between Jenkins and G.W. Count one stemmed from Jenkins's home. Counts two and three stemmed from the Center's equipment room and "Squishy Room," respectively. And count four stemmed from the interaction in the "nook" by the stairs.
During pretrial litigation, the State filed a motion to admit prior bad act evidence under NRS 48.045(2) and (3). Jenkins opposed this motion. The district court granted that motion under NRS 48.045(2), which allows for the admission of evidence of prior crimes, wrongs or acts for relevant purposes other than a propensity to commit crimes or bad acts, such as motive, opportunity, intent, preparation, or plan. Jenkins filed his own motion seeking to preclude testimony from the State's expert witness, Blake Carmichael, Ph.D. The district court denied this motion and permitted Dr. Carmichael's testimony.
At trial, the State offered evidence, through numerous witnesses like Gosney and Lonnegren, describing other interactions between Jenkins and G.W. where the two playfully bumped into one another, hugged, or held hands. G.W. testified as well, and she stated that Jenkins would touch her buttocks and put his hand slightly inside the front of her pants, around her waistline. She said this happened in Jenkins's home when she was there for a sleepover. She went on to testify that she and Jenkins would go into the Squishy Room or the equipment room where Jenkins would kiss her and touch her buttocks. Finally, G.W. testified generally that Jenkins would engage in this conduct "every chance he could."
Later in its case-in-chief, the State put Dr. Carmichael on the stand. During his testimony, he opined generally on the phenomenon of "grooming," the idea that sex offenders may condition a child before sexual misconduct to allow and accept touching and to decrease the likelihood that the child will report the crimes. On cross-examination, Dr. Carmichael admitted he knew nothing of the specific case involving Jenkins; he did not even know G.W.’s name or the nature of her accusations.
Jenkins testified in his own defense. He offered context for the "unique" relationship between himself and G.W. He also denied any inappropriate touching of G.W. Jenkins then called numerous witnesses, all of whom were familiar with G.W.’s relationship with the Jenkins family. Because they knew the context of the relationship between G.W. and the Jenkins family, these witnesses discounted the oddness of G.W.’s relationship with Jenkins. With that, the evidence portion of trial concluded. The district court then instructed the jury on the law, including the definition of "lewd" as established by the Nevada Supreme Court.
The jury returned a guilty verdict on all four counts. In its judgment of conviction, the district court ran all four sentences consecutive to one another. Each count carried a minimum term of four years and a maximum term of ten years. In the aggregate, the district court sentenced Jenkins to 16-40 years. Jenkins appealed.
On appeal, Jenkins concedes that he touched G.W. as she alleged during the private interactions in the Center and Jenkins's home, including placement of his hand inside the front of her pants. He is careful to note, however, that the touches of G.W.’s buttocks were always over clothing. Moreover, he stresses he did not reach her vaginal area or skin when he put his hand down the front of G.W.’s pants. These concessions align with G.W.’s trial testimony, and the State does not allege his touches were more explicitly sexual.
Despite this concession, Jenkins first argues that the touches were insufficient to prove he acted with the specific intent proscribed by statute. Jenkins has denied a sexual intent at all points of the prosecution; therefore, he argues that his over-the-clothes contact with G.W. is insufficient to prove he acted with that culpable intent. He asserts that, "in the absence of a sexual touching, the statute requires ... a knowing commission of a sexual act such that the child sees or senses that a sexual act is taking place."2 (emphasis omitted). The State emphasized the fact that intent can be inferred. With that, the State points to Jenkins's other actions, like when Jenkins looked over his shoulders before his extended hugging and touching of G.W., arguing that his actions and touching of G.W. could support a reasonable jury's inference that he acted with the proscribed intent. We agree with the State.
When reviewing the sufficiency of the evidence, this court must decide "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) ; Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998). It is the jury's place "to assess the weight of the evidence and determine the credibility of witnesses." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). Thus, "a verdict supported by substantial evidence will not be disturbed by a reviewing court." Id. Moreover, "circumstantial evidence alone may support a conviction." Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112 (2002). Sufficiency-of-the-evidence challenges raise difficult issues when the accused's mental state is at issue. Valdez v. State, 124 Nev. 1172, 1197, 196 P.3d 465, 481 (2008) (). Indeed, "intent can rarely be proven by direct evidence." Sharma v. State, 118 Nev. 648, 659, 56 P.3d 868, 874 (2002).
NRS 201.230 requires that the act be performed "with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of that child." Because circumstantial evidence is sufficient to support a conviction, Hernandez, 118 Nev. at 531, 50 P.3d at 1112 ; and because on appeal all inferences must favor the State, Jackson, 443 U.S. at 319 ; the question is whether any reasonable jury could have inferred Jenkins acted with the specific intent to gratify his sexual desire.
Here, Jenkins has not demonstrated that the jury was unreasonable when it inferred Jenkins acted with the proscribed intent on all four charged occasions. G.W.’s testimony, which we must credit in favor of the State, placed Jenkins's hand inside the front of her pants and on...
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