Jenkins v. State

• Court: Nevada Supreme Court
• Writing for the Court: STEFFEN; SPRINGER, Justice, with whom ROSE; ROSE
• Citation: Jenkins v. State, 110 Nev. 865, 877 P.2d 1063 (Nev. 1994)
• Decision Date: 26 July 1994
• Docket Number: No. 24602,24602
• Parties: , 46 A.L.R.5th 865 Kevin Neil JENKINS, Appellant, v. The STATE of Nevada, Respondent.

Page 1063

877 P.2d 1063

110 Nev. 865, 46 A.L.R.5th 865

Kevin Neil JENKINS, Appellant, v. The STATE of Nevada, Respondent.

No. 24602.

Supreme Court of Nevada.

July 26, 1994.

Torvinen & Torvinen, Elko, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, and Marshall S. Smith, Dist. Atty., Elko County, for respondent.

STEFFEN, Justice.

OPINION

Appellant Kevin Neil Jenkins was convicted of six counts of statutory sexual seduction. On appeal, Jenkins contends that a reasonable mistake of fact as to the age of the victim should be a defense to this crime and that the trial court erred in declining to so instruct the jury. We conclude that this and other issues raised by Jenkins are without merit and affirm the judgment against him.

The facts are uncontested. At trial, one of the victims, Sherry, testified that during an evening in October of 1990, when she was fourteen years of age, she was contacted by Olissa, a fifteen-year-old friend, and invited to go out drinking. Sherry was later picked up by Olissa and an individual with whom she was not acquainted, but whom she later came to know as Jenkins' father. The two girls were taken to a mobile home in Elko where Sherry was introduced to Jenkins (who, according to his counsel's statement at oral argument, was twenty-eight years old at the time). Todd Dawes was also present at the trailer.

Sherry testified that Jenkins invited her into his room, where they had consensual sexual relations. Sherry further testified that over the next three to four weeks, she frequently and of her volition visited Jenkins at the mobile home where the following occurred: approximately twenty to twenty-five acts of sexual intercourse, approximately four to five acts of fellatio, and approximately two to three acts of cunnilingus.

Sherry also testified that she told Jenkins her birth certificate stated that she was fourteen, but that because she was adopted, she might have been sixteen or seventeen. During cross-examination, Sherry acknowledged that she had earlier testified, at the preliminary examination, that she had represented to Jenkins that she was sixteen and that she may have told him that early on in their relationship. Sherry later clarified, when called as a defense witness, that she had no birth certificate as she was not born in a hospital, but that a birth date had been given her on her adoption certificate. This legal birth date was used by Sherry for medical records and the like, and she testified that there was no belief in her mind that she might be as much as a year or so older than the adoption documents indicated.

The second victim, Olissa, also testified against Jenkins, confirming that she and Sherry went to Jenkins' mobile home in October of 1990, at which time she was fifteen years old. Olissa testified that, from the beginning, she had sexual intercourse with both Jenkins and Dawes, and that in addition to sexual intercourse, she and Jenkins engaged in acts of fellatio and cunnilingus. Olissa testified that at some point "a couple weeks into" these events, she told Jenkins that she was fifteen.

Following a jury trial, Jenkins was convicted of six felony counts of statutory seduction of a minor.

Prior to trial, Jenkins requested a ruling by the court upon defendant's proffered Instructions B, C and D, which provided as follows:

[B] In every crime or public offense there must exist a union or joint operation of act and intention, or criminal negligence.

[C] An act committed or an omission made in ignorance or by reason of a mistake of fact which disproves any criminal intent is not a crime.

Thus a person is not guilty of a crime if he commits an act or omits to act under an honest and reasonable belief in the existence of certain facts and circumstances which, if true, would make such act or omission lawful.

[D] In the offense of statutory sexual seduction, general criminal intent must exist at the time of the commission of the act of sexual intercourse, cunnilingus, or fellatio. There is no general criminal intent if the defendant had a reasonable and good faith belief that the person alleged to have been sexually seduced, as alleged, was sixteen years of age or older at the time such person engaged in the act of sexual intercourse, cunnilingus, or fellatio at issue.

Therefore, a reasonable and good faith belief of such age is a defense to statutory sexual seduction. If after consideration of all of the evidence, you have a reasonable doubt that the defendant had general criminal intent at the time of the acts of sexual intercourse, cunnilingus, or fellatio alleged in the separate Counts of the Criminal Information, you must find him not guilty of such crimes.

The court rejected the quoted instructions, agreeing with the State's argument that statutory seduction was a general intent, rather than a specific intent crime, and that the State needed only to prove that Jenkins intended to have sex with the two girls, who were minors, and did so; not that he intended to have sex with a minor. Accordingly, the court refused the proffered instructions relative to the defense of mistake of fact. Jenkins, who declined to testify at trial, states that he would have testified on his own behalf if the trial court had accepted his proposed instructions to the jury.

During the jury's deliberations, the court received a written communication from the jury foreman which, in part, posed the following question Does the defendant have to be aware [that] the girls were under age 16[?] Does it matter if the girls lied about their age?

The court replied, by way of a supplemental oral jury instruction, as follows:

The second question that the jury has written down and proposed to the Court has two parts. "Does the defendant have to be aware that the girls were under ... age 16?" The answer to that question is no. "Does it matter if the girls lied about their age?" It does not matter concerning the elements of Counts I through VI [the sexual seduction counts], as outlined in the Instruction Number 8. But it may be considered in determining credibility of witnesses.

Jenkins now challenges the district court's refusal to give his proposed instructions, together with the court's answer to the jury's query.

Jenkins proposes that "a reasonable mistake of fact, relative to a complaining witness's age should be, in the appropriate circumstances, a defense to the offense of Statutory Sexual Seduction." Citing W.E. Shirley, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 8 A.L.R.3d 1100 (1966 & Supp.1993), Jenkins acknowledges that the weight of authority in the United States is against him on this issue.

Nevertheless, Jenkins contends that accepting the State's construction of the statute creates a strict liability offense, and that this court has been reluctant to interpret criminal statutes so as to create strict liability absent an expression of specific legislative intent to that effect. Jenkins asserts that the following statutory provisions are relevant to this issue:

NRS 193.190 To constitute crime there must be unity of act and intent. In every crime or public offense there must exist a union, or joint operation of act and intention, or criminal negligence.

NRS 194.010 Persons capable of committing crimes. All persons are liable to punishment except those belonging to the following classes:

....

(5) Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent, where a specific intent is required to constitute the offense.

(Emphasis added.)

Given the emphasized language of NRS 194.010(5), in order to prevail on this issue, Jenkins must demonstrate that specific intent is an element of his crime. Jenkins essentially acknowledged this on appeal, and conceded at oral argument that his proposed instructions were perhaps inartfully drafted in referring to mistake of fact as a defense to "general intent" crimes.

The statutes under which Jenkins was convicted, NRS 200.364 and 200.368, provide, in pertinent part, as follows:

NRS 200.364 Definitions. As used in NRS 200.364 to 200.3774, inclusive, unless the context otherwise requires:

....

3. "Statutory sexual seduction" means:

(a) Ordinary sexual intercourse, anal intercourse, cunnilingus or fellatio committed by a person 18 years of age or older with a person under the age of 16 years; or

(b) Any other sexual penetration committed by a person 18 years of age or older with a person under the age of 16 years with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of either of the persons.

NRS 200.368 Statutory sexual seduction: Penalties. A person who commits statutory sexual seduction shall be punished:

1. If he is 21 years of age or older, by imprisonment in the state prison for not less than 1 year nor more than 10 years, and may be further punished by a fine of not more than $10,000.

2. If he is under the age of 21 years, for a gross misdemeanor.

These statutes leave no room for concluding that a specific intent to commit any of the proscribed acts with a minor under the age of sixteen is an element of the crime of statutory sexual seduction. Jenkins, however underscores the serious penalties imposed under these statutes and argues, as noted previously, that we have demonstrated a reluctance to interpret statutes involving such serious penalties as imposing strict criminal liability, at least without clear indication of such a legislative intent.

In support of his premise, Jenkins directs us to Robey v. State, 96 Nev. 459, 611 P.2d 209 (1980). In Robey, we had occasion to interpret a statute prohibiting the wilful misappropriation of funds by a public official and expressly disagreed with the lower court's instruction regarding the meaning of the term "wilfully." The erroneous instruction provided that:

[T]he word "wilfully",...