Keeney v. State

• Decision Date: 24 March 1993
• Docket Number: No. 22663,22663
• Citation: 109 Nev. 220,850 P.2d 311
• Parties: David Allan KEENEY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 311

850 P.2d 311

109 Nev. 220

David Allan KEENEY, Appellant, v.The STATE of Nevada, Respondent.

No. 22663.

Supreme Court of Nevada.

March 24, 1993.

Morgan D. Harris, Public Defender and Thomas J. Gibson, Deputy Public Defender, Clark County, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex A. Bell, Dist. Atty. and James Tufteland, Chief Deputy Dist. Atty. and John P. Lukens, Deputy Dist. Atty., Clark County, for respondent.

OPINION

PER CURIAM:

AppellantDavid Allan Keeney was convicted by a jury of six counts of sexual assault on a minor and one count of lewdness with a minor.Keeney raises four primary issues on appeal, the most important of which concerns the denial of a defense motion to subject the three minor victims to a psychological examination by an expert selected by the defense.We have concluded that Keeney's issues are without merit and that he was fairly tried and convicted.We therefore affirm.

FACTS

In November, 1989, Keeney befriended a family consisting of the three minor victims, their younger sibling and their parents ¹ as they were enroute to Las Vegas.Later in the same month, Keeney visited the family in Las Vegas and stayed with them in their motel room.While there, Keeney bestowed gifts upon the family, particularly the children.

After Keeney left on November 29, 1989, three of the four children, who were then 12, 10 and 9 years of age (hereafter victims # 1, # 2 and # 3, respectively), disclosed to their parents that Keeney had sexually molested them.The Henderson Police Department was notified and the children were taken to the hospital.A physical examination confirmed that the children were recent victims of sexual abuse.

Keeney was located in El Paso, Texas, arrested and returned to Nevada.He was charged with seven counts of sexual assault and one count of lewdness with a minor.

Each of the victims testified at trial.Victim # 2 described the painful assault he suffered on the first night of Keeney's stay.He recounted that while everyone was sleeping, Keeney, who shared a bed with him and his younger brother(fortunately, a non-victim), positioned himself next to Victim # 2 and fondled him.Keeney then penetrated Victim # 2 anally with his penis.

Victim # 1 and Victim # 3 testified that they were assaulted on the second night, while the children were alone with Keeney.Victim # 1 testified that after her parents had gone, Keeney approached her and began touching her.He then led the twelve-year-old child into the bathroom, where he sexually assaulted her.Victim # 1 further testified that at various times during the course of that night, Keeney inserted his penis and his finger into her vagina.Keeney also took Victim # 3 into the bathroom where he sexually assaulted her.The nine-year-old victim testified that Keeney also touched her "private spot" with his tongue.Victim # 3 said she observed Keeney attempt to do the same to Victim # 1, who resisted him.Additionally, Victim # 2 testified that he saw his sisters struggle with Keeney and go with Keeney into the bathroom.Finally, the children's testimony was corroborated by the medical evidence presented by the prosecution.

The jury returned a guilty verdict against Keeney on six ² counts of sexual assault and one count of lewdness with a minor.Keeney was sentenced to six consecutive life terms with the possibility of parole, plus ten years on the lewdness conviction.

DISCUSSION

Keeney contends that the district court committed prejudicial error by: (1) denying Keeney's motion for a physical and psychological examination of the victims; (2) admitting evidence of prior sexual misconduct; and (3) denying Keeney's motion to dismiss based upon the destruction of evidence by the Henderson Police Department.Keeney also complains of misconduct by the State in introducing evidence of prior sexual misconduct by Keeney that should have been excluded by the district court.Finally, Keeney insists that the evidence adduced at trial was insufficient to sustain his convictions for sexual assault.

Physical and Psychological Examination

Prior to trial, Keeney filed a motion to have the child-victims examined psychologically and physically.The motion was motivated by defense counsel's belief that such a motion was required under Warner v. State, 102 Nev. 635, 729 P.2d 1359(1986).The district court denied the motion, reasoning that Warner did not require defense counsel to move for physical and psychological examinations in all cases involving minor victims of sexual assault.The trial court also concluded that a physical examination occurring almost one and one-half years after the assaults would accomplish nothing, and that a psychological examination was unnecessary given the extent of the medical evidence.Defense counsel made no argument to the contrary at the time.

On appeal, Keeney advances a different reason for having sought a psychiatric expert.He now asserts that his primary basis for seeking the examinations concerned the method by which the testimony of the complaining witnesses was elicited by the Henderson Police Department and the Deputy District Attorney.Keeney contends that the denial of his motion to subject the victims to psychological and physical examinations deprived him of a fair trial since he was therefore unable to examine the victims for truthfulness and veracity and for any evidence of the alleged sexual assaults.Generally, on appeal defendant may not change the theory of his or her position from that asserted in the trial court.McCall v. State, 97 Nev. 514, 516, 634 P.2d 1210, 1212(1981).Given the importance of the issue in this case and future cases, however, we elect to consider the issue.

Generally, a psychological examination of a sexual assault victim should be permitted if the defendant has presented a compelling reason therefor.Washington v. State, 96 Nev. 305, 307, 608 P.2d 1101, 1102(1980).A compelling reason exists where the corroborating evidence is de minimus or nonexistent, and the defense has a reasonable basis for questioning the effect of the victim's mental state on his or her veracity.Washington, 96 Nev. at 307, 608 P.2d at 1103;see alsoWarner, 102 Nev. at 637, 729 P.2d at 1360-61(no evidence existed to corroborate the victim's allegations, leaving the outcome to depend primarily upon whether the jury believed the victim or the defendant), and Colley v. State, 98 Nev. 14, 17, 639 P.2d 530, 532(1982)(motion for a psychiatric examination of victim correctly denied where her testimony was amply corroborated and her mental state not subject to serious attack).

Conversely, where an issue is reasonably raised regarding the effect of the victim's emotional state on his or her veracity, and there is an absence of corroborating evidence, it is error to deny the defense a psychiatric expert witness.Lickey v. State, 108 Nev. 191, 827 P.2d 824(1992).In Lickey, the defendant was accused of sexually assaulting his granddaughter.No physical evidence of the assault was presented and the victim's accounts of the assaults were largely uncorroborated.This court was especially concerned about the child's description of an alleged vaginal digital assault by her grandfather while she was in the front seat of an automobile, sitting between the alleged perpetrator and her grandmother, who was driving the vehicle.The child, who was age seven at the time of the alleged assaults and age eight at the time of the trial, testified that her grandmother became very angry, pulled the car to the side of the road and began "slugging" her grandfather.Thereafter, stated the child, a police car arrived on the scene and a police officer engaged both of her grandparents in conversation in front of the grandparent's vehicle.

The grandmother (wife of Lickey, the alleged perpetrator) testified that no such event ever occurred, and that she did not scold or hit Lickey or talk to a police officer.The State did not produce the alleged percipient officer at trial.Moreover, the defense contended that the child's mother had a long-standing enmity toward her father, Lickey.We were persuaded that since the prosecution had raised the issue of the relationship between the victim's mental state and her veracity, Lickey should have been permitted to present expert testimony to the contrary.108 Nev. at 194, 827 P.2d at 825.Thus, we concluded that:

[U]nless competent evidence presents a compelling reason to protect the victim, it is error to deny a defendant the assistance of a defense psychologist or psychiatrist to examine the child-victim and testify at trial when the State is provided such assistance.

108 Nev. at 195, 827 P.2d at 826.

In so concluding, we were convinced that Lickey had satisfied the mandates of Washington, and presented a compelling reason why a psychological examination of the victim should be permitted.Therefore, we held that the district court should have afforded Lickey an opportunity to have the child examined, absent a showing by the State that a compelling reason existed to protect the child-victim.Id.

Our conclusion in Lickey was not intended to place the burden on the State to demonstrate a compelling reason for denying a psychological examination in every sexual assault case.Moreover, Lickey was never intended to create a simple equation (absent a compelling need to protect the child) granting a defendant the automatic right to have an alleged child-victim of sexual abuse examined by a defense psychiatrist or psychologist whenever the State has employed such experts.Such a mechanical balancing of the trial ledger would frequently subject children who are victims of sexual abuse to unfair, unnecessary trauma, and would constitute a needless and time-consuming expense unless the criteria enunciated in Washington exist.

The above-quoted language from Lickey is clarified to mean that it would be error to preclude a defendant from...