Koerschner v. State

• Decision Date: 04 December 2000
• Docket Number: No. 30881, 30976.,30881, 30976.
• Citation: Koerschner v. State, 13 P.3d 451, 116 Nev. 1111 (Nev. 2000)
• Parties: Allen KOERSCHNER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

13 P.3d 451

116 Nev. 1111

Allen KOERSCHNER, Appellant, v.The STATE of Nevada, Respondent.

No. 30881, 30976.

Supreme Court of Nevada.

December 4, 2000.

Christopher R. Oram, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Douglas W. Herndon, Deputy District Attorney, Clark County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

MAUPIN, J.:

A jury found appellantAllen Koerschner guilty of two counts of sexual assault upon the person of a minor.Koerschner seeks reversal of the judgment of conviction entered upon the jury verdicts because the district court erroneously denied Koerschner's request for an independent psychological examination of the child-victim, found the child-victim competent to testify, admitted evidence of prior consistent statements of the child made to medical providers in connection with one of the alleged assaults, allowed the case to proceed to trial on charges that were not sufficiently pleaded, refused to admit evidence of instances of dishonesty of the child-victim on the issue of motive, and refused to admit evidence of prior sexual abuse of the child-victim by a third party.

FACTS

Allen Koerschner and his spouse took custody of their nine-year-old niece following the death of her mother.On May 2, 1992, the niece was admitted to a Las Vegas hospital with severe bleeding from the area of her cervix.She initially advised hospital personnel that the bleeding was caused by a fall down a flight of stairs.

Gema Reynolds, a nurse trained in sexual assault cases, was the first person to examine the child.No bruises, scratches, abrasions, or lacerations were identified.Concluding that the injury was not consistent with a fall, Nurse Reynolds undertook further questioning.The child then described a sexual assault, which she claimed was perpetrated by Koerschner.

Subsequent examination by Dr. Donald Roberts revealed the absence of a hymenal ring and a four centimeter laceration of the victim's vaginal wall.Dr. Roberts noted that the lack of a hymenal ring and the necessity of using an adult-sized speculum to conduct the examination were unusual for a nine-year-old female.He then concluded that the injury was not caused by a fall.

On March 18, 1996, the State filed a second amended information charging Koerschner with three counts of sexual assault upon the person of a minor under the age of fourteen years.¹The three counts referred to separate incidents that took place during 1990, 1991 and 1992.Specific dates for the 1990 and 1991 incidents were not alleged.

At trial, the child described acts of sexual intercourse commencing in September of 1990, shortly after she moved into the Koerschner home, and further acts that occurred over time during 1991 and 1992.She testified that on May 2, 1992, Koerschner told her to enter his bedroom, remove her clothes and lie down on the bed.She then described a painful act of intercourse that resulted in severe bleeding.Ultimately, when the bleeding continued, Koerschner sought medical treatment for her.According to the child, while en route to the hospital, Koerschner told her to tell the hospital staff that she had fallen down the stairs.A jury ultimately found Koerschner guilty of two counts of sexual assault upon the person of a minor under the age of fourteen years.The district court sentenced Koerschner to consecutive terms of life in the Nevada State Prison with the possibility of parole after service of ten years on each count.Koerschner appeals.

DISCUSSION

Independent psychological examination of the victim

Koerschner contends the district court erred in denying his application for a psychological examination of the victim.This issue requires us to revisit and reconcile our prior authority on this subject.SeeMarvelle v. State,114 Nev. 921, 966 P.2d 151(1998);Griego v. State,111 Nev. 444, 893 P.2d 995(1995);Keeney v. State,109 Nev. 220, 850 P.2d 311(1993);Lickey v. State,108 Nev. 191, 827 P.2d 824(1992);Washington v. State,96 Nev. 305, 608 P.2d 1101(1980).

In Marvelle, Griego, Keeney, Lickey and Washington, this court considered the extent of discretion held by district courts of this state to grant or deny independent psychological or psychiatric evaluations of child-victims in sexual assault cases, where independent corroboration of the alleged offense is either marginal or is lacking altogether.

In Washington,we stated that trial courts should order a psychiatric examination of a child-victim if the defendant presents a compelling reason for such an examination.Under Washington, no compelling reason exists "unless there is little or no corroboration of the victim's allegations and the defense has questioned the effect of the victim's emotional or mental condition upon her veracity."Washington,96 Nev. at 307, 608 P.2d at 1102.²

This court held in Lickey that, unless competent evidence presents a compelling reason to protect the victim, a defendant in a child sexual assault case is entitled to have the victim undergo an independent examination when the State is provided such assistance.In Lickey,the prosecution's evidence consisted almost entirely of the child-victim's testimony, and the victim had been interviewed numerous times by the State's experts.Lickey,108 Nev. at 194, 827 P.2d at 826.

In Keeney,we reaffirmed the proposition that a decision to grant a psychological examination of a victim is within the sound discretion of the district court and will not be set aside absent an abuse of discretion.Keeney,109 Nev. at 227, 850 P.2d at 316.Under Keeney, whether an abuse of that discretion has occurred is tested in connection with four factors:

[I]t would be error to preclude a defendant from having an alleged child-victim examined by an expert in psychiatry or psychology if: (1)the State has employed such an expert; (2) the victim is not shown by compelling reasons to be in need of protection; (3) evidence of the crime has little or no corroboration beyond the testimony of the victim; and (4) there is a reasonable basis for believing that the victim's mental or emotional state may have affected his or her veracity.

Id. at 226, 850 P.2d at 315.The articulation of the second factor in Keeney arguably shifted the burden in these matters from the defendant to the State.Certainly, in Washington,this court stated the test in terms of whether the defendant has presented a compelling need for such an examination.Under Keeney, the second factor seems to place the onus on the State to show a compelling need for protection of the victim if the other factors are present.

In Griego,we held that, "absent an affirmative, compelling showing by the State that the alleged victim is in need of protection, the second Keeney factor favors examination of the alleged victim by a mental health expert employed by the defendant."Griego v. State,111 Nev. 444, 450, 893 P.2d 995, 999(1995).This statement underscores the argument that Keeney shifted the burden from the defendant to the State in such cases.In Marvelle,the State, although representing that it was not going to call any psychological experts, elicited some evidence from witnesses, mainly counselors who were not qualified to testify as experts, regarding the consistency of the child-victim's behavior.The majority in Marvelle concluded that the psychological status of the victim was at issue and that there was very little reason to afford protection from such an examination.The majority also, at least arguably, implied that district courts must give equal weight to all four Keeney factors when it held that two of the factors were erroneously applied— whether an expert would be called to testify by the State and whether the victim's mental or emotional state may have affected her veracity.Marvelle v. State,114 Nev. 921, 928, 966 P.2d 151, 155(1998).The dissent in Marvelle criticized the majority, indicating that district courts must weigh the factors based upon the facts and circumstances surrounding each case.The dissent went on to observe that, while all of the Keeney factors should be considered, the district courts should have the discretion of giving more weight to any one of them.Id.114 Nev. at 933,966 P.2d at 158(Shearing, J., dissenting).

The primary source of ambiguity in our decisions in these cases centers on the second Keeney factor, i.e., whether the victim is not shown by compelling reasons to be in need of protection.SeeGriego,111 Nev. at 450, 893 P.2d at 999.We now conclude that, to the extent Keeney shifted the burden in these matters from the defendant to the State, it should be overturned.In this, we return to the statement in Washington that "[t]he trial judge should order an examination if the defendant presents a compelling reason for such an examination."Washington v. State,96 Nev. 305, 307, 608 P.2d 1101, 1102(1980).We now also hold that whether a compelling need exists for such an intrusion is not a factor to be considered along with the other three factors.Rather, it is the overriding judicial question which must be resolved based upon the other three factors.³Thus, compelling reasons to be weighed, not necessarily to be given equal weight, involve whether the State actually calls or obtains some benefit from an expert in psychology or psychiatry, whether the evidence of the offense is supported by little or no corroboration beyond the testimony of the victim, and whether there is a reasonable basis for believing that the victim's mental or emotional state may have affected his or her veracity.⁴

Applying these considerations to the facts of this case, we conclude that Koerschner failed to prove a compelling need for the examination he seeks.Most importantly, the State presented ample corroboration of the victim's testimony to support the charges against Koerschner,...