Levi v. State, 11384

• Decision Date: 09 November 1979
• Docket Number: No. 11384,11384
• Parties: John Neil LEVI, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 189

602 P.2d 189

95 Nev. 746

John Neil LEVI, Appellant, v. The STATE of Nevada, Respondent.

No. 11384.

Supreme Court of Nevada.

Nov. 9, 1979.

Jeffrey D. Sobel, Las Vegas, for appellant.

Robert J. Miller, Dist. Atty., H. Douglas Clark, and James N. Tufteland, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

THOMPSON, Justice:

A jury convicted Levi of child abuse resulting in substantial bodily harm. ¹ The legislature has defined substantial bodily harm for the purposes of criminal penalty as meaning (1) bodily injury which creates a substantial risk of death, or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ, or (2) prolonged physical pain. NRS 193.015.

In this case evidence was received from which the jury properly could conclude that Levi willfully held his eight-year-old son over burning papers causing first and second degree burns to the boy's stomach and hand. The primary claim of error is that the state failed to prove that the burns constituted substantial bodily harm. Accordingly, we are asked to modify the felony conviction to that of a gross misdemeanor. Other errors also are assigned and will be considered.

1. Although it is true that the burns to the boy's stomach and hand did not create a substantial risk of death, protracted loss or impairment of a bodily member or organ, or prolonged physical pain, there was sufficient evidence offered to enable the jury to find a serious permanent disfigurement. Indeed, a doctor testified that the disfigurement was permanent, and could be cosmetically serious, if not functionally so. In our view, the phrase, "serious permanent disfigurement," includes cosmetic disfigurement as well as an injury that is functionally disabling. The child did not want the jurors to see his burned stomach because it was different. The damage apparently was serious in his mind. He was permanently scarred because of pigment loss. It was the jury's province to determine whether the harm was serious as well as permanent. Gibson v. State, 95 Nev. 99, 590 P.2d 158 (1979). We perceive no error in its determination.

2. During trial, Darin, the eight-year-old son who was burned, and Michele, his nine-year-old sister, repudiated statements each had given at the preliminary examination to the effect that their father had lit a piece of paper in the kitchen sink and held Darin over the flames. Such prior inconsistent statements were received as substantive evidence pursuant to NRS 51.035(2)(d). ² It is asserted that the reception of such statements as evidence of the truth of the matters stated therein as opposed to admission for impeachment only is not constitutionally adequate.

The same contention was tendered to the United States Supreme Court and, by that Court, rejected. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The California Supreme Court had ruled that the confrontation clause precluded the introduction at trial of prior inconsistent statements made at a preliminary hearing, under oath by an adequately counseled defendant. People v. Green, 70 Cal.2d 654, 75 Cal.Rptr. 782, 451 P.2d 422 (1969). In reversing that determination the High Court held that the confrontation clause is not violated as long as the declarant is testifying as a witness at trial and is subject to full cross-examination. Moreover, the Court observed that where the prior statement was made under circumstances not significantly different from an actual trial, the statement is admissible wholly apart from the question whether the defendant had an effective opportunity for confrontation at the subsequent trial. We followed this observation in Sparkman v. State, 95 Nev. 76, 590 P.2d 151 (1979).

In this case the children were under oath and subject to cross-examination by defendant's counsel at the preliminary hearing and at trial. The prior inconsistent statements were admissible for all purposes pursuant to NRS 51.035.

3. Levi admitted to police officers that he had burned his son. Because such admissions were made, he now contends that the trial judge, on his own motion, was obliged to instruct the jury to disregard such admissions should they disbelieve the children's prior statements.

Only in exceptional circumstances need the trial court, sua sponte, give such a limiting instruction. For example, in Champion v. State, 87 Nev. 542, 490 P.2d 1056 (1971), the state conceded that a cautionary instruction concerning an addict-informer's testimony was central to the cause, and we found prejudice where no such instruction was given. We do not consider the instruction which Levi now insists should have been given to fall within the class that must be given sua sponte by the court. Gebert v. State, 85 Nev. 331, 454 P.2d 897 (1969). Indeed, supporting authority for his contention is not submitted.

Affirmed.

GUNDERSON, MANOUKIAN and BATJER, JJ., concur.

MOWBRAY, Chief Justice, dissenting:

The majority, by invoking the principle of "substantial evidence", places its imprimatur upon what I can characterize only as a gross miscarriage of justice. In its quest for a quantum of evidence to support the jury's finding that appellant had committed child abuse resulting in serious permanent disfigurement, the majority loses sight of "one of the most basic concepts of due process of the law," that a person may not be punished without evidence to support each and every element of the crime with which he is charged. Shuttlesworth v. City of Birmingham, 382 U.S. 87, 94-95, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965); Thompson v. City of Louisville, 362 U.S. 199, 204 and 206, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960).

In affirming the instant jury verdict, the majority declares that the record contains substantial evidence supporting a finding of permanent disfigurement and that, based upon this evidence, the jury could reasonably conclude that the permanent disfigurement was serious. That substantial evidence, according to the majority, consisted of a doctor's testimony that "the disfigurement was permanent." Ante at 190. The record, however, belies the existence of any such statement or of any other evidence of permanent disfigurement. And, after all, it is the record with which we are concerned on appeal. See, e. g., A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969); State v. Ah Mook, 12 Nev. 369 (1877). To the record I now turn.

At trial, the State called Dr. Grillot, one of the victim's examining doctors, and apparently the doctor referred to by the majority as a medical expert. Dr. Grillot testified that he had examined the child's burns on one occasion a few days after the burning incident and, at that time, he had not formed any opinion as to whether the child had incurred any permanent disfigurement. Moreover, Dr. Grillot added that even if he were to examine the child's burns at trial, he would not be able to give an opinion as to the permanent nature of any injury. Though the doctor did note that black children scar more readily than other children, because of possible pigment loss, he emphasized that he had not noticed any damage to the victim's pigment. No evidence was offered at trial to indicate or to imply that the child had, in fact, suffered a pigment loss or had incurred permanent scarring, discoloration, or disfigurement of any kind. Nor is there any indication, contrary to respondent's contention, that the jury was presented with a view of the child's stomach. ¹ The majority, however, reads Dr. Grillot's exculpatory testimony as a statement...