McNair v. State, No. 20127

Docket NºNo. 20127
Citation108 Nev. 53, 825 P.2d 571
Case DateJanuary 24, 1992
CourtSupreme Court of Nevada

Page 571

825 P.2d 571
108 Nev. 53
Kimble McNAIR, II, M.D., Appellant,
v.
The STATE of Nevada, Respondent.
No. 20127.
Supreme Court of Nevada.
Jan. 24, 1992.

Page 572

William H. Smith and Annette R. Quintana, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City; Rex Bell, Dist. Atty., and John P. Lukens, Deputy Dist. Atty., Clark County, Las Vegas, for respondent.

[108 Nev. 54] OPINION

PER CURIAM:

Appellant, Kimble McNair, a licensed physician specializing in obstetrics and gynecology, was convicted of six counts of sexual assault and sentenced to four consecutive and two concurrent life sentences. His victims were also his patients. McNair raises several issues on appeal, but most insistently contends that the evidence does not support a finding of lack of consent, an element essential to his convictions. Our review indicates that McNair was fairly tried and convicted. We therefore affirm.

[108 Nev. 55] The Facts

McNair, a graduate of Stanford University School of Medicine, was a solo practitioner in obstetrics and gynecology. Each of the assaults at issue occurred in McNair's medical offices during a period extending from 1984 through 1988 and were strikingly similar in the methods by which they were accomplished. The patients-victims testified that they were assaulted during the routine course of medical examinations conducted in McNair's examining room. The victims testified that McNair asked them to bend over a chair, or to squat in front of him, or he would bend them over by exerting pressure on the small of their backs. Unfortunately, the trusting patients discovered that they had unwittingly positioned themselves for an anal penile

Page 573

penetration by their physician. 1 The patients testified that McNair inserted his penis, or his finger and then his penis, into their recta while they were in the orchestrated positions of vulnerability. 2

A more detailed review of the facts surrounding the victim who triggered McNair's arrest is helpful to our legal analysis. On January 2, 1988, McNair completed a gynecological examination of Elizabeth, which included a breast, pelvic and rectal examination. During the latter exam, McNair wore a glove and used a lubricant. Elizabeth was dressed in a hospital-type gown open in the back. She had asked for this particular appointment and examination after noticing a dark discharge from her breast. McNair had been her trusted, treating gynecologist for well over a year. After this examination, she was relieved to find out that there was probably nothing seriously wrong. Impulsively, Elizabeth asked to hug her doctor. According to Elizabeth's testimony, McNair suggested that he check her again "to see if I hurt you." He thereafter put on another glove, and proceeded to move his finger in and out of her rectum. McNair then moved her to an examining table, positioned her over the table, inserted his penis into her anus, and ejaculated. Elizabeth did not push him away.

Immediately after leaving McNair's offices, Elizabeth called her therapist. After some reluctance, and repeated showers and baths, Elizabeth went to a rape crisis center and a hospital emergency room. The physical examination revealed no trauma. After further prodding, Elizabeth reported the assaults to the Las Vegas Metropolitan Police Department. The police fitted her with [108 Nev. 56] a body wire for her next visit to McNair's offices. During this visit, Elizabeth repeatedly confronted McNair about the assault. The record reveals that he insisted to her that nothing like this had happened before and that he was a happily married man of sixteen years. The record also reveals that McNair apparently sought to soften Elizabeth's antagonism toward him by emotionally suggesting that he was suicidal over the incident. 3

After McNair's arrest, other patients and victims voluntarily came forward to the police. Elizabeth was the only victim involved in the instant appeal who reported McNair's criminal conduct contemporaneously to law enforcement authorities. Two victims reported McNair's crimes to their therapists, who corroborated the victims' testimony at trial.

Legal Discussion

The standard of review in a criminal case is "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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984). The established rule is that it is the jury's function, not that of the court, to assess the weight of the evidence and determine the credibility of witnesses. Walker v. State, 91 Nev. 724, 726, 542 P.2d 438, 438-39 (1975). In a criminal case, a verdict supported by substantial evidence will not be disturbed by a reviewing court. Nix v. State, 91 Nev. 613, 614, 541 P.2d 1, 2 (1975); Sanders v. State, 90 Nev. 433, 434, 529 P.2d 206, 207 (1974).

The primary issue raised on appeal is whether the State met its requisite burden of proving that the sexual acts occurred without the consent of the victims. NRS 200.366. 4 McNair insists that where the

Page 574

victim is capable of understanding or resisting the sexual advances, there must be a demonstrable objective manifestation of protest which is reasonable under the circumstances. Our legal inquiry into the issue of nonconsent, an essential [108 Nev. 57] element of sexual assault, encompasses two aspects: (1) whether the circumstances surrounding the incidents indicate that the victims had reasonably demonstrated their lack of consent and (2) whether it was reasonable from the point of view of the perpetrator to conclude that the victims had manifested consent.

We initially note that Nevada's statute does not explicitly require the use of overt force as an element of sexual assault. Physical force is not a necessary element in the commission of the crime of rape. Dinkens v. State, 92 Nev. 74, 77, 546 P.2d 228, 230 (1976). 5 Our statute only requires the commission of the act of sexual penetration against the will of the victim. Id.

A rape victim is not required to do more than her age, strength, and the surrounding facts and attending circumstances would reasonably dictate as a manifestation of her opposition. Id. at 78, 546 P.2d at 230. In other words, whether the victim manifested opposition or did in fact consent, depends on the facts of the particular case.

Submission is not the equivalent of consent. Tryon v. State, 567 P.2d 290, 293 (Wyo.1977). While consent inevitably involves submission, submission does not inevitably involve consent. Id. Lack of protest by a victim is simply one among the totality of circumstances to be considered by the trier of fact. See State v. Thomas, 9 Wash.App. 160, 510 P.2d 1137, 1139 (1973).

The record in the instant case reveals that in almost every instance the victims had no opportunity to voice their consent or objection to McNair's assaults. When a physician succeeds in the penile penetration of a patient under the guise of performing a medical examination, a sexual assault is committed by fraud and deceit and without the victim's consent. See R. Perkins & R. [108 Nev. 58] Boyce, Criminal Law 1080 (3rd ed.1982). "In such cases the unlawful intercourse is rape for the very sufficient reason that it was without the woman's consent. 'She consented to one thing, he did another materially different....' " Id. (quoting The Queen v. Flattery, 2 Q.B.D. 410, 413 (1887)). Accord, 3 C. Torcia, Wharton's Criminal Law § 290 (14th ed.1980). See, e.g., Annot., Conviction of Rape or Related Sexual Offenses on Basis of Intercourse Accomplished Under the Pretext of, or in the Course of, Medical Treatment, 65 A.L.R.4th 1064 (1988 & Supp.1990).

We note approvingly that one court has persuasively stated that when a doctor has obtained sexual intercourse by means of fraud, legally recognized consent is negated:

It would indeed be a reproach upon our statute if a physician, under the pretense that it was necessary for a woman patient to submit to examination of her sexual organs in order to assist him in the diagnosis of her ailment, and under the pretense that it was necessary for her to expose her person and to assume a

Page 575

position which, at the same time, incidently afforded ready opportunity for sexual attack, could safely take advantage of her position and make an unexpected and uninvited sexual invasion of her person. If, under such circumstances, a physician takes such an unconscionable advantage of the woman's position, and, to her complete surprise, and without the slightest ground to assume that he has her consent, violates the trust and confidence imposed in him and perverts her position and his opportunity into an uninvited and cowardly attempt to gratify his lust, the force merely incident to penetration should be deemed sufficient force within the meaning of our rape statute.

People v. Borak, 13 Ill.App.3d 815, 301 N.E.2d 1, 4 (1973) (quoting State v. Atkins, 292 S.W. 422, 426 (Mo.1926)).

We hold that sufficient evidence of sexual penetration against the victim's will exists under Nevada's statute when the penetration is accomplished under a pretext of medical treatment and without the victim's foreknowledge or consent. Id., 301 N.E.2d at 5. Moreover, penetration occurs against the victim's will or without her consent when, for any reason, the victim is not in a position to exercise an independent judgment concerning the act of sexual penetration. 6 Wilson v....

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    ...prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). The State alleged that......
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    • United States
    • Nevada Supreme Court of Nevada
    • October 2, 2014
    ...of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). In doing so, we do not reweigh the evidence or determine credibility as those functions belong to the jury. McNai......
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500 cases
  • Walker v. Neven, Case No. 2:13-cv-01099-APG-VCF
    • United States
    • U.S. District Court — District of Nevada
    • June 5, 2018
    ...110 Nev. 103, 107-08, 867 P.2d 1136, 1139 (1994). "Circumstantial evidence alone may sustain a conviction." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 576 (1992).Evidence that Walker participated in the murder and robbery of Marble includes bloody footprints matching Walker's......
  • Watson v. State, No. 56721.
    • United States
    • Nevada Supreme Court of Nevada
    • October 2, 2014
    ...of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). In doing so, we do not reweigh the evidence or determine credibility as those functions belong to the jury. McNa......
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    • Nevada Supreme Court of Nevada
    • June 4, 2020
    ...any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). The State alleged that Belcher......
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