Newman v. State

• Citation: 298 P.3d 1171,129 Nev. Adv. Op. 24
• Decision Date: 18 July 2013
• Docket Number: No. 56151.,56151.
• Parties: Shawn Timothy NEWMAN, Appellant, v. The STATE Of Nevada, Respondent.
• Court: Supreme Court of Nevada

298 P.3d 1171

129 Nev. Adv. Op. 24

Shawn Timothy NEWMAN, Appellant,

v.The STATE Of Nevada, Respondent.

No. 56151.

Supreme Court of Nevada.

April 18, 2013.

Rehearing Denied May 10, 2013.

Reconsideration En Banc Denied July 18, 2013.

Jeremy T. Bosler, Public Defender, and Cheryl Bond, Appellate Deputy Public Defender, Washoe County, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Chief Appellate Deputy District Attorney, Washoe County, for Respondent.

BEFORE PICKERING, C.J., HARDESTY and CHERRY, JJ.

OPINION

By the Court, PICKERING, C.J.:

Appellant Shawn Newman appeals his conviction, on jury verdict, of one count of willfully endangering a child as a result of child abuse, a gross misdemeanor, and one count of battery by strangulation, a felony. The charges grew out of an incident in which Newman yelled at his son, Darian, in public; when Newman took off his belt to strike the boy, a witness, Thomas Carmona, tried but failed to stop him. Newman and Carmona fought until Newman grabbed Carmona's neck to choke him into submission. At trial, Newman admitted these facts and that he acted intentionally. His defense was justification: parental discipline privilege as to the child abuse charge; and, to some extent, self-defense as to the battery charge.

Newman raises two issues on appeal, both rooted in NRS 48.045's prohibition against using character or prior-bad-act evidence to prove criminal propensity. First, the prosecution introduced evidence that Newman had struck his other son, Jacob, in public and that Newman got into a heated argument with nursing staff about Jacob while Darian was hospitalized for an appendectomy. The district court deemed this evidence admissible under NRS 48.045(2) to show absence of mistake or accident as to the child abuse charge. Second, the prosecution presented a surprise rebuttal witness, Connie Ewing, who reported that she, too, had a heated but nonphysical exchange with Newman over his disciplining a young boy outside a local Walmart. The district court allowed this testimony as rebuttal under NRS 48.045( l )(a) and NRS 48.055, to rebut Newman's testimony that he strangled Carmona in self-defense. ¹

Evidence of one of the episodes involving Jacob was properly admitted to refute Newman's claim of parental privilege. The other episodes involving Jacob were not proven by clear and convincing evidence, as required by our case law, and it was an abuse of discretion to admit the Ewing testimony. Nonetheless, Newman's guilt was established by his own admissions and overwhelming evidence. We therefore conclude that the errors were harmless and affirm.

I.

A.

The incident underlying this appeal occurred on September 14, 2009. At the time, Newman was a single father raising two sons: twelve-year-old Darian and six-year-old Jacob. Darian had started middle school the previous week. Jacob's day care opened at 7 a.m. and Darian needed to be to middle school by 7:30 a.m. The family's apartment was close to both. Darian had recently gotten a bike with gear-speeds. The plan was for Darian, who felt uncomfortable riding double with Jacob, to walk Jacob and the bicycle to Jacob's day care and to ride from there to middle school. The timing was tight and the first week this plan did not work out. One day, Newman went looking for Darian along what he thought was his route but could not find him. Another day, Darian got lost and was tardy.

Six weeks earlier, in late July, Darian had been hospitalized for appendicitis. A secondary infection developed that extended his hospital stay to 19 days. The wound was dressed, not sutured closed, meaning it had to be cleaned and the dressing changed daily while the open incision healed. On September 14, the wound had mostly closed but still required daily dressing, which Newman attended to.

On the day of the incident, Newman followed Darian in his truck to see his son's exact route. All went well until Darian, who had his new bike in third gear, could not make it up a hill. Newman got out of his truck, put and rode the bike in lower gear to show Darian how the gearing worked, and then held the bike for Darian to try. For whatever reason—Newman testified he saw Darian deliberately slip his foot off the pedal, while Darian told a responding officer he was tired and his stomach hurt—Darian did not succeed, even in the lower gear. Admittedly angry, Newman started yelling at Darian. He gave Darian an ultimatum: ride the bike up the hill or be spanked. Darian let go of his bike, went to a low wall nearby, and bent over to be spanked.

From his home across the street, Thomas Carmona heard the commotion and saw Newman take off his belt. Carmona ran over to stop him from striking the boy. They argued over Newman's right to physically discipline his child and then fought. The fight did not end until Newman pinned Carmona to the ground in a stranglehold. Carmona and Newman accused each other of throwing the first blow. Newman is bigger than Carmona and, unlike Carmona, looked none the worse for wear after their fight. Carmona and another eyewitness described Newman as in a rage and Darian as crying uncontrollably. One witness testified that Darian said his father terrified him.

When the police arrived, they found a red welt on Darian's buttocks, which they photographed. They also photographed Darian's abdominal bandage and healing incision. Paramedics examined Darian and Carmona but did not take either to the hospital. Carmona's Adam's apple was sore and it hurt to swallow for some days afterward.

B.

Trial took four days. The prosecution presented its case-in-chief through eyewitness, responding officer, and expert medical testimony without using any prior-bad-act evidence. After the prosecution rested, the district court advised Newman of his right to testify in his own defense. The prosecution warned that it would explore prior bad acts if Newman testified that parental privilege justified his discipline of Darian.

The district court then heard from the lawyers on the prior-bad-act issue. No testimony was presented; the lawyers argued from a child protective services (CPS) report that the appellate record does not include. The transcript reveals that the CPS report lists two of the three incidents involving Jacob as “information only” under a heading, “unsubstantiated reports,” and that the police investigated one of the incidents but could not verify it. Despite this, the district court determined that the following incidents were established by clear and convincing evidence and could be used by the prosecution if Newman testified: (1) Newman hit Jacob in November 2006, February 2009, and late July or early August 2009 when Darian was in the hospital; and (2) Newman had an ugly verbal run-in with hospital staff during Darian's stay. Although the court deemed this evidence more probative than prejudicial, it did not identify a permissible nonpropensity purpose for admitting it until later in the trial, when it held that the evidence tended to show absence of mistake or accident as to the child abuse charge.

Newman elected to testify. His direct-examination testimony hewed close to the events of September 14. He gave background concerning Darian's appendectomy and recuperation and explained why he followed Darian by truck instead of just driving him to school that day. He admitted that he gave Darian the choice of riding up the hill or being spanked; that he struck Darian on the buttocks with his belt, raising a welt; and that he fought with Carmona and put him in a stranglehold when Carmona would not back off. Finally, Newman testified that Carmona attacked him, not the reverse. He conceded being angry and loud but denied being out of control.

On cross-examination, the prosecution asked Newman about the hospital incidents in late July/early August 2009. Newman admitted that he “smacked” Jacob on the back of the head for bouncing on Darian's bed and that he eventually got into such a heated argument with hospital staff over Darian's care and his and Jacob's use of a break room that he was told to leave and not come back. The prosecution had Newman acknowledge that he “grew up on the streets,” is “on the hard side,” and can be perceived as “an aggressive, loud, obnoxious kind of person.” He said, “I don't hide anything I do. I will spank my children in public as I will in private.” Newman described his progressive discipline of his sons, ranging from raised voice, to corner time, to spanking. He also described the special tutoring he had arranged for Darian and later Jacob at the University of Nevada Reno and expressed pride in Darian's reading level. When the prosecution asked Newman about the November 2006 and February 2009 incidents with Jacob mentioned (but not substantiated) in the CPS report, Newman said he did not recall either.

The defense then called the psychologist who counseled Darian after the charges in this case led to Darian and Jacob being removed from Newman's care. The psychologist characterized Newman's parenting style as between “authoritarian” and “autocratic” but also opined that Darian and Newman had “a fairly normal parent/child relationship.” He testified that he had no qualms when Darian and Jacob were returned to Newman's care shortly before trial.

After the defense rested, the prosecution alerted the court and the defense counsel to Connie Ewing, who came forward after reading about the case in the newspaper. She related an incident involving a stranger she now recognized as Newman yelling and hitting a boy outside Walmart in early September 2009. When she demanded that he stop, Newman told her to “mind [her] own f#$ ng business.” Ewing went inside to complain to the Walmart greeter and then security and Newman followed. Two security guards flanked Ewing while she and Newman argued about single parenting and appropriate discipline. No physical contact...