Rembert v. State, 17752

• Citation: 766 P.2d 890,104 Nev. 680
• Decision Date: 21 December 1988
• Docket Number: No. 17752,17752
• Parties: Ranzy Cleo REMBERT, Appellant, v. The STATE of Nevada, Respondent.
• Court: Supreme Court of Nevada

Page 890

766 P.2d 890

104 Nev. 680

Ranzy Cleo REMBERT, Appellant, v. The STATE of Nevada, Respondent.

No. 17752.

Supreme Court of Nevada.

Dec. 21, 1988.

Frank J. Cremen, Las Vegas, for appellant.

Brian McKay, Atty. Gen., Carson City, Rex A. Bell, Dist. Atty., James Tufteland, and Mel Harmon, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

PER CURIAM:

A jury convicted appellant Ranzy Cleo Rembert of one count each of battery with intent to commit a crime and sexual assault. He now appeals from the district court's judgment of conviction and alleges three assignments of error. According to appellant, the evidence adduced at trial was insufficient to support his conviction, the district court erred in refusing to declare a mistrial, and the district court erred in permitting the prosecution to present improper impeachment evidence. For the reason set forth below, we reverse and remand for a new trial.

THE FACTS

On May 14, 1985, the State, by information, charged appellant with five counts of sexual assault and two counts of battery with intent to commit a crime. Although the victim alleged numerous instances of sexual assault by appellant continuing from the time that she was in the first grade, the information charged only those acts, allegedly committed between November 29, 1981 and July 5, 1982, that she could recall with particularity. The two counts of which the jury found appellant guilty were said to have occurred on July 5, 1982, when the victim was fourteen years of age.

The victim testified that on July 5, 1982, she and her half-sister, appellant's daughter Alisha, were watching television when appellant appeared in the nude and directed her to gather up some soiled towels located in an upstairs bathroom. She testified further that she refused to follow appellant's direction and that he left momentarily, but returned carrying an electrical extension cord. A struggle ensued during which appellant allegedly struck the victim repeatedly with the extension cord and then forced her into an upstairs bedroom where he sexually assaulted her.

Appellant denied ever striking the victim and any sexual misconduct. The defense's theory was that Barbara Cooper, the victim's mother, instigated the prosecution as a means of obtaining exclusive ownership of the home in which she and appellant had cohabited.

SUFFICIENCY OF THE EVIDENCE

Appellant correctly concedes that the uncorroborated testimony of a sexual assault victim is sufficient to sustain a conviction for that charge. See Deeds v. State, 97 Nev. 216, 626 P.2d 271 (1981). He contends, however, that abundant circumstances exist that render the victim's testimony unbelievable. In support of his position, appellant cites State v. Diamond, 50 Nev. 433, 264 P. 697 (1982), where we suggested that circumstances could exist in a sexual assault case that would be sufficient, as a matter of law, to render the complaining witness's testimony incredible. Id. at 437, 264 P. at 698-99. Appellant argues that the failure of anyone to detect the alleged continuous sexual abuse, coupled with Barbara Cooper's testimony on cross-examination that she seldom left the children with appellant, as well as Barbara Cooper's ulterior motive of obtaining exclusive possession of the parties' home are sufficient to destroy the credibility of the victim's testimony. We disagree.

The foregoing were matters for the jury's deliberation in assessing the weight of the evidence and the credibility of the witnesses. Washington v. State, 96 Nev. 305, 608 P.2d 1101 (1980). We are not convinced that it was unreasonable for the jury to accept the victim's testimony as true and to reject appellant's theory of defense. See Hunt v. State, 92 Nev. 536, 554 P.2d 255 (1976). We conclude, therefore, that the victim's testimony was not incredible as a matter of law.

DENIAL OF MISTRIAL MOTION

Appellant next contends that the district court erred in denying his motion for a mistrial. Appellant based the motion on his inability to meaningfully cross-examine the victim's half-sister, Alisha, and what he perceived as the prejudicial impact of Alisha's demeanor before the jury.

We need not reach this issue because, as hereinafter set forth, we must reverse for a new trial because of the introduction of improper impeachment evidence. At a new trial, problems relating to the cross-examination of Alisha will not necessarily recur. We trust the State will refrain from placing her on the witness stand in the future, if it appears she will again refuse to testify and to be cross-examined on material matters.

IMPROPER IMPEACHMENT EVIDENCE

Finally, appellant contends that the district court erred in permitting the prosecution to impeach his credibility on a collateral matter with extrinsic evidence. Appellant argues that the district court's decision to admit the extrinsic evidence was contrary to NRS 50.085(3), ¹ and that the resulting prejudice was sufficient to deny him a fair trial. We agree.

In an effort to show that he lacked the opportunity to commit the alleged acts, appellant presented evidence of his continuous employment history. Appellant testified that during one period he worked as a limousine driver. On cross-examination, the prosecution asked why appellant discontinued that employment. Appellant...