Rose v. State

• Decision Date: 26 July 2007
• Docket Number: No. 44398.,44398.
• Citation: 163 P.3d 408
• Parties: Jeff N. ROSE, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

163 P.3d 408

Jeff N. ROSE, Appellant, v. The STATE of Nevada, Respondent.

No. 44398.

Supreme Court of Nevada.

July 26, 2007.

Philip J. Kohn, Public Defender, and Howard S. Brooks, Deputy Public Defender, Clark County, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Craig L. Hendricks, Deputy District Attorney, Clark County, for Respondent.

Before GIBBONS, DOUGLAS and CHERRY, JJ.

OPINION

By the Court, CHERRY, J.

Appellant Jeff Rose was convicted of twenty counts of sexual assault on a minor under the age of fourteen based on conduct involving one of his minor daughter's friends. Rose argues that his conviction was not supported by sufficient evidence and that the district court abused its discretion by refusing his proposed jury instruction that the victim must testify with "some particularity" regarding each charge. We conclude that Rose's arguments are without merit and that the child-victim's testimony that the charged incidents occurred every weekend or nearly every weekend during a particular extended time period, along with her description of the conduct, provided sufficient particularity to support the twenty charges of which Rose was convicted.¹

Rose also argues that (1) his due process rights were violated by the exclusion of evidence, (2) the district court abused its discretion by denying his motion for a continuance, (3) his due process rights were violated by the use of allegedly false evidence, (4) the State improperly introduced polygraph evidence, (5) his right to be present at all critical stages was violated, (6) the State committed prejudicial prosecutorial misconduct, and (7) cumulative error requires reversal. We conclude that Rose's arguments are without merit, and we therefore affirm the judgment of conviction.

FACTS

The State charged Rose in an amended information with twenty counts of sexual assault of a minor under the age of fourteen and twenty counts of lewdness with a minor under the age of fourteen, based on conduct involving two young girls — C.C. and A.C. A jury found Rose guilty of the sexual assault charges and acquitted him of the lewdness charges. Rose now appeals from the judgment of conviction.

The Rose family moves to Las Vegas and meets the victim's family

In November 1999, Rose and his wife Karen moved to Las Vegas with their two children—a ten-year-old son and a six-year-old daughter. The Roses' son became friends with a schoolmate named J.J., who had two younger sisters—seven-year-old C.C. and five-year-old A.C. The Rose's daughter, J.R., became friends with C.C. and A.C. Over the next several years, from late 1999 to 2002, C.C. and A.C. spent the night at the Roses' house almost every weekend and sometimes stayed there the entire weekend. Two other girls, D.A. and Z.V., who were friends with C.C, A.C, and J.R., also spent the night at the Roses' house on occasion.

The initial accusations against Rose

In July 2002, the four girls accused Rose of molesting them when they spent the night at the Roses' house. Specifically, C.C, A.C, D.A., and Z.V. told D.A.'s mother that Rose had touched their genital areas with his fingers and tongue. Following an investigation, the State initially charged Rose with thirty counts of sexual assault of a minor under the age of fourteen and thirty-six counts of lewdness with a child under the age of fourteen. The case proceeded to trial in January 2004, with Rose representing himself. The jury acquitted Rose on all charges involving D.A. and Z.V., but the jury could not reach a verdict on the charges involving C.C. and A.C. Thereafter, the State continued to pursue the charges involving C.C. and A.C. In an amended information, the State charged Rose with twenty counts of sexual assault of a minor under the age of fourteen and twenty counts of lewdness with a minor under the age of fourteen. All but ten of the counts involved C.C.

The evidence presented at the second trial

C.C. was twelve years old at the time of the second trial. She testified that during the relevant period she spent one or more nights each weekend at the Roses' house. She stated that on these occasions, Rose would touch her in places that she did not want to be touched. She specified that Rose touched her on her vagina with his finger and his tongue. C.C. testified regarding the time of night Rose would touch her, the rooms in the house where the incidents occurred, and how she was dressed. She also described the manner in which Rose would touch her with his fingers and tongue. Although C.C. could not specifically say how many times Rose touched her in a sexual manner, she testified that it happened "[a] lot" and that, other than the approximately seven months that Rose was away in the Navy, it happened every time she spent the night at the Roses' house between late 1999 and the middle of 2002. She testified more specifically that Rose touched her vagina with his fingers on more than ten occasions and with his tongue on more than ten occasions.

A.C. was nine years old at the time of the second trial. She testified that she and her sister spent the night at the Roses' house many times. She testified that Rose touched her vagina with his finger on more than ten occasions, but she could not provide details about the incidents including whether the touching occurred outside or inside of her clothes. A.C. indicated that she only "[k]ind of" remembered what happened and that the incidents happened while she was asleep or half-asleep. She acknowledged that she had told a detective that Rose had touched her vagina with his tongue; however, she also acknowledged that she had not testified in any of the prior proceedings that he did so, and did not remember "quite well" whether he had done so. In addition to testifying about how Rose touched her, A.C. testified that she saw Rose touch her sister C.C.'s vagina on one occasion.

The State also presented evidence regarding statements Rose made during an interview with Gordon Moore, an investigator with the Nevada Division of Investigations, shortly after the initial allegations were reported in July 2002.² Moore testified that the interview focused on C.C.'s allegations because she had provided the clearest and most detailed descriptions of what Rose had done. Rose indicated to Moore that he was scared, and he denied the allegations. Moore testified that in his experience interviewing individuals accused of sexual abuse, such denials were not uncommon, and he therefore continued with the interview. During the course of the interview, Rose eventually offered possible explanations for C.C.'s accusations. In particular, Rose discussed with Moore two incidents that might explain C.C.'s accusations.

The first incident involved Rose putting powder on C.C.'s genital area at her request. According to Moore, Rose explained that on that particular occasion, C.C. and J.R. called him into J.R.'s room after they had been swimming and he entered the room to find them lying naked on J.R.'s bed. J.R. complained of a rash on her genital area and asked Rose to put powder on the rash. C.C. then asked Rose to do the same to her. Rose indicated that he was reluctant to do so because C.C. was not his daughter, but C.C. persisted and so he complied. Rose initially indicated that he sprinkled the powder on C.C. without touching her, but he later indicated in response to Moore's questions that he may have touched her while applying the powder. Rose commented that he felt dirty about the incident because C.C. was not his daughter.

The second incident involved C.C. climbing into Rose's bed while he was asleep and rubbing her vagina on his hand. According to Moore, Rose explained that C.C. and J.R. were asleep at the end of his bed when he woke up to find that C.C. had climbed in bed with him and was rubbing her vagina against his hand. He explained that when he realized what was happening he pulled his hand away and told C.C. to get out of the bed and sleep on the floor.

Despite Rose's statements about these two incidents, Moore acknowledged that Rose continuously and adamantly stated that he never touched C.C. with sexual intent. It appears that neither of the incidents described by Rose formed the basis for the charges against him. And J.R. and C.C. denied that either incident ever occurred. Additionally, shortly after his interview with Moore, Rose told Las Vegas Metropolitan Police Detective Kristin Meegan that he should not have made the statement about the second incident. At trial, Rose denied that either incident he described to Moore ever occurred, claiming that he made them up to satisfy Moore and to get Moore off of his back. The district court also admitted Rose's testimony from the first trial in which he denied making the statements to Moore.

Rose testified at trial and generally denied all of the allegations. He also testified that in September 2001 he joined the Navy and was not in Las Vegas. He further testified that he did not return to Las Vegas until he was medically discharged in March 2002 after he fractured his leg.

Karen, Rose's wife, also testified on Rose's behalf. She explained that she had never seen Rose touch A.C. or C.C. inappropriately. She also testified that she would have known if Moore had left their bed during the night because he yelled out when he moved due to the pain from his injured hip. However, she also testified that she had significant hearing loss that required her to wear hearing aids and that she did not always wear them. Rose's son also testified to the difficulty Rose had moving and sitting after he returned home from the Navy.

At the conclusion of the trial, the jury found Rose guilty of the twenty counts of sexual assault involving C.C. and acquitted him of the lewdness charges involving C.C. and all charges involving A.C. The district court then sentenced Rose to serve...