Sena v. State
| Citation | 510 P.3d 731 |
| Decision Date | 26 May 2022 |
| Docket Number | 79036 |
| Parties | Christopher SENA, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
Darin F. Imlay, Public Defender, and David Lopez-Negrete and William M. Waters, Chief Deputy Public Defenders, Clark County, for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Alexander Chen, Chief Deputy District Attorney, and Julia A. Barker, Deputy District Attorney, Clark County, for Respondent.
BEFORE THE SUPREME COURT, EN BANC.
Appellant Christopher Sena sexually and physically abused his own children and others for over a decade, sometimes with the help of his wife and ex-wife. He was convicted of 95 counts of various crimes related to these acts. In this opinion, we clarify our application of the statute of limitations to crimes involving the sexual abuse of children, and we conclude that the statute of limitations did not preclude any of the charges brought against Sena. The crimes associated with his daughter were not barred by the statute of limitations because they remained undiscovered under the law until she left the home. Additionally, the other crimes were not barred by the statute of limitations because they were conducted in a secret manner, and his wife's and ex-wife's knowledge of the crimes did not constitute discovery since each of them were acting in pari delicto with Sena.
This matter also presents us with a novel issue regarding the correct unit of prosecution for the crime of incest. Because the incest statute's language is ambiguous regarding the unit of prosecution, and the legislative history, our previous decisions, and public policy do not adequately clarify that ambiguity, under the doctrine of lenity, we conclude the unit of prosecution is per victim, not per instance. Thus, we vacate six of the nine incest convictions. We also vacate two counts of possession of visual presentation depicting the sexual conduct of a child based on a unit-of-prosecution analysis because the State pleaded multiple possession charges as having occurred at the same time, and we vacate one count of child abuse or neglect via sexual abuse because it is redundant to another count. We address Sena's other challenges on appeal below, and none of them warrants reversal. We remand this case for further proceedings consistent with this opinion.
Sena met his first wife, Terrie, in 1987, and they had their first child, AS, in May 1990. They married shortly thereafter. They had their second child, TS, in December 1994. Sena and Terrie divorced in 1997. Sena married his second wife, Deborah, in 1998, and they had their first child, BS, in August 1998. Sena and Deborah eventually moved in together, so that they and AS, BS, and TS all lived under one roof. Around the same time, in 1998, Terrie had another child, RS, with another man. Around RS's birth and while Sena and Deborah were still married, Sena rekindled a sexual relationship with Terrie. In 1999, Terrie and RS moved into Sena and Deborah's home, where AS, TS, and BS were also still residing.
Beginning at least as far back as when Terrie moved into Sena and Deborah's home, when AS was 9 years old, Sena would physically abuse all four children residing in the house. He would throw household items at them, such as remote controls, rocks, a wrench, and shoes. Sena once threw a metal pipe at AS, hitting her in the back of the head, and after other people learned about the injury, he beat her with a wooden spoon. When AS was 14, Sena became angry with her and subsequently grabbed her by the hair, dragged her into the house, threw her on the floor, and pressed his foot down on her throat. Sena would slap BS and push him to the ground and in one instance threw RS against a table. In another instance, Sena pushed TS to the ground and pressed his foot on TS's chest.
In 2001, when AS was 11 years old, Sena began sexually abusing her as well. On the first occasion, he masturbated in front of her, touched her chest and vagina over her clothes, directed her to undress and touched her vagina again, and anally penetrated her. After he assaulted her, Sena told AS he had "police friends," no one would believe her if she reported it, and she would be the one sent to jail because she was the one that had done something wrong. Thereafter, as AS testified, Sena subjected AS to sexual abuse almost every day and continued at least two times per month after AS turned 14. AS testified that while she did not want to sexually interact with Sena, she submitted to him because he was generally in a better mood afterward and would be less likely to physically abuse her brothers.
Sena continued to sexually abuse AS when she was in high school, with multiple sexual contacts occurring per month when she was 16-18 years old. When AS was 14, Sena orchestrated a sexual encounter between himself, Terrie, and AS. Around AS's 18th birthday, Sena orchestrated a sexual encounter between himself, AS, and Deborah. Sena continued to subject AS to unwarranted sexual encounters after she graduated from high school, though they became less frequent. AS did not move out of the house when she turned 18 because she did not want to leave her brothers with Sena and because she believed that he continued to be less abusive to them when she had sex with him. Sena also constantly monitored what AS was doing. He set up cameras around the house when AS was around 18 years old, and if she and her brothers were not in front of the cameras when he was not home, he would call and ask them where they were. AS testified that when she started working at a grocery store, Sena would know what she had done at work without even asking her.
Sena began sexually abusing TS when he was between 13 and 15 years old. In the first instance, while Sena watched and recorded the interaction, he directed Deborah and TS to wash each other's bodies, directed Deborah to perform fellatio on TS, and directed TS to vaginally penetrate Deborah, which TS unsuccessfully attempted to do. In another instance, when TS was 15 or 16, Sena orchestrated another sexual encounter between himself, TS, and Deborah. Sena filmed that assault. When TS was around 17 or 18 years old, he stopped living in the home full time.
When RS was 11 or 12, Sena sexually assaulted him on three instances. After the third instance, the sexual assaults stopped for a while but the physical abuse continued, including an instance where Sena repeatedly slapped RS until he made a statement that he felt loved in the house. The sexual assaults resumed when RS was between 12 and 14. During this time period, Sena orchestrated 2 sexual encounters between himself, RS, and RS's mother, Terrie.
When BS was 14, Sena threw him to the floor, pinned his arms down, and hit him repeatedly. Around that same time, Sena began sexually abusing BS. In one instance, Sena masturbated while directing Terrie to perform fellatio on BS and directing her to insert BS's penis into her vagina. Sena threatened to kill BS if he told anyone. In another instance, at Sena's direction, BS vaginally penetrated Terrie and she performed fellatio on BS. When BS was 14 or 15, Sena also orchestrated a sexual encounter between himself, BS, and BS's mother, Deborah. Sena filmed this assault.
Sena's sexual proclivities were not limited to his own children. He committed lewd acts upon Terrie's niece, EC, on multiple occasions when she was 11 and 12 years old. He also filmed EC taking a shower in his home while Terrie performed fellatio on Sena. Additionally, Sena showed pornography to Terrie's other underage niece, TG, and filmed TG taking a shower in his home while Terrie again performed fellatio on Sena.
In 2014, when AS was 24 years old, BS revealed to her that Sena was making him have sex with Terrie and BS was suicidal because of it. Up until that point, AS had been unaware that Sena had been sexually assaulting her brothers too and, with this new information, realized that submitting to Sena had not actually protected them from being sexually assaulted. AS and BS gained the courage to flee Sena's home, they convinced Deborah to help them escape, and all three of them left. After a few months, they reported the crimes to the police, leading to Sena's arrest. During Sena's arrest, the police conducted a search of the home and found devices containing pornographic images, including images of BS, RS, TS, EC, and TG, as well as images of Terrie's sister MC when she was underage.
Sena was charged with 120 counts pertaining to his various acts of physical and sexual abuse. He unsuccessfully moved to dismiss counts 2-53 concerning AS, arguing they were barred by the statute of limitations. At Sena's trial, the district court directed the audience not to come and go during arguments or during witness testimony. Sena did not object to the court policy until the 8th day of trial and again on the 9th day of trial. Both times the district court overruled his objection, concluding that the courtroom was not closed. The jury convicted Sena of 95 counts, and he was sentenced to serve concurrent and consecutive prison terms totaling 327 years and 4 months to life in the aggregate.1
Sena challenges his convictions on multiple fronts. He first contends that numerous counts were barred by the statute of limitations. Second, he argues that there were multiple convictions for the same offense related to the counts of incest, possession of child pornography, and child abuse, neglect or endangerment related to the incident with Deborah and TS in the shower. Third, he challenges the sufficiency of the evidence supporting the conspiracy to commit sexual assault and the counts related to the videos of Terrie's nieces in the shower. Fourth, he contends that his convictions for open or gross lewdness violated the Double Jeopardy Clause because they were lesser-included offenses of child abuse, neglect or endangerment. Last, he...
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