Sterling v. State, 22186

CourtSupreme Court of Nevada
Citation108 Nev. 391,834 P.2d 400
Docket NumberNo. 22186,22186
PartiesDaniel Scott STERLING, Appellant, v. The STATE of Nevada, Respondent.
Decision Date02 July 1992

Schieck & Derke, Las Vegas, for appellant.

Frankie Sue Del Papa, Carson City, Rex Bell, Dist. Atty., James Tufteland, Chief Deputy Dist. Atty., and John P. Lukens, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Appellant Daniel Scott Sterling ("Sterling") was charged with three counts of lewdness with a minor (NRS 201.230), one count of battery with intent to commit a crime (NRS 200.400), and six counts of sexual assault of a child under the age of fourteen (NRS 200.364 and NRS 200.366). Sterling was the boyfriend of the victim's mother and lived with the victim's family for several years.

The victim was twelve years old on the date of her testimony. In graphic detail, she testified about sexual activity between Sterling and herself: Sterling subjected her to extensive sexual abuse over the course of several years. The victim was medically examined, and the examining doctor opined that she had been sexually active. 1

The defense attempted to suggest that the victim fabricated the allegations. The jury returned a verdict of guilt on all ten counts. On appeal, Sterling contends that the following assignments mandate reversing his conviction: (1) the State introduced evidence of prior bad acts which constituted prejudicial error; (2) the district court improperly admitted prior consistent statements of the victim; (3) the district court denied Sterling the right to impeach the credibility of the victim; (4) Sterling was denied a fair trial because the police did not conduct a sufficient investigation; and (5) there was insufficient evidence for the jury to convict him. For the following reasons, we affirm his conviction.

Reference to prior bad acts

The victim's grandmother testified that she had once observed Sterling using drugs. 2 Sterling argues that this was improper evidence of a prior bad act, constituting prejudicial error. Evidence of other crimes, wrongs or acts are not admissible to prove a defendant's character and that he acted in conformity therewith; however, such evidence is admissible to prove motive, intent, knowledge, or absence of mistake or accident. NRS 48.045(2).

However, inadvertent references to other criminal activity not solicited by the prosecution, which are blurted out by a witness, can be cured by the trial court's immediate admonishment to the jury to disregard the statement. Allen v. State, 91 Nev. 78, 83, 530 P.2d 1195, 1198 (1975). The grandmother's statement about observing the drug usage was not solicited by the prosecution. The trial court cured any error when it immediately admonished the jury to "disregard the witness' statement of smoking rock cocaine." 3

Prior consistent statements

Sterling contends that the district court committed prejudicial error when it admitted the victim's prior consistent statements into evidence. Sterling did not object to the admission of these statements at trial. Failure to object below generally precludes review by this court; however, we may address plain error and constitutional error sua sponte. Emmons v. State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991).

Sterling argues that the admission of the consistent statements was plain error, citing Daly v. State, 99 Nev. 565, 665 P.2d 798 (1983) for support. In Daly, a sexual assault case, the admission of the victim's prior consistent statements which were made at a time when the victim had a motive to fabricate constituted prejudicial error, even though appellant failed to object to such statements at trial. Id. at 569, 665 P.2d at 802. In Daly, we emphasized that the admission of the prior consistent statements constituted plain error because the State's case rested entirely on the credibility of the victim. Id. The present case differs from Daly in that the State presented uncontroverted physical evidence that the child had been sexually active. Consequently, we reject Sterling's argument and conclude that his failure to preserve this issue precludes appellate review. Wilkins v. State, 96 Nev. 367, 372, 609 P.2d 309, 312 (1980).

The right to impeach the credibility of the victim

Sterling next contends that the district court on four occasions denied him the opportunity to impeach the credibility of the victim by showing a motive to fabricate the allegations. Although a defendant has a right to expose facts which enable the jury to reflect on the credibility of the witness, Crew v. State, 100 Nev. 38, 45, 675 P.2d 986, 990(1984), this right is not unlimited.

First, Sterling argues that the district court improperly limited his cross-examination of the victim. The defense questioned the victim about her daily routine in regard to doing homework and playing with friends. The State lodged a relevancy objection. Sterling argued that this line of questioning showed that Sterling was a disciplinarian and that, apparently, the victim was fabricating the allegations to avoid such discipline. Under such circumstances, asserts Sterling, the district court's discretion is limited. See Crew, 100 Nev. at 45, 675 P.2d at 990-91.

Sterling fails to recognize that only relevant evidence is admissible. NRS 48.025. Whether evidence is relevant lies in the sound discretion of the trial court. Woods v. State, 101 Nev. 128, 136, 696 P.2d 464, 470 (1985). We conclude that the district court was acting within its discretion and properly sustained the State's objection to this line of questioning. Moreover, Sterling did not make an offer of proof which would allow this court to review the intended line of questioning or anticipated responses. Nothing in the record supports Sterling's assertion that the victim fabricated the allegations because Sterling was a disciplinarian. See Robins v. State, 106 Nev. 611, 798 P.2d 558 (1990) (district court did not improperly limit cross-examination which was founded on speculation and sought to elicit testimony that was unrelated, irrelevant and inadmissible), cert. denied, 499 U.S. 970, 111 S.Ct. 1608, 113 L.Ed.2d 670 (1991).

Second, Sterling contends that the district court improperly limited his examination of the victim's mother. On direct examination, the defense asked what kind of reaction the victim demonstrated to the birth of her brother. The victim's mother responded that "[s]he didn't like it." The district court sustained the State's relevancy objection. Sterling argued that this question went to the motive behind the allegations--that the victim was "lashing out" because attention had been directed to other members of her family. Upon review of the record, we conclude that Sterling's "lashing out" theory is mere speculation, and thus the district court did not abuse its discretion in limiting this line of questioning.

Third, during direct examination, the defense asked Sterling's mother how well the victim got along with Sterling. She responded the victim "got along pretty good as long as she got her way." Defense counsel asked Sterling's mother to explain "as long as she got her way." The State objected on the grounds that the question asked for improper character evidence concerning a character trait other than truthfulness.

Opinion evidence as to the character of a witness is admissible to attack the credibility of the witness, but opinions are limited to truthfulness or untruthfulness. NRS 50.085(1)(a). Sterling contends that NRS 50.085 is not applicable and that NRS 48.045(1)(b) is controlling. 4 We disagree. Because Sterling was attempting to impeach the credibility of the victim, NRS 50.085 is controlling. "NRS 50.085 and its companion provisions concern the impeachment of witnesses, while NRS 48.045 and its companion provisions deal with the admissibility of substantive evidence." Daly, 99 Nev. at 570, 665 P.2d at 803.

Fourth, Sterling argues that his impeachment of the victim was improperly limited during the direct examination of the victim's mother when she was asked, "Do you have an opinion as to why [the victim] might have made those allegations [about drug use]." 5 The district court sustained the State's objection because, pursuant to NRS 50.025, the witness did not have personal knowledge of the matter. Sterling argues, as he did at trial, that the witness should have been allowed to answer, for her testimony was admissible lay opinion.

We conclude, however, that the district court did not err. The victim's mother did not demonstrate that she had personal knowledge as to why the victim testified about the mother's drug use.

Additionally, Sterling cannot show that the mother's opinion was admissible as lay opinion evidence. A lay witness' opinion is not admissible unless it is (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue. NRS 50.265. Sterling has not shown how this testimony would have been "rationally based on the perception" of the victim's mother. Sterling improperly attempted to impeach the victim's veracity as to certain statements. See People v. Melton, 44 Cal.3d 713, 244 Cal.Rptr. 867, 884, 750 P.2d 741, 758 (1988) ("Lay opinion about the veracity of particular statements by another is inadmissible on that issue"). We therefore reject this argument.

The sufficiency of the police investigation

The victim reported the assaults...

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