Thomas v. State, 010419 NVSC, 71044
|Party Name:||CAMERON THOMAS, Appellant, v. THE STATE OF NEVADA, Respondent.|
|Judge Panel:||Cherry, J., Parraguirre, J., Stiglich, J. Hon. Kerry Louise Earley, District Judge|
|Case Date:||January 04, 2019|
|Court:||Supreme Court of Nevada|
ORDER AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of three counts of sexual assault with a minor under the age of fourteen, eight counts of lewdness with a child under the age of fourteen, and two counts of attempted lewdness with a child under the age of fourteen. Eighth Judicial District Court, Clark County; Kerry Louise Earley, Judge.
Appellant Cameron Thomas was charged with 23 criminal counts relating to sexual offenses he committed against four children-A.P., M.A.S., M.S., and Z.F.-and was convicted of the 13 counts noted above. He was sentenced to 40 years to life in prison. Thomas asserts 14 claims on appeal. Having reviewed the record and considered the issues raised on appeal, we conclude that reversal is not warranted except as to two of the lewdness convictions, which are impermissibly redundant. We therefore affirm the convictions with the exception of Counts 2 and 6, which we reverse, and we remand to the district court for resentencing.
The district court did not abuse its discretion in admitting evidence of Thomas's prior bad acts
Thomas argues that the district court erred in admitting A.P.'s testimony regarding two prior acts constituting sexual offenses that Thomas committed against her. Thomas argues that A.P.'s testimony failed to satisfy the Petrocelli requirements and NRS 48.045 does not permit the admission of prior bad acts for propensity purposes. We disagree.
This court reviews a district court's admission of evidence of prior bad acts for an abuse of discretion. Salgado v. State, 114 Nev. 1039, 1043, 968 P.2d 324, 327 (1998). NRS 48.045(3) exempts prior acts constituting sexual offenses from the prohibition on prior bad act evidence, and allows evidence of such acts to establish the defendant's propensity to engage in conduct constituting sexual offenses if the evidence is relevant to the crime charged pursuant to NRS 48.015, its probative value is not substantially outweighed by the risk of unfair prejudice, and the district court determines that a jury could reasonably find the prior sexual offense proven by a preponderance of the evidence. Franks v. State, 135 Nev., Adv. Op. 1, __ P.3d__, __(2019). To determine whether the risk of unfair prejudice outweighs the evidence's probative value, this court looks to: "(1) the similarity of the prior acts to the acts charged, (2) the closeness in time of the prior acts to the acts charged, (3) the frequency of the prior acts, (4) the presence or lack of intervening circumstances, and (5) the necessity of the evidence beyond the testimonies already offered at trial."
Id., at_(quoting United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001)).
Franks had not been decided at the time of Thomas's trial, and thus the district court did not explicitly consider the individual factors Franks requires in determining the admissibility of A.P.'s testimony. However, A.P.'s testimony regarding the uncharged sexual acts was subjected to a hearing pursuant to Petrocelli v. State, 101 Nev. 46, 51-52, 692 P.2d 503, 507-08 (1985), superseded in part by statute as stated in Thomas v. State, 120 Nev. 37, 44-45, 83 P.3d 818, 823 (2004), at which the district court determined that the evidence was relevant and did not have its probative value outweighed by its risk of unfair prejudice, and that the other acts were proven by clear and convincing evidence. We see no error in the district court's findings. In looking to the factors set forth in Franks, we conclude the district court properly admitted the evidence because it was relevant to show the defendant's propensity for specific sexual acts and did not present a risk of unfair prejudice substantially outweighing its probative value because of the substantial similarity between the acts and their closeness in time and frequency. Consequently, the district court did not abuse its discretion in permitting A.P. to testify regarding the prior sexual acts.
The district court did not abuse its discretion or plainly err in admitting hearsay evidence
Thomas argues that the district court erred in allowing Amanda Rand, Officer Kathleen Van Gordon, Faiza Ebrahim, and Martha Mendoza to testify as to statements made by the child victims pursuant to NRS 51.385 because one of the child victims, Z.F., was an unreliable witness and statements made by forensic interviewers should not be considered spontaneous.2 We disagree with Thomas's contention that the district court erred in admitting any of the witnesses' hearsay statements into evidence.
Thomas objected to the introduction of Rand and Van Gordon's testimonies, and we review the court's admission of this evidence for an abuse of discretion. Means v. State...
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