Vasquez-Reyes v. State

• Docket Number: 80293
• Decision Date: 18 March 2022
• Parties: ARMANDO VASQUEZ-REYES, A/K/A ARMANDO VASQUIEZREYES, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

ARMANDO VASQUEZ-REYES, A/K/A ARMANDO VASQUIEZREYES, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 80293

Supreme Court of Nevada

March 18, 2022

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of lewdness with a child under the age of 14 and eight counts of sexual assault with a minor under the age of 14.^[1] Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge. The district I court sentenced appellant Armando Vasquez-Reyes to an aggregate sentence of life with the possibility of parole after 45 years and required him to register as a sex offender upon release. Vasquez-Reyes raises numerous issues on appeal.

Sufficiency of the evidence

Vasquez-Reyes summarily argues that the State did not present sufficient evidence to support his convictions. We disagree. The State presented testimony from the victims that supported each of Vasquez-Reyes' convictions. Both victims testified with particularity about the crimes, including when and where in the household the sexual abuse occurred. That testimony alone is sufficient to support the convictions. See Gaxiola v State, 121 Nev. 638, 648, 119 P.3d 1225, 1232 (2005) (explaining that "the uncorroborated testimony of a victim, without more, is sufficient to uphold a rape conviction"). Moreover, Vasquez-Reyes confessed to touching one of the victims (G.A.) on multiple occasions including on her breast and legs, and to sexually penetrating her. Therefore, we conclude that a rational juror could find the essential elements of the crimes beyond a reasonable doubt. See NRS 200.364(9) (defining "sexual penetration"); NRS 200.366(1)(b) (sexual assault with a minor); NRS 201.230 (lewdness with a minor); see also Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998) (holding that, in reviewing sufficiency of the evidence challenges, the relevant inquiry is "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (quoting Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984))); McNair v State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (providing that "it is the jury's function, not that of the court, to assess the weight of the evidence and determine the credibility of the witnesses"). Prosecutorial misconduct

Vasquez-Reyes also argues that the State committed prosecutorial misconduct.^[2] In resolving claims of prosecutorial misconduct, we first determine whether misconduct occurred and then decide whether any misconduct denied the defendant a fair trial. Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). As relevant here, with respect to the second step, we "will not reverse a conviction based on prosecutorial misconduct if it was harmless error," and where the error is not of constitutional dimensions, we "will reverse only if the error substantially affects the jury's verdict." Id. at 1188-89, 196 P.3d at 476.

First, Vasquez-Reyes argues that the State improperly minimized the burden of proof and implied that it could easily be satisfied when the prosecutor stated reasonable doubt was "not something that's a mystical thing." We agree. "The concept of reasonable doubt is inherently qualitative. Any attempt to quantify it may impermissibly lower the prosecution's burden of proof, and is likely to confuse rather than clarify." McCullough v. State, 99 Nev. 72, 75, 657 P.2d 1157, 1159 (1983); see also NRS 175.211 (defining reasonable doubt and providing that no other definition may be given). Nevertheless, we conclude that the prosecutor's statement was harmless because the district court correctly instructed the jury on the definition of reasonable doubt. See Randolph v. State, 117 Nev. 970, 981, 36 P.3d 424, 431 (2001) (holding that "incorrect explanations of reasonable doubt [are] harmless error as long as the jury instruction correctly defined reasonable doubt").

Vasquez-Reyes next argues that the prosecutor misstated evidence, improperly introduced personal opinion during rebuttal, and improperly vouched for G.A. We agree that the State technically misstated evidence as to the average IQ and improperly stated that Vasquez-Reyes had groomed G.A. Nevertheless, this does not warrant reversal because the prosecutor made these statements in passing and a witness provided the jury with the correct IQ information. See Byars v. State, 130 Nev. 848, 865, 336 P.3d 939, 950-51 (2014) (holding that this court will not lightly overturn a jury verdict based on a prosecutor's statements); Anderson v. State, 121 Nev. 511, 516, 118 P.3d 184, 187 (2005) (recognizing that comments constituting misconduct that are "merely passing in nature" are harmless beyond a reasonable doubt). We reject Vasquez-Reyes' remaining arguments on this issue, however, because the context reveals that the prosecutor was responding to Vasquez-Reyes' challenges to the victims' credibility. See Rowland v. State, 118 Nev. 31, 40, 39 P.3d 114, 119 (2002) (reviewing a prosecutor's statements in context and noting that the State has "reasonable latitude ... to argue the credibility of the witness" when the case's outcome relies on "which witnesses are telling the truth").

Vasquez-Reyes also argues that the State committed prosecutorial misconduct by misstating evidence regarding disagreements in Vasquez-Reyes' family and improperly shifting the burden of proof. We disagree, because the statements did not call attention to Vasquez-Reyes' failure to testify and, in context, were reasonably inferred from the responding officer's testimony and responsive to defense counsel's argument regarding G.A.'s testimony. See Allred v. State, 120 Nev. 410, 418, 92 P.3d 1246, 1252 (2004) ("[A]s long as a prosecutor's remarks do not call attention to a defendant's failure to testify, it is permissible to comment on the failure of the defense to counter or explain evidence presented." (internal quotation marks omitted)); Williams v. State, 113 Nev. 1008, 1018-19, 945 P.2d 438, 444-45 (1997) (holding that a prosecutor may respond to a defense argument), overruled on other grounds by Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000); Parker v. State, 109 Nev. 383, 392, 849 P.2d 1062, 1068 (1993) (holding that a "deduction or a conclusion from the evidence introduced in the trial, [is] permissible and unobjectionable" (internal quotation marks omitted)). We similarly reject Vasquez-Reyes' argument that the State committed misconduct by stating that no evidence supported his argument that he, G.A., and G.A.'s siblings argued often, with police getting involved on occasion. A prosecutor may respond to defense theories, see Williams, 113 Nev. at 1018-19, 945 P.2d at 444-45, and the prosecutor's statements here were properly deduced from the evidence, see Parker, 109 Nev. at 392, 849 P.2d at 1068.

We also reject Vasquez-Reyes' argument that the State elicited improper vouching testimony by asking the responding officer about G.A.'s demeanor, with the officer responding that she seemed "very genuine." This testimony did not touch upon G.A.'s testimony and, in context, described G.A.'s demeanor without opining as to her truthfulness. See Farmer v. State, 133 Nev. 693, 705, 405 P.3d 114, 125 (2017) (rejecting the appellant's claim that the "State's witnesses inappropriately vouched for one another by making statements regarding the victims' demeanor"); Perez v. State, 129 Nev. 850, 861, 313 P.3d 862, 870 (2013) ("A witness may not vouch for the testimony of another or testify as to the truthfulness of another witness."). Finally, we reject Vasquez-Reyes' argument that the State disparaged the defense, because the prosecutor commented on weaknesses in the defense theory, rather than defense counsel or their tactics.^[3]See Butler v. State, 120 Nev. 879, 897-98, 102 P.3d 71, 84 (2004) (describing instances where a prosecutor's statement amounted to disparagement of counsel or of the defense theory).

Jury instructions

Vasquez-Reyes challenges several jury instructions. "The district court has broad discretion to settle jury instructions, and this court reviews the district court's decision for an abuse of that discretion or judicial error." Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005). "An abuse of discretion occurs if the district court's decision is arbitrary or capricious or if it exceeds the bounds of law or reason." Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001).

We first reject Vasquez-Reyes' contention regarding the no-corroboration instruction because the given instruction is nearly identical to the one we approved in Gaxiola v. State, 121 Nev. 638, 649, 119 P.3d 1225, 1233 (2005). We decline Vasquez-Reyes' invitation to revisit Gaxiola.^[4] We further reject his claims regarding the reasonable doubt instruction because it is consistent with the law. See NRS 175.211(2) (providing that "[n]o other definition of reasonable doubt may be given by the court to juries in criminal actions in this State"); Batson v. State, 113 Nev. 669, 674-75, 941 P.2d 478, 482 (1997) (rejecting a challenge to a jury instruction using the language required by NRS 175.211).

Next we reject Vasquez-Reyes' challenges to several instructions because they allegedly contained superfluous language; other instructions or proposed instructions more accurately reflected the law; and/or the given instructions were irrelevant, cumulative, and confusing. The challenged instructions applied to the facts of this case, clarified a potentially confusing issue for the jury, accurately represented the law, and/or addressed the elements the State was required to prove. See NRS 201.230 (...