129 Nev., Advance Opinion 2.4
IN THE SUPREME COURT OF THE STATE OF NEVADA
SHAWN TIMOTHY NEWMAN, No. 56151
Appellant,
vs.
THE STATE OF NEVADA,
r1
Respondent.
Appeal from a judgment of conviction, purs`tiant to a jury
verdict, of battery by strangulation and willfully endangering a child as a
result of child abuse. Second Judicial District Court, Washoe County;
Patrick Flanagan, Judge.
Affirmed.
Jeremy T. Bosler, Public Defender, and Cheryl Bond, Appellate Deputy
Public Defender, Washoe County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Richard A.
Gammick, District Attorney, and Gary H. Hatlestad, Chief Appellate
Deputy District Attorney, Washoe County,
for Respondent.
BEFORE PICKERING, C.J., HARDESTY and CHERRY, JJ.
OPINION
By the Court, PICKERING, C.J.:
Appellant Shawn Newman appeals his conviction, on jury
verdict, of one count of willfully endangering a child as a result of child
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abuse, a gross misdemeanor, and one count of battery by strangulation, a
felony. The charges grew out of an incident in which Newman yelled at
his son, Darian, in public; when Newman took off his belt to strike the boy,
a witness, Thomas Carmona, tried but failed to stop him. Newman and
Carrnona fought until Newman grabbed Carmona's neck to choke him into
submission. At trial, Newman admitted these facts and that he acted
intentionally. His defense was justification: parental discipline privilege
as to the child abuse charge; and, to some extent, self-defense as to the
battery charge.
Newman raises two issues on appeal, both rooted in NRS
48.045's prohibition against using character or prior-bad-act evidence to
prove criminal propensity. First, the prosecution introduced evidence that
Newman had struck his other son, Jacob, in public and that Newman got
into a heated argument with nursing staff about Jacob while Darian was
hospitalized for an appendectomy. The district court deemed this evidence
admissible under NRS 48.045(2) to show absence of mistake or accident as
to the child abuse charge. Second, the prosecution presented a surprise
rebuttal witness, Connie Ewing, who reported that she, too, had a heated
but nonphysical exchange with Newman over his disciplining a young boy
outside a local Walmart. The district court allowed this testimony as
rebuttal under NRS 48.045(1)(a) and NRS 48.055, to rebut Newman's
testimony that he strangled Carmona in self-defense. 1
1 Newman also argues ineffective assistance of trial counsel based on
his lawyer's statement to the district court, arguing against the admission
of Ewing's testimony, that she would have urged Newman not to testify if
she had known about Ewing. We normally do not "consider ineffectiveassistance-of-counsel claims on direct appeal unless the district court has
held an evidentiary hearing on the matter or an evidentiary hearing would
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2
Evidence of one of the episodes involving Jacob was properly
admitted to refute Newman's claim of parental privilege. The other
episodes involving Jacob were not proven by clear and convincing
evidence, as required by our case law, and it was an abuse of discretion to
admit the Ewing testimony. Nonetheless, Newman's guilt was established
by his own admissions and overwhelming evidence. We therefore conclude
that the errors were harmless and affirm.
I.
A.
The incident underlying this appeal occurred on September
14, 2009. At the time, Newman was a single father raising two sons:
twelve-year-old Darian and six-year-old Jacob. Darian had started middle
school the previous week. Jacob's day care opened at 7 a.m. and Darian
needed to be to middle school by 7:30 a.m. The family's apartment was
close to both. Darian had recently gotten a bike with gear-speeds. The
plan was for Darian, who felt uncomfortable riding double with Jacob, to
walk Jacob and the bicycle to Jacob's day care and to ride from there to
middle school. The timing was tight and the first week this plan did not
work out. One day, Newman went looking for Darian along what he
thought was his route but could not find him. Another day, Darian got
lost and was tardy.
...continued
be needless." Archanian v. State, 122 Nev. 1019, 1036,
145 P.3d 1008,
1020-21 (2006). The district court did not hold an evidentiary hearing and
one would be needed to determine whether Newman would have testified
no matter what his lawyer said. Therefore, we do not reach his ineffectiveassistance-of-counsel claim.
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Six weeks earlier, in late July, Darian had been hospitalized
for appendicitis. A secondary infection developed that extended his
hospital stay to 19 days. The wound was dressed, not sutured closed,
meaning it had to be cleaned and the dressing changed daily while the
open incision healed. On September 14, the wound had mostly closed but
still required daily dressing, which Newman attended to.
On the day of the incident, Newman followed Darian in his
truck to see his son's exact route. All went well until Darian, who had his
new bike in third gear, could not make it up a hill. Newman got out of his
truck, put and rode the bike in lower gear to show Darian how the gearing
worked, and then held the bike for Darian to try. For whatever reason—
Newman testified he saw Darian deliberately slip his foot off the pedal,
while Darian told a responding officer he was tired and his stomach hurtDarian did not succeed, even in the lower gear. Admittedly angry,
Newman started yelling at Darian. He gave Darian an ultimatum: ride
the bike up the hill or be spanked. Darian let go of his bike, went to a low
wall nearby, and bent over to be spanked.
From his home across the street, Thomas Carmona heard the
commotion and saw Newman take off his belt. Carmona ran over to stop
him from striking the boy. They argued over Newman's right to physically
discipline his child and then fought. The fight did not end until Newman
pinned Carmona to the ground in a stranglehold. Carmona and Newman
accused each other of throwing the first blow. Newman is bigger than
Carmona and, unlike Carmona, looked none the worse for wear after their
fight. Carmona and another eyewitness described Newman as in a rage
and Darian as crying uncontrollably. One witness testified that Darian
said his father terrified him.
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When the police arrived, they found a red welt on Darian's
buttocks, which they photographed. They also photographed Darian's
abdominal bandage and healing incision. Paramedics examined Darian
and Carmona but did not take either to the hospital. Carmona's Adam's
apple was sore and it hurt to swallow for some days afterward.
B.
Trial took four days. The prosecution presented its case-inchief through eyewitness, responding officer, and expert medical testimony
without using any prior-bad-act evidence. After the prosecution rested,
the district court advised Newman of his right to testify in his own
defense. The prosecution warned that it would explore prior bad acts if
Newman testified that parental privilege justified his discipline of Darian.
The district court then heard from the lawyers on the prior-bad-act issue. No testimony was presented; the lawyers argued from a
child protective services (CPS) report that the appellate record does not
include. The transcript reveals that the CPS report lists two of the three
incidents involving Jacob as "information only" under a heading,
"unsubstantiated reports," and that the police investigated one of the
incidents but could not verify it. Despite this, the district court
determined that the following incidents were established by clear and
convincing evidence and could be used by the prosecution if Newman
testified: (1) Newman hit Jacob in November 2006, February 2009, and
late July or early August 2009 when Darian was in the hospital; and (2)
Newman had an ugly verbal run-in with hospital staff during Darian's
stay. Although the court deemed this evidence more probative than
prejudicial, it did not identify a permissible nonpropensity purpose for
admitting it until later in the trial, when it held that the evidence tended
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to show absence of mistake or accident as to the child abuse charge.
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Newman elected to testify. His direct-examination testimony
hewed close to the events of September 14. He gave background
concerning Darian's appendectomy and recuperation and explained why
he followed Darian by truck instead of just driving him to school that day.
He admitted that he gave Darian the choice of riding up the hill or being
spanked; that he struck Darian on the buttocks with his belt, raising a
welt; and that he fought with Carmona and put him in a stranglehold
when Carmona would not back off. Finally, Newman testified that
Carmona attacked him, not the reverse. He conceded being angry and
loud but denied being out of control.
On cross-examination, the prosecution asked Newman about
the hospital incidents in late July/early August 2009. Newman admitted
that he "smacked" Jacob on the back of the head for bouncing on Darian's
bed and that he eventually got into such a heated argument with hospital
staff over Darian's care and his and Jacob's use of a break room that he
was told to leave and not come back. The prosecution had Newman
acknowledge that he "grew up on the streets," is "on the hard side," and
can be perceived as "an aggressive, loud, obnoxious kind of person." He
said, "I don't hide anything I do. I will spank my children in public as I
will in private." Newman described his progressive discipline of his sons,
ranging from raised voice, to corner time, to spanking. He also described
the special tutoring he had arranged for Darian and later Jacob at the
University of Nevada Reno and expressed pride in Darian's reading level.
When the prosecution asked Newman about the November 2006 and
February 2009 incidents with Jacob mentioned (but not substantiated) in
the CPS report, Newman said he did not recall either.
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The defense then called the psychologist who counseled
Darian after the charges in this case led to Darian and Jacob being
removed from Newman's care. The psychologist characterized Newman's
parenting style as between "authoritarian" and "autocratic" but also
opined that Darian and Newman had "a fairly normal parent/child
relationship." He testified that he had no qualms when Darian and Jacob
were returned to Newman's care shortly before trial.
After the defense rested, the prosecution alerted the court and
the defense counsel to Connie Ewing, who came forward after reading
about the case in the newspaper. She related an incident involving a
stranger she now recognized as Newman yelling and hitting a boy outside
Walmart in early September 2009. When she demanded that he stop,
Newman told her to "mind [her] own f#$%ing business." Ewing went
inside to complain to the Walmart greeter and then security and Newman
followed. Two security guards flanked Ewing while she and Newman
argued about single parenting and appropriate discipline. No physical
contact occurred and eventually Newman left. Over defense objection, the
district court admitted this evidence to rebut Newman's testimony that
Carmona attacked him first. The prosecution did nothing to prove the
November 2006 and February 2009 incidents involving Jacob that
Newman testified he did not know about or recall.
In closing, neither side argued the prior-bad-act evidence
involving Jacob. The Ewing testimony was alluded to but briefly. During
deliberation, the jury sent out two questions, both concerning the child
abuse count. Ultimately, it returned a verdict of guilty and the district
court sentenced Newman to a maximum term of 60 months incarceration
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for the battery with a consecutive term of 12 months for child
endangerment.
NRS 48.045(2) prohibits the use of evidence of "other crimes,
wrongs or acts. . . to prove the character of a person in order to show that
the person acted in conformity therewith." Such evidence "may, however,
be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident." Id. NRS 48.045(2)'s list of permissible nonpropensity uses for
prior-bad-act evidence is not exhaustive. Bigpond v. State, 128 Nev. ,
, 270 P.3d 1244, 1249 (2012). Nonetheless, while "evidence of 'other
crimes, wrongs or acts' may be admitted. . . for a relevant nonpropensity
purpose," id. (quoting NRS 48.045(2)), "[t]he use of uncharged bad act
evidence to convict a defendant [remains] heavily disfavored in our
criminal justice system because bad acts are often irrelevant and
prejudicial and force the accused to defend against vague and
unsubstantiated charges." Id. (quoting Tavares v. State,
117 Nev. 725,
730,
30 P.3d 1128, 1131 (2001)). Thus, "[a] presumption of inadmissibility
attaches to all prior bad act evidence." Id. (quoting Rosky v. State,
121
Nev. 184, 195,
111 P.3d 690, 697 (2005)).
"[T]o overcome the presumption of inadmissibility, the
prosecutor must request a hearing and establish that: (1) the prior bad act
is relevant to the crime charged and for a purpose other than proving the
defendant's propensity, (2) the act is proven by clear and convincing
evidence, and (3) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice." Bigpond, 128 Nev. at ,
270 P.3d at 1250. In addition, the district court "should give the jury a
specific instruction explaining the purposes for which the evidence is
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admitted immediately prior to its admission and should give a general
instruction at the end of the trial reminding the jurors that certain
evidence may be used only for limited purposes." Tavares, 117 Nev. at
733,
30 P.3d at 1133.
This court reviews a district court's decision to admit or
exclude prior-bad-act evidence under an abuse of discretion standard.
Fields v. State, 125 Nev. 785, 789,
220 P.3d 709, 712 (2009).
A.
Identification of an at-issue, nonpropensity purpose for
admitting prior-bad-act evidence is a necessary first step of any NRS
48.045(2) analysis. See United States v. Miller, 673 F.3d 688, 697 (7th Cir.
2012) (addressing Fed. R. Evid. 404(b), the cognate to NRS 48.045(2)).
Here, the district court ultimately declared that it was admitting the
prior-bad-act evidence involving Jacob to show absence of mistake or
accident. "The admissibility of evidence of other crimes, wrongs, or acts to
establish. . . absence of mistake or accident is well established,
particularly in child abuse cases." United States v. Harris, 661 F.2d 138,
142 (10th Cir. 1981). This is because "[Woof that a child has experienced
injuries in many purported accidents is evidence that the most recent
injury may not have resulted from yet another accident." Bludsworth v.
State, 98 Nev. 289, 292,
646 P.2d 558, 559 (1982).
But Newman did not mount a conventional accidental injury
defense to the child abuse charge. He admitted striking Darian and doing
so deliberately. Thus, proof that Newman previously struck Darian's
brother Jacob does not tend to disprove accidental injury, a common
defense to a child abuse charge. Neither mistake nor accident was at
issue, and the prior incidents involving Jacob should not have been
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admitted for these irrelevant purposes. See Honkanen v. State, 105 Nev.
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901, 902, 784 P.2d 981, 982 (1989) (reversing a child abuse conviction
based on an error in admitting evidence of prior abuse to show absence of
mistake where, as here, the parent did not claim accident or mistake
explained the injuries).
The prosecution argues that, even if not properly admitted to
show absence of mistake or accident, the prior-bad-act evidence involving
Jacob was admissible to refute Newman's parental privilege defense by
demonstrating that Newman did not have the intent to correct that forms
the heart of that defense.
A number of states have codified the parental privilege
defense. See Willis v. State, 888 N.E.2d 177, 181 n.5 (Ind. 2008)
(identifying jurisdictions with parental privilege statutes). Nevada has
not, so in Nevada the privilege exists by virtue of common law, see NRS
1.030; 3 William Blackstone Commentaries 120 (1862) ("battery is, in
some cases, justifiable or lawful; as where one who hath authority, a
parent or master, gives moderate correction to his child, his scholar, or his
apprentice," quoted in Willis, 888 N.E.2d at 180-81), and by virtue of the
"fundamental liberty interest [a parent has] in maintaining a familial
relationship with his or her child [which includes] the right. . . 'to direct
the upbringing and education of children." Willis, 888 N.E.2d at 180
(quoting Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925)) (citing
Quilloin v. Walcott, 434 U.S. 246, 255 (1978)).
This appeal does not require us to decide the exact boundaries
of the common law parental privilege defense in Nevada, because neither
side contests the instruction the district court gave on it. See Willis, 888
N.E.2d at 181-82 (comparing the different parental privilege formulations
offered by Model Penal Code § 3.08(1) (1985) and Restatement (Second) of
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Torts § 147(1) (1965)). At minimum, as both sides concede, the defense
required the prosecution to establish that Newman did not "intend [] to
merely discipline [Darian but] . . . to injure' or endanger him. State v.
Hassett, 859 P.2d 955, 960 (Idaho Ct. App. 1993) (quoting Edward J.
Imwinkelried, Uncharged Misconduct Evidence § 5:10 (1993)); see State v.
Thorpe, 429 A.2d 785, 788 (RI. 1981) (the privilege is lost "at the point at
which a parent ceases to act in good faith and with parental affection and
acts immoderately, cruelly, or mercilessly with a malicious desire to inflict
pain."
The intent underlying parental discipline and battery are not
the same. "A parent who disciplines a child in a physical manner intends
to correct or alter their child's behavior. That corrective intent is lacking
in a battery." Ceaser v. State, 964 N.E.2d 911, 917 (Ind. Ct. App. 2012),
transfer denied, 969 N.E.2d 86 (Ind. 2012). "[O]ften the only way to
determine whether the punishment is a non-criminal act of discipline that
was unintentionally harsh or whether it constitutes the [crime] of child
abuse is to look at the parent's history of disciplining the child." State v.
Taylor, 701 A.2d 389, 396 (Md. 1997). In such cases, "[a] parent's other
disciplinary acts can be the most probative evidence of whether his or her
disciplinary corporal punishment is imposed maliciously, with an intent to
injure, or with a sincere desire to use appropriate corrective measures."
Id.; see People v. Taggart, 621 P.2d 1375, 1384-85 (Colo. 1981) (recognizing
that prior acts of excessive discipline may be admissible to "negat[e] any
claim of accident or justification"), abrogated on other grounds by James v.
People, 727 P.2d 850, 855 (Colo. 1986), overruled by People v. Dunaway,
88
P.3d 619, 624 (Colo. 2004); Ceaser,
964 N.E.2d at 917 ("By arguing that
she exercised her parental privilege in disciplining M.R., Ceaser
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necessarily represents that her intent was to correct M.R.'s behavior
through corporal punishment, rather than to simply batter her daughter,"
making admissible the defendant's prior conviction for battering her
child); State v. Morosin, 262 N.W.2d 194, 197 (Neb. 1978) (recognizing as
"peculiarly applicable to child abuse cases" the principle that, "[w]here an
act is equivocal in its nature, and may be criminal or honest according to
the intent with which it is done, then other acts of the defendant, and his
conduct on other occasions, may be shown in order to disclose the
mastering purpose of the alleged criminal ace" (quoting 1 Wharton's
Criminal Evidence § 350, at 520 (11th ed.))).
The parental privilege defense comes down to "punishment—
was it cruel or abusive"—or did it amount to a parent's "use [of] reasonable
and moderate force to correct [his] child[ ]"? State v. Wright, 593 N.W.2d
792, 801 (S.D. 1999) (applying South Dakota's statutory parental
privilege, S.D. Codified Laws § 22-18-5). Here, the district court should
have identified the relevant nonpropensity purpose for admitting evidence
of the prior incidents involving Jacob before weighing its probative value
against its potential for unfair prejudice. It also incorrectly held that the
prior incidents involving Jacob tended to show absence of mistake or
accident, neither of which was at issue. Nevertheless, the evidence did
have probative value in assessing Newman's intent in inflicting corporal
punishment on Darian, which Newman's assertion of the parental
privilege defense placed squarely in issue. 2
We recognize that Honkanen v. State, 105 Nev. 901,
784 P.2d 981
2
(1989) (3-2), suggests a contrary rule. Thus, after rejecting absence of
mistake as a basis for admitting prior instances of abuse in a child abuse
prosecution because the parental privilege defense asserted did not raise
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B.
Identification of an at-issue, nonpropensity purpose for
admitting this evidence is only the first step of a proper NRS 48.405(2)
analysis. United States v. Miller, 673 F.3d at 697. In addition, the
prosecution must establish the prior bad act by clear and convincing
evidence and demonstrate that its probative value "is not substantially
outweighed by the danger of unfair prejudice." Bigpond, 128 Nev. at ,
270 P.3d at 1249.
Judged by these standards, the district court did not abuse its
discretion in admitting evidence that Newman cuffed Jacob on the back of
his head at the hospital in late July or early August 2009. Newman
admitted the incident, and it had enough probative value to justify the
...continued
an issue of mistake, Honkanen also notes that, "Furthermore, contrary to
the district attorney's suggestion on appeal, neither was appellant's intent
[in issue]." Honkanen, 105 Nev. at 902,
784 P.2d at 982. This passing
reference in a 3-2 decision does not settle the intent issue, because
Honkanen did not consider the difference between intent to injure or
inflict pain and intent to correct. Additionally, Honkanen's rationale may
be outdated in light of the 2001 amendments to NRS 48.061, which
expand the use of bad-act evidence in domestic violence cases, 2001 Nev.
Stat., ch. 360, § 1, at 169; see NRS 233.018(1)(a) (defining "domestic
violence" to include battery on an accused's minor child), and Bigpond,
which recognizes that character evidence can be admissible so long as it
has a credible, nonpropensity purpose, such as explaining the relationship
dynamics between a domestic-violence victim and the accused. 128 Nev.
at , 270 P.3d at 1246; see also Harris v. State,
195 P.3d 161, 182
(Alaska Ct. App. 2008) (recognizing that the holding in Harvey v. State,
604 P.2d 586, 590 (Alaska 1979), a case similar to Honkanen, had been
abrogated by the amendment of Alaska's Rule 404(b) to allow admission of
prior incidents of domestic violence as an exception to the general rule
against admitting such evidence).
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district court's determination that its worth outweighed the risk of unfair
prejudice. But the same cannot be said of the November 2006 and
February 2009 incidents involving Jacob. These incidents were merely
mentioned in a CPS report as "information only" and "unsubstantiated."
As such, they were not established by the clear and convincing evidence
required to sustain their admission.
C.
It was also error for the district court to admit the evidence
that Newman was aggressive to hospital staff and Ewing under NRS
48.045(2). Although the district court suggested that this evidence went
toward absence of mistake or accident, it had no logical relevance to
Newman's parental privilege defense. It also appears too factually
dissimilar to the battery-by-strangulation charge to have been admissible
to refute Newman's claim that he acted in self-defense in strangling
Carmona. Specifically, neither the hospital nor the Walmart incidents
went beyond an exchange of angry words. In neither instance did
Newman physically attack a stranger based on a mistaken belief that his
life was in danger. Although Newman claimed he was fighting for his life,
he never argued that he did not intend to hurt Carmona, accidentally
grabbed his throat, or was otherwise not at fault for Carmona's injuries.
NRS 48.045(1)(a) permits the prosecution to offer "similar
evidence" to rebut evidence offered by an accused "of a person's character
or a trait of his or her character." Normally, such proof is by "testimony as
to reputation or in the form of an opinion," NRS 48.055; "when a
defendant chooses to introduce character evidence in the form of
reputation or opinion evidence, the prosecution is similarly limited in its
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rebuttal evidence and can only inquire into specific acts of conduct on
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cross-examination." Jezdik v. State, 121 Nev. 129, 136,
110 P.3d 1058,
1063 (2005); see NRS 48.055(1). And, under the collateral-fact rule,
extrinsic evidence, other than a conviction, may not be offered to impeach
a defendant's character evidence, NRS 50.085(3), except "when the State
'seeks to introduce evidence on rebuttal to contradict specific factual
assertions raised during the accused's direct examination." Jezdik, 121
Nev. at 138,
110 P.3d at 1064 (quoting 1 Kenneth S. Broun et al.,
McCormick on Evidence § 49, at 202 (5th ed. 1999)). But the exception is
limited. It applies when the defendant "introduce [s] evidence giving the
jury a false impression through an absolute denial of misconduct" and
then relies on the collateral-fact rule to "frustrate the State's attempt to
contradict this evidence through proof of specific acts." Id. at 139, 110
P.3d at 1065.
Here, the district court admitted Ewing's testimony to rebut
character evidence from Newman. It also held that the collateral-fact rule
did not apply because the Ewing incident resembled Newman's
confrontation with Carmona and occurred less than two weeks earlier. We
disagree for three reasons.
First, Ewing's testimony about an extrinsic event did not rebut
character evidence from Newman. The crux of Ewing's testimony was
that Newman is a violent, aggressive man. This was not appropriate
rebuttal because Newman never claimed to be a peace-loving or nonviolent
man. Jezdik opened the door to a specific rebuttal by swearing on direct
examination to having never committed a crime. Jezdik, 121 Nev. at 134,
110 P.3d at 1062. On direct examination, Newman stuck close to the facts
and made no affirmative claim to good character. And under cross-examination, he openly admitted to being aggressive and churlish,
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especially when criticized for disciplining his children. Nor did Ewing's
testimony negate self-defense. Whereas Newman testified that he is
capable of violence when faced with a life-threatening situation, Ewing's
testimony only showed that Newman is confrontational and given to swear
words. Although Ewing's testimony may have been relevant if Newman
had physically attacked her and then claimed self-defense, the evidence
showed that the altercation at the Walmart store only involved words, not
blows, and thus differed fundamentally from the incident with Carmona.
Second, evidence of Newman's character was collateral. As we
noted in Lobato v. State, the use of specific acts of conduct raises issues
under the collateral-fact rule when coupled with a specific contradiction.
120 Nev. 512, 519,
96 P.3d 765, 770 (2004). Here, although enough
evidence supported a self-defense instruction as to the battery-bystrangulation charge, this did not make Newman's penchant for verbal
combativeness an issue. By allowing Ewing's testimony, the district court
improperly allowed evidence of one of Newman's prior bad acts—his
confrontation with Ewing—for the sole, irrelevant purpose of showing he
is not a peace-loving man.
Finally, Ewing's testimony did not comply with the
requirements of NRS 48.055. She did not give an opinion or discuss
Newman's reputation, but rather testified about a specific event. The
testimony was not proper because Ewing discussed a specific instance of
conduct that was not, and could not have been, previously raised by
Newman or explored by the prosecution in its cross-examination of him.
And as we held in Roever v. State, it is improper to use evidence of specific
acts that the accused has not previously been confronted with. 114 Nev.
867, 871,
963 P.2d 503, 505 (1998).
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Therefore, we conclude that the district court abused its
discretion in admitting Ewing's rebuttal testimony. We now consider
whether the district court's errors were harmless or warrant reversal.
IV.
"The harmless-error doctrine recognizes the principle that the
central purpose of a criminal trial is to decide the factual question of the
defendant's guilt or innocence." Delaware v. Van Arsdall, 475 U.S. 673,
681 (1986). It also "promotes public respect for the criminal process by
focusing on the underlying fairness of the trial rather than on the virtually
inevitable presence of immaterial error." Id. A nonconstitutional error,
such as the erroneous admission of evidence at issue here, is deemed
harmless unless it had a "substantial and injurious effect or influence in
determining the jury's verdict." Tavares v. State, 117 Nev. 725, 732,
30
P.3d 1128, 1132 (2001) (quoting Kotteakos v. United States,
328 U.S. 750,
776 (1946)); see also Fields v. State,
125 Nev. 776, 784-85,
220 P.3d 724,
729-30 (2009) (reviewing erroneous admission of evidence, pursuant to
NRS 48.045, as nonconstitutional error); Richmond v. State, 118 Nev. 924,
934,
59 P.3d 1249, 1255-56 (2002) (reviewing the failure to exclude
evidence in a Petrocelli hearing for harmless error); Rosky v. State, 121
Nev. 184, 198,
111 P.3d 690, 699 (2005) ("Errors in the admission of
evidence under NRS 48.045(2) are subject to a harmless error review.").
We have carefully reviewed the record in this case and
conclude that the error in allowing the prosecution to ask Newman about
the November 2006 and February 2009 incidents involving Jacob was
harmless. The jury heard nothing with respect to those incidents beyond
the prosecution asking Newman if he recalled either; the prosecution
accepted Newman's answer that he did not. The jury was instructed that
it "must not speculate to be true any insinuations suggested by a question
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asked a witness" and that "[a] question is not evidence." We must
presume that the jury followed those instructions. Allred v. State, 120
Nev. 410, 415,
92 P.3d 1246, 1250 (2004). Under those circumstances, and
given Newman's frank admissions and overwhelming evidence on the
child abuse charge, the error in allowing the prosecution to ask about the
November 2006 and February 2009 incidents cannot be said to have had a
substantial and injurious effect on the verdict.
In the unique circumstances of this case, we also find the error
in admitting the Ewing testimony and allowing Newman to be questioned
about his trespass from the hospital to have been harmless. Newman's
battery-by-strangulation conviction rested on his testimony admitting that
he put Carmona in a stranglehold and held his hands around his throat
for 30 seconds or more—testimony that numerous eyewitnesses
corroborated. Newman's defense focused on the absence of substantial
bodily harm to Carmona, and only minimally on self-defense. And the
prosecution made almost no use of the Ewing testimony. For these
reasons, we are convinced that the error in admitting the Ewing testimony
and allowing the prosecution to question Newman about his trespass from
the hospital did not have a substantial and injurious effect on the verdict.
The erroneously admitted evidence was a miniscule and
unnecessary part of the prosecution's case and merely repeated what
jurors already knew based on admissible evidence—that Newman is an
admittedly aggressive, obnoxious man who hits his children and bullies
anyone who criticizes his parenting. As the district court observed, this
case was only conceptually challenging, as the facts were remarkably
clear. While we will not hesitate to reverse a judgment of conviction when
18
evidentiary error taints an accused's right to a fair trial, such did not occur
here.
We therefore affirm.
, C.J.
Pickering
I concur:
Hardesty
19
CHERRY, J., concurring in part and dissenting in part:
The majority correctly holds that some of the episodes
involving Newman's son, Jacob, were not proven by clear and convincing
evidence as required by our caselaw, and that it was an abuse of discretion
to admit the testimony of surprise rebuttal witness Connie Ewing. The
analysis of these errors by the majority is outstanding and can be
considered a landmark holding in the often contested area of NRS 48.045's
prohibition against using character or prior-bad-act testimony to prove
criminal responsibility.
My problem with the majority is the holding that these errors
were harmless and that said errors did not taint Newman's right to a fair
trial.
I would hold that these substantial errors rooted in NRS
48.045 and the prohibition against using character or bad-act-testimony to
prove criminal responsibility are structural and require reversal of
appellant's convictions and the granting of a new trial without the
prosecution using these structural errors of inadmissible and highly
prejudicial evidence.
It is also important to note that after appellant testified in his
own behalf and the defense rested, the trial court permitted Connie Ewing
to testify after she came forward after reading about the case in the
newspaper. This was not only "trial by ambush," but also was clearly
inadmissible testimony. How can the majority justify this testimony as
harmless error?
The majority further states that "in closing neither side
argued the prior-bad-act evidence involving Jacob" and that "the Ewing
testimony was alluded to but briefly." To me this justification for
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concluding that the errors were harmless is not supported in the law or
the facts of this case and is not relevant to the issue of harmless error.'
One last thought:
in any test of harmless error, and in any case, an
appellate court has only probabilities to go on, not
certainties. Nonetheless, when it undertakes to
evaluate the probabilities in terms of an error's
effect on the judgment, instead of merely looking
at the result as the test of harmlessness, the
judicial process at the trial level as well as in
appellate review stands to make a long-term gain
in fairness without any long-term loss in
efficiency. In the long run there would be closer
guard against error at the trial, if appellate courts
were alert to reverse, in case of doubt, for error
that could have contaminated the judgment. 2
In light of the burden of proof beyond a reasonable doubt on a
prosecutor in a criminal case and the nature of the errors confirmed by the
1-See Randolph v. State, 117 Nev. 970, 984,
36 P.3d 424, 433 (2001)
(noting that the jury was instructed that "[s]tatements, arguments and
opinions of counsel are not evidence in the case'"(alteration in original));
Greene v. State, 113 Nev. 157, 169,
931 P.2d 54, 61 (1997) (reiterating the
district court's admonishment that "arguments of counsel are not
evidence, as I've told you earlier, and neither are the personal beliefs of
counsel as to—as to the implications of that evidence"), overruled on other
grounds by Byford v. State, 116 Nev. 215, 235,
994 P.2d 700, 713 (2000);
Flanagan v. State, 112 Nev. 1409, 1420,
930 P.2d 691, 698 (1996)
(highlighting the jury instruction that "[s]tatements, arguments and
opinions of counsel are not evidence in the case" (alteration in original));
Bonacci v. State, 96 Nev. 894, 896-97,
620 P.2d 1244, 1246 (1980)
(reiterating the district court's admonishment that "arguments of counsel
are not evidence").
2 Roger J. Traynor, The Riddle of Harmless Error 22-23 (1970).
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majority, I would reverse appellant's convictions and grant him a new
trial.
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