140 Nev., Advance Opinion a
IN THE SUPREME COURT OF THE STATE OF NEVADA
BRYCE EDWARD DICKEY, No. 85331
Appellant,
vs. F LED
THE STATE OF NEVADA,
Respondent.
EL1Z
CLERY OURT
BY
C IEF DEPUTY CLERK
Appeal from a judgrnent of conviction, pursuant to a jury
verdict, of first-degree murder with the use of a deadly weapon and sexual
assault with the use of a deadly weapon. Fourth Judicial District Court,
Elko County; Mason E. Simons, Judge.
Affirmed.
Matthew Pennell, Public Defender, Elko County,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; and Tyler J. Ingram, District
Attorney, Elko County,
for Respondent.
BEFORE THE SUPREME COURT, CADISH. C.J., and PICKERING and
BELL JJ.
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OPINION
By the Court, BELL, J.:
Tragically, sixteen-year-old Gabrielle (Britney) Ujlaky lost her
life in March 2020, the victim of homicide. A jury convicted appellant Bryce
Edward Dickey of sexually assaulting and murdering Britney. Dickey now
asserts his criminal convictions should be reversed, in part because the
court permitted Dickey's ex-girlfriend to testify at trial that Dickey choked
her during otherwise consensual sex. Dickey also raises concerns regarding
testimony of expert witnesses.
Although we conclude the district court erred in admitting other
act evidence for identification purposes, in admitting highly prejudicial
evidence regarding the timing of one of the other acts, and in failing to
narrowly tailor its subsequent limiting instruction regarding the testimony,
we conclude that these errors are harmless. We take this opportunity,
however, to clarify that the balancing test for propensity evidence of other
sexual offenses admissible under NRS 48.045(3) does not apply to the
admission of other act evidence concerning identity or intent under NRS
48.045(2). Likewise, the failure of the district court to make a proper
finding regarding an expert witness also constituted harmless error. We
conclude that the district court did not abuse its discretion by admitting
expert testimony about rigor mortis or by denying a motion for a mistrial.
Additionally, sufficient evidence supported the sexual assault conviction.
Accordingly, we affirm Dickey's convictions.
FACTS AND PROCEDURAL HISTORY
On March 8, 2020, Britney Ujlaky's family reported her
missing. According to the•family, Bryce Dickey gave Britney a ride, but she
never arrived home. Dickey initially claimed he dropped Britney off at
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Spring Creek High School and witnessed Britney leave with a rnan in a
green truck.
Three days after she disappeared, volunteers discovered
Britney's body in a remote area outside Elko. Britney was partially clothed,
and her body had been wrapped in a blue tarp. Autopsy results revealed
Britney died from a stab wound to her neck and strangulation, possibly with
a cord of some kind.
Officers collected evidence from the scene, including a used
condom in a nearby bush that matched a box of condoms from Dickey's
truck. The found condom contained DNA evidence: Dickey's DNA on the
inside and Britney's on the outside. Dickey's DNA was also found on swabs
taken from Britney's neck and fingernails, as well as on chewing tobacco
found near Britney's body.
Dickey initially denied having any sexual encounter with
Britney. Dickey's story later shifted. Dickey told police that he and Britney
engaged in consensual oral sex while Dickey was wearing a condom. During
that interview, Dickey claimed after the sexual encounter he dropped
Britney off near a trailer park with a man named Chaz Randall.
The State charged Dickey with open murder, including first-degree murder with the use of a deadly weapon, and sexual assault with the
use of a deadly weapon. Dickey entered a not guilty plea, and the case
proceeded to trial.
Prior to trial, the State filed a notice of intent to call expert
witnesses forensic pathologist Dr. Julie Schrader and intelligence analyst
Mike Soto. The notice provided, "Dr. Schrader is expected to testify and
offer opinions in the area of forensic pathology and will testify regarding the
autopsy of [the victim], her cause(s) of death, and all observations and
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conclusions underlying those opinions." The State attached Dr. Schrader's
forensic report to the notice. The State's notice also indicated that Soto
would "testify and offer his opinion about [Dickey's] and Britney's
geolocation data derived from Snapchat," attaching a report from the Rocky
Mountain Information Network overlaying data from the social media
company Snapchat onto a map. That data consisted of latitudes, longitudes,
and timestamps from Britney's and Dickey's Snapchat accounts.
At trial, the State presented testimony from Dr. Schrader
regarding Britney's autopsy, the cause of Britney's death, and rigor mortis.
The State also called Soto to testify regarding the geolocation data from
Snapchat, placing Dickey and Britney at the location where Britney's body
was eventually discovered. Additional evidence presented at trial included
surveillance footage from an apartrnent complex that showed Dickey's truck
drove past Britney's high school without stopping on the day Britney was
reported missing and testimony from Dickey's ex-girlfriend about four
instances when Dickey choked the ex-girlfriend without consent while the
couple engaged in otherwise consensual sex. Dickey choked the ex-girlfriend on multiple occasions after she expressly told him not to. The
last, and most violent, of these incidents occurred on the night of a
candlelight vigil in Britney's honor.
Before her testimony, the ex-girlfriend entered the courtroom
in violation of the exclusionary rule and watched a small portion of
Detective Nicholas Stake's testimony. As a result, Dickey requested the
court preclude the ex-girlfriend's testimony or declare a mistrial. Outside
the presence of the jury, the ex-girlfriend testified she was unaware
witnesses were excluded from entering the courtroom. The ex-girlfriend
heard about five minutes of Detective Stake's testimony regarding weather
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conditions when Britney's body was discovered. The courtroom bailiff also
testified, corroborating the ex-girlfriend's testimony. The district court
admonished the State to make witnesses aware of the exclusionary rule but
ultimately denied Dickey's motion for a mistrial and allowed the ex-girlfriend to testify.
At the close of trial, the jury found Dickey guilty of first-degree
murder with the use of a deadly weapon and sexual assault with the use of
a deadly weapon. Dickey was sentenced to life with the possibility of parole
after a minimum of 46 years. Dickey now appeals.
DISCUSSION
Dickey appeals on numerous grounds, including that the
district court (1) erred in admitting evidence of other acts between Dickey
and the ex-girlfriend, (2) gave incorrect jury instructions with respect to the
admitted other acts testimony, (3) erred in denying Dickey's motion for a
mistrial when the ex-girlfriend violated the exclusionary rule, and
(4) admitted deficient expert testimony. Dickey also claims (5) insufficient
evidence exists to support his conviction for sexual assault and
(6) cumulative error warrants reversal. We disagree that any error present
is reversible and affirm the district court's judgment of conviction.
The district court erred in analyzing other act evidence
Dickey contends the district court abused its discretion by
admitting the ex-girlfriend's testimony that Dickey choked her without
consent during otherwise consensual sex. Dickey asserts the ex-girlfriend's
testimony constituted impermissible character evidence under NRS
48.045(1). Alternatively, Dickey asks this court to find the district court
erred in finding the ex-girlfriend's testimony was not substantially more
prejudicial than probative. This court reviews the admission of evidence for
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an abuse of discretion. See Mclellan v. State, 124 Nev. 263, 267,
182 P.3d
106, 109 (2008).
The district court granted the State's motion to admit the ex-girlfriend's testimony under NRS 48.045(2), which allows other acts to be
admitted for certain nonpropensity purposes. Other act evidence carries a
presumption of inadmissibility. Ledbetter v. State, 122 Nev. 252, 259,
129
P.3d 671, 677 (2006). Before the admission of other act evidence, a court
must hold an evidentiary hearing outside the presence of the jury. Based
on the evidence presented, the court may find the presumption rebutted and
admit other act evidence if the act is (1) relevant, (2) proven by clear and
convincing evidence, and (3) not substantially more prejudicial than
probative. Petrocelli v. State, 101 Nev. 46, 51,
692 P.2d 503, 507 (1985); see
also Ledbetter, 122 Nev. at 259,
129 P.3d at 677 (applying the same analysis
as in Petrocelli, citing to Tinch v. State, 113 Nev. 1170, 1176,
946 P.2d 1061,
1064-65 (1997)). If the Petrocelli requirements are met, the evidence may
be admitted for limited nonpropensity purposes as found by the court. Here,
after an evidentiary hearing, the district court determined the ex-girlfriend's testimony was properly offered to prove Dickey's identity and
intent.
We cannot say the district court properly applied Petrocelli.
The district court erred in admitting the evidence to prove identity, in
applying the Franks test to determine whether the evidence was more
prejudicial than probative, and in allowing the admission of prejudicial
evidence of low probative value. See Franks v. State, 135 Nev. 1, 6,
432 P.3d
752, 756 (2019). Nevertheless, because we conclude the ex-girlfriend's
testimony was admissible under a Petrocelli analysis to prove intent, we
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affirm the district court's decision to admit the evidence and deern the errors
harmless given the overwhelming evidence of guilt.
Under Petrocelli, the ex-girlfriend's testimony was properly admitted
to prove Dickey's intent but not to prove his identity
NRS 48.045(2) allows litigants to present evidence of other acts
when offered for certain limited nonpropensity purposes including "proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." The State moved to admit the ex-girlfriend's testimony for the limited purposes of proving identity and
intent. Notably, the State did not request to admit the evidence for
propensity under NRS 48.045(3).
Identity
First, we address whether the ex-girlfriend's testimony could be
properly admitted to prove identity under NRS 48.045(2). For identity
purposes, other acts have probative value "only to the extent that
[d]istinctive "common marks" give logical force to the inference of identity.
If the inference is weak, the probative value is likewise weak, and the
court's discretion should be exercised in favor of exclusion." Mayes v. State,
95 Nev. 140, 142,
591 P.2d 250, 252 (1979) (quoting People v. Banks,
465
P.2d 263, 271 (Cal. 1970)).
Here, the sole act of choking during sex does not qualify as a
distinctive common mark creating a logical inference that a separate
instance of choking was done by the same person. Discrepancies between
Dickey's conduct towards the ex-girlfriend and the strangulation of Britney
further undercut any inference regarding identity: Britney's autopsy
suggested she was strangled with a ligature; the ex-girlfriend testified
Dickey choked her with his hand. Because the ex-girlfriend's testimony is
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not reasonably probative of the identity of Britney's attacker, her testimony
was not properly admitted for that purpose.
Intent
We now consider whether the evidence was properly admitted
to prove intent. At trial, Dickey's sole defense to the sexual assault charge
was consent. Consequently, Dickey placed the element of intent at issue.
As we held in Williarns v. State, "[t]he crucial question in determining if a
sexual assault has occurred is whether the act [was] committed without the
consent of the victim, and the intent of the accused is relevant to the issue
of consent or [the] lack thereof." 95 Nev. 830, 833,
603 P.2d 694, 697 (1979)
(internal citation omitted). A defendant's assertion of consent in a sexual
assault case "place [s] in issue [intent as] a necessary element of the offense,"
which opens the door to the admission of other act evidence as rebuttal. Id.;
see also Mayer v. State, 86 Nev. 466, 468,
470 P.2d 420, 421 (1970)
(admitting evidence of defendant's possession of marijuana as probative to
the issue of intent in a separate charge of selling narcotics because
willfulness was a required element).
The ex-girlfriend's testimony is relevant and probative of intent
as it presents evidence of Dickey's increasing violence around sex and intent
to engage in the choking activity in the face of explicit nonconsent. Just as
in the Williams case evidence of "sexual misconduct with other persons was
admitted as being relevant to prove his intent to have intercourse with the
victim without her consent," evidence of Dickey's willingness to choke a
sexual partner without consent is relevant to prove his intent to strangle
Britney without her consent as part of their sexual interaction. Williams,
95 Nev. at 833,
603 P.2d at 697; see NRS 48.015 (defining relevant evidence
as "evidence having any tendency to make the existence of any fact that is
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it would be without the evidence"). The question of admission to prove
intent is a closer one than in Williams. Still, here as in Williams, the State
offered the ex-girlfriend's testimony not for propensity purposes, but to
demonstrate that choking a woman without consent during sex was an
established element of Dickey's sexual proclivities and supported a finding
that he intended to ignore Britney's lack of consent to choking during sex.
Therefore, we cannot say the district court abused its discretion in
admitting the ex-girlfriend's testimony as at least minimally probative of
intent.
The ex-girlfriend's testimony sufficiently established the other
act by clear and convincing evidence. See Rose v. State, 123 Nev. 194, 203,
163 P.3d 408, 414 (2007) (citing LaPierre v. State,
108 Nev. 528, 531,
836
P.2d 56, 58 (1992)) (the victim's testimony alone is sufficient to establish
guilt of sexual assault beyond a reasonable doubt, so long as the testimony
includes "some particularity regarding the incident"). The district court
found the ex-girlfriend's testimony credible, and we do not disturb this
determination. Mitchell v. State, 124 Nev. 807, 816,
192 P.3d 721, 727
(2008) (this court "will not reweigh the evidence or evaluate the credibility
of witnesses" on appeal).
Finally, we examine whether the ex-girlfriend's testimony was
substantially more prejudicial than probative. See Petrocelli, 101 Nev. at
51,
692 P.2d at 507; Tinch,
113 Nev. at 1176,
946 P.2d at 1064-65. While
Petrocelli itself does not contain explicit factors to consider regarding the
probative value of evidence, this court outlined the following factors in
Randolph v. State:
When balancing probative value against the danger
of unfair prejudice, courts consider a variety of
factors, "including the strength of the evidence as
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to the commission of the other crime, the
similarities between the crimes, the interval of time
that has elapsed between the crimes, the need for
the evidence, the efficacy of alternative proof, and
the degree to which the evidence probably will
rouse the jury to overmastering hostility."
136 Nev. 659, 665,
477 P.3d 342, 349 (2020) (quoting State v. Castro,
756
P.2d 1033, 1036 (Haw. 1988)) (analyzing admissibility under NRS
48.045(2)).
Following the Randolph factors here, first, the ex-girlfriend
testified under oath regarding the instances of choking. Nothing in the
record suggests that her testimony inaccurately described the prior acts.
Second, Dickey's choking of the ex-girlfriend was arguably similar to the
offense against Britney, as both involved elements of choking along with
sexual contact. Yet, we acknowledge that the acts against the ex-girlfriend
and Britney are not identical. Britney was likely strangled with an object,
while the ex-girlfriend testified Dickey choked her with his hand.
Third, the ex-girlfriend testified that the four instances of
choking occurred within the year preceding Dickey's arrest. As to the fourth
and fifth factors, Britney's consent, or lack of consent, to sexual contact with
Dickey is an essential question in this case. No other testimony, save
Dickey's own, provided any direct evidence towards the issue of consent.
The ex-girlfriend's testimony presented evidence of Dickey's past violence
around sex, including intent to engage in the choking activity without
consent.
When considering the sixth and final factor, we are compelled
to make further distinctions regarding the ex-girlfriend's testimony. The
first three instances of choking to which the ex-girlfriend testified would
not, on their own, support a finding of undue prejudice. Accordingly, under
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Petrocelli, the ex-girlfriend's testimony regarding the first three instances
of choking was properly adrnitted on this issue of intent.
We must. take note, though, of the particularly inflammatory
testimony concerning the last instance of choking, which occurred on the
night of a candlelight vigil held to honor Britney. Pointing out the timing
of this particular incident was highly prejudicial. Also, given the admission
of the other act testimony for intent, the timing of the event possesses
virtually no probative value. As a result, the district court erred in allowing
testimony regarding the specific timing of this incident. Nonetheless, the
weight of independent, cumulative evidence against Dickey renders this
error harmless. See Tavares v. State, 117 Nev. 725, 732,
30 P.3d 1128, 1132
(2001) (holding an error is harmless unless it has a "substantial and
injurious effect or influence in determining the jury's verdict" (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946))).
The district court also improperly applied the balancing test
outlined in Franks, 135 Nev. at 6, 432 P.3d at 756, to make its prejudice
findings. Franks interpreted NRS 48.045(3), which allows evidence of other
sexual offenses to be admitted for propensity purposes in "a criminal
prosecution for a sexual offense." At no point did the State seek
admissibility under NRS 48.045(3), and the evidence was not admitted for
propensity purposes. Thus, the district court improperly applied the Franks
test.
Today, we make clear that Franks and Petrocelli are not
interchangeable standards. Parties have an obligation to clearly identify
the exception to the general principle of inadmissible character evidence
under which they are seeking admission. While we recognize that, in
practice, the inquiries the district courts must undertake are relatively
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similar, the blended application of two distinct statutory schemes collapses
the broader, nonpropensity analysis of Petrocelli and the limited-scope
propensity analysis of Franks. This confusion complicates appellate review
and risks the improper use of NRS 48.045(3) beyond the narrow scope
intended by the Legislature.
The Franks test for determining prejudice when admitting a
prior sexual offense for the purpose of propensity contains a slightly
narrower and more stringent test than the one used to determine the
prejudicial impact of other act evidence admitted in nonpropensity contexts.
See United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001) ("Because
of the inherent strength of the evidence [of prior sexual offenses] . . . a court
should pay careful attention to both the significant probative value and the
strong prejudicial qualities of that evidence." (quoting Doe v. Glanzer, 232
F.3d 1258, 1268 (9th Cir. 2000))); see also Alfaro v. State,
139 Nev., Adv. Op.
24,
534 P.3d 138, 150-51 (2023) (applying the Franks test). In this regard,
any error would tend to help, rather than harm, Dickey. Thus, the error is
harmless.
We likewise determine the district court's error in admitting
the ex-girlfriend's testimony to prove identity was harmless given the
quantity of evidence supporting the State's case against Dickey and its
proper use to prove intent. See Fiegehen v. Stctte, 121 Nev. 293, 296,
113
P.3d. 305, 307 (2005) (finding harmless error where overwhelming evidence
of guilt existed, including an identification and DNA evidence at the crime
scene). The State's evidence at trial included DNA and geolocation data
placing Dickey at the scene of the crime, inconsistent statements to police
that could reasonably impact Dickey's credibility with the jury, and a used
condom proving Dickey had sexual contact with Britney.
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The district court's errors in providing limiting jury instructions were
harrnless
Dickey next contends that the district court erred by giving the
jury an overly broad limiting instruction regarding the ex-girlfriend's
testimony. The instruction failed to limit use of the other act evidence to
establishing identity or intent—the only purposes for which the district
court allowed the evidence. After admitting the ex-girlfriend's testimony
for the limited purposes of identity and intent, the district court
administered the following jury instruction:
Evidence has been received tending to show that
the defendant committed wrongs or acts other than
that for which he is on trial.
Such evidence was not received and may not be
considered by you to prove that he is a person of bad
character or that he has a disposition to commit
such crimes.
Such evidence was received and may be considered
by you only for the limited purpose of determining
if it tends to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of
mistake or accident, or a common scheme or plan.
The district court offered this instruction once immediately prior to the ex-girlfriend's testimony and once at the close of trial.
When admitting evidence for limited purposes under NRS
48.045(2), limiting instructions must instruct the jury to consider only those
purposes for which the evidence was actually admitted. Any instruction to
consider purposes for which admission was not granted constitutes an error
subject to NRS 178.598 harmless error review. Allred v. State, 120 Nev.
410, 415,
92 P.3d 1246, 1250 (2004); see also Tavares,
117 Nev. at 732,
30
P.3d at 1132.
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The district court erred by including all potential purposes
listed for admission of other act evidence under NRS 48.045(2), instead of
limiting its instruction to only the purposes for which the court found the
evidence admissible—identity and intent. Additionally, given the error in
admitting the evidence for purposes of identity, a proper limiting
instruction in this case should have informed the jury that it could consider
the other act evidence for the purpose of intent only.
As a result, we rnust consider whether such an error is
harmless. We consider whether the district court's instruction to consider
the ex-girlfriend's testimony for the purposes of intent, motive, opportunity,
preparation, plan, knowledge, absence of mistake or accident, and common
scheme or plan had a substantial and injurious impact on the verdict. We
conclude it did not.
Substantial, independent evidence exists to support Dickey's
convictions. When considering the ex-girlfriend's testimony, we cannot say
that instructing the jury on all potential purposes for the admission of other
acts under NRS 48.045(2) altered the outcome of this case. Accordingly, we
hold the error in the provided jury instructions harmless.
The district court did not abuse its discretion in declining to declare a
mistrial based on a violation of the exclusionary rule
"The decision to grant a mistrial is within the sound discretion
of the trial court and will not be overturned absent an abuse of discretion."
Rorno v. Keplinger, 115 Nev. 94, 96,
978 P.2d 964, 966 (1999) (internal
quotation marks omitted). Violations of the rule excluding witnesses from
the courtroom can warrant a mistrial. Id. Here, the ex-girlfriend entered
the courtroom during trial and heard testimony from other witnesses before
she testified, which violated the exclusionary rule. See NRS 50.155(1)
(providing that "at the request of a party the judge shall order witnesses
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excluded so that they cannot hear the testimony of other witnesses"). On
learning of this violation, the district court adrnonished the State and
permitted examination of the ex-girlfriend outside the presence of the jury.
This examination revealed minimal basis for harm, as the testimony the ex-girlfriend witnessed was irrelevant to her own. The district court took
remedial measures to avoid prejudice from the ex-girlfriend's violation and
found no bad faith existed on the part of the State. The violation could not
have impacted the ex-girlfriend's unrelated testimony. Consequently, the
district court did not abuse its discretion by denying Dickey's motion for a
mistrial.
Any other alleged violations of the exclusionary rule were either
not raised before the district court or not adequately briefed before this
court, and so we decline to reach them. Maresca v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987) ("It is appellant's responsibility to present relevant
authority and cogent argument; issues not so presented need not be
addressed by this court.").
The district court properly admitted Dr. Schrader's expert testimony; it erred
when it failed to conduct a Hallmark analysis on a proposed expert witness,
but this error was harmless
Dickey next argues the district court abused its discretion when
it admitted (1) Dr. Schrader's testimony with respect to rigor mortis, as the
State's NRS 174.234 notice procedures were insufficient, and (2) Soto's
expert testimony about geolocation data placing Dickey with Britney at the
time and place of her death when he was not qualified to offer expert
testimony.
Notice of Dr. Schrader's rigor rnortis testirnony
Nevada law requires a party in a criminal case to notify the
opposing party of their intent to call an expert witness 21 days before trial.
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NRS 174.234(2) (held unconstitutional on other grounds in Grey v. State,
124 Nev. 110, 118,
178 P.3d 154, 160 (2008)). This notice must include "[a]
brief statement regarding the subject matter on which the expert witness is
expected to testify and the substance of the testimony." NRS 174.234(2)(a).
The State served timely notice of its intent to use Dr. Schrader as an expert,
including a copy of Dr. Schrader's autopsy report and a statement
announcing the State's intent to examine Dr. Schrader regarding the
contents of the attached report. Dickey did not object to Dr. Schrader's
testimony during trial and therefore failed to preserve the alleged error for
appeal. Jeremias v. State, 134 Nev. 46, 50,
412 P.3d 43, 48 (2018).
Additionally, given that the attached autopsy report discussed rigor mortis,
the State provided adequate notice to the defense regarding the potential
for this testimony. The district court did not err in allowing Dr. Schrader's
testimony when Dickey failed to object, and the State provided adequate,
timely notice under NRS 174.234.
Soto's opinion testirnony about geolocation data
Dickey also challenges the qualification of Soto as an expert
witness. Dickey argues the district court erred in admitting Soto's
testimony over Dickey's objection, implying that the district court was
required to qualify Soto as an expert under Hallmark v. Eldridge. Dickey
argued that Soto failed to employ a reliable methodology per NRS 50.275.
See Hallmark v. Eldridge, 124 Nev. 492, 498,
189 P.3d 646, 650 (2008)
(clarifying that to testify as an expert witness, the witness must (1) be
qualified in an area of specialized knowledge, (2) use that knowledge to
assist the trier of fact, and (3) limit their testimony to matters within the
scope of that knowledge). The district court made no such findings,
concluding only that Soto's testimony was a product of reliable methodology.
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Here, our ability to review the district court's action is
complicated by the district court's unclear response to Dickey's objection.
By finding Soto's testimony was the product of reliable methodology, the
district court seems to understand its ruling to allow Soto to offer expert
testimony despite the State's assertion Soto need not be so qualified. See
id. at 500,
189 P.3d at 651 (requiring district courts qualifying experts to
consider factors including whether the testimony is a "product of reliable
methodology"). To the extent the district court's action qualified an_ expert
witness, we review that decision for abuse of discretion. Id. at 498,
189 P.3d
at 650.
First, we make clear that when a party objects to the
qualifications of a witness on the basis that the witness is not qualified to
offer the proffered opinion under Hallmark, the district court is required to
either conduct a full Hallmark analysis or to make clear expert qualification
is not necessary. Because Dickey properly raised an objection based on
Soto's qualifications to testify on the geolocation data, and because it
appears the district court dispatched this objection through an incomplete
Hallmark analysis, we conclude the district court erred in failing to conduct
a complete Hallmark analysis regarding Soto's testimony.
Nevertheless, we conclude the error was harmless, because
under our prior caselaw, Soto's testimony did not require specialized
knowledge. See NRS 178.598 ("Any error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded."). Soto plotted
geolocation data on a map and adjusted the data to the local time. In
Burnside v. State, a detective was similarly permitted to testify to a map he
created from cell phone location data without being qualified as an expert.
131 Nev. 371, 383,
352 P.3d 627, 636 (2015). This court held "the map and
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the detective's testimony were not based on specialized knowledge." Id.
Soto's testimony is indistinguishable from the testimony in Burnside. In
both cases, the witness plotted data obtained from another source onto a
map. Thus, the district court did not abuse its discretion because Soto's
testimony was admissible as lay testimony, without requiring an expertwitness analysis.
Sufficient evidence existed for a rational jury to convict Dickey of sexual
assault
Dickey asserts that insufficient evidence supports the sexual
assault conviction. We "will not disturb a judgment of conviction in a
criminal case on the basis of insufficiency of the evidence so long as the jury
verdict is supported by substantial evidence." Mitchell v. State, 105 Nev.
735, 737,
782 P.2d 1340, 1342 (1989). "In determining the sufficiency of the
evidence below, the critical question is whether, after viewing 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."
Mejia v. State, 122 Nev. 487, 492,
134 P.3d 722, 725 (2006) (internal
quotation marks omitted).
Dickey argues a rational jury could not have found forced
penetration because the autopsy reported a lack of genital trauma. Sexual
assault occurs when one person "[s]ubjects another person to sexual
penetration. against the will of the victim." NRS 200.366(1)(a). The
plain language of the statute neither requires force nor physical injury.
The State presented substantial circumstantial evidence
sufficient to support the jury's guilty verdict of sexual assault. See Wilkins
v. State, 96 Nev. 367, 374,
609 P.2d 309, 313 (1980) (allowing a jury to rely
on circumstantial evidence to support a verdict). Dr. Schrader testified a
sexual assault may occur with no physical findings whatsoever and lack of
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injury does not equate with consent. Dickey admitted to having oral sex
with Britney, despite first denying any sexual contact and claiming Britney
was like a little sister. Geolocation data placed Dickey and Britney together
at the location where Britney's body was later discovered, and a condom
with both their DNA profiles was found at the scene. Finally, Britney's body
was found in a state of undress. The jury could have reasonably relied on
this evidence to conclude, as the State argued in its closing, that Britney
was given a choice between death and performing oral sex on Dickey, after
which Dickey killed her to prevent her from speaking out. See Mitchell, 105
Nev. at 737,
782 P.2d at 1342 (upholding a jury verdict of sexual assault
when there was no evidence of physical trauma to the victim's genitalia, but
the victim was found in a remote area and in a state of undress). Likewise,
the jury here could have rejected Dickey's assertion of consensual sex given
the circumstances of Britney's death and Dickey's changing versions of the
events.
The facts presented at trial provided substantial evidence for a
reasonable jury to find Dickey guilty of sexual assault under Nevada law.
Accordingly, sufficient evidence existed to convict Dickey on this count.
Cumulative error does not warrant rever,sal
Lastly, Dickey claims the cumulative errors in his case warrant
reversal. A defendant's right to a fair trial may be violated by the
cumulative effect of errors even when any one error, individually, is
harmless. See Hernandez u. State, 118 Nev. 513, 535,
50 P.3d 1100, 1115
(2002). When evaluating a claim of cumulative error, relevant factors
include "(1) whether the issue of guilt is close, (2) the quantity and character
of the error, and (3) the gravity of the crime charged." Mulder v. State, 116
Nev. 1, 17,
992 P.2d 845, 854-55 (2000).
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On this record we have found four instances of error that could
have impacted Dickey's conviction: (1) the district court improperly
admitted the ex-girlfriend's testimony for purposes of identity; (2) the
district court improperly admitted the ex-girlfriend's testimony that Dickey
choked her on the night of Britney's candlelight vigil; (3) the jury was given
erroneous instructions to consider the ex-girlfriend's testimony, generally,
for motive, opportunity, preparation, plan, knowledge, absence of mistake
or accident, and common scheme or plan; and (4) the district court failed to
engage in a full Hallmark analysis for Soto. We determined each of those
errors harmless and there is nothing cumulative in the nature of those
errors to warrant reversal. Here, despite the grave nature of the crime,
evidence of guilt was overwhelming. Errors did not impugn the overall
integrity of the trial and were not the by-product of any bad faith on the
part of the State. We are not convinced the cumulative weight of these
errors deprived Dickey of his constitutional right to a fair trial.
CONCLUSION
Parties must make clear the specific bases for admission of
other act evidence under Petrocelli and NRS 48.045(2). The court, after an
evidentiary hearing, must determine whether any of those bases apply,
being careful to analyze the foundation for each basis. Courts must take
care not to mix the Franks and Petrocelli analyses, as the tests, instructions,
and use of evidence differ for other act evidence and other sexual offense
evidence. Any limiting instruction given regarding the admission of other
act evidence must specify only the bases determined by the court.
A district court also must engage in a thorough Hallmark
analysis, either in writing or on the record, when a party has challenged the
qualifications of an expert. Prior caselaw of this court supports a
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require expert testimony. Despite a few harmless errors by the trial court
in these regards, the State presented overwhelming evidence to support the
jury's conviction of Dickey for murder and sexual assault. Accordingly,
concluding no reversible error exists, we affirm the district court's
judgment.
We concur:
, C.J.
Cadish
J.
Pickering
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