135 Nev., Advance Opinion Li
IN THE SUPREME COURT OF THE STATE OF NEVADA
RYAN MATTHEW LIPSITZ, No. 72057
Appellant,
vs.
THE STATE OF NEVADA,
Fain
Respondent. JUN 05 2%
fly
Appeal from a judgment of conviction, pursuant to a guilty
verdict, of indecent exposure, two counts of sexual assault, attempted
sexual assault, battery with the intent to commit sexual assault, open or
gross lewdness, and sexually motivated coercion. Eighth Judicial District
Court, Clark County; Eric Johnson, Judge.
Affirmed in part, reversed in part, and remanded with
instructions.
Terrence M. Jackson, Las Vegas,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark
County,
for Respondent.
BEFORE HARDESTY, STIGLICH and SILVER, JJ.
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OPINION
By the Court, HARDESTY, J.:
Appellant Ryan Matthew Lipsitz was convicted of seven
sexually related counts, including sexual assault and attempted sexual
assault. He argues that the district court erred when it allowed the victim
to testify by two-way audiovisual transmission, which violated his rights
under the Confrontation Clause of the Sixth Amendment. We take this
opportunity to adopt the test set forth in Maryland v. Craig, 497 U.S. 836,
850 (1990), to determine whether a witness's testimony at trial via two-way
audiovisual transmission violates a defendant's right to confrontation.
Under Craig, two-way video testimony may be admitted at trial in lieu of
physical, in-court testimony only if (1) it "is necessary to further an
important public policy," and (2) "the reliability of the testimony is
otherwise assured." 497 U.S. at 850. Applying this test here, we conclude
that the district court did not abuse its discretion in allowing the victim,
who was admitted to an out-of-state residential treatment center, to testify
by two-way audiovisual transmission at trial. First, the use of the
audiovisual procedure was necessary to protect the victim's well-being, an
important public policy goal, while also ensuring that the defendant was
provided a speedy trial. And second, the audiovisual transmission
procedure, as set forth in Supreme Court Rules Part IX-A(B), adequately
ensured the reliability of the testimony, as it allowed Lipsitz to cross-examine the victim and the jury could hear and observe the victim.
Lipsitz also argues that the district court abused its discretion
in proceeding to trial after the State expressed concerns about his
competency. Based on the record before us, we conclude that the district
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court did not abuse its discretion in proceeding to trial without holding a
competency hearing.
Finally, Lipsitz argues that the district court erred in convicting
him of both sexual assault and attempted sexual assault because they were
based on the same underlying conduct. The State concedes this point and
we agree. The State should have charged these counts in the alternative,
but did not. The district court then compounded the error by convicting
Lipsitz of both counts. As there was insufficient evidence for the sexualassault conviction (count 2), we reverse that part of the judgment of
conviction. We uphold the remaining convictions.
FACTS AND PROCEDURAL BACKGROUND
Lipsitz trespassed into a residential treatment facility, where
he sexually assaulted the victim, an 18-year-old patient seeking treatment
for substance abuse and trauma related to her experience as a victim of sex
trafficking. On the morning in question, the victim fell asleep while reading
in the recreation room around 4 a.m. Approximately one hour later, the
victim awoke to find Lipsitz, whom she had never seen before, standing at
the end of the couch. Lipsitz exposed himself and forced the victim to have
sex with him. Lipsitz then attempted to force the victim to perform fellatio
on him, but her mouth was closed. And when he failed, he became upset,
mumbled something under his breath, and walked away. Another patient
and several staff members at the treatment center saw Lipsitz exiting the
treatment center through the front gate. He was nearby the center when
police officers found him.
Lipsitz was indicted and subsequently invoked his right to a
speedy trial. The State moved to allow the victim to testify via simultaneous
audiovisual transmission because she was unavailable as a witness for trial.
Lipsitz opposed this motion, arguing that it was essential for thefl victim to
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be physically present at trial as the case "rises and falls on the victim's
credibility." The district court granted the State's motion, reasoning that
the victim was unavailable as a witness for trial because she was a patient
at an out-of-state treatment center. Moreover, the district court noted that
Lipsitz invoked his right to a speedy trial, and he refused to agree to a
continuance of the trial for her to be released from the facility. Therefore,
the only way she could testify on the dates set for trial was by alternative
means: deposition or audiovisual transmission.
During the same hearing, the State informed the district court
that Lipsitz had been referred to competency court in a separate case
pending in a different department. The district court asked Lipsitz's
attorneys whether they had any concerns about his competency; they denied
any concerns and urged the district court to proceed to trial. The district
court engaged in a lengthy canvas of Lipsitz. At the conclusion of the
hearing, the district court stated that it had no basis to doubt Lipsitz's
competency because he "seem[ed] to have a clear understanding in terms of
the facts [and] his discussion with his attorneys." The next day, the court
reconsidered Lipsitz's competency after a sidebar with counsel. Lipsitz
stated that he was unaware that he had been referred for a competency
evaluation in the other case. The district court canvassed him again to
ensure that he understood the charges and that he was able to communicate
with and assist his attorneys in his defense. Satisfied with Lipsitz's
responses, the district court proceeded to trial.
On the first day of trial, Lipsitz refused to change into a suit,
which prompted the court to question his competency again The district
court asked him if he understood that remaining in his jail clothes might
prejudice the jury against him, to which he responded "yes." Eventually,
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Lipsitz agreed to put on a suit. The district court asked Lipsitz's counsel
whether they still had no concerns about his competency. Lipsitz's counsel
confirmed that they had no concerns and would inform the district court if
that changed during the trial. The district court noted for the record that
Lipsitz appeared competent.
After the district court impaneled the jury, Lipsitz engaged in
an increasingly obstinate exchange with the district court, rebuking the
justice system because the district court had allowed the victim to testify by
audiovisual transmission and rebuffing his counsel The district court
explained that the use of audiovisual transmission would allow Lipsitz to
confront the victim at trial. The court also explained that the victim had
submitted "sufficient documentation that she medically cannot
appear. . . . So I mean if we're going forward today, we're going to be going
forward with audio/video technology." The court further explained that it
approved the use of audiovisual transmission for the victim's testimony, in
part, because Lipsitz had invoked his right to a speedy trial.
This angered Lipsitz. It appeared that he misunderstood how
the audiovisual technology worked; he thought that the victim's testimony
was a prerecording from YouTube. Lipsitz reasserted his lack of confidence
in the judge and the trial proceedings. He then waived his right to appear
at trial, and the district court ordered his removal from the courtroom.
At trial, the jury heard testimony from several witnesses: the
victim who described the sexual assault in detail; several staff members and
another patient from the treatment center who saw Lipsitz in and around
the building; the sexual assault nurse examiner who treated the victim after
the sexual assault; forensic scientists who processed DNA collections from
both the victim and Lipsitz; and the police officers who responded to the
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scene and arrested Lipsitz. The DNA testing revealed Lipsitz's saliva on
the victim's mandible, neck, and chest. There was no evidence of sperm or
semen from the victim's vaginal and external genitalia and no sperm on
Lipsitz's penis or hands. There was also no DNA from the victim on Lipsitz's
hands.
After the six-day trial, the jury returned a guilty verdict on all
counts except for one count of sexual assault. The district court sentenced
Lipsitz to an aggregate sentence of 20 years to life.
DISCUSSION
Lipsitz argues that reversal is warranted because (1) the
district court abused its discretion in not suspending proceedings after the
State raised concerns about Lipsitz's competency to stand trial; (2) the
district court erred in allowing the victim to testify via simultaneous
audiovisual transmission from the Florida treatment center where she was
a patient, depriving Lipsitz of his Sixth Amendment right under the
Confrontation Clause; and (3) the district court erred by convicting Lipsitz
of both sexual assault (count 2) and attempted sexual assault (count 3) when
the charges stemmed from the same incident.
The district court did not abuse its discretion in proceeding to trial after the
State expressed concerns about Lipsitz's competency
Lipsitz argues that the district court was required to halt the
trial proceedings and order a competency evaluation after the State
expressed concerns about Lipsitz's competency. We review a district court's
refusal to order a competency evaluation for an abuse of discretion. Olivares
v. State, 124 Nev. 1142, 1148,
195 P.3d 864, 868 (2008).
The Due Process Clause of the Fourteenth Amendment
provides that a criminal defendant may not be prosecuted if he or she lacks
competence to stand trial. Id. at 1147,
195 P.3d at 868. An incompetent
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defendant is one who lacks "the present ability to understand either the
nature of the criminal charges against him or the nature and purpose of the
court proceedings, or is not able to aid and assist his counsel in the defense
at any time during the proceedings with a reasonable degree of rational
understanding." Id.; see also NRS 178.400(2)(a)-(c). "[Ill' doubt arises as to
the competence of the defendant, the court shall suspend the
proceedings . . . until the question of competence is determined" NRS
178.405(1). "Whether such a doubt is raised is within the discretion of the
trial court," Melchor-Gloria v. State, 99 Nev. 174, 180,
660 P.2d 109, 113
(1983), but when the district court receives "substantial evidence that the
defendant may not be competent to stand trial," the court must hold a
formal competency hearing, Olivares, 124 Nev. at 1148,
195 P.3d at 868
(internal quotation marks omitted).
Our review of the record demonstrates that the district court
did not abuse its discretion in proceeding to trial because substantial
evidence showed that Lipsitz was competent for trial. The district court
conducted an independent assessment of Lipsitz's competency, canvassing
him and his counsel, who assured the district court that Lipsitz was
competent and requested to proceed to tria1. 1 The court relied on defense
counsel's assurances, its own interactions with Lipsitz, and his responses to
1 The State informed the district court that Lipsitz had been referred
to competency court in another department, but there is nothing in the
record confirming that the other department made a competency
determination. We note that NRS 178.405(2) requires that once a
department suspends proceedings pending a competency hearing, it must
provide written notice to all other departments. Nothing in the record
shows that the other department actually suspended its proceedings or
provided written notice to the district court that Lipsitz was not competent,
and the parties did not make any argument on this point.
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the court's canvass in arriving at its determination that a competency
hearing was not warranted. Lipsitz's behavior, while obstinate, did not
show a lack of understanding or inability to aid in his defense. Rather, the
record shows that Lipsitz was unwilling to aid in his defense. Lipsitz
became frustrated because he was not privy to the grand jury proceedings,
he was dissatisfied with his public defenders, and he was angry that the
victim would be testifying through audiovisual transmission instead of
appearing in person. On this record, we cannot conclude that the district
court abused its discretion when it proceeded to trial after canvassing
Lipsitz and concluding that there was not enough evidence to create doubt
as to his competency. See Olivares, 124 Nev. at 1148,
195 P.3d at 868;
Melchor-Gloria, 99 Nev. at 180,
660 P.2d at 113.
Allowing the victim to testify via simultaneous audiovisual transmission,
pursuant to the procedure set forth in Nevada Supreme Court Rules Part
IX-A(B), did not violate Lipsitz's rights under the Confrontation Clause
Lipsitz contends that it was a violation of hisS rights under the
Confrontation Clause for the district court to allow the victim to testify by
two-way audiovisual transmission and that the district court forced him to
choose between his right to a speedy trial and his right to confront his
accuser. Whether an evidentiary ruling violated the defendant's rights
under the Confrontation Clause is a question of law we review de novo.
Chavez v. State, 125 Nev. 328, 339,
213 P.3d 476, 484 (2009).
The Sixth Amendment's Confrontation Clause provides
criminal defendants the right to confront the "witnesses against [them]" and
to cross-examine such witnesses who "bear testimony" against them.
Crawford v. Washington, 541 U.S. 36, 51 (2004) (internal quotation marks
and citation omitted). The elements that comprise the right of
confrontation, i.e., "physical presence, oath, cross-examination, and
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observation of demeanor by the trier of fact," ensure "the reliability of the
evidence against a criminal defendant by subjecting it to rigorous testing in
the context of an adversary proceeding before the trier of fact." Maryland
v. Craig, 497 U.S. 836, 845-46 (1990). However, the right to a witness's
physical presence at trial is not absolute. As the United States Supreme
Court explained in Craig, "the Confrontation Clause reflects a preference for
face-to-face confrontation at trial," but that preference "must occasionally
give way to considerations of public policy and the necessities of the case."
Id. at 849 (internal quotation marks and citation omitted). The Supreme
Court held that "a defendant's right to confront accusatory witnesses may
be satisfied absent a physical, face-to-face confrontation at trial only where
denial of such confrontation is necessary to further an important public
policy and only where the reliability of the testimony is otherwise assured."
Id. at 850. At issue in Craig was a state statute that allowed child witnesses
to testify via a one-way closed-circuit television in child abuse cases. The
Supreme Court concluded that the use of the one-way closed-circuit
television procedure did not violate the defendant's right to confrontation
because (1) it was necessary to further the State's interest in protecting the
child victim from emotional trauma that the child would suffer by having to
testify in the defendant's presence, and (2) the procedure adequately
preserved the other elements of confrontation, thereby providing indicia of
reliability. Id. at 851-57. The Supreme Court emphasized that the
procedure could be used only after the trial court hears evidence and makes
a case-specific finding that the procedure is "necessary to further an
important state interest." Id. at 852-55.
Craig involved one-way video transmission and did not answer
whether the same standard would apply to two-way video transmission,
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whereby the defendant and the victim can see and hear each other
simultaneously. See Wrotten v. New York, 560 U.S. 959, 959 (2010)
(explaining that whether the use of two-way video transmission violated a
defendant's rights was an important question that was "not obviously
answered by Maryland v. Craig"). Nonetheless, many other jurisdictions
that have addressed this issue have allowed the use of two-way
transmission only where the Craig standard is met. See, e.g., United States
v. Carter, 907 F.3d 1199, 1206 (9th Cir. 2018); United States v. Yates,
438
F.3d 1307, 1313-17 (11th Cir. 2006); United States v. Bordeaux,
400 F.3d
548, 554-55 (8th Cir. 2005); State v. Rogerson,
855 N.W.2d 495, 504-06 (Iowa
2014); White v. State, 116 A.3d 520, 544 (Md. Ct. Spec. App. 2015). We
likewise agree that the requirements articulated in Craig apply to two-way
audiovisual transmission.
Applying the Craig test to the two-way technology used here,
we conclude that the district court did not abuse its discretion in allowing
the victim to testify by audiovisual transmission. First, the district court
made the requisite finding of necessity. There is no dispute that the victim
in this case was a patient at a residential drug treatment facility in Florida,
and the victim's doctor opined that she "w[ould] not be available for a
number of months." Admission into a treatment center for a prolonged
period is a legitimate basis for the district court to find that a witness is
medically unavailable to appear at trial. Cf. Horn v. Quarterman, 508 F.3d
306, 317-18 (5th Cir. 2007) (allowing two-way video testimony of a witness
too ill to travel); United States v. Gigante, 166 F.3d 75, 81-82 (2d Cir. 1999)
(same); People v. Wrotten, 923 N.E.2d 1099, 1101, 1103 (N.Y. 2009) (same)
Additionally, Lipsitz's insistence on a speedy trial and his refusal to
continue the trial until the victim was released from the treatment facility
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contributed to the district court's decision to grant the State's motion to
allow the victim to testify remotely at trial. The district court explained
that because Lipsitz had invoked "his right to go to trial next week, then it
seem [ed] . . . that [the victim] is essentially unavailable, which would allow
for either a deposition to be taken of the witness or use in this case of the
audiovisual technology." Thus, absent this form of technology, the victim
could not have appeared for the trial scheduled the following week. As a
result, we conclude that use of the technology under these circumstances
furthered the important public policy of protecting the victim's well-being
while also protecting the defendant's right to a speedy trial while ensuring
that criminal cases are resolved promptly.
Second, the use of two-way audiovisual transmission, as set
forth in Nevada Supreme Court Rules Part IX-A(B), provides indicia of
reliability by satisfying the elements of confrontation enunciated in Craig.
It allows the witness to swear under oath, the defendant can cross-examine
the witness, and the court and jury have the ability to observe the witness's
demeanor and judge her credibility. The victim-witness here complied with
these elements. She swore to tell the truth, the defense cross-examined her,
and the judge and jury had an opportunity to observe her demeanor and
judge her credibility. The district court noted for the record that the video
worked better than in-court testimony because the jury was better able to
observe her demeanor, she answered all the questions, the audio was clear,
both parties had a chance to question her, and there was nothing to preclude
the defendant from testing her credibility. The technology sufficiently
provided Lipsitz an opportunity to confront the victim.
Accordingly, we conclude that the district court did not abuse
its discretion in allowing the victim to testify by two-way audiovisual
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transmission. The technology allowed Lipsitz to confront the victim when
she would have otherwise been unavailable, public policy supports the use
of this technology to protect a victim's well-being while also ensuring that a
defendant has a speedy trial, and the procedure for this modern technology
satisfies the elements of confrontation.
Lipsitz's conviction for both sexual assault and attempted sexual assault
based on the same conduct was error, and there was insufficient evidence to
uphold the sexual assault charge
Lipsitz argues that the district court erred in adjudicating him
of both sexual assault (count 2) and attempted sexual assault (count 3)
because both charges stemmed from a single act—touching his penis to the
victim's closed mouth—and he could not be convicted of both attempting
and completing the same act. Lipsitz argues that we should vacate the
sexual assault charge because there was no penetration and the conduct
therefore amounted only to an attempted sexual assault. The State
concedes that both convictions cannot stand. It contends that the conviction
for sexual assault is valid because the definition of sexual assault by fellatio,
as presented to the jury in jury instructions, allowed a touching to be
sufficient for assault if there is "oral stimulation of the penis for sexual
satisfaction." We agree that both convictions cannot stand as they were
based on the same underlying conduct. The State should have charged
counts 2 and 3 in the alternative, but it failed to do so. Accordingly, we
review to determine whether there was sufficient evidence to support a
conviction for the greater of the two charges, sexual assault. Under a
sufficiency of evidence standard of review, we must determine "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." Jackson v. Virginia, 443 U.S. 307, 319
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(1979); see also Origel-Candido v. State, 114 Nev. 378, 381,
956 P.2d 1378,
1380 (1998).
NRS 200.366(1)(a) defines sexual assault as "subject[ing]
another person to sexual penetration." NRS 200.364(9), as relevant here,
defines cls]exual penetration" as "fellatio, or any intrusion, however slight,
of any part of a person's body." Further, "to prove attempted sexual assault,
the prosecution must establish that (1) [the defendant] intended to commit
sexual assault; (2) [the defendant] performed some act toward the
commission of the crime; and (3) [the defendant] failed to consummate its
commission." Van Bell v. State, 105 Nev. 352, 354,
775 P.2d 1273, 1274
(1989) (citing NRS 193.33W; see also Crawford v. State, 107 Nev. 345, 351,
811 P.2d 67, 71 (1991) (explaining that the element requiring that the actor
fail to complete the crime in an attempt crime precludes the conviction for
the completed crime for the same conduct). Thus, for the sexual assault
conviction to stand, there must have been sufficient evidence that Lipsitz
consummated the act of fellatio.
In Maes v. Sheriff, we explained that fellatio does not require
penetration. 94 Nev. 715, 716,
582 P.2d 793, 794 (1978) Instead, fellatio
is "the practice of obtaining sexual satisfaction by oral stimulation of the
penis." Id. (quoting Webster's Third New International Dictionary
(Unabridged, 1968)). In Maes, this court concluded that the State met its
burden of proving that the defendant sexually assaulted the victim by
licking the victim's penis because there was oral stimulation, despite the
absence of an intrusion. Id.
Here, the victim testified that there was no penetration: "His
penis touched the tip of my mouth but my mouth was not open." And when
asked how many times Lipsitz's penis touched her lips, the victim
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responded, "[j] ust once." A single touching of the defendant's penis to the
victim's closed lips is insufficient to demonstrate oral stimulation of the
penis and does not meet the definition of fellatio. See id. Instead, it is an
attempted and failed sexual assault. Crawford, 107 Nev. at 351,
811 P.2d
at 71. Therefore, we conclude that there was insufficient evidence to sustain
the conviction for sexual assault, and we vacate the conviction for sexual
assault (count 2) and remand the case to the district court with instructions
to amend the judgment of conviction consistent with this opinion. 2
CONCLUSION
Based on the foregoing, we conclude that the district court did
not abuse its discretion in proceeding to trial after canvassing Lipsitz and
his counsel and determining that there was no doubt as to his competency.
2We have considered Lipsitz's other claims of error and conclude that
they lack merit. While he argues that there was insufficient evidence to
convict him on all other counts, he fails to challenge a specific count and
articulate how there was insufficient evidence to support a conviction. See
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."). As to his constitutional
challenge to NRS 50.700—the statutory prohibition on court-ordered
psychological evaluations of victims of sexual assault—the record shows
that Lipsitz never sought an examination, a point he concedes on appeal.
He cannot therefore argue that the district court erred in denying him the
examination. Nor does he argue that the district court erred in failing to
sua sponte order an evaluation. Accordingly, we conclude that he has
waived this claim on appeal, and we decline to reach its merits. See
Blankenship v, State, 132 Nev. 500, 505 n.2,
375 P.3d 407, 411 n.2 (2016)
("A point not urged in the trial court, unless it goes to the jurisdiction of that
court, is deemed to have been waived and will not be considered on appeal."
(quoting Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52,
623 P.2d 981, 983
(1981))). Finally, as to his claim that the cumulative effect of errors at trial
warrants reversal, we have found only one error—his conviction for sexual
assault (count 2)—and thus there are no errors to cumulate.
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The court likewise did not abuse its discretion in allowing the victim to
testify via two-way audiovisual transmission because this technology
satisfied the Confrontation Clause's requirements, as stated in Maryland v.
Craig, 497 U.S. 836, 850 (1990). We further conclude that Lipsitz could not
be convicted of both sexual assault and attempted sexual assault for the
same act, and there was insufficient evidence to support the conviction for
sexual assault (count 2). Accordingly, we reverse Lipsitz's conviction for
count 2 and remand this matter to the district court with instructions to
amend the judgment of conviction consistent with this opinion. We affirm
Lipsitz's judgment of conviction on all other grounds.
fiCt.t &Si(
Hardesty
We concur:
, J.
Stiglich
1/4-124.e.D
Silver
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