IN THE SUPREME COURT OF THE STATE OF NEVADA
CHARLES EDWARD SPLOND, No. 77139
Appellant,
vs. FIL it)
THE STATE OF NEVADA,
Respondent. SEP 3 .1 2020
EUZAB:-.77. BROWI4
CLER: PRENE COU
EY
DEPUFYM CLER
ORDER OF REVERSAL AND REMAND
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of three counts of sexual assault of a minor under 14 years of
age, attempted sexual assault of a minor under 14 years of age with the use
of a deadly weapon, lewdness with a child under the age of 14, attempted
lewdness with a child under the age of 14, and child abuse and neglect.
Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.
The charges in this appeal stem from the allegations of two
victims, S.C. and G.M. Regarding G.M., the State charged appellant
Charles Splond by information with sexual assault of a minor under 14
years of age, lewdness with a child under the age of 14, attempted lewdness
with a child under the age of 14, and child abuse and neglect. Regarding
S.C., the State charged Splond by information with sexual assault of a
minor under 14 years of age and attempted sexual assault of a minor under
16 years of age with the use of a deadly weapon.
After the for-cause challenges, the venire consisted of 23 men
and 13 women. The State used its peremptory challenges to remove nine
men and one woman. Splond raised a Batson challenge to the State's use of
its peremptory challenges, arguing that the State engaged in purposeful
gender discrimination by removing nine men from the venire. After Splond
attempted to make a prima facie showing under the first prong of Batson v.
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Kentucky, 476 U.S. 79 (1986), and before the district court made its ruling
on the same, the State asked to be heard. While presenting its argument,
the State admitted that it was "trying to have a balance [on the jury] of men
and women." Ultimately, the district court denied Splond's Batson
challenge and the jury convicted Splond on all counts.
First, Splond argues that the district court misapplied the
three-step analysis required under Batson. We agree for the reasons set
forth below.
The Equal Protection Clause prohibits litigants from exercising
peremptory challenges based solely on gender. U.S. Const. amend XIV, § 1;
Nev. Const. art. 4 § 21; Watson v. State, 130 Nev. 764, 774,
335 P.3d 157,
165 (2014); . We review a district court's resolution of a Batson challenge
for clear error. Kaczmarek v. State,
120 Nev. 314, 334,
91 P.3d 16, 30 (2004).
When resolving such a challenge, Nevada caselaw requires district courts
to use the three-step analysis set forth in Batson.
Id. at 332,
91 P.3d at 29.
The Batson three-step analysis is as follows:
(1) the opponent of the peremptory challenge
must make out a prima facie case of
discrimination, (2) the production burden then
shifts to the proponent of the challenge to assert
a neutral explanation for the challenge, and (3)
the trial court must then decide whether the
opponent of the challenge has proved purposeful
discrimination.
Ford v. State, 122 Nev. 398, 403,
132 P.3d 574, 577 (2006). However, when
the proponent offers an explanation for their peremptory challenge before
the trial court rules on the first step, the first step becomes moot and the
trial court must move on to the third step. Kaczmarek,
120 Nev. at 332,
91
P.3d at 29.
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Here, the State offered an explanation for its use of its
peremptory challenges before the district court ruled on step one of Splond's
Batson challenge. Therefore, the district court was required to proceed to
step three of Batson. The State's admission that it struck male members
of the venire to balance the number of male and female jurors was a clear
expression of discriminatory intent to remove jurors based on their gender.
See State v. Chatwin, 58 P.3d 867, 872 (Utah Ct. App. 2002) (holding that a
prosecutor's expressed intent to use peremptory challenges "to create
gender balance in the jury" "was discriminatory"). Accordingly, we conclude
that the district court clearly erred when it denied Splond's Batson
challenge. Such an error is structural and requires reversal. Diomampo u.
State,
124 Nev. 414, 423,
185 P.3d 1031, 1037 (2008).
Splond also raises two other issues we find it necessary to address.
Before trial, Splond moved to admit a paternity test to demonstrate that he
was not the father of S.C.'s child. The district court denied the motion,
'We note that Splond nevertheless successfully made a prima facie
case under step one of Batson. The opponent of the strike makes a prima
facie case under step one when he or she shows "that the totality of the
relevant facts gives rise to an inference of discriminatory purpose." Batson,
476 U.S. at 93-94. The burden under step one "is not onerous and does not
require the opponent of the strike to meet his or her ultimate burden of
proof under Batson." Watson, 130 Nev. at 775, 335 P.3d at 166. When
evaluating gender-based Batson claims, we "compare [ ] the percentage of
the Batson [proponent's] peremptory challenges used against targeted-group members with the percentage of targeted-group members in the
venire." Id. at 778, 335 P.3d at 168 (internal quotations omitted). Here,
roughly 68 percent of the venire was male. The State used 90 percent of its
peremptory challenges against men. Under these facts, the disparity
between these two percentages is enough to create an inference of
discriminatory purpose. Cf., id. at 778-79, 335 P.3d at 168 (holding that
State's use of 67 percent of its peremptory challenges to remove women,
which constituted 56 percent of the venire, did not create an inference of
discriminatory purpose because the percentages were roughly parallel).
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concluding that S.C.'s pregnancy and the paternity of her child was not
relevant because S.C.'s pregnancy occurred a year-and-a-half after Spland
allegedly assaulted her. Additionally, the court found that S.C. had not
falsely claimed that Splond was the child's father. Despite the district
court's ruling, the State raised the issue of S.C.'s pregnancy during trial.
Splond moved to admit the paternity test a second time, which the district
court denied. Under these facts, we conclude that the district court abused
its discretion when it prevented Splond from admitting the paternity test.
Mclellan v. State, 124 Nev. 263, 267,
182 P.3d 106, 109 (2008) (reviewing
evidentiary decisions for an abuse of discretion). The State opened the door
to such evidence when it introduced the issue of S.C.'s pregnancy, and
Splond's proffered paternity test directly responded to it. See United States
v. Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988) (holding that "the
introduction of inadmissible evidence by one party allows an opponent, in
the court's discretion, to introduce evidence on the same issue to rebut any
false impression that might have resulted from the earlier admission").
Under these facts, a reasonable juror might infer that S.C.'s pregnancy
resulted from Splond's alleged sexual assault. On remand, the district court
must allow Splond to introduce evidence regarding the paternity of S.C.'s
child if the State raises the issue again.
Additionally, during trial, Splond sought to impeach two of the
State's witnesses, Tavanna McDonald and Lisa Wallis, with gross
misdemeanor convictions for crimes of dishonesty. The district court
prohibited Splond from doing so. A party may impeach a witness with a
gross misdemeanor conviction for a crime involving dishonesty "as long as
the impeachment pertains to truthfulness or untruthfulness" and the party
does not attempt to introduce extrinsic evidence. Butler u. State, 120 Nev.
879, 890,
102 P.3d 71, 79 (2004) (internal quotations omitted). Both forgery
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and theft tend to demonstrate a propensity for dishonesty and
untruthfulness as a witness. Id. at 891,
102 P.3d at 80 (holding that
"forgery is a crime involving dishonesty and conduct that goes to [the
witness's] truthfulness as a witnese); Warren v. State,
121 Nev. 886, 897,
124 P.3d 522, 529 (2005) (holding that the defendant's conviction for petty
theft related to dishonesty and directly challenged his credibility as a
witness). Therefore, we conclude that the district court abused its
discretion when it prohibited Splond from impeaching McDonald and Wallis
with their gross misdemeanor convictions. Mclellan, 124 Nev. at 267,
182
P.3d at 109. On remand, the district court must give Splond the opportunity
to impeach McDonald and Wallis with their gross misdemeanor convictions
consistent with Butler.
Having reviewed Splond's remaining arguments on appeal, we
conclude they are without merit and decline to address them. Based on the
foregoing, we
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
Parraguirre
/1„.e......t., J.
Hardesty
) J
Cadish
5
cc: Hon. Carolyn Ellsworth, District Judge
Cofer & Geller, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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