IN THE SUPREME COURT OF THE STATE OF NEVADA
BRETT THEIL, No. 78839
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. FILE
FEB 1 6 2021
EL E A. BROWN
CLE OF U ROU
BY_
EE DEMY CLERK
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of five counts of lewdness with a child under the age of 14; six
counts of first-degree kidnapping of a minor; six counts of sexual assault
with a minor under the age of 14; four counts of sexual assault with a minor
under the age of 16; four counts of sexual assault; and three counts of child
abuse, neglect, or endangerment. Eighth Judicial District Court, Clark
County; Stefany Miley, Judge. Appellant Brett Theil argues that the
district court erred in admitting certain evidence and in denying his motion
for a mistrial based on improper expert testimony, and that the prosecutor
committed misconduct. We disagree.
Evidentiary rulings
Theil first argues that the district court erred in admitting
irrelevant hearsay emails sent to the victim from her mother, Theil's wife.
We review a district court's decision to admit evidence for an abuse of
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
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discretion. Mclellan, v. State, 124 Nev. 263, 267,
182 P.3d 106, 109 (2008).
Contrary to Theil's claim, the record clearly reflects that the mother's
emails were not admitted as exhibits at trial.2 To the extent that Theil
argues that the victim should not have been allowed to testify about the
content of the emails, that testimony was offered only to show the effect the
emails had on the victim, which was relevant to explain the victim's delay
in disclosing the abuse and her subsequent behavior. Thus, the testimony
about the emails was not inadmissible hearsay, see Wallach v. State,
106
Nev. 470, 473,
796 P.2d 224, 227 (1990) (explaining that the hearsay rule
does not apply when a statement is not offered to show the truth of the
matter asserted but rather to show the statement's effect on the listener),
and the probative value was not outweighed by any prejudicial effect of the
jury learning that the victim's mother encouraged her to recant the
allegations. See NRS 48.035(1) (providing for the admission of relevant
evidence so long as its probative value is not "substantially outweighed by
the danger of unfair prejudice"). Accordingly, the district court did not
abuse its discretion in admitting this evidence.3
2Thei1 also argues that the district court erred in admitting a
detective's report. However, the record does not indicate that the district
court admitted the report into evidence and Theil does not provide record
citations to support his argument to the contrary. See NRAP 28(a)(10)(A)
(requiring appellant's brief to contain "citations to the authorities and parts
of the record on which the appellant relies").
3Because Theil fails to provide relevant authority or cogent argument,
we do not address his assertion that the district court erred in referring to
the victim by saying, "this poor young lady has been on the bench for hours
and hours." 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.").
2
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Second, Theil argues that the district court erred in admitting
his alleged "suicide note" as evidence of consciousness of guilt. He contends
that his note did not adrnit guilt and was motivated by his belief that the
sexual assault allegations would destroy his reputation in law enforcement.
However, we have held that "[t]he fact that an accused attempts to commit
suicide, or evidence sufficient to justify such an inference, is always proper
for the jury to consider in connection with the other evidence in the case."
State v. Plunkett, 62 Nev. 258, 279,
149 P.2d 101, 107 (1944). Theil's note,
which he wrote shortly after a warrant for his arrest issued, stated that he
was feeling the effect of the pills he took, was watching his last sunset, and
did not trust the legal system, and also directed the distribution of some of
his property:1 Thus, the note was evidence that Theil attempted to commit
suicide after being accused of the charged crimes, and was admissible to
demonstrate consciousness of guilt. See id. Theil relies on United States v.
Hammers, 942 F.3d 1001, 1010-11 (10th Cir. 2019), and Stephenson v. State,
29 N.E.3d 111, 120 (Ind. 2015), to argue generally that suicide notes are
inadmissible, but those cases are factually distinguishable. In Hammers,
the suicide note of an accomplice was deemed inadmissible because it was
hearsay and did not meet the statement-against-interest exception to the
hearsay rule, 942 F.3d at 1010-11, whereas here the suicide note was Theil's
own statement and thus was not hearsay, see NRS 51.035(3)(a) (excluding
from the hearsay definition statements that are offered against a party and
are the party's own statement). And, in Stephenson, the defendant's suicide
note expressly denied committing the charged crime and thus did not imply
consciousness of guilt, 29 N.E.3d at 120, whereas Theil's note provided no
4At trial, a law enforcement officer testified that around the same
time the note was discovered, Theil indicated he consumed 30 Xanax pills.
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such disavowal. We thus conchide that the district court did not abuse its
discretion in admitting the note. See Mclellan, 124 Nev. at 267,
182 P.3d at
109.
Next, Theil argues that the district court erred in admitting, as
prior consistent statements, the victim's written statement and the
testimony of a State investigator concerning an incident that occurred in
California. During cross-examination, the victim testified that Thiel
attempted to abuse her in California, and the defense implied that she was
fabricating this incident. The State properly rebutted this implication by
introducing the victim's prior statements to show that she had previously
disclosed this incident. See NRS 51.035(2)(b) (excluding from the definition
of hearsay statements consistent with a witness's testimony offered to rebut
an allegation of fabrication). Theil argues that the victim's written
statement was not a prior consistent statement because it did not mention
the California incident. But because Theil did not include a copy of the
victim's statement in the record, see NRAP 30(b)(3) (requiring appellant to
include in the appendix any "portions of the record essential to
determination of issues raised in appellant's appear); Greene v. State
(Greene I), 96 Nev. 555, 558,
612 P.2d 686, 688 (1980) (The burden to make
a proper appellate record rests on appellant."), we presume the missing
portions support the district court's decision, see Riggins v. State, 107 Nev.
178, 182,
808 P.2d 535, 538 (1991) (concluding that materials omitted from
the record on appeal "are presumed to support the district court's decision").
To the extent Theil argues that the investigator's testimony was
inadmissible because it was neither previously memorialized nor testified
to in detail, he fails to provide authority for his argument. See Maresca v.
State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987) CIt is appellant's
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responsibility to present relevant authority and cogent argument; issues not
so presented need not be addressed by this court."). Thus, the district court
did not err in admitting the victim's written statement and the
investigator's testimony as prior consistent statements.
Theil next argues that the district court erred in admitting
messages he sent to the victim's phone. We disagree. Theil did not include
the messages for our review. See NRAP 30(b)(3); Greene I, 96 Nev. at 558,
612 P.2d at 688. But even. accepting Theirs recitation of the messages as
true, their sexual nature made them relevant to the victim's allegations that
Theil was sexually inappropriate with her, and their probative value was
not outweighed by the danger of unfair prejudice. See NRS 48.015; NRS
48.025; NRS 48.035(1). Accordingly, this issue does not present a basis for
reversal.5
Next, Theil argues that the district court erred in admitting
Turnblr messages between the victim and her ex-boyfriend. Theil neither
objected below, nor included the messages in the appellate record for this
court's review, NRAP 30(b)(3); Greene I, 96 Nev. at 558,
612 P.2d at 688.
We conclude that he fails to demonstrate plain error, see Martinorellan v.
State, 131 Nev. 43, 48,
343 P.3d 590, 593 (2015) (applying plain-error review
to unpreserved errors), as the messages were relevant to corroborate the
victim's allegations and to show how the investigation began, see NRS
48.015; NRS 48.025. Theil's Confrontation Clause argument is also
5Thei1 did not contemporaneously object to the messages admission,
but generally moved to strike all the content related to Theirs cell phone
messages to the victim. We find neither plain error nor an abuse of
discretion in the district court's denial of that motion. See Martinorellan v.
State, 131 Nev. 43, 48,
343 P.3d 590, 593 (2015); Mclellan,
124 Nev. at 267,
182 P.3d 109.
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unavailing where he had the opportunity to cross-examine both the victim
and her ex-boyfriend about the messages. See Crawford v. Washington, 541
U.S. 36, 51, 68 (2004) (indicating no Confrontation Clause violation occurs
when witnesses testify and are available for cross-examination).
Expert testimony
Theil argues that the district court erred in denying his mistrial
motion based on the State's expert's testimony regarding grooming. Theil
contends the expert improperly vouched for the victim and based his opinion
on nothing more than assumption and conjecture. We disagree. The expert
testimony was relevant to explain the victim's delayed disclosure and to aid
the jury in determining if the victim acted consistently with a sexual assault
victim. See NRS 50.275 (explaining when an expert may testify); NRS
50.345 (In any prosecution for sexual assault, expert testimony is not
inadmissible to show that the victim's behavior or mental or physical
condition is consistent with the behavior or condition of a victim of sexual
assault."). Here, the expert did not directly opine on the victim's credibility
or Theil's guilt. Rather, the expert opined that the victim's actions and
inactions were consistent with having been sexually assaulted. See
Townsend v. State, 103 Nev. 113, 118,
734 P.2d 705, 708 (1987) (explaining
that an expert can express his "opinion on the issue of whether the child
had, in fact, been sexually assaulted or abusee). Indeed, the expert
testified that he took into account the victim's extensive measures in
moving out of Theil's house undetected, including being picked up in a
rented car.6 See NRS 50.285(1) (providing that the expert can base his
6The expert did not misstate the evidence, as Theil suggests, by
testifying that the car was rented solely to conceal the victim's moving out
of Theil's home.
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opinion on facts or data "made known to [him] at or before the hearing).
That the district court cautioned the expert and the State against improper
vouching does not change our conclusion as it shows the district court's
diligence as the evidence "gatekeeper." Harris v. State, 134 Nev. 877, 880,
432 P.3d 207, 211 (2018).
We also reject Theil's argument that the district court should
have excluded the testimony because grooming is not an accepted theory.
We consider grooming testimony on a case-by-case basis and allow its
admission so long as certain evidentiary requirements are met. See Perez
v. State, 129 Nev. 850, 853,
313 P.3d 862, 864-65 (2013). Those
requirements were met in this case. And the expert's testimony regarding
the victim moving out was proper and not outside the area of expertise as it
explained how grooming could have influenced the victim's failure to
initially disclose the abuse and her desire to leave Theil's house. See
id. at
859,
313 P.3d at 868 (explaining that testimony of how one of the goals of
grooming is to reduce the likelihood of disclosure was admissible as
"beneficial to the jury in evaluating the evidence of abuse and assessing the
victim's credibility"). Because the district court did not err in admitting the
expert testimony it also did not abuse its discretion in denying Theirs
motion for a mistrial based on the same argument. See Randolph v. State,
117 Nev. 970, 981,
36 P.3d 424, 431 (2001) (explaining that denial of a
mistrial motion "is within the district court's sound discretion").
Prosecutorial misconduct
Theil argues that the State's closing arguments included
comments not supported by the evidence and intended to inflame the jury.
Theil has not demonstrated plain error where the State's flight comment,
rental car comment, and comment regarding the sexual nature of Theirs
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text messages to the victim were fair inferences drawn from the trial
evidence.7 See Taylor v. State, 132 Nev. 309, 324,
371 P.3d 1036, 1046
(2016) (explaining that State comments expressing opinions or beliefs are
not improper when they are reasonable conclusions or fair comments based
on the presented evidence); Martinorellan, 131 Nev. at 48, 343 P.3d at 593
(reviewing unpreserved errors for plain error). Further, the State's
comment comparing Theil ejaculating into the victim's mouth to the space
shuttle Challenger exploding, while indelicate, does not amount to plain
error where the comment was based on an example used by Theirs expert
to explain how memories of significant events may change over time and in
response to the defense's argument attacking the victim's credibility. See
Martinorellan, 131 Nev. at 48, 343 P.3d at 593; Greene v. State, 113 Nev.
157, 178,
931 P.2d 54, 67 (1997) (recognizing the appropriateness of rebuttal
arguments that directly respond to issues raised by the defense's closing),
receded from on other grounds by Byford v. State, 116 Nev. 215, 235,
994
P.2d 700, 713 (2000). Thus, we conclude that Theil has not demonstrated
that reversal is warranted based on this claim.8 See Valdez v. State, 124
7The district court refused to give a "flighe instruction but did not
preclude the State from making arguments regarding the circumstances
surrounding Theil's arrest. See Rosky v. State, 121 Nev. 184, 199,
111 P.3d
690, 699-700 (2005) (explaining that a flight instruction is appropriate if the
State presents flight evidence and a conclusion can be drawn that the
defendant fled with consciousness of guilt and to evade arrest). Further,
the record does not support Theil's claim that the State argued that the
rented car was obtained "as part of the plan to liberate [the victim]."
Instead, the State correctly recounted the trial evidence, that the victim left
in a car she thought Theil would not recognize or trace.
8Thei1's cumulative-error argument lacks merit where we find no
errors. See United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001) ("If
there are no errors or a single error, there can be no cumulative error.").
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Nev. 1172, 1188, 196 P.3d 465, 476 (2008) (explaining the review process for
prosecutorial misconduct claims). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
,J
Cadish
P (AAJ , J.
Pickering
cc: Hon. Stefany Miley, District Judge
Mueller & Associates
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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