IN THE SUPREME COURT OF THE STATE OF NEVADA
JOSE ALBERTO MACHADO, No. 80005
Appellant,
vs.
THE STATE OF NEVADA, FILE
Respondent.
MAR 0 9 2021
ELIZAB A. BROWN
CLE • F PREME
BY AIEPU
.14
• CLERK
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of sexual assault. Second Judicial District Court, Washoe
County; Kathleen M. Drakulich, Judge. Appellant Jose Machado argues
that the district court violated his constitutional rights to a fair trial with
several of its evidentiary rulings and by improperly instructing the jury.
Machado first argues that the district court erred in excluding
his clinical psychologist's expert testimony. Machado contends that the
expert would have testified that law enforcement's forensic interview of the
adult victim was unreliable where it failed to use proper techniques. We
review a district court's exclusion of expert testimony for an abuse of
discretion. Grey v. State, 124 Nev. 110, 120, n.17,
178 P.3d 154, 161, n.17
(2008). The district court determined that the expert's testimony was not
relevant, and therefore would not assist the jury, because the State was not
using the interview at trial. Though Machado contends that the exclusion
of his expert's testimony hindered his ability to cross-examine both the
victim and interviewing detective and attack the techniques used during
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
- 66 rig
the interview, his "right to present witnesses in his own defense is subject
to the rule of relevance." Brown v. State, 107 Nev. 164, 167,
807 P.2d 1379,
1381 (1991); see also Chambers v. Mississippi,
410 U.S. 284, 302 (1973).
Here, the expert testimony was irrelevant and would not assist the jury
where Machado was only offering it to rebut evidence that the State
indicated it would not present at trial (and ultimately did not present at
trial). See NRS 50.275 (outlining the requirements for admitting expert
testimony); Hallmark v. Eldridge,
124 Nev. 492, 500,
189 P.3d 646, 651
(2008) (considering the relevance of expert testimony in determining if it
will assist the jury). Thus, we conclude that the district court did not abuse
its discretion in granting the State's motion in limine and excluding
Machado's expert's testimony. See Whisler v. State,
121 Nev. 401, 406,
116
P.3d 59, 62 (2005) (reviewing a district court's rnotion-in-limine ruling for
an abuse of discretion).
Second, Machado argues the district court abused its discretion
in instructing the jury. "The district court has broad discretion to settle jury
instructions, and this court reviews the district court's decision for an abuse
of that discretion or judicial error." Crawford v. State, 121 Nev. 744, 748,
121 P.3d 582, 585 (2005); see also Jackson v. State,
117 Nev. 116, 120,
17
P.3d 998, 1000 (2001) ("An abuse of discretion occurs if the district court's
decision is arbitrary or capricious or if it exceeds the bounds of law or
reason."). We review de novo whether a jury instruction correctly states the
law. Cortinas v. State, 124 Nev. 1013, 1019,
195 P.3d 315, 319 (2008).
Machado first argues that Instruction No. 27 erroneously used
the term "victim" because it constitutes a judicial opinion on the weight of
the evidence. Machado only addressed this issue with the district court
during the settling of other instructions, not Instruction No. 27, and
2
informed the district court he reached a "general consensus" with the State
that the jury instructions use either the terms "defendanr and "victim" or
the defendant's and victim's proper names. Although he later noted an
objection after the district court picked terms he had agreed to, Machado
did not make the argument below that he makes on appeal, and thus, we
review for plain error. See Green v. State, 119 Nev. 542, 545,
80 P.3d 93,
94-95 (2003) (reiterating that failure to object to a jury instruction on the
ground asserted on appeal can be addressed if the error was plain or clear,
affected the defendant's substantial rights, and caused the defendant
prejudice). Machado cites no binding authority for his contention that the
use of the term "victim" was error. And his reliance on caselaw from other
states is unavailing, particularly where the Nevada Revised Statutes use
the term "victim" to refer to an accuser, not only in defining crimes but also
in setting forth procedures. See, e.g., NRS 50.090; NRS 200.377; NRS
200.3774. Indeed, the statute defining the crime at issue utilizes the term
"victim." See NRS 200.366 (defining sexual assault). Thus, we conclude
that use of "victim" in the jury instructions was not error.
Next, Machado argues that the jury instructions were flawed
because there was no definition of general intent. We disagree. Instruction
No. 27 accurately instructed that general intent is the mens rea required
for sexual assault, while Machado's proffered instruction referenced only
"criminal intent." See Crawford, 121 Nev. at 754,
121 P.3d at 589 (providing
that a defendant is not entitled to instructions that are "misleading,
inaccurate, or duplicitous"); Winnerford H. v. State,
112 Nev. 520, 526,
915
P.2d 291, 294 (1996) (explaining that sexual assault is a general intent
crime). And the district court also gave Instruction No. 25, which accurately
defined "willfully" as applied "to the intent with which an act is done." See
3
Jenkins v. State, 110 Nev. 865, 870,
877 P.2d 1063, 1066 (1994) (explaining
that even where a statute does not contain the term "willfully," a jury
instruction defining it is referring to the general intent of intending "to do
the act, rather than any intent to violate the law or injure another").
Next, Machado argues that Instruction No. 27 contained
confusing and misleading language about the reasonableness of a
defendant's belief that the victim consented based on "ambiguous conduct
by the victim that is the product of force." Machado also argues that when
read with Instruction No. 28, which explained that the use of physical force
is not an element of sexual assault, the jury might believe that a defendant
could never have a good faith belief as to consent. The challenge to
Instruction No. 27 lacks merit because the language in the instruction is
consistent with what this court has held must be included in a consent
instruction that addresses reasonable belief of consent.2 See Carter v. State,
121 Nev. 759, 763,
121 P.3d 592, 595 (2005) (reiterating the requirement
that an instruction addressing reasonable belief of consent must state that
it a belief that is based upon ambiguous conduct by an alleged victim that is
the product of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the person or another is not a reasonable good
faith belief (quoting Honeycutt v. State,
118 Nev. 660, 671,
56 P.3d 362, 369
(2002))). Although the instruction omitted some of the language previously
approved by this court, Machado ultimately agreed to those omissions below
such that he cannot now complain on appeal. See
id. at 769, 121 P.3d at
2To the extent Machado argues that the district court erred in not
instructing the jury using the reasonable-belief-in-consent provision from
instruction 1000 of the California Criminal Jury Instructions, we decline to
consider his claim since he did not proffer that instruction below. See State
v. Sample, 134 Nev. 169, 172,
414 P.3d 814, 817 (2018).
4
599 (A party who participates in an alleged error is estopped from raising
any objection on appeal."). And regardless, we are convinced there is no
reasonable probability that the omission confused the jury as to the
parameters of a reasonable belief of consent or affected the jury's verdict.
Further, Machado's claim that he objected to the use-of-physical-force
instruction (Instruction No. 28) is belied by the record. He only objected to
the word "cruciar and the district court agreed and did not include that
word when instructing the jury. Both instructions are accurate statements
of the law, and thus, Machado has demonstrated no error. Machado also
argues that the district court should have instructed the jury on
"withdrawal of consent." Machado did not proffer such an instruction and
fails to show that the district court was obligated to sua sponte instruct the
jury. Thus, Machado has not demonstrated plain error. See Rossana u.
State, 113 Nev. 375, 382,
934 P.2d 1045, 1049 (1997) (reviewing un-objected
to jury instruction claims for plain error).
Machado next contends that the voluntary intoxication
instruction, which stated that voluntary intoxication is not a defense to
sexual assault, impeded his ability to assert his mistake-of-fact-as-toconsent defense and lowered the State's burden of proof. Machado argues
that, under NRS 193.220, the jury should have been instructed that it could
take his intoxication into consideration in determining his intent. We
disagree. Due process does not require the states to recognize voluntary
intoxication as a defense to any crime. Montana v. Egelhoff, 518 U.S. 37,
44-50 (1996). NRS 193.220 provides that a defendant's voluntary
intoxication is not a defense but that a jury may consider it in determining
whether the defendant acted with "any particular purpose, motive or intent
[that] is a necessary elemene of a particular crime, The statute's plain
SUPREME COUFIT
OF
NEVADA
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language allows a defendant's voluntary intoxication to be taken into
consideration only with respect to specific intent crimes—those that have a
particular purpose, motive, or intent as a necessary element—not general
intent crimes. See State v. Lucero, 127 Nev. 92, 95,
249 P.3d 1226, 1228
(2011) (declining to look beyond a statute's plain language in interpreting it
when it is unambiguous); see also Ewish v. State, 110 Nev. 221, 228-29,
871
P.2d 306, 311-12 (1994) (stating that voluntary intoxication was a viable
defense to a specific intent offense and indicating that if the defendant could
not have formed the required specific intent due to intoxication, the only
crime he could have committed was a related general intent offense); Henry
v. United States, 432 F.2d 114, 119 (9th Cir. 1970) (referring to the second
part of NRS 193.220 as Nevada's "specific intent exception to its general
rule that voluntary intoxication is not an excuse for crime and concluding
that the exception does not apply in a sexual assault case). Because sexual
assault is a general intent offense, the district court did not err in
instructing the jury that the defendant's voluntary intoxication was not a
defense.
Third, Machado argues that the district court erred in denying
his motion to suppress and admitting statements he made during his second
interview with law enforcement. We discern no Miranda3 violation because
Machado has not demonstrated that he was in custody during his interview
based on the circumstances, including the interview lasting under an hour
at his place of employment, and Machado being told that he could choose
where the interview occurred and that he did not have to speak with
detectives. See Rosky v. State, 121 Nev. 184, 192, 111 P.31 690, 695 (2005)
3Miranda v. Arizona, 384 U.S. 436 (1966).
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OF
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(discussing the relevant considerations in deciding whether a defendant
was in custody for Miranda purposes); see also Miranda v. Arizona, 384 U.S.
436, 450 (1966) (discussing the lesser intimidation usually felt by a person
being interrogated in familiar surroundings). Moreover, even assuming
there was any error, it would have been harmless beyond a reasonable
doubt.4 See Boehm v. State,
113 Nev. 910, 916,
944 P.2d 269, 273 (1997)
(applying harmless error review to statements obtained in violation of
Miranda). Machado takes issue with his admissions during the second
interview that he and the victim had anal sex, which only referenced the
count he was acquitted of. Machado does not challenge his first interview
with law enforcement where he admitted to getting into the victim's bed
and fellating him as he slept—acts constituting the count Machado was
convicted of. That conviction was also supported by video evidence of
Machado's interaction with the victim outside the hotel room, the victim's
testimony, and DNA evidence. It thus is clear beyond a reasonable doubt
that a rational jury would have found Machado guilty absent the admissions
he made in the second interview. See Carroll v. State,
132 Nev. 269, 288,
371 P.3d 1023, 1036 (2016) (finding harmless error when "[e]ven without
[the defendant's] statements to police, the remaining evidence was
sufficient to sustain his convictions").
4That the State did not argue harmlessness does not change this
conclusion where the record here is not overly lengthy or complex,
harmlessness is not debatable given the other evidence supporting
Machado's conviction, and the cost and futility of further litigation would be
substantial. See Belcher v State, 136 Nev., Adv. Op. 31,
464 P.3d 1013, 1024
(2020) (detailing the factors to consider in determining whether to review
harmlessness sua sponte).
Fourth, Machado argues that the district court erred in
admitting law enforcement testirnony that vouched for the victim's
credibility. During cross-examination, Machado posed various questions to
an officer about her not initially believing the victim's rendition of events
regarding consent. In response, the State asked the officer if she believed
the victim consented, to which the officer answered that she did not.
Machado objected but then, on recross, confirmed with the officer that she
believed a sexual assault occurred. Under these circumstances, the district
court did not abuse its discretion in admitting the officer's testimony since
Machado put at issue the officer's personal opinion as to consent.5 See
Mclellan v. State, 124 Nev. 263, 267,
182 P.3d 106, 109 (2008) (reviewing a
district court's decision to admit evidence for an abuse of discretion); Colon
v. State,
113 Nev. 484, 493,
938 P.2d 714, 720 (1997) (reiterating that it will
not be deemed error when a party references evidence the other party
raised); Cordova v. State,
116 Nev. 664, 670,
6 P.3d 481, 485 (2000)
(explaining that one party may open the door to the introduction of
otherwise inadmissible evidence).
Machado also challenges a detective's testimony that the
victim's allegations were not false and referred to the victim as "my victim."
Machado did not object to this testimony, and we discern no plain error. See
Anderson u. State, 121 Nev. 511, 516,
118 P.3d 184, 187 (2005) (reviewing
claims of vouching for plain error where the defendant fails to object at
5The district court admitted the testimony because it clarified the
officer's previous testimony. But that ruling did not properly address
Machado's objection that the testimony invaded the province of the jury.
Nevertheless, our conclusion stands where the right result was reached,
albeit for the wrong reason. See Wyatt v. State, 86 Nev. 294, 298,
468 P.2d
338, 341 (1970).
8
trial). The detective's false-allegation statement was an unsolicited,
fleeting comment in response to questioning by the defense. See Allen v.
State, 99 Nev. 485, 490,
665 P.2d 238, 241 (1983) (requiring that an
appellant denionstrate prejudice due to an inadvertent law enforcement
response to defense questioning). And law enforcement officers commonly
use "victim" to refer to the complainant during a criminal investigation and
not necessarily as a comment on credibility. See Jackson v. State,
600 A.2d
21, 24-25 (Del. 1991) (explaining that the use of "victim" to law enforcement
officers "is a term of are akin to "complaining witnese). Thus, the district
court did not err in admitting this testimony.6 Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Parraguirre
J.
Stiglich Silver
cc: Hon. Kathleen M. Drakulich, District Judge
Richard F. Cornell
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
61n light of the foregoing conclusions, we conclude Machado fails to
demonstrate cumulative error. See United States v. Sager, 227 F.3d 1138,
1149 (9th Cir. 2000) (One error is not cumulative error."); see also Pascua
v. State,
122 Nev. 1001, 1008 n.16,
145 P.3d 1031, 1035 n.16 (2006)
(rejecting appellant's argument of cumulative error where the "errors were
insignificant or nonexistent").
9
