IN THE SUPREME COURT OF THE STATE OF NEVADA
TIMOTHY NOEL CAMPBELL, No. 80170
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent.
APR 2 2021
BROWN
ORDER OF AFFIRMANCE OLE OUR;
BY
DEPUTY CLERK
Timothy Noel Campbell appeals from a judgment of conviction,
pursuant to a jury verdict, of three counts of lewdness with a minor under
the age of 14. Eighth Judicial District Court, Clark County; Carolyn
Ellsworth, Judge.
Campbell contends that the district court improperly admitted
evidence of prior sexual offenses pursuant to NRS 48.045(3), which allows
prior bad acts evidence for propensity purposes in sexual offense
prosecutions. This determination is subject to a deferential abuse of
discretion standard. Franks u. State, 135 Nev. 1, 3,
432 P.3d 752, 754-55
(2019). In making this determination, the district court must consider the
relevance and relative unfair prejudice of the evidence and whether the
State proved the prior sexual offenses by a preponderance of the evidence.
Id. at 4-6, 432 P.3d at 755-57.
The district court did not abuse its discretion. First, the district
court properly found the bad acts evidence, testimony by two victims of prior
lewdness and other sexual abuse, relevant—a low hurdle. Hubbard v. State,
134 Nev. 450, 460,
422 P.3d 1260, 1268 (2018) ("[P]ropensity evidence is
relevant . . ." (internal quotation omitted)). Second, the district court
properly found this same evidence proven by clear and convincing evidence,
a higher burden of proof than required. Franks, 135 Nev. at 7, 432 P.3d at
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(0) 1947A agers,
Z iz 367-
757 (noting that one victim's testimony alone may prove acts beyond a
reasonable doubt). Third, the district court made "a clear record concerning
its decision whether or not to admit such evidence," Doe ex rel. RudyGlanzer v. Glanzer, 232 F.3d 1258, 1268-69 (9th Cir. 2000), and carefully
weighed the Franks prejudice factors, including:
(1) the similarity of the prior acts to the acts
charged, (2) the closeness in time of the prior acts
to the acts charged, (3) the frequency of the prior
acts, (4) the presence or lack of intervening
circumstances, and (5) the necessity of the evidence
beyond the testimonies already offered at trial.
135 Nev. at 6, 432 P.3d at 756 (adopting test from United States v. LeMay,
260 F.3d 1018, 1027-28 (9th Cir. 2001)).
Campbell argues that the prior acts were remote in time and
more aggravated than those with which he was charged, involving sexual
assault and lewdness acts ending about 17-20 years before the charged acts.
But there is no bright line similarity or remoteness rule. And, as Campbell
acknowledges, the prior bad act evidence, if taken as true, qualified as
frequent. The record also demonstrates that Campbell's familial
circumstances may have intervened to prevent him from having access to
young children for some time, explaining away some of the remoteness of
the events. Finally, the State had a great need for this evidence because
the State's only direct witness to the crime, the victim, testified to events
that occurred when she was around six or seven years old, over a decade
before trial, and faced substantial impeachment.
The district court alternatively admitted this prior bad act
evidence under NRS 48.045(2) to prove intent and motive, and to rebut
accident or mistake, in light of law enforcement's testimony that Campbell,
in so many words, worried that he could have inadvertently touched the
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victim and said that the victim would "grind" on and "graY his genitalia. It
complied with the legal requirements for admitting prior bad act evidence
under NRS 48.045(2) and its determination respecting admissibility did not
amount to an abuse of its discretion. See Randolph v. State, 136 Nev., Adv.
Op. 78,
477 P.3d 342, 346 (2020) (requiring clear and convincing proof of
relevance to a limited non-propensity purpose in addition to a proper
weighing of probative value and unfair prejudice); Tavares v. State,
117
Nev. 725, 733,
30 P.3d 1128, 1133 (2001) (mandating an instruction to
explain limited non-propensity purpose admission to the jury). Accordingly,
we
ORDER the judgment of the district court AFFIRMED.
J.
Cadish
Pickering
Pick. J.
J.
Herndon
cc: Hon. Carolyn Ellsworth, District Judge
Weiner Law Group, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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