Year: 2017

Nevada Appellate Courts Advance Opinions for November 22, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for November 22, 2017

BRADLEY VS. DIST. CT. (HUDSON)

  • Does NRS 49.209’s privilege between a psychologist and patient apply when a criminal defendant seeks records related to a patient who is court-ordered to partake in therapy.

NATIONSTAR MORTG., LLC VS. SATICOY BAY LLC SERIES 2227 SHADOW CANYON

  • Is commercial reasonableness a relevant inquiry in an HOA foreclosure sale of real property.

YU VS. YU

  • When can a post-judgment vexatious litigant determination be challenged on appeal.

GARDNER VS. DIST. CT. (HENDERSON WATER PARK, LLC)

  • Does the alter ego doctrine apply to limited liability companies.

COLLINS (LESEAN) VS. STATE

  • Were a defendant’s constitutional rights violated on the first day of trial when the district court barred him from the courtroom for disruptive conduct for a two-hour period, during which it excused individual jurors for hardship, statutory ineligibility, and language barrier reasons.
  • Can a witness offer an opinion as to a defendant’s guilt.
  • When is a defendant entitled to a jury instruction on a lesser-included offense of voluntary manslaughter.

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When must an employer train its employees on the use of protective equipment?

Posted on by Jeff Jaeger

When must an employer train its employees on the use of personal protective equipment (PPE)?

Sierra Pack’g v. Chief Ad. Off’r of NOSHA (Nev. Ct. App. – Nov. 16, 2017)

29 C.F.R. § 1910.132(f) requires employers to provide training regarding the use of personal protective equipment to employees exposed to hazards necessitating the use of such equipment. Sierra Packaging and Converting, LLC, argued the Nevada Occupational Safety and Health Administration improperly cited it for violating 29 C.F.R. § 1910.132(f), as no facts established that the subject employees were actually exposed to such a hazard in the course of their work or were required by that regulation to have fall protection training.

Nevada Occupational Safety and Health Administration (NOSHA) received an anonymous complaint alleging that Sierra Packaging and Converting, LLC (Sierra Packaging), violated NOSHA’s health and safety regulations by allowing employees to climb on warehouse racks without personal protection equipment (PPE). Pictures of three employees on the racking without PPE accompanied the complaint.

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When can offenses be joined as a common plan or scheme?

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Joinder Common Plan or Scheme

Farmer (Steven) vs. State  (Nev. Supreme Ct. – Nov. 16, 2017

Farmer was charged with numerous sexual offenses based on accusations that he used his position as a certified nursing assistant (CNA) to take advantage of multiple patients in his care. The State of Nevada argued that Farmer should face five of his accusers in one trial and Farmer argued in favor of separate trials. After a hearing on the matter, the trial court granted the State’s motion to join the offenses under the theory that they were committed pursuant to a common scheme or plan according to NRS 173.115(2). In this appeal, Farmer argued that the Supreme Court of Nevada has construed the common scheme or plan language to permit joinder only where the defendant had an overarching plan, which involved committing each offense as an individual step toward a predetermined goal, and since his offenses were crimes of opportunity, the trial court erred by joining them.

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Nevada Appellate Courts Advance Opinions for November 16, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for November 16, 2017

IN RE: DISCIPLINE OF CHRISTOPHER READE

  • Does SCR 102 provide for the imposition of a fine when the State Bar Disciplinary Board recommends that an attorney be suspended or disbarred.

FARMER (STEVEN) VS. STATE

  • When can offenses be joined as being committed as parts of a common plan or scheme pursuant to NRS 173.115(2).

HARRIS V. STATE

  • Can counsel’s affirmative misrepresentation regarding filing a postconviction petition and subsequent abandonment of the petitioner be an impediment external to the defense to satisfy cause for the delay under NRS 34.726(1)(a) for filing an untimely petition.

KNICKMEYER V. STATE OF NEVADA

  • Do the provisions of NRS Chapter 289, which are intended to provide job-related protections to peace officers employed by law enforcement agencies, apply to bailiffs and marshals employed by the Eighth Judicial District Court.

SIERRA PACK’G V. CHIEF AD. OFF’R OF NOSHA

  • What standard must the Nevada Occupational Safety and Health Administration utilize to establish employee exposure to hazard.

CITY OF LAS VEGAS VS. DIST. CT. (KAMIDE (STEVEN))

  • Does NRS 50.155(1) impose a duty to limit out-of-court communications between witnesses about their testimony when the witness exclusion rule has been invoked.

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When is a defendant entitled to a jury instruction on a lesser included offense?

Posted on by Jeff Jaeger

Lesser Included Offenses

Alotaibi (Mazen) vs. State (Nev. Supreme Ct. – Nov. 9, 2017)

In this appeal, the Supreme Court of Nevada determined whether, under the statutory definitions existing in 2012, the offense of statutory sexual seduction is a lesser-included offense of sexual assault when that offense is committed against a minor under 14 years of age.

The statutes defining statutory sexual seduction and sexual assault were amended in 2015. Under the 2015 amendments, any sexual penetration of a minor under the age of 14 is sexual assault, and it is no longer possible for statutory sexual seduction to be committed against a minor under the age of 14. Therefore, the analysis of the statutory elements in this opinion pertains only to the version of the statutes in place at the time the offenses were committed in 2012.

On the morning of December 31, 2012, Alotaibi arrived at the Circus Circus hotel where his friends had a room. In the hallway outside the hotel room, Alotaibi encountered A.D., a 13- year-old boy who was staying at the hotel with his grandmother. A.D. asked Alotaibi for marijuana, and they went outside the hotel to smoke it. Alotaibi made sexual advances toward A.D. in the elevator and outside the hotel, despite A.D.’s resistance. Alotaibi then offered A.D. money and marijuana in exchange for sex. A.D. testified that he agreed, but intended to trick Alotaibi into giving him marijuana without engaging in any sexual acts.

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Nevada Appellate Courts Advance Opinions for November 9, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for November 9, 2017

 ALOTAIBI (MAZEN) VS. STATE.

  • Is a statutory element that serves only to determine the appropriate sentence for an offense, but has no bearing as to guilt for the offense, an element of the offense for purposes of the lesser-included-offense analysis.

Visit the Nevada Appellate Report for more legal news.

Nevada Appellate Courts Advance Opinions for October 26, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for October 26, 2017

SZYMBORSKI VS. SPRING MTN. TREATMENT CTR.

  • How should a court determine whether a claim is for medical malpractice or ordinary negligence when dismissing a claim for failing to attach a medical expert affidavit pursuant to NRS 41A.071.

CLARK CNTY. SCHOOL DIST. VS. PAYO

  • Does the implied assumption of risk doctrine bar a student’s negligence action arising from injuries the student sustained while participating in a required activity during a physical education class.
  • How does discretionary-function immunity apply to the Clark County School District’s decision to add a floor hockey unit to the P.E. curriculum.

Visit the Nevada Appellate Report for more legal news.

Can a defendant be prosecuted twice for the same offense if he or she fails to comply with the terms of a plea agreement?

Posted on by Jeff Jaeger

Plea Agreement

Sweat (Lonnie) vs. Dist. Ct. (State) (Nev. Supreme Ct. – Oct. 5, 2017)

The Double Jeopardy Clause protects a defendant from multiple prosecutions for the same offense. This opinion addresses whether a defendant’s failure to comply with the terms of a plea agreement with the State constitutes a waiver of that protection.

On May 9, 2016, the State charged Sweat by way of criminal complaint with battery constituting domestic violence, a category C felony. In Nevada, battery constituting domestic violence is a felony if the defendant has two or more prior convictions for domestic violence within seven years. Because Sweat had priors in 2010 and 2011, the State opted to proceed as a felony. Pursuant to negotiations with the State of Nevada, Sweat agreed to plead guilty in justice court to one count of battery constituting domestic violence, a misdemeanor, and in district court to one count of battery constituting substantial bodily harm, a felony. In exchange for his pleas, the State agreed to drop the charge of battery constituting domestic violence as a felony. Per the agreement, Sweat pleaded guilty to the misdemeanor battery constituting domestic violence and was immediately sentenced to time served. Sweat also waived his right to a preliminary hearing and was bound over to district court for entry of plea on the felony count of battery causing substantial bodily harm.

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Can a parent be compelled to admit to a crime to maintain their parental rights?

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Parental Rights 5th Amendment

In Re: Parental Rights as to A.D.L. and C.L.B., Jr. (Nev. Supreme Ct. – Oct. 5, 2017)

In this opinion, the Supreme Court of Nevada considered whether a parent’s Fifth Amendment rights are violated when he or she is required to admit to a criminal act in order to maintain his or her parental rights.

In April 2010, Clark County Department of Family Services (DFS) received an anonymous call through its child abuse hotline alleging that Keaundra’s children were being abused and neglected. The caller alleged that the face of Keaundra’s infant child had been burned. During an interview with a DFS investigator, Keaundra stated that she was the only adult at home when C.L.B., Jr. was burned. Her two children, A.D.L. and C.L.B., Jr., were in the master bedroom while she was preparing for work in the attached bathroom. She had recently ironed her clothes and had placed the iron on her dresser. Keaundra heard the iron fall and when she came out to investigate, A.D.L. told her that C.L.B., Jr. had tried to kiss the iron. Keaundra then called her mother, a nurse, who told her to put ointment on the injury and to take C.L.B., Jr. to the emergency room if the burn blistered.

Following the initial contact with DFS, Keaundra moved her family to Louisiana, where her father was stationed with the U.S. Air Force. Upon learning that Keaundra moved to Louisiana, DFS sought help from U.S. Air Force authorities to gain protective custody of the children. The children were removed from Keaundra’s care, and C.L.B., Jr. was taken to see Dr. Neuman, a physician in Louisiana. Dr. Neuman reported that the injury was well healed and that there was no evidence of abuse.

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When is a hotel liable for the wrongful acts of a third party?

Posted on by Jeff Jaeger

Hotel innkeep liability

Humphries vs. New York-New York Hotel & Casino, LLC (Nev. Supreme Ct. – Oct. 5, 2017)

This case deals with a patron that seeks to hold a casino civilly liable for injuries they suffered during an altercation with another patron on the casino floor. NRS 651.015 precludes such liability unless the wrongful act that caused the injuries was foreseeable. The statute further provides that a wrongful act is not foreseeable unless the owner or innkeeper failed to exercise due care for the safety of the patron or other person on the premises or had notice or knowledge of prior incidents of similar wrongful acts on the premises. In this case, the district court granted summary judgment in favor of the casino, finding that the casino did not owe a duty to the patrons pursuant to NRS 651.015 because the casino had no “notice or knowledge” the other patron would assault the patrons.

Humphries and Rocha were walking through New York-New York Hotel & Casino’s (NYNY) casino floor at 3:50 a.m. Humphries exchanged pleasantries with a woman who was accompanying another casino patron, Ferrell. Ferrell began conversing with Humphries and allegedly made a vulgar comment to her. Humphries responded and made a spitting motion towards Ferrell and then turned to walk away. Ferrell attacked Humphries, hitting and kicking her multiple times, and allegedly throwing her into a slot machine. Rocha, who was playing a slot machine when the attack began, attempted to intervene and was also hit by Ferrell.

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