Category: Criminal Defense

Does the 6th Amendment guarantee the right to cross-examine a witness?

Posted on by Jeff Jaeger

Attorney cross-examining a witness

State vs. Dist. Ct. (Baker (Jeffrey)) (Nev. Supreme Ct. – Mar. 1, 2018)

The issue is whether a defendant had an adequate opportunity to cross-examine a witness when, immediately after the State’s direct examination at the preliminary hearing, the defendant waived his right to continue the preliminary hearing.

Baker stood accused of one count of sexually motivated coercion and eight counts of lewdness with a child under the age of 14. At the preliminary hearing, Baker’s cousin, C.J., testified in detail regarding two instances in which Baker attempted to engage her in sexual activity. The first instance occurred when C.J. was 11 years old; the second when she was 13. Baker was well into his 20s on both occasions.

During the preliminary hearing, when C.J. finished testifying, the justice court said, “All right. Cross.” Instead of beginning cross-examination, Baker’s attorney asked for the court’s indulgence as he conferred off the record with the prosecutor. He then announced: “Today pursuant to negotiations, Mr. Baker will unconditionally waive his preliminary hearing. In district court he’ll plead guilty to one count of attempt[ed] lewdness with a minor.” After canvassing Baker, the justice court accepted his unconditional waiver of the remainder of the preliminary hearing.

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What is a “deadly weapon” within the context of battery?

Posted on by Jeff Jaeger

hand holding a screwdriver

Rodriguez (Daniel) vs. State (Nev. Supreme Ct. – Dec. 28, 2017)

At issue in this appeal was the definition of “deadly weapon” within the context of battery. Rodriguez contended the jury instruction that led to his conviction for battery with the use of a deadly weapon was erroneous because the object he used to stab his victim – a screwdriver – was not designed to be inherently dangerous.

Rodriguez used a screwdriver to stab a 66-year-old man in the neck. The screwdriver was four to six inches long. It broke through the victim’s skin, causing bleeding and one night of hospitalization. The State charged Rodriguez with battery with the use of a deadly weapon, causing substantial bodily harm, against a person at least sixty years of age.

Prior to trial, Rodriguez repeatedly contested the deadly weapon allegation, arguing that a screwdriver could not meet the narrow definition of deadly weapon he claimed applied to 200.481(2)(e), which governs the crime of battery with the use of a deadly weapon. The district court rejected Rodriguez’s motions to dismiss the deadly weapon allegation.

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Can a witness give an opinion about a defendant’s guilt?

Posted on by Jeff Jaeger
Can a witness offer an opinion as to a defendant’s guilt?

Collins (Lesean) vs. State (Nev. Supreme Ct. – Nov. 22, 2017)

A jury convicted Collins of robbery and first-degree murder, for which he was sentenced to life in prison without the possibility of parole. On appeal, Collins argued, among other issues, that the testimony of the lead investigator in the case violated the rule against a witness giving an opinion on a defendant’s guilt.

Four days after Payton went missing, two ATV riders discovered her decomposed body in a ravine. Drag marks led through the dirt and brush to the body. No purse, wallet, cell phone, or means of identification or transportation were found. Payton’s shirt was pulled up over her head, and she was shoeless. Three of her acrylic fingernails had broken off – two were found at the scene – and one of her pockets was inside out. Some nearby rocks had blood on them.

Payton’s sister identified her body. Although identifiable, the body had decomposed too much for the coroner to definitively state the cause of death. The autopsy established that before she died, Payton sustained three blows to her head from a rod-like instrument. While the blows did not fracture Payton’s skull, they were strong enough to render her unconscious. The coroner deemed Payton’s death consistent with asphyxiation or being locked in the trunk of a car in southern Nevada’s late summer heat.

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

Posted on by Jeff Jaeger

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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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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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 defendant be convicted of aiding and abetting a negligent or reckless crime?

Posted on by Jeff Jaeger
aid and abet

Desai (Dipak) vs. State (Nev. Supreme Ct. – Jul. 27, 2017)

A jury convicted Desai of, among other things, seven counts of performance of an act in reckless disregard of persons or property resulting in substantial bodily harm pursuant to NRS 202.595(2), and seven counts of criminal neglect of patients resulting in substantial bodily harm pursuant to NRS 200.495(1), collectively characterized as the endangerment crimes. The issue is whether a defendant can aid and abet a negligent or reckless crime, such as the endangerment crimes at issue here.

Desai was the original founding member and managing partner of the Endoscopy Center of Southern Nevada and other ambulatory surgical centers (collectively, the clinic) in Las Vegas. Desai made all decisions regarding the clinic, including the ordering and use of supplies and scheduling of patients. He was also in charge of the certified registered nurse anesthetists.

On July 25, 2007, the clinic’s first patient of the day informed Desai that he had hepatitis C before his procedure began. Later that day, Washington had a procedure performed at the clinic. Washington was later diagnosed with hepatitis C. On September 21, 2007, the clinic’s first patient of the day informed a nurse that he had hepatitis C before his procedure began. Later that day, Rivera, Martin, Aspinwall, Hutchinson, and Meana had procedures performed at the clinic. All five patients were later diagnose with hepatitis C. Meana received some treatment following his diagnosis, but failed to adequately complete any treatment and eventually died as a result of the disease.

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What acts constitute an entry into a building for purposes of a burglary statute?

Posted on by Jeff Jaeger

Merlino v. State (Nev. Ct. App. – Sep. 10, 2015)

Under Nevada law, a person commits the crime of burglary when he or she enters a building with the intent to commit a predicate crime inside the building. The issue is whether NRS 193.0145, NRS 205.060(1), and NRS 205.060(5), which define the acts that can constitute an entry into a building for purposes of the burglary statute, encompass selling stolen property through the retractable sliding tray of a pawn shop’s drive-through window.

Merlino and her boyfriend, Byrd, befriended neighbor Wilson and would occasionally visit her in her apartment. During their visits, Merlino would sometimes bring Wilson food, clean her apartment, and run errands for her. Wilson eventually noticed that some jewelry was missing from her apartment and reported the theft, informing detectives with the Las Vegas Metropolitan Police Department that Merlino and Byrd might be responsible for the missing items. During their investigation, the detectives learned that Merlin had pawned items matching the descriptions of Wilson’s missing jewelry. Wilson identified the pawned items as belonging to her and indicated that Merlino did not have permission to possess those items. Merlino was subsequently charged by way of indictment with conspiracy to commit a crime, grand larceny, and three counts of burglary. She was convicted on all counts but on appeal challenged only her conviction on count five, one of the three counts of burglary.

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What must a court consider before permitting withdrawal of a guilty plea?

Posted on by Jeff Jaeger

Stevenson v. State (Nev. Supreme Ct. – Aug. 13, 2015)

NRS 176.165 allows a defendant who has pleaded guilty, but not been sentenced, to petition the district court to withdraw his plea. The issue is whether a district court must consider the totality of the circumstances to determine whether permitting withdrawal of a guilty plea before sentencing would be fair and just.

Stevenson was charged with numerous offenses relating to his sexual attacks of three women between 2007 and 2009. The evidence against him appeared to be strong, consisting of identifications by the women and a DNA match. The cases were consolidated, and Stevenson chose to represent himself. As trial approached, he attempted to obtain a surveillance video of the Cheetahs gentlemen’s club parking lot where one of the women was sexually assaulted. When it became clear that the State had lost the video, Stevenson moved to dismiss the charges. The district court denied his motion on March 9, 2011. On November 9, shortly before trial was set to begin, Stevenson informed the district court that Cheetahs still had the actual machine that the club had used to record surveillance footage. According to Stevenson, the manager had unplugged the machine when the video had been requested, but it required a password that she did not know and therefore she could not retrieve the recording. Stevenson argued that the video should exist on the machine’s hard drive and he would not be ready for trial until he saw it. The parties decided that a computer technician would attempt to break into the machine and access the video overnight. The next day, without any explanation, Stevenson pleaded guilty to two counts of attempted sexual assault.

On February 21, 2012, before sentencing, Stevenson moved to withdraw his plea on the ground that he had been misled about the existence of the video. According to Stevenson, he had only pleaded guilty because his court-appointed standby counsel told him that the video could not be viewed unless the machine was sent back to the company that made it, which would take several months and could erase the video. But, after he pleaded guilty, Stevenson allegedly learned that the video could be extracted in mere days and there was no risk of damaging it in the process. The district court conducted an evidentiary hearing regarding this claim where Stevenson’s investigator, the computer technician, and Cheetahs’ manager testified. After their testimony, the district court denied Stevenson’s motion pursuant to Crawford v. State, 117 Nev. at 718, 30 P.3d 1123 (2001), finding that his plea was entered into knowingly, voluntarily, and intelligently. Stevenson appealed.

Stevenson argued that Crawford’s exclusive focus on whether the plea was knowing, voluntary, and intelligent lacked foundation in NRS 176.165. He pointed out that, before Crawford, the Nevada Supreme Court had interpreted NRS 176.165 to permit the withdrawal of a guilty plea before sentencing for any “fair and just” reason, which included reasons beyond just whether the plea was validly entered.

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