432 P.3d 752
Nev.2019Background
- Defendant Kenneth Franks was tried for lewdness with a child under 14 based on testimony that he pulled down his 12‑year‑old niece’s pants and rubbed her genitals.
- The victim (A.F.) also testified about multiple prior uncharged instances of inappropriate touching by Franks.
- The complaint was filed Sept. 18, 2015; trial began Nov. 28, 2016, so the 2015 amendment to Nevada Evidence Rule NRS 48.045(3) applied.
- NRS 48.045(3) permits admission in sexual‑offense prosecutions of evidence that the defendant committed other acts constituting separate sexual offenses (i.e., propensity evidence).
- The district court admitted the victim’s testimony about prior acts without a Petrocelli hearing; the jury convicted and Franks was sentenced to 10 years to life.
Issues
| Issue | Plaintiff's Argument (Franks) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether NRS 48.045(3) allows admission of prior uncharged sexual acts to show propensity | NRS 48.045(3) should not permit propensity evidence of separate sexual offenses | The statute plainly allows admission of prior sexual‑offense acts to show propensity in sexual‑offense prosecutions | NRS 48.045(3) unambiguously permits propensity evidence of prior sexual offenses |
| Whether a Petrocelli hearing was required before admitting such evidence | Admission required a Petrocelli hearing and its safeguards | Because NRS 48.045(3) removed the ban on propensity evidence, Petrocelli’s framework (for non‑propensity uses) is not strictly required | Petrocelli is not required, but procedural safeguards are still necessary |
| What procedural safeguards and preliminary findings are required before admitting prior sexual‑act evidence | Without formal safeguards, risk of unfair conviction exists | The State must proffer relevance outside the jury; court must find relevance and that a jury could find the prior act by a preponderance; court must balance probative value vs. unfair prejudice using LeMay factors | Court must require proffer, make a preponderance‑of‑evidence finding on occurrence, and apply LeMay balancing factors before admitting evidence under NRS 48.045(3) |
| Whether evidence was sufficient to support conviction (intent and timing) | Evidence insufficient to prove intentional touching and that it occurred in June 2015 | Victim testimony, admission to police (possible touching), and other witness testimony provided a permissible basis for a jury to find intent and timing | Viewing evidence in light most favorable to prosecution, a rational jury could find intent and timing beyond a reasonable doubt |
Key Cases Cited
- United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001) (sets nonexhaustive balancing factors for prior sexual‑act evidence: similarity, temporal proximity, frequency, intervening circumstances, and necessity)
- Petrocelli v. State, 692 P.2d 503 (Nev. 1985) (established framework for admitting prior‑act evidence for non‑propensity purposes)
- Old Chief v. United States, 519 U.S. 172 (1997) (cautions against convicting for uncharged bad acts and stresses limiting unfair prejudice)
- Bigpond v. State, 270 P.3d 1244 (Nev. 2012) (applies Petrocelli framework and discusses procedural requirements for prior‑act evidence)
- United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998) (requires a preliminary finding that a jury could reasonably find by a preponderance that the other act occurred)