Lipsitz v. State, 442 P.3d 138

Lipsitz broke into an out-of-state residential treatment facility and sexually assaulted an 18-year-old patient; DNA linked his saliva to the victim's mandible, neck, and chest.
Victim was an in-patient in a Florida treatment center and unavailable to appear physically at trial; State sought two-way audiovisual testimony.
Lipsitz invoked his speedy-trial right and refused a continuance; he challenged remote testimony as violating his Sixth Amendment Confrontation Clause right.
The district court canvassed Lipsitz repeatedly about competency after the State mentioned a referral in another department; defense counsel consistently reported no competency concerns and the court proceeded to trial.
The jury convicted Lipsitz on multiple sexual-offense counts; the court sentenced him to an aggregate 20 years to life.
On appeal the court affirmed most convictions, held (1) two-way audiovisual testimony met the Craig standard and did not violate confrontation, (2) the court did not abuse discretion in declining a competency hearing, but (3) vacated the sexual-assault conviction because it duplicated an attempted-sexual-assault conviction arising from the same act.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether two-way audiovisual testimony violated the Confrontation Clause	Remote testimony denied Lipsitz face-to-face confrontation and impaired credibility assessment	Two-way transmission preserves oath, cross-exam, and demeanor observation; victim was unavailable	Use of two-way AV testimony upheld under Maryland v. Craig: necessary to protect victim and preserved reliability
Whether court abused discretion by not ordering competency hearing after State's concerns	Trial should have been suspended for a formal competency evaluation	Court canvassed Lipsitz and counsel had no concerns; behavior showed obstinance not incapacity	No abuse of discretion; substantial evidence supported competency finding
Whether convictions for sexual assault and attempted sexual assault can both stand when based on same act	Cannot convict for both attempt and completed offense arising from same conduct	State argued jury instructions allowed fellatio finding from touching	Convictions cannot both stand; sexual-assault conviction vacated for insufficient evidence of fellatio (penetration or oral stimulation)
Sufficiency of evidence for sexual-assault conviction	Argued evidence supported completed sexual assault	Defense: evidence showed only a single touch to closed mouth — attempted assault	Held insufficient evidence for sexual assault; remanded to amend judgment (attempt conviction stands)

Maryland v. Craig, 497 U.S. 836 (1990) (two conditions for admitting remote testimony consistent with Confrontation Clause)
Crawford v. Washington, 541 U.S. 36 (2004) (right to confront witnesses and cross-examination principles)
Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
Olivares v. State, 124 Nev. 1142 (2008) (trial court discretion and duty to order competency hearing when substantial doubt exists)
Maes v. Sheriff, 94 Nev. 715 (1978) (definition of fellatio as oral stimulation; penetration not strictly required)
Chavez v. State, 125 Nev. 328 (2009) (standard of review for Confrontation Clause evidentiary rulings)