*1 justice criminal system can convict when guilt evidence of is so marginal, the proof standard of applicable at trials would be meaningless. rendered I would reverse judgment of convic- tion. CHARLES LUCAS, DONALD Appellant, v. THE STATE Respondent. NEVADA, OF
No. 11283 LUCAS, CHARLES DONALD Appellant, v. THE STATE Resрondent. NEVADA, OF
No. 11284 LUCAS, CHARLES DONALD Appellant, v. THE STATE NEVADA, OF
No. 11285 April 610 P .2d Wiener, Waldman, Goldwater & Speiser, Laurence A. Vegas, Las Appellant. General, City; Attorney J. Bryan, Carson Robert Richard Miller, Douglas Clark and William Attorney, Howard District County, Respond- Root, Attorneys, Deputy Clark District ent.
OPINION Court, Gunderson, By the J.: appellant On November admittedly performed sixteen-year-old girl. sexual acts with a jury believed the performed acts were without the victim’s consent and con- appellant Also, victed the of sexual jury assault.1 believed appellant young girl and a рerformed named Bernadette had cunnilingus and fellatio in presence, the victim’s therefore convicted open gross lewdness. Finally, jury convicted possessing drugs found apartment during search, in his attempting give quaaludes to the victim on Novembеr and November 1977. The court sentenced to consecutive terms of life *3 imprisonment possibility parole with assault; of for sexual one year jail county open in the gross lewdness; and and a total twenty-six years of drug on charges. the appellant victim The met place at her employment in November, 1977. accompanied He was by girls, two young Bernadette, Sharon and one of whom he introduced as his daughter. He told the victim he would take photographs of her portfoliо. for use in a fashion Accompanied by mother, her the went appellant’s victim the apartment to on November 10. Beverly kept the occupied mother appellant while photo- graphed Appellant the victim. offered the quaalude, victim a which she refused. He kissed Bernadette on the breasts while the victim watched. He claims he told the pay victim he would modeling her for and “sexuality” if she returned. On November the victim returned apartment. to the The again appellant’s victim refused quaalude. offer of a persuaded her to look photographs at young girls, nude, posad suggestively, and he described the sexual abilities of the girls pictured. appellant The gun. showed the victim a He then showed the eighty victim mоre slides, than young all of girls in provides: 200.366(1) 1 NRS person subjects person penetration, “A who another to sexual or forces who person penetration another, another to make a sexual on himself or on a or beast, against the viсtim’s will or under conditions in perpetrator which the mentally or should physically knows know that victim the is incapable or resisting understanding conduct, or the guilty nature of his is of sexual assault.” sexually suggestive poses, showing and one slide himself with a young girl. He then demanded that the victim remove her lie clothes and down on the bed. She testified she did so because Appellant placed had become scared and she confused. his mouth, penis began crying in the victim’s choking. she apartment. Although He then summоned Bernadette to the appellant Bernadette and the willingly testified that the victim joined scenario,” them in a “sexual the victim testified she by the appellant stood bed and watched as per- Bernadette and cunnilingus formed and fellatiо. The encounter ended when girls asked the girls to touch each other and the refused. assignments (1) of error are: that the trial court erred in
refusing photographs to exclude the and slides shown to the victim, refusing and in to exclude certain from Ber- nadette, Sharon, Beverly; (2) and Sharon’s sister that the trial denying appellant’s suppress court erred tographs, pho- motion to the drugs; (3)
slides and that the court erred in sentenc- ing the after a doubt sanity; had arisen as to his (4) sentencing appellant thаt the trial court erred in because he young girls considered misconduct with other than the victim. prior 1. The victim viewing testified that photo- the
graphs, any she intended to by appel- resist advances made slides, She lant. testified that after she viewed thе she became scared and confused. When demanded that she submit, Thus, think, remove her clothes and she did. we complete story State was entitled to proving of the crime happenings immediate context of place. near in time and Allan v. question determining The crucial if a sexual assault has occurred is whether the act is committed without the victim’s photographs helped consent. The and slides to furnish a basis *4 jury for the to find willing that the victim participant, was not a perform but rather that against caused her to fellatio will, McClain, her (Ariz. 1952); as she testified. See State v. P.2d Natzke, 1121, State v. cf. Thus, (Ariz.App. 1976). photographs the and slides had rele- vance. Appellant argues, however, so, 2. that if even that be the admitting trial court erred in phоtographs the slides and prejudicial impact upon jury because their outweighed the their
probative 48.035(1). value. NRS A trial court’s evaluation manifestly an issue will not be
such
reversed unless it is
errone-
4,
See Jones v.
we cannot declare the balance struck the trial manifestly court to be erroneous. Appellant 3. also contends that certain from
Bernadette,
Beverly
and
Sharon
should have been excluded.
girls
gave
drugs,
pictures
testified that
thеm
took
nude,
perform
of them the
and induced them to
sexual acts
girls
with himself
others. The acts to which the
testified
time,
not remote in
were
and were similar to acts with the vic-
they accepted
drugs
may
The fact that
tim.
willing perform
have been
chаllenged
sexual acts does not make the
Simpson
760,
inadmissible.
Cf.
P.2d 1319
suppress photographs,
4.
moved to
slides and
apartment.
drugs
evidentiary
seized at his
After
hearings, the
court determined that the
permissible
search had not exceeded
agree.
provided by
We
bounds.
Information
presumptively
a victim of crime
police
Turkal,
to a
officer is
reliable.
State v.
Cf.
Hill,
(N.M. 1979); People
1,
433 judge also contends that the trial erred when 5. sentencing. During an a refused to continue examination he psychiatrist psychiatrist, the concluded that was suf- disorder; hоwever, psychiatrist fering a character also from diagnosis psychosis that a of was unwarranted. determined proceedings suspended provides that if 178.405 must be NRS sanity.2 as to the accused’s The doubt referred to is doubt arises State, sentencing judge. in the mind of the Williams v. doubt 169, 174, (1969). Appellant 451 P.2d has not degree that of sufficient and demonstrated reasonable doubt as sanity previously required. which we have See Williams to his 851; Conner, at 451 P.2d at id. Warden v. Doggett Warden, (1977); Nev. Nev. cf. Finally, appellant sentenсing contends that him the trial judge improperly considered evidence of crimes which had not charged. showing prejudice resulting been impalpable Absent of from evidence, highly suspect or this court will refrain interfering imposed. from 91, with sentence Silks v. judge’s The trial remarks reflect reasonably which pre-
inferences could be drawn from evidence presentencing report. at trial and the sented Also see United Schipani, (2nd 1970); States F.2d 26 Kasold, statutory cited above. The sentences аre within limits are affirmed. Affirmed. Thompson J.,
Mowbray, Batjer, JJ., C. concur. J., concurring:
Manoukian, Although majority opinion, I concur in the I have concern admissibility with of the of Bernadette and Here, Beverly. improperly the trial court previous extended our holdings regarding prior acts of misconduct and the use of such against only evidence tify a defendant. Not did these witnesses tes- Denise, directly involving they as to the acts were allowed testify as to how contacted them and how were involved in sexual activities with adult friends. trial, Suspension pronouncement judgment 2 “175.405 when doubt sanity. When an indictment as to defendant’s or information is arises called for trial, upon brought up judgment, conviction defendant is or if doubt defendant, sanity suspend of the arise as to the the court shall shall the trial of рronouncing judgment, information or the the indictment or may of the as the case be, question insanity until is determined.” court reasoned that this demonstrated a The trial indicating [appellant] an “intent of the to seduce scheme [the against allowing testimony, her will.” In this the dis- victim] *6 State, 212, upon Findley v. 94 court relied Nev. 577 P.2d trict State, 184, (1978), McMichael v. 94 Nev. 577 867 P.2d 398 (1978). was error. This prior may has that evidence of
This court held bad acts be charged prove to the crime when it tends to establish admitted plan embracing schеme or intent or “a common the commis- proof sion of two or more crimes so related to each other that State, one tends to establish the others . . . .” Nester 75 v. 524, Here, (1959). many 334 P.2d 527 Nev. there were surrounding in the circumstances similarities the mannеr in Beverly which first met Bernadette and and the man- acquainted ner in which he became with Denise. This included monetary promise modeling his of a remuneration for and the representation complete portfolio that he would for each of similarities, however, Beyond girls. those the situations dif- Beverly appel- fer. Bernadette and stated that had sex with suggestion his friends. There was lant and no real that these involuntary. acts were previous we have
In
cases
allowed the
of witnessеs
prior
evidencing the
sexual misconduct of a defendant. This
involved similar acts
the defendant
has
present
either with the
persons
complaining
or with
victim
other than the
wit-
State,
760,
Simpson
(1978);
v.
See
94 Nev.
587 P.2d
ness.
1319
State,
620,
(1978); Findley
Willett v.
94 Nev.
No.
15,May *7 Harris, Gary Public Defender and H. Morgan D. Lieber- Defender, County, Appellant. man, Deputy Clark Public General, Attorney City; Bryan, Carson Robert H. Richard Miller, Attorney Tufteland, Deputy James Dis- District J. County, Attorney, Clark trict