*1
,
court, which ordered defendant “pay any counselling future victim,” erred by failing costs to set dollar amount specific (internal omitted)). restitution for such costs quotation marks Be cause the judgment conviction restitution in an un contemplates amount, certain it not final is and therefore is not Ac appealable. cordingly, we lack jurisdiction over this appeal. appeal is dismissed on that basis.2 NEWMAN, Appellant, TIMOTHY
SHAWN
Respondent.
NEVADA,
THE STATE OF
No. 56151
April
[En 2013] Bosler, Bond, Defender, Jeremy T Cheryl Public Appellate Defender, Public Deputy County, Washoe for Appellant. Masto, Catherine General, Attorney Carson City; Cortez Gammick, Hatlestad,
Richard A. Gary H. Attorney, District Chief Appellate Attorney, District Washoe Deputy County, Respondent. *4 Hardesty Pickering, C.J., Cherry,
Before JJ.
OPINION Court, Pickering, By C.J.: conviction, Appellant Shawn Newman his on ver- appeals jury
dict, willfully of one count of a endangering child as a result of abuse, misdemeanor, child gross a and one count of battery by strangulation, a The felony. charges grew out of an incident in son, Darian, yelled which Newman at his in public; when New- witness, man boy, took off his belt to strike the Thomas Car- mona, tried but failed to him. stop fought Newman and Carmona grabbed until Newman neck choke him Carmona’s into sub- trial, mission. At Newman admitted these facts and that he acted intentionally. justification: His defense was parental discipline and, extent, privilege charge; as to the child abuse to some self- defense as to the battery charge.
Newman raises two issues on both rooted in appeal, NRS 48.045’s prohibition against using character or evi- prior-bad-act First, dence to criminal prove propensity. prosecution intro- son, Jacob, duced evidence that Newman had struck his other public got argument nursing that Newman into a heated with staff about Jacob while Darian hospitalized for an appendec- tomy. district court deemed this evidence under admissible 48.045(2) NRS to show absence of mistake or accident as to the Second, charge. child abuse prosecution presented surprise witness, she, too, Ewing, rebuttal Connie who had a reported heated but nonphysical exchange with Newman over his disciplin-
amg young boy a local outside Walmart. The district court allowed this testimony 48.045(1)(a) as rebuttal under NRS and NRS 48.055, to testimony strangled rebut Newman’s that he Carmona in self-defense.1
Evidence of the involving of one episodes Jacob was properly admitted to refute Newman’s claim of parental privilege. The other episodes involving by Jacob were not clear and proven convincing evidence, law, by our case and it was an required abuse of dis Nonetheless, cretion Ewing to admit the testimony. Newman’s guilt by was established his own and overwhelming admissions ev idence. We therefore conclude that the errors were harmless and affirm. I. A. The underlying incident this on appeal September occurred time,
2009. At the raising Newman was a father single two sons: twelve-year-old Darían and six-year-old Jacob. Darían had started middle day school the week. care previous opened Jacob’s at a.m. and Darían needed to be to middle 7:30 a.m. The school family’s was close to had apartment recently gotten both. Darían Darían, bike with The was for who felt gear-speeds. plan uncom- Jacob, fortable with riding bicycle double to walk Jacob and the day Jacob’s care and to ride from there to middle school. The tim- ing tight was and the first week this did not plan work out. One day, looking along Newman went for Darían what he thought was his route find day, but could not him. Darían got Another lost and tardy. earlier,
Six in late July, weeks Darían had been hospitalized for secondary A appendicitis. developed infection extended his dressed, hospital stay days. to 19 The wound was not sutured closed, meaning it had to be cleaned and the dressing changed daily while the incision open September healed. On the wound had still mostly daily dressing, closed but which Newman required attended to. incident, day On the of the Newman followed Darían in his Darían, truck to see exact route. All well until his son’s went who argues 1 Newman also ineffective assistance trial counsel his based on against arguing statement to the district court, admission of lawyer’s Ewing’s urged would that she have Newman not to if had she testimony, testify Ewing. known about We do not “consider ineffective-assistance-of- normally counsel claims on direct unless the court has held an district appeal evidentiary hearing would be needless.” Archan hearing on the matter or evidentiary ian (2006). 1020-21 dis hearing trict court did not one would be needed hold an to de evidentiary termine whether would have matter what Newman testified no his lawyer said. we not reach his Therefore, do ineffective-assistance-of-counsel claim. it a hill. New- up could not make gear, new bike in third had his truck, gear in lower and rode bike put man out of his got *6 worked, for and then held the bike the gearing show Darían how he saw reason—Newman testified try. Darían to For whatever Darían told a off the while deliberately pedal, his foot slip Darían did tired and his stomach hurt—Darían officer he was responding succeed, Admittedly angry, Newman gear. even in the lower not ride the Darían an ultimatum: gave at Darían. He yelling started bike, let his went to go Darían spanked. bike the hill or be up to be nearby, spanked. a and bent over low wall street, heard the Carmona across the Thomas From his home ran over his belt. Carmona and saw Newman take off commotion They argued over Newman’s striking boy. him the from stop The fought. fight child and then his right physically discipline in a ground Carmona to the end until Newman pinned did not accused each other of throw- Carmona and Newman stranglehold. and, unlike bigger is than Carmona the first blow. Newman ing Carmona, Car- fight. for wear after their looked none the worse rage as in a and eyewitness described Newman mona and another that Darían uncontrollably. One witness testified crying Darían as him. said his father terrified arrived, they found a red welt on Darian’s but- the police When tocks, Dar- They also they photographed photographed. which Paramedics exam- bandage healing and incision. ian’s abdominal the hospital. did not take either to ined Darían and Carmona but for some sore and it hurt to swallow apple Carmona’s Adam’s was days afterward.
B. case-in-chief days. The its prosecution presented Trial took four officer, and medical testi- expert through eyewitness, responding After the prose- evidence. mony using any prior-bad-act without rested, right of his to tes- the district court advised Newman cution it warned that would prosecution in his own defense. tify that parental privilege acts if Newman testified prior bad explore Darían. his justified discipline lawyers prior-bad- then heard from the on
The district court from a lawyers argued testimony presented; act No issue. record (CPS) that the report appellate services child protective CPS lists report reveals that the transcript not include. The does only” “information involving incidents Jacob as two of the three in- and that the reports,” police a “unsubstantiated heading, under this, it. verify could not Despite one of the incidents but vestigated incidents were es- following determined that the the district court by evidence and could be used convincing clear and by tablished (1) hit Jacob in No- Newman if Newman testified: prosecution early vember and late or February July August when Darian was in the and Newman had an hospital; ugly during stay. verbal run-in with staff Darian’s hospital Although court deemed this evidence more than it did probative prejudicial, identify permissible admitting not it nonpropensity purpose trial, until later in the when it held that the evidence tended to show absence of mistake or accident the child charge. as to abuse testify.
Newman elected to His direct-examination testimony gave background hewed close to the events of 14. He September concerning explained Darian’s and appendectomy recuperation why he followed Darian truck instead of him to just driving day. school that He admitted that he Darian the choice of rid- gave ing being the hill or that he struck Darian on the but- up spanked; belt, welt; raising fought tocks with his and that he with Car- him in a put stranglehold mona when Carmona would not back him, off. Newman testified that Carmona attacked Finally, being angry being reverse. He conceded and loud but denied out of *7 control. cross-examination,
On the prosecution asked Newman about in late July/early August incidents 2009. Newman admit- hospital ted that he “smacked” Jacob on the back of the head for bounc- eventually on Darian’s bed and that he into such a heated ing got argument with staff over Darian’s care and his and Jacob’s hospital that he leave and come use of a break room was told to not back. acknowledge “grew The had Newman that he on prosecution up streets,” side,” the hard and can “an perceived is “on be as loud, said, kind He “I don’t aggressive, person.” obnoxious in I will in anything my hide I do. I will children spank public sons, described his of his progressive discipline Newman private.” voice, time, to He also de- ranging spanking. from raised to comer arranged he had for Darian and later special tutoring scribed the and in University expressed pride Jacob at the of Nevada Reno level. When the asked Newman about reading prosecution Darian’s 2009 incidents with Jacob men- February the November substantiated) he (but tioned not in the CPS Newman said report, did recall either. counseled Darian
The defense then called the who psychologist being in led to Darian and Jacob charges after the this case characterized psychologist removed from Newman’s care. “authoritarian” and “auto- style Newman’s as between parenting fairly had “a nor- cratic” but also that Darian and Newman opined he had no qualms mal He testified that parent/child relationship.” shortly care when Darian and Jacob were returned to Newman’s before trial. rested, alerted the court prosecution After the defense came forward after Ewing, the defense counsel to Connie who an incident in- in the She related reading newspaper. about case a volving stranger recognized she now as Newman yelling and hit- ting boy outside Walmart in early September 2009. When de- she manded that he stop, Newman told her to “mind own [her] f#$%ing Ewing business.” went complain inside to to the Walmart greeter security and then and Newman followed. security Two guards flanked Ewing while she and argued single Newman about parenting and appropriate discipline. physical No contact occurred and eventually Newman left. Over defense objection, the district court admitted this evidence to rebut Newman’s testimony that Carmona attacked him first. The did prosecution nothing to prove the November 2006 and February 2009 incidents involving Jacob that Newman testified he did not know about or recall.
In closing, neither side argued prior-bad-act evidence in- volving Jacob. The Ewing testimony was briefly. alluded to but deliberation, During the jury sent out two questions, both con- the child cerning Ultimately, abuse count. it returned a verdict of and the guilty district court sentenced Newman to a maximum term of 60 months battery incarceration for the with a consecutive term of 12 months for child endangerment.
rr.
48.045(2)
crimes,
NRS
prohibits the use of evidence of “other
wrongs or acts ...
to prove the character of a
person
order to
show that the
acted in
person
conformity therewith.” Such evi
however,
dence “may,
be admissible for other purposes, such as
motive,
intent,
proof of
opportunity,
preparation, plan, knowledge,
identity, or
48.045(2)’s
absence of mistake or accident.” Id. NRS
list of permissible nonpropensity
prior-bad-act
uses for
evidence is
not exhaustive. Bigpond v.
Nonetheless,
(2012).
while “evidence of ‘other
crimes, wrongs
may
or acts’
be admitted ...
relevant non-
*8
116,
propensity
id.
purpose,”
at
231
evidence,
(3)
and convincing
the
value
the
probative
of
evi-
substantially
dence is not
outweighed by
danger
the
of unfair prej-
117,
addition,
udice.” Bigpond,
This court reviews a district court’s decision to admit or exclude prior-bad-act evidence under an abuse of discretion standard. State, 785, 789, 709, v. Fields 125 Nev. (2009). 220 P.3d 712
A. at-issue, Identification of nonpropensity purpose admitting for prior-bad-act evidence is a necessary first step any NRS Miller, 48.045(2) analysis. See United States 673 F.3d 697 (7th 2012) Cir. (addressing 404(b), Fed. R. Evid. cognate Here, 48.045(2)). NRS ultimately district court declared that it admitting was the prior-bad-act involving evidence Jacob to show ‘ absence of mistake or accident. admissibility ‘The of evidence of crimes, wrongs, other or acts to establish . . . absence of mistake established, accident or is well in child abuse particularly cases.” Harris, (10th 1981). United States v. 661 F.2d 142 Cir. This is because that a child has in “[pjroof experienced injuries many purported accidents is evidence that the most recent injury may not State, have yet resulted from another accident.” Bludsworth v. 289, 292, (1982). Nev. 646 P.2d But Newman did not mount a conventional accidental de- injury fense child charge. to the abuse He admitted Darían and striking Thus, so doing deliberately. proof that Newman struck previously Darian’s brother Jacob does not tend to accidental disprove injury, a common defense to a child abuse charge. Neither mistake nor issue, accident at involving and the incidents Jacob prior should not have been admitted these irrelevant See purposes. Honkanen v. (reversing a child on an abuse conviction based error admit- where, evidence ting prior abuse to show absence of mistake here, the did not claim accident or mistake parent explained injuries). that, even if prosecution argues admitted to properly accident,
show absence prior-bad-act of mistake or evidence in- *9 232 refute
volving
parental privi-
Jacob was admissible to
Newman’s
demonstrating that Newman did not have the intent
lege
by
defense
that
the heart of that defense.
to correct
forms
parental privilege
A number of states have codified the
defense.
State,
177,
(Ind. 2008) (identi-
See Willis v.
888 N.E.2d
181 n.5
statutes).
with
Nevada has
fying jurisdictions
parental privilege
not,
law,
virtue
see
privilege
by
so in Nevada the
exists
of common
1.030;
(1862)
NRS
3 William Blackstone Commentaries 120
cases,
lawful;
is,
(“battery
justifiable
in some
or
as where one who
master,
authority,
gives
hath
or
moderate correction to his
parent
’
child,
scholar,
Willis,
in
888 N.E.2d
apprentice,’ quoted
his
or his
180-81),
by
liberty
at
and
virtue of the “fundamental
interest [a
maintaining
in
a familial
with
or her
parent
relationship
his
has]
right
child
...
‘to direct the
and
upbringing
[which includes]
” Willis,
education of children.’
The intent
are not the
parental discipline
same. “A
who
a child in a
manner in-
parent
disciplines
physical
their
in-
tends to correct or alter
child’s behavior. That corrective
tent
in a
Ceaser v.
lacking
battery.”
is
964 N.E.2d
917
denied,
(Ind.
2012),
(Ind. 2012).
Ct.
Judged by these that Newman cuffed Jacob on admitting in evidence discretion July early August or 2009. head at the late hospital back of his incident, value enough probative and it had admitted the Newman worth out- court’s determination its the district justify *11 cannot be said But the same prejudice. the risk of unfair weighed involving February 2009 incidents the November 2006 and of a CPS as report mentioned in merely These incidents were Jacob. such, they were not and “unsubstantiated.” As only” “information evidence to sus- convincing required the clear and established tain their admission.
C. admit the evidence that error for the district court to It was also under NRS Ewing staff and aggressive hospital Newman that this evidence 48.045(2). suggested the district court Although accident, rel- logical it had no absence of mistake or went toward It too appears defense. also privilege evance to Newman’s parental to have battery-by-strangulation charge the factually dissimilar to he acted in self- refute Newman’s claim that been admissible to hospital neither the strangling Specifically, in Carmona. defense angry of beyond exchange went an nor the Walmart incidents stranger attack a physically In neither instance did Newman words. Although in danger. that his life was on a mistaken belief based life, argued he never fighting claimed he was for his Newman Carmona, throat, his accidentally grabbed intend to hurt he did not injuries. at fault for Carmona’s or was otherwise not dynamics relationship between a purpose, explaining the propensity such 1246; 111, at 270 P.3d at victim and the accused. 128 Nev. domestic-violence State, 161, 2008) (Alaska (recog App. Ct. v. P.3d 182 see also Harris 195 586, State, (Alaska 1979), Harvey nizing holding in v. 590 that the Honkanen, abrogated by the of Alaska’s had been amendment a case similar to 404(b) prior incidents of domestic violence as to allow admission of Rule evidence). against admitting general rule such exception to the
235
III.
48.045(1)(a)
NRS
the prosecution to offer
ev
permits
“similar
idence” to rebut
offered by
person’s
evidence
an accused “of a
character or a trait of his or her
Normally,
proof
character.”
such
the
by “testimony
reputation
is
as to
or in
form of an opinion,”
48.055;
NRS
“when
defendant
a
chooses to introduce character
evidence,
evidence in the form
the
reputation
or opinion
prose
is
similarly
cution
limited
its rebuttal evidence and
in
only
can
into
quire
specific acts
conduct on
cross-examination.” Jezdik
(2005);
P.3d
see NRS
And,
rule,
48.055(1).
evidence,
under
collateral-fact
extrinsic
conviction,
a
may
other than
not
be offered to
defen
impeach
evidence,
character
50.085(3),
dant’s
NRS
except “when
State
to introduce
‘seeks
evidence on rebuttal to contradict
fac
specific
”
tual
during
assertions raised
direct
accused’s
examination.’
Jezdik,
First, Ewing’s testimony
not
about an extrinsic event did
rebut
character evidence
Newman. The crux of Ewing’s testimony
from
violent,
was that Newman
man.
aggressive
is a
This was not ap-
rebuttal
Newman
a
propriate
peace-
because
never claimed to be
or nonviolent man. Jezdik
the
a
loving
specific
door to
opened
by
direct
swearing
having
rebuttal
on
examination to
never com-
Jezdik,
134,
mitted a crime.
been relevant self-defense, the altercation at evidence showed that the claimed blows, words, and thus dif- not only involved the Walmart store with Carmona. from the incident fundamentally fered we Second, collateral. As character was evidence of Newman’s State, of conduct raises Lobato v. the use of acts specific noted in with a coupled specific rule when under the collateral-fact issues Here, 765, 512, 519, (2004). 770 120 Nev. contradiction. as to a instruction self-defense enough supported evidence although Newman’s this did not make charge, battery-by-strangulation the Ewing’s By allowing an issue. verbal combativeness penchant evidence of one of allowed improperly the district court testimony, Ewing—for with confrontation bad acts—his prior Newman’s man. sole, he is not a showing peace-loving purpose irrelevant requirements with the testimony comply did not Finally, Ewing’s Newman’s or discuss give opinion 48.055. She did not of NRS event. The testi- specific testified about a but rather reputation, instance Ewing specific discussed because mony proper been, not, previously not have that was and could of conduct in its cross- by the explored prosecution Newman or raised State, we held in Roever it is im- And of him. examination pre- the accused has not acts that specific to use evidence of proper 503, P.2d 963 with. 114 Nev. viously been confronted (1998). 505
Therefore, abused its dis- that the district court we conclude We now con- testimony. rebuttal admitting Ewing’s cretion were harmless or warrant court’s errors whether the district sider reversal.
IV. ‘ that the recognizes principle doctrine ‘The harmless-error the factual question criminal trial is to decide central of a purpose Arsdall, Delaware v. Van or innocence.” guilt of the defendant’s 673, for the (1986). public respect It also “promotes 475 U.S. 681 fairness of the underlying by focusing on process criminal of immaterial virtually presence inevitable trial rather than on error, ad- Id. A as the erroneous such error.” nonconstitutional here, it had deemed harmless unless at issue is mission of evidence “ determining influence in effect or injurious ‘substantial ” State, P.3d Tavares v. 30 Nev. verdict.’ jury’s States, Kotteakos v. United 328 U.S. (quoting 776, 784-85, Fields v. see also (1946)); *13 220 P.3d 729-30 (reviewing erroneous admission of evidence, 48.045, pursuant to NRS error); as nonconstitutional State, 924, 934, Richmond v. 118 Nev. 59 P.3d 1255-56 (2002) (reviewing the failure to exclude evidence in a Petrocelli State, hearing error); 184, 198, Rosky harmless 121 Nev. 111 P.3d (2005) (“Errors in the admission of evidence 48.045(2) under NRS subject are to a review.”). harmless error carefully We have reviewed the record in this case and conclude that the error in allowing the prosecution to ask Newman about the November 2006 February 2009 incidents involving Jacob was harmless. The jury nothing heard with to those respect incidents beyond either; the prosecution asking Newman if he recalled prosecution accepted Newman’s answer that he did not. The jury was instructed that it “must not to be true speculate any insinua- tions suggested by a question asked witness” and that ques- “[a] tion is not evidence.” We must presume that the jury followed those instructions. Allred v. circumstances, (2004). Under those and given New- man’s frank admissions and overwhelming evidence on the child charge, abuse the error in allowing the prosecution to ask about the November 2006 and February 2009 incidents cannot be said to have had a substantial and injurious effect on the verdict. case,
In the unique circumstances of this we also find the error in admitting the Ewing testimony and allowing Newman to be questioned about his trespass from the to have hospital been harm- less. Newman’s battery-by-strangulation conviction rested on his testimony admitting that he put stranglehold Carmona in a and held his hands around his throat for 30 seconds or more—testimony eyewitnesses numerous corroborated. Newman’s defense focused Carmona, on the absence of substantial bodily harm to and only minimally on self-defense. And the made prosecution almost no reasons, use of the Ewing testimony. For these we are convinced that the error in admitting the Ewing testimony allowing prosecution to question Newman about his trespass from the hos- pital did not have a substantial and injurious effect on verdict.
The erroneously admitted evidence was a miniscule and unnec- essary of the part prosecution’s merely case and repeated ju- what rors already knew based on admissible evidence—that Newman is an admittedly aggressive, obnoxious man who hits his children and anyone bullies who criticizes his parenting. As district court observed, only this case was conceptually challenging, as the facts were remarkably clear. While we will not hesitate to reverse a *14 238 evidentiary when error taints an accused’s
judgment of conviction trial, did occur here. to a fair such not right affirm. We therefore J., concurs.
Hardesty, Cherry, J., and in concurring dissenting part: in part the involv- correctly episodes The holds that some of majority Jacob, son, by clear and convinc- ing proven Newman’s were not caselaw, and that it an abuse ing by evidence as our was required rebuttal witness testimony surprise discretion to admit the of of analysis by majority The of these errors the is out- Ewing. Connie in the often holding and can be considered a landmark standing using charac- prohibition against contested area of NRS 48.045’s to criminal testimony prove responsibility. ter or prior-bad-act holding with the is the that these errors My majority problem taint to right were harmless and that said errors did not Newman’s a fair trial. in NRS 48.045
I would hold that these substantial errors rooted using bad-act-testimony the character or to against and prohibition and reversal of require criminal are structural prove responsibility granting and the of a new trial without the convictions appellant’s highly errors of inadmissible and using these structural prosecution evidence. prejudicial to note that after testified in his important appellant It is also rested, the trial court Con- permitted
own behalf and the defense the testify reading nie after she came forward after about Ewing to ambush,” only “trial but case in the This was newspaper. the clearly testimony. majority jus- was inadmissible How can also error? tify testimony this as harmless closing argued farther states that “in neither side majority and “the involving Ewing
the evidence Jacob” that prior-bad-act justification alluded to but To me this for testimony briefly.” was in that the were harmless is not the concluding supported errors the or the of this case and is not relevant to issue of law facts harmless error.1 State, (2001) (not Randolph 1 See v. P.3d 433 970, 424, 117 Nev. 36 984, “ ‘[sjtatements, arguments ing jury instructed that and of that opinions v. (alteration Greene original)); in the case’” in counsel are not evidence State, (1997) (reiterating P.2d 61 the district 169, 54, 113 Nev. 931 157, “ ‘arguments are not as I’ve evidence, court’s admonishment that of counsel neither are the beliefs of counsel as to—as to the earlier,
told and you personal grounds by Byford v. evidence’”), overruled on other that of implications State, State, (2000); Flanagan 112 P.2d 713 700, 116 Nev. 994 (1996) (highlighting jury instruction Nev. 698 “ ‘[sjtatements, arguments are not evidence in the that of counsel opinions Bonacci v. (alteration original)); 894, 896-97, in case’” (reiterating the district court’s admonishment P.2d “ ”). ‘arguments counsel are not evidence’ of thought: One last error, case,
in any test harmless in any appellate on, only court has probabilities go not certainties. Nonethe- less, when it evaluate undertakes to in terms probabilities judgment, of an error’s effect on the of merely instead look- harmlessness, at ing the result as the test the judicial at the trial level well as in process review stands appellate in long-term gain any to make fairness long-term without In run efficiency. long loss there would be closer guard trial, error at the against appellate if were alert re- courts verse, doubt, in case of error that could have contaminated judgment.2 *15 In fight beyond of burden proof of a reasonable doubt on a prosecutor in criminal and the nature case errors con- firmed by majority, I would reverse appellant’s convictions and grant him a new trial. EGAN, CHAMBERS, DPM,
TAMMY GARY Appellant, ASSOCIATES, Individual; and SOUTHWEST MEDICAL Respondents. INC., Corporation, Nevada
No.
April