THE STATE OF NEVADA, Petitioner, vs. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE TIERRA DANIELLE JONES, DISTRICT JUDGE, Respondents, and JOHN EUGENE DOANE, Real Party in Interest.
No. 84134
IN THE SUPREME COURT OF THE STATE OF NEVADA
DEC 30 2022
138 Nev., Advance Opinion 90
BEFORE THE SUPREME COURT, HARDESTY, C.J., STIGLICH and HERNDON, JJ.
Petition granted.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Taleen Pandukht, Chief Deputy District Attorney, Clark County, for Petitioner.
Darin F. Imlay, Public Defender, and David Lopez-Negrete, Deputy Public Defender, Clark County, for Real Party in Interest.
By the Court, STIGLICH, J.:
This original petition for a writ of mandamus and/or prohibition concerns the admissibility of evidence of a defendant‘s separate sexual offense to show the defendant‘s propensity to commit a presently charged sexual offense under
We now further clarify the mechanics of
In refusing to admit evidence of a prior conviction for a sexual offense in the instant case, the district court looked beyond the charges the defendant faced to determine that the State‘s evidence did not establish that a sexual offense occurred in the current prosecution. We conclude that this
FACTS AND PROCEDURAL HISTORY
Real party in interest, John Eugene Doane, was charged by way of indictment with murder under alternative theories of willful, deliberate, and premeditated killing and felony murder occurring during the perpetration or attempted perpetration of a sexual assault. The charges stem from a cold case involving a 14-year-old victim who was discovered murdered in the desert in 1978. Evidence suggested that the victim was struck with an object and strangled to death. Although no evidence of sexual assault was apparent from the victim‘s autopsy, the victim‘s underwear had been removed from her body and contained semen. In 2019, the semen on the underwear was tested for DNA, and the DNA profile was matched to Doane, who was in prison in Nevada for crimes committed in 1979.
Before trial, the State filed a motion to admit Doane‘s 1979 conviction for sexual assault causing substantial bodily harm with the use of a deadly weapon. The facts underlying that conviction were that Doane offered a 14-year-old girl a ride to school, but after she got into his car, he threatened her and proceeded to drive her to the desert, where he
The district court denied the State‘s motion, determining that the State did not charge Doane with a crime constituting a “sexual offense” in the instant case and, therefore,
The State‘s petition challenges the district court‘s orders denying the State‘s motion to admit Doane‘s prior conviction for propensity purposes pursuant to
We exercise our discretion to consider this writ
The State argues that writ relief is warranted because it cannot appeal from a final judgment in a criminal case and therefore lacks a remedy at law to challenge the district court‘s evidentiary ruling. Doane does not argue that the State has an alternative remedy at law for challenging the district court‘s ruling.
“A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station,
Standard of review
A district court‘s decision to admit or exclude evidence is discretionary. Armstrong, 127 Nev. at 931, 267 P.3d at 780. Where a discretionary act is challenged, this court may issue a writ of mandamus to control a district court‘s decision that this court deems to be a manifest abuse, arbitrary, or capricious exercise of the district court‘s discretion. Id. at 931, 267 P.3d at 779. “A manifest abuse of discretion is [a] clearly erroneous interpretation of the law or a clearly erroneous application of a law or rule.” Id. at 932, 267 P.3d at 780 (alteration in original) (quoting Steward v. McDonald, 958 S.W.2d 297, 300 (Ark. 1997)).
NRS 48.045(3)
We now turn to the crux of this writ petition. We note at the outset that the district court‘s orders are not the paragon of clarity. In its order denying the State‘s motion to admit evidence of Doane‘s prior conviction, the district court concluded that
In its order denying the State‘s motion for reconsideration, the district court acknowledged that the State was pursuing a theory of felony murder that included the perpetration of a sexual assault. However, it ruled that “the facts do not support such a finding” for the purposes of admitting Doane‘s prior conviction. The court expressly stated that it had “weigh[ed] the relevant considerations” under
In this original proceeding, the parties frame the issues as though the district court made two alternative rulings: (1) that
The district court manifestly abused its discretion in looking beyond the charge Doane faced to consider whether the State‘s evidence might support the charge
The State argues the district court manifestly abused its discretion in ruling that
Other bad act evidence is generally inadmissible to prove a defendant‘s propensity to commit the charged crime.
In reaching the opposite conclusion, the district court found that the evidence and facts did not support the charge that a sexual assault had occurred. The relevant consideration for determining if
That
The State argues the district court manifestly abused its discretion in ruling that evidence of Doane‘s prior conviction was inadmissible under Franks because it was unfairly prejudicial. It argues that each of the factors adopted in Franks for evaluating whether the evidence is unfairly prejudicial weighed in favor of admitting evidence of Doane‘s conviction. Doane counters that each factor weighed against admitting evidence of his conviction.
As explained above, in Franks, we recognized “that
(1) the similarity of the prior acts to the acts charged, (2) the closeness in time of the prior acts to the acts charged, (3) the frequency of the prior acts, (4) the presence or lack of intervening circumstances, and (5) the necessity of the evidence beyond the testimonies already offered at trial.
Here, the district court did not specifically address each of these factors. Upon review, we conclude that the consideration of the LeMay factors as a whole demonstrates that the probative value of Doane‘s 1979 conviction is not substantially outweighed by the danger of any prejudice that admitting evidence of the conviction may cause. We note the importance for district courts to evaluate each LeMay factor in determining whether to admit evidence of a separate sexual offense. See, e.g., Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268-69 (9th Cir. 2000) (“In light of the sensitive nature of the evidence proffered, it is important that the district court fully evaluate the factors enumerated above, and others that might arise on a case-by-case basis, and make a clear record concerning its decision whether or not to admit such evidence.“). Although the district court did not delineate its consideration of each factor, we now address each factor in turn.
Similarity of the other acts to the acts charged
In the charged offense, the 14-year-old victim was found in a remote area of the desert. She appeared to have been struck in the face and died by way of manual strangulation. Her underwear was removed, and Doane‘s semen was found on it. As to the facts underlying Doane‘s 1979 conviction, the victim, also 14 years old, was similarly taken to the desert, where Doane sexually assaulted her multiple times. And although the victim did not die from her injuries, Doane struck her in the face and strangled her until she lost consciousness. The facts of each offense are sufficiently similar that the first LeMay factor weighs in favor of admitting evidence of the prior conviction. See, e.g., United States v. Halamek, 5 F.4th 1081, 1089 (9th Cir. 2021) (finding sufficient similarity between two sexual
Closeness in time between the other offense and the charged offense
We turn now to the second LeMay factor. Here, the acts leading to Doane‘s sexual assault conviction and the instant charged offense occurred only three months apart. This is a very short gap in time, particularly considering the extreme nature of the acts. This factor therefore also weighs in favor of admitting the evidence of Doane‘s prior conviction.
The frequency of the other offense
The third LeMay factor is not strongly implicated in this case, as the acts underlying his prior conviction occurred only once. This is dissimilar to other cases where, for example, a defendant subjected a victim to multiple instances of abuse over a period of time. See, e.g., Halamek, 5 F.4th at 1089 (stating that the defendant sexually abused his stepdaughter “a few times a week” over a period of time); Franks, 135 Nev. at 2, 432 P.3d at 754 (recounting that the defendant inappropriately touched his 12-year-old niece five times). Therefore, this factor does not weigh in favor of admitting evidence of Doane‘s prior conviction.
The presence or lack of intervening circumstances
The fourth LeMay factor is not implicated in this case. The State asserts that Doane‘s incarceration is an intervening circumstance because it prevented him from committing additional sexual assaults.
The necessity of the evidence beyond the testimonies already offered at trial
Finally, we turn to the fifth LeMay factor. As the Ninth Circuit explained in LeMay, evidence of a separate sexual offense “need not be absolutely necessary to the prosecution‘s case“; rather, such evidence may be introduced if it is simply helpful or practically necessary. 260 F.3d at 1029. In Franks, we held that evidence of a defendant‘s prior sexual offense is helpful to the State‘s case if it establishes that the defendant had a propensity to commit the charged crime. Franks, 135 Nev. at 7, 432 P.3d at 757. Likewise, here, the evidence of Doane‘s conviction for sexual assault will help the State establish that Doane had a propensity to commit the charged crime. The fifth LeMay factor therefore weighs in favor of admitting the evidence.
We conclude that three of the four relevant LeMay factors weigh in favor of admitting the evidence of Doane‘s prior conviction. And while these factors are nonexhaustive, Doane has not provided any other factor that would cut in his favor against admitting the evidence. Accordingly, on balance and considering all of the circumstances, we conclude that the probative value of Doane‘s prior conviction is not substantially outweighed by any unfair prejudice that would result in admitting evidence of the conviction under
Stiglich, J.
We concur:
Hardesty, C.J.
Herndon, J.