Reyes (Jerby) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA

JERBY ALBERTO REYES, No. 67239 Appellant, vs. FILED THE STATE OF NEVADA, Respondent. DEC 2 3 2016 ELIZABETH A. BROWN CLERK By OFPREME COURT ORDER OF REVERSAL AND REMAND - DEPUN CLERK

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of two counts each of sexual assault of a minor under the age of 14 years and sexually motivated coercion. Eighth Judicial District Court, Clark County; James M. Bixler, Judge. In 2006, it was alleged that appellant Jerby Reyes anally penetrated the nine-year-old daughter of his then-girlfriend. The alleged assault was not reported to police until 2011 when the child told a friend about the assault, who then told a teacher. However, the State declined to prosecute Reyes because of a lack of sufficient evidence to proceed. In 2012, it was alleged that Reyes digitally penetrated the vagina of a four-year-old daughter of a friend. After the claimed assault was reported to the police, the State reopened the 2006 case. The State subsequently charged Reyes with counts relating to both assaults. Reyes filed a motion to sever the trials of the two assaults. The district court denied Reyes's motion• on the grounds that evidence of the separate crimes would be cross-admissible in their separate trials as bad acts. Reyes also moved to admit evidence of the prior sexual conduct

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of both alleged victims and to compel a psychological examination of one of the victims. The district court denied both motions. After a seven day trial, the jury found Reyes guilty on all counts. Reyes filed a motion for a judgment of acquittal or, in the alternative, a new trial, which the district court denied. Reyes now appeals and raises the following issue: whether the district court abused its discretion by refusing to sever the charges.' The district court abused its discretion by failing to sever the counts Reyes argues that the counts charged were not part of a common scheme or plan pursuant to NRS 173.115, were not cross- admissible as prior bad acts, and that the prejudice from joinder outweighed the benefits of judicial economy. "The decision to join or sever charges is within the discretion of the district court, and an appellant carries the heavy burden of showing that the court abused that discretion." Weber v. State, 121 Nev. 554, 570, 119 P.3d 107, 119 (2005). "Criminal charges are properly joined

'Reyes also argues that the district court abused its discretion by (1) refusing to allow an independent psychological examination of the 2006 victim, (2) refusing to admit evidence of the 2006 victim's prior sexual history, and (3) denying Reyes's motion for a new trial based on conflicting evidence. Reyes further argues that there was insufficient evidence to uphold his conviction and cumulative error warrants reversal. Because the issue of severance is dispositive, we need not reach these additional issues raised by Reyes on appeal, with the exception of Reyes's insufficiency of the evidence argument. On this issue, we hold that there was sufficient evidence to uphold Reyes's conviction on all counts. Nolan v. State, 122 Nev. 363, 377, 132 P.3d 564, 573 (2006) (stating that evidence is sufficient where "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (internal quotations omitted)).

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rges are part of the same whenever: (1) the acts leading to the cha ence of each charge would be transaction, scheme, or plan or (2) the evid charge." Zana v. State, 125 admissible in the separate trial of the other Nev. 541, 549, 216 P.3d 244, 249 (2009). or plan The crimes were not part of a common scheme or plan existed in "Determining whether a common scheme analysis. And such analysis this, or any, case requires fact-specific utory language 'scheme or depends on the meaning of the pertinent stat 121 Nev. at 572, 119 P.3d at 119. plan" used in NRS 173.115(2). Weber, a design or plan formed to This court determined that "a scheme is is a method of design or accomplish some purpose; a system. A plan lishment of a particular act action, procedure, or arrangement for accomp intention or proposal." Id. at or object. Method of putting into effect an quotations omitted). Thus, 572, 119 P.3d at 119-20 (footnote and internal h crime. . . be an integral part a common plan or scheme "requires that eac ved and executed by the of an overarching plan explicitly concei 924, 933, 59 P.3d 1249, 1255 defendant." Richmond v. State, 118 Nev. test is not whether the other (2002) (internal quotations omitted). "The with the crime charged, but offense has certain elements in common d plan which resulted in the whether it tends to establish a preconceive tations omitted). commission of that crime." Id. (internal quo sexual assault Here, there is no evidence that each alleged explicitly conceived and was "an integral part of an overarching plan ons omitted). In the 2006 case executed by" Reyes. Id. (internal quotati es had been living with his involving his former girlfriend's daughter, Rey r, S.M., for about one year. then-girlfriend and her nine-year old daughte ed her to sit on his lap, and Reyes entered S.M.'s bedroom one night, ask

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fied that Reyes anally penetrated her with his penis. S.M. later testi smelled like he had been drinking that night. hter, Conversely, in the 2012 case involving his friend's daug the alleged Reye s initially targeted his friend's wife, A.L. On the day of a car wash. N.L. assault,. Reyes's friend, N.L, had seen Reyes drinking at ed to see N.L.'s took Reyes's children home with him because they want children up, but puppies. Reyes arrived at N.L.'s house later to pick his asked N.L. to his truck did not start when he tried to leave. Reyes then take his children to Reyes's house. s While N.L. was gone, A.L. made Reyes some food after Reye use told her he was hungry, and then went into the children's room beca , so A.L. left Reyes was following her. Reyes followed her into the room Reyes soon after and went into her bedroom with her youngest daughter. the door to keep appeared in the doorway of A.L.'s room. A.L. tried to shut . him out of the room, but Reyes kept pushing the door open the Reyes told A.L. that she was pretty, and followed her into , but he pushed bedroom. She tried to push Reyes out of the bedroom n to hug A.L., through the door and told A.L. that he loved her. Reyes bega turned away as grabbed at her buttocks, and even bit her cheek when she bed but finally he tried to kiss her. Reyes then tried moving A.L. to the and fell off a backed off when A.L.'s youngest child entered the bedroom chair. in Reyes left A.L.'s bedroom and went to go watch television in her bedroom the children's room with A.L.'s children. A.L. stayed her children. because she was scared, but assumed Reyes would not harm check his truck. While in the room, Reyes told one of the children to go J.L., A.L.'s four- While the child left to go check on the truck, Reyes and

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s touched inside year-old daughter, were left alone on the bed, and Reye his finger. Reyes her underwear and digitally penetrated her vagina with eventually got up and left. ived Thus, the facts do not suggest that Reyes had a preconce ult them. plan in which he would isolate the children and sexually assa . In the 2006 Indeed, they suggest that Reyes actually lacked a plan t after drinking. incident, Reyes targeted his girlfriend's daughter one nigh only moved on In the 2012 incident, Reyes targeted his friend's wife, and get Reyes out of to his friend's daughter after his friend's wife managed to ived plan of the bedroom. It is unlikely that Reyes had the preconce he wanted to attempting to assault one person in order to isolate a child to have been sexually assault. Therefore, the assaults appear each victim was "independent crimes, which [Reyes] did not plan until within reach." See id. at 934, 59 P.3d at 1255. ce a Accordingly, we hold that the two crimes did not evin common scheme or plan. separate The evidence of each charge would not be admissible in the trial of the other charge t are Generally, evidence of other criminal acts by a defendan 52, 518 P.2d 599, not admissible at trial. See Elsbury v. State, 90 Nev. 50, crimes, wrongs 601 (1974). As NRS 48.045(2) provides: "Evidence of other on in order to or acts is not admissible to prove the character of a pers statute does show that the person acted in conformity therewith." The issible for other allow evidence of other acts, however, where it is "adm aration, plan, purposes, such as proof of motive, opportunity, intent, prep Id. knowledge, identity, or absence of mistake or accident."

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Motive The State argues that evidence of the separate assaults would be admissible to prove motive, relying on this court's decision in Ledbetter v. State, 122 Nev. 252, 129 P.3d 671 (2006). In Ledbetter, evidence of prior bad acts of child abuse against two family members was admissible to show the defendant's "sexual attraction to and obsession with the young female members of his family, which explained to the jury his motive to sexually assault" a third family member. Id. at 263, 129 P.3d at 679. Ledbetter is distinguishable from the current case. In Ledbetter, the victims in all three crimes were very similar in that they were all young female members of Ledbetter's family. Thus, the probative value of the prior bad acts to establish motive was relatively high. Here, as discussed earlier, the circumstances underlying the two victims' allegations are not similar. The assaults charged occurred at different locations, under different circumstances, and the acts themselves were different. Furthermore, the facts involved in the assault of Reyes's friend's child suggest that Reyes had a sexual attraction and possible obsession with his friend's wife, not with the child. Thus, the probative value of the prior bad acts to establish motive is distinguishable from that in Ledbetter. See id. Res gestae The State argues that evidence of the 2012 assault would be admissible in the trial of the 2006 assault as res gestae evidence because it is impossible to explain to the jury why the State waited so long to prosecute the 2006 assault without referring to the 2012 assault. NRS 48.035(3) governs the admission of res gestae evidence. That statute provides as follows:

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[T]he State is entitled to present a full and accurate account of the circumstances surrounding the commission of a crime, and such evidence is admissible even if it implicates the accused in the commission of other crimes for which he has not been charged. However, in order to use the complete story of the crime doctrine, the crime must be so interconnected to the act in question that a witness cannot describe the act in controversy without referring to the other crime. ation Bletc her v. State, 111 Nev. 1477, 1480, 907 P.2d 978, 980 (1995) (alter ted). Therefore, in original) (emphasis added) (internal quotations omit trued narrowly." "the 'complete story of the crime' doctrine must be cons Bellon v. State, 121 Nev. 436, 444, 117 P.3d 176, 181 (2005). ct Here, a witness would be able to describe almost every aspe only aspect that of the 2006 assault without referring to the second. The initially charge the State may not be able to describe is why it did not existence of the Reyes with the 2006 assault. Even in that instance, the 2006 assault, 2012 assault, which led to the State filing charges in the filing charges. could be referred to obliquely to explain the delay in issible, as the Certainly, the details of the 2012 assault would not be adm the assault, not the only relevant information would be the existence of prejudicial details of how it occurred. her Furthermore, the State's argument focuses solely on whet 2006 assault. evidence of the 2012 assault would be admissible in the the 2006 assault However, in order for joinder to be proper, the evidence of lt. See Zana, would also have to be admissible in a trial of the 2012 assau er to be proper, 125 Nev. at 549, 216 P.3d at 249 (holding that for joind in the separate trial of "the evidence of each charge would be admissible ence of the 2012 the other charge" (emphases added)). Here, even if evid in a trial of the assault was admissible as necessary res gestae evidence SUPREME COURT OF NEVADA 7 (0) 1947

admissible in a 2006 assault, evidence of the 2006 assault would not be of each crime trial of the 2012 assault. Therefore, we hold that evidence r crime, and would not be admissible as res gestae evidence in the othe sever the counts. that the district court abused its discretion by refusing to The error was not harmless s "Error resulting from misjoinder of charges is harmless unles ious effect on the the improperly joined charges had a substantial and injur In Floyd v. jury's verdict." Weber, 121 Nev. at 570-71, 119 P.3d at 119. t from the State, this court discussed the types of prejudice that can resul joinder of charges: The first kind of prejudice results when the jury considers a person facing multiple charges to be a bad man and tends to accumulate evidence against him until it finds him guilty of something. The second type of prejudice manifests itself when proof of guilt on the first count in an information is used to convict the defendant of a second count even though the proof would be inadmissible at a separate trial on the second count. The third kind of prejudice occurs when the defendant wishes to testify on his own behalf on one charge but not on another. ted), abrogated 118 Nev. 156, 164, 42 P.3d 249, 255 (2002) (quotation omit (2008). on other grounds by Grey v. State, 124 Nev. 110, 178 P.3d 154 ony Here, the only evidence of the 2006 assault was the testim testimony of the victim. The State clearly did not believe that the victim's charged assault alone was sufficient as it declined to prosecute the first- trying the 2006 because of a lack of sufficient evidence to proceed. By court made it assault with the 2012 assault, however, the district s on the 2006 significantly more likely that the jury would convict Reye e one assault assault because a jury could use the evidence offered to prov

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to bolster their belief that Reyes also committed the other assault. See id. Therefore, we hold that the district court's error was not harmless. Accordingly, we ORDER the judgment of conviction REVERSED AND REMAND this matter to the district court for proceedings consistent with this order. SJOLASILe_____, Cf:/ Parraguirre

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PiekeA. J. Pickering

cc: Eighth Judicial District Court, Department 24 Las Vegas Defense Group, LLC Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

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