his truthfulness based on the charges against him because he has a
constitutional right to testify and is guaranteed the presumption of
innocence. Wagstaff failed to object to these questions and comments, and
we review for plain error. NRS 178.602; Green v. State, 119 Nev. 542, 545,
80 F'.3d 93, 95 (2003). "In conducting plain error review, we must examine
whether there was 'error,' whether the error was 'plain' or clear, and
whether the error affected the defendant's substantial rights." Green, 119
Nev. at 545, 80 P.3d at 95. Wagstaff has not cited to any relevant case law
prohibiting the questions and comments made by the State, and our
review of the record reveals that the jury was instructed that the
defendant is presumed innocent until the contrary is proven. Accordingly,
Wagstaff has failed to establish plain error. See id. (explaining that "the
burden is on the defendant").
Third, Wagstaff contends that the State committed
prosecutorial misconduct by mischaracterizing the evidence and
inappropriately inserting its personal opinion during closing arguments.
Only one of the comments was objected to by Wagstaff, and the jury was
admonished to disregard the State's use of the word "we." We conclude
that this error was harmless. See Summers v. State, 122 Nev. 1326, 1333,
148 P.3d 778, 783 (2006) (explaining that this court generally presumes
that a jury follows the district court's instructions). As to the State's other
comments, we conclude that they referred to the testimony of witnesses or
were permissible inferences based on the evidence presented. Accordingly,
the State did not commit prosecutorial misconduct in this regard.
Fourth, Wagstaff contends that the district court was required
to instruct the jury, sua sponte, on the lesser-included offense of
misdemeanor battery. Misdemeanor battery is not a lesser-included
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offense of lewdness with a child because all of the elements of
misdemeanor battery are not included in the greater offense. See Rosas v.
State, 122 Nev. 1258, 1263, 147 P.3d 1101, 1105 (2006); see also NRS
201.230(1); NRS 200.481(1)(a); State v. Catanio, 120 Nev. 1030, 1036, 102
P.3d 588, 592 (2004) (explaining that lewdness with a child does not
require force or violence). Therefore, this contention lacks merit.
Fifth, Wagstaff contends that the district court erred by
excluding a medical record. We disagree. NRS 52.015(1) requires
documents to be authenticated before they are admitted into evidence.
Wagstaff failed to authenticate the document, and we conclude that the
district court did not err by excluding it.
Sixth, Wagstaff contends that the district court erred by
admitting prior uncharged acts of sexual misconduct to establish motive
because his motive was not at issue and there was not clear and
convincing evidence to support the admission of these acts. We disagree.
The district court held the appropriate hearing and heard sufficient
testimony from witnesses supporting the occurrence of these acts before
making the appropriate findings as to each of the Tinch factors. See
Bigpond v. State, 128 Nev. „ 270 P.3d 1244, 1249-50 (2012)
(modifying Tinch and explaining that the three-factor test for
admissibility includes a relevance requirement); see also NRS 48.015
(defining relevant evidence). Furthermore, this court has explicitly found
that prior uncharged acts of sexual misconduct are admissible under NRS
48.045(2) to prove motive so long as the three-factor test for admissibility
is satisfied. Ledbetter v. State, 122 Nev. 252, 262, 129 P.3d 671, 678
(2006). Accordingly, we cannot conclude that the district court manifestly
3
abused its discretion by admitting this evidence. See Bigpond, 128 Nev. at
270 P.3d at 1250.
Seventh, Wagstaff contends that the State committed
prosecutorial misconduct by repeatedly asking him on cross-examination
whether the witnesses against him were liars. Wagstaff failed to object to
these comments and we review for plain error. NRS 178.602; Green, 119
Nev. at 545, 80 P.3d at 95. In Nevada, prosecutors are prohibited from
"asking a defendant whether other witnesses have lied or from goading a
defendant to accuse other witnesses of lying, except where the defendant
during direct examination has directly challenged the truthfulness of
those witnesses." Daniel v. State, 119 Nev. 498, 519, 78 P.3d 890, 904
(2003). Here, the prosecutor directly asked the defendant at least seven
times whether three of the four witnesses against him were liars.
Wagstaff did not directly challenge the truthfulness of these witnesses
during direct examination. We conclude that prosecutorial misconduct is
clear from the record. See id. However, Wagstaff has not shown that this
error, standing alone, "(1) had a prejudicial impact on the verdict when
viewed in context of the trial as a whole, or (2) seriously affects the
integrity or public reputation of the judicial proceedings." Libby v. State,
109 Nev. 905, 911, 859 P.2d 1050, 1054 (1993), vacated on other grounds,
516 U.S. 1037 (1996). Accordingly, we conclude that Wagstaff has not
established plain error.
Eighth, Wagstaff contends that the district court erred by
instructing the jury that they could consider uncharged acts of sexual
touching for the "purpose of showing the defendant's motive; opportunity;
intent; preparation; plan; knowledge; identity; or absence of mistake or
accident." Wagstaff argues that the district court erred by instructing the
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jury that they could consider the uncharged acts for all of these purposes
because the district court only determined that this evidence was relevant
to prove motive. Wagstaff failed to object to this instruction, and we
review for plain error. NRS 178.602; Green, 119 Nev. at 545, 80 P.3d at
95.
This court recently reaffirmed the requirements for the State
to overcome the presumption of inadmissibility that attaches to all prior
bad acts evidence. See Bigpond, 128 Nev. at , 270 P.3d at 1249. As we
explained, "bad acts are often irrelevant" and the district court must hold
a hearing and determine whether the acts are relevant for a
nonpropensity purpose. Id. (internal quotation marks omitted). This
inquiry includes uncharged acts of sexual misconduct, which may only be
relevant for certain purposes. See Ledbetter, 122 Nev. at 260-61, 129 P.3d
at 677-78 (explaining that uncharged acts of sexual misconduct were
relevant to prove motive but irrelevant to prove common scheme or plan,
identity, intent or absence of mistake or accident); Braunstein v. State, 118
Nev. 68, 73, 75, 40 P.3d 413, 417-18 (2002) (explaining that uncharged
acts of sexual misconduct were relevant to prove a common scheme or plan
but irrelevant to prove the accused's intent).
Here, the district court held the appropriate hearing and
determined that the uncharged bad acts were relevant to prove motive. It
did not decide whether these acts were relevant for any other purpose,
including those listed in NRS 48.045(2). Therefore, the presumption of
inadmissibility was only overcome with respect to the permissible purpose
of motive, and we conclude that the district court erred by failing to limit
the jury instruction to this purpose alone. Although we conclude that the
district court erred by issuing this instruction, Wagstaff has not met his
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burden of establishing that this error, standing alone, affected his
substantial rights. Green, 119 Nev. at 545, 80 P.3d at 95. Accordingly, we
conclude that Wagstaff has not established plain error.
Ninth, Wagstaff contends that the district court erred by
giving the jury a general intent instruction. Wagstaff failed to object to
this instruction, and we review for plain error. NRS 178.602; Green, 119
Nev. at 545, 80 P.3d at 95. The jury was instructed that:
The word "willfully," when applied to intent with
which an act is done or omitted, as used in the
instruction, implies simply a purpose or
willingness to commit the act or to make the
omission in question. The word does not require
in its meaning any intent to violate the law, or to
injure another, or to acquire any advantage.
This is a general intent instruction. See Childers v. State, 100 Nev. 280,
282-83, 680 P.2d 598, 599 (1984). The crime of lewdness with a child is a
specific intent crime. See Catanio, 120 Nev. at 1036, 102 P.3d at 592. It is
error to instruct the jury on general intent in a case where the crime
charged requires specific intent. People v. Hill, 429 P.2d 586, 595 (Cal.
1967); People v. Geibel, 208 P.2d 743, 761 (Cal. Ct. App. 1949). This is
because such an instruction "tends to create confusion." People v. Booth,
243 P.2d 872, 873-74 (Cal. Ct. App. 1952); accord Geibel, 208 P.2d at 761
(explaining that such an instruction "normally would serve only to confuse
or mislead the jurors and make it impossible to determine whether, in
their deliberations, they followed the law as correctly or incorrectly given
to them").
Because the district court clearly erred, we must determine
whether this error affected Wagstaffs substantial rights. Green, 119 Nev.
at 545, 80 P.3d at 95; see also Hill, 429 P.2d at 595 (examining
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instructions to determine whether the general intent "is clearly qualified
by a specific intent instruction which leaves no doubt in the jury's mind
that specific intent is not to be automatically inferred from the doing of the
physical acts involved in the crime"); Booth, 243 P.2d at 874 (concluding
that there was no prejudicial error where the nature of the lewd act "was
such as to preclude the belief they were committed without criminal
intent"). Here, the jury was also instructed that the State must prove
beyond a reasonable doubt that Wagstaff had "the intent of arousing, or
appealing to, or gratifying the lust or passions or sexual desires of the
defendant or of that child." In addition, defense counsel argued to the jury
that the State must prove specific intent and, on rebuttal, the State
emphasized the specific intent required by the statute. Therefore, we
cannot say that this error, standing alone, "had a prejudicial impact on the
verdict when viewed in context of the trial as a whole." Libby, 109 Nev. at
911, 859 P.2d at 1054. Accordingly, we conclude that Wagstaff has not
established plain error. See Green, 119 Nev. at 545, 80 P.3d at 95.
Tenth, Wagstaff contends that there was cumulative error.
"When evaluating a claim of cumulative error, we consider the following
factors: (1) whether the issue of guilt is close, (2) the quantity and
character of the error, and (3) the gravity of the crime charged." Valdez v.
State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008) (internal quotation
marks omitted). We conclude that the issue of innocence or guilt was close
enough that, although the evidence was sufficient to support the jury's
verdict, it was not overwhelming, and therefore cannot overcome the
prejudice caused by the accumulated errors.
The six-year-old victim testified that she was watching the
2008 Nevada Day parade in Carson City and sitting on the left leg of her
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grandfather, Wagstaff, with a blanket covering both of them, when she felt
Wagstaff rubbing her "parts." The victim's 23-year-old cousin testified
that she was sitting next to Wagstaff in a low beach chair and she was
able to look through the blanket and see his left hand rotating in a circular
motion on the victim's vagina. Wagstaff testified that he did not rub the
victim's vagina but he often rubbed his arthritic knee to help alleviate
pain. Wagstaff testified that he believed the cousin, who had been a
victim of sexual assault at age 14, misinterpreted what she saw and
influenced the victim's testimony during the two years that elapsed
between the parade and the involvement of law enforcement. Wagstaff
also testified that his daughter and grandchildren never mentioned the
allegations until two years after the parade and he continued to watch the
victim and pick her up from school during that time.
Three witnesses testified that the victim told them that her
grandfather rubbed her vagina during the parade. Although they differed
as to the number of occasions, these witnesses also testified that the
victim told them that Wagstaff had rubbed her vagina on at least one
previous occasion while she sat on his lap at his home. Two witnesses
testified that the victim told them that Wagstaff also tried to pull her
hand toward his penis. Although the victim did not testify to this incident
during trial or at the pretrial hearing, the district court permitted the
witnesses to testify to the victim's statement pursuant to NRS 51.385.
During closing arguments the State explicitly instructed the jury that they
could consider these prior incidents to prove that Wagstaff had the intent
to arouse, appeal to, or gratify the lust or passions or sexual desires of
himself, to prove that the sexual touching was not the result of an accident
or mistake, and to establish Wagstaffs motive to engage in such touching.
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_ .
As for the second factor of our cumulative error analysis, we
conclude that the quantity and character of the errors were substantial.
The State capitalized on its prosecutorial misconduct by arguing to the
jury that the victim had essentially been called a liar and will have to
worry about being punished for being called a liar because Wagstaff had
been a disciplinarian in the household. In addition, the district court
issued an erroneous instruction on general intent in a case where
Wagstaffs intent was a central issue, risking confusion of the jury during
its deliberations. Finally, the State referenced the erroneous jury
instruction and emphasized to the jury that the prior acts of sexual
misconduct were admissible to prove intent and absence of mistake or
accident, knowing that the district court did not admit them for this
purpose.
The effect of this last error may have been particularly
prejudicial. In order to be relevant, and thus admissible under this court's
prior bad acts jurisprudence, the testimony about the prior bad acts must
make it more probable that Wagstaff had criminal intent and did not act
by accident or mistake during the parade. See Bigpond, 128 Nev. at ,
270 P.3d at 1250 (evaluating prior bad act to determine whether it is
relevant to the stated nonpropensity purpose); see also NRS 48.015
(defining relevant evidence). While the prior rubbing at Wagstaffs home
would make it more probable that the parade rubbing was not accidental,
the other incident involving Wagstaff trying to pull the victim's hand does
not make it more probable that Wagstaff did not accidentally touch the
victim's vagina during the parade. Furthermore, we have previously held
that evidence that an accused possesses a propensity for sexual aberration
is not relevant to the accused's intent. Braunstein, 118 Nev. at 73, 40 P.3d
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- .
rel
at 417. Assuming Wagstaffs prior act of pulling the victim's hand toward
his penis shows his intent to arouse his sexual desire, this prior act would
not make it more probable that he had the same intent on the day of the
parade because there was no evidence presented that Wagstaff tried to
pull the victim's hand toward his penis during the parade. Thus, it
appears that the State was referring to Wagstaffs propensity for sexual
aberration when it argued to the jury that it could consider the testimony
about this prior incident to show that Wagstaff had the required sexual
intent on the day of the parade. This is an improper basis for admitting
this evidence and may have affected the outcome of the proceedings. See
id.
As for the third cumulative error factor, we conclude that the
crime charged is very grave. But the evidence was not overwhelming and
"[w] e cannot say without reservation that the verdict would have been the
same in the absence of error." Big Pond v. State, 101 Nev. 1, 3, 692 P.2d
1288, 1289 (1985).
Having considered all three factors, we conclude that the
cumulative effect of the errors denied Wagstaff a fair trial and requires
reversal of his conviction, and we
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
/14.A. eigt.4. Z\
1 J.
Hardesty
J.
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PARRAGUIRRE, J., dissenting:
I would affirm the judgment of conviction because I disagree
with the majority's conclusion that Wagstaff has met his burden of
showing that the cumulative effect of the nonconstitutional errors resulted
in actual prejudice or a miscarriage of justice. See Green, 119 Nev. at 545,
80 P.3d at 95. The victim testified that Wagstaff rubbed her vagina
during the parade. The victim's 23-year-old cousin testified that she
personally observed Wagstaff rubbing the victim's vagina. The victim's
mother testified that the victim told her about the incident on the day of
the parade shortly after it occurred. Based on this strong evidence, I am
not convinced that the errors affected Wagstaff s substantial rights, even
when they are considered cumulatively. See Gaxiola v. State, 121 Nev.
638, 649, 119 P.3d 1225, 1233 (2005) (explaining that the victim's
testimony alone is sufficient to uphold a conviction for lewdness with a
child). I respectfully dissent.
p c 11*,4.01t
Parraguirre
cc: Hon. James Todd Russell, District Judge
Richard F. Cornell
Attorney General/Carson City
Carson City District Attorney
Carson City Clerk
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