her and consequently was unable to present his complete defense in
violation of his constitutional rights. We review a district court's decision
to admit or exclude evidence for an abuse of discretion. See Mclellan v.
State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). A constitutional claim
is reviewed for harmless error. Chapman v. California, 386 U.S. 18, 21-24
(1967).
To the extent that Wheeler sought to elicit testimony from the
victim that she told the detective she had not yet been sexually active, we
conclude that the district court did not abuse its discretion in excluding
this evidence pursuant to NRS 50.090 ("[T]he accused may not present
evidence of any previous sexual conduct of the victim of the crime to
challenge the victim's credibility as a witness unless the prosecutor has
presented evidence or the victim has testified concerning such conduct, or
the absence of such conduct. . ."). 2 As to Wheeler's testimony that he
found out the victim was disseminating sexual photographs and offering
sexual favors on the Internet and consequently disciplined her, the district
court balanced the rationale of NRS 50.090 with Wheeler's presentation of
a motive to lie and allowed Wheeler to testify that he learned things
through the Internet that caused him to discipline the victim and to testify
about the disciplinary measure he implemented. We discern no abuse of
discretion or error in the district court's ruling. With regard to Wheeler's
testimony that he confiscated a vibrator from the victim, the district
2We are unconvinced by Wheeler's contention that this testimony
would tend to prove bias or motive to lie on the part of the victim; the
proffered testimony appears to be the type of evidence prohibited by NRS
50.090.
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court's exclusion of this evidence was not an abuse of discretion or in error
as evidence of the victim's previous sexual conduct is prohibited by NRS
50.090 and the evidence was of marginal relevance in demonstrating bias
or a motive to lie but was meant to humiliate the victim. See Bushnell v.
State, 95 Nev. 570, 573, 599 P.2d 1038, 1040 (1979) (recognizing that
inquiry into a witness's possible bias or motive to testify could be
restricted when the inquiry was "repetitive, irrelevant, vague, speculative,
or designed merely to harass, annoy or humiliate the witness").
Second, Wheeler claims that the district court erred by
allowing Dr. Lippert to testify against him without re-examining his
motion for an independent psychological evaluation of the victim and that
the State's use of two expert witnesses only exacerbated his need for an
independent expert. The decision to grant or deny a defendant's request
for a psychological examination of a child victim is reviewed for an abuse
of discretion. Abbott v. State, 122 Nev. 715, 723, 138 P.3d 462, 467-68
(2006) (listing the factors a district court must consider in determining
whether to order a psychological examination). Wheeler further contends
that he was prejudiced by the use of Dr. Lippert because the State failed to
properly disclose her use pursuant to NRS 174.234(2) and he had no time
to seek an expert to rebut her testimony. We review a district court's
decision to allow an unendorsed witness to testify for an abuse of
discretion. Mitchell v. State, 124 Nev. 807, 819, 192 P.3d 721, 729 (2008).
After hearing argument regarding Wheeler's motion for an
independent psychological evaluation, the district court ordered that the
child-victim undergo an independent psychological evaluation at the
court's expense out of an abundance of caution. Dr. Lippert was appointed
to conduct the evaluation, and her report was received by both parties and
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the district court prior to trial. While Wheeler had initially noticed use of
Dr. Lippert as an expert, she was omitted on a third amended notice of
witnesses. The State filed a notice of intent to use Dr. Lippert as an
expert witness the day prior to the start of trial.
We conclude that the district court did not abuse its discretion
in allowing Dr. Lippert to testify as an expert witness despite the late
notice as Wheeler did not allege that the State acted in bad faith, and
none is discernible from the record, and as Wheeler has failed to
demonstrate any prejudice affecting his substantial rights. See id. With
regard to Wheeler's claim for an independent evaluation, we discern no
abuse of discretion by the district court in allowing an independent
psychological evaluation to be conducted on the child-victim and in
permitting either side to utilize the findings of the evaluation. As to
Wheeler's contention that the State presented two expert witnesses, the
record reveals that Detective McKinney's testimony was a recitation of the
facts of the interview; therefore, he was not acting as an expert witness for
the State. See Abbott, 122 Nev. at 728, 138 P.3d at 471 (holding that "[a]
witness is acting as an expert witness. . .when he does more than merely
relate the facts and instead analyzes the facts and/or states whether there
was evidence that the victim was coached or biased against the
defendant").
Third, Wheeler claims that the district court erred when it
allowed the prosecutor on cross-examination to goad him into accusing
other witnesses, specifically the victim and her mother, of lying. We have
held that prosecutors are prohibited "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."
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Daniel v. State, 119 Nev. 498, 519, 78 P.3d 890, 904 (2003). As appellant
failed to object to the alleged prosecutorial misconduct, we review for plain
error. Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008).
Wheeler elicited testimony from multiple witnesses, including
the victim, that the victim was a liar. During direct examination, Wheeler
testified that the victim was sneaky, that she lied and cheated.
Additionally, when asked on cross-examination what problems the victim's
mother had, Wheeler testified that the mother had a problem of lying.
Wheeler argues that he merely testified generally to the victim's and
mother's character for untruthfulness and that he did not directly
challenge their testimony, therefore the Daniel exception should not apply.
We are not convinced by this argument and are unwilling to draw such a
distinction. Accordingly, we conclude that the prosecutor's questioning of
Wheeler on cross-examination did not constitute plain error as Wheeler
classified the victim and her mother as liars. 3
Fourth, Wheeler argues that the following six instances of
alleged plain error amount to reversible, cumulative error: (1) Detective
McKinney's testimony regarding his interviews with the victim; (2) the
admission of testimony concerning Wheeler's suicide note; (3) the victim's
mother's testimony that she spoke with Wheeler while he was in jail; (4)
testimony that the victim's mother disclosed that Wheeler had told her
about the incidents with the victim and had asked for 24 hours to make it
3 Tothe extent that Wheeler argues that the prosecutor improperly
commented on Wheeler's right to remain silent and stated his personal
opinions on the credibility of witnesses, the record is devoid of any such
showing.
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right; (5) testimony regarding the victim's prior inconsistent statements;
and (6) the prosecutor's questioning of Wheeler on cross-examination.
Cumulative error results when an individual error, standing alone, does
not warrant reversal, but the cumulative effect prevents the defendant
from receiving a fair trial. Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288,
1289 (1985). "Relevant factors to consider in evaluating a claim of
cumulative error are (1) whether the issue of guilt is close, (2) the quantity
and character of the error, and (3) the gravity of the crime charged."
Mulder v. State, 116 Nev. 1, 17, 992 P.2d 845, 855 (2000). We conclude
that any error in this case, considered either individually or cumulatively,
does not warrant reversal.
Having considered Wheeler's claims and concluded that no
relief is warranted, we •
ORDER the judgment of copyiction FIRV1ED.
_
Gibbons
Douglas
J.
Saitta
cc: Hon. Nancy L. Porter, District Judge
Hon. Norman C. Robison, Senior Judge
Benjamin D. Cornell
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk
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