Coleman v. State

130 Nev., Advance Opinion 1&
IN THE SUPREME COURT OF THE STATE OF NEVADA

RAYSHAUN COLEMAN, No. 60181
Appellant,
vs.
FILED
THE STATE OF NEVADA, APR 0 3 2014
Respondent.
TRA IE K. LINDEMAN
CLE RT.
BY
DEUY CLERK

Appeal from a judgment of conviction, pursuant to a jury
verdict, of first-degree murder. Eighth Judicial District Court, Clark
County; Michael Villani, Judge.
Reversed and remanded.

David M. Schieck, Special Public Defender, and JoNell Thomas, Deputy
Special Public Defender, Clark County,
for Appellant

Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
Attorney, and Giancarlo Pesci, Deputy District Attorney, Clark County,
for Respondent.

BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

OPINION

By the Court, CHERRY, J.:
Appellant Rayshaun Coleman was convicted of first-degree
murder by child abuse following the death of an infant, Tristen Hilburn.

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 Tristen was the victim of multiple injuries, many of which occurred days
and weeks prior to the day of his death. Coleman insists that he is
innocent and that the injuries were inflicted by his girlfriend, Tristen's
mother Crystal Hilburn Gaynor, or others associated with her, including
her methamphetamine-addicted brother. In this appeal, Coleman
challenges the constitutionality of NRS 51.345, the statement-against-
interest exception to the hearsay bar, the district court's exclusion of
defense witnesses, and jury instructions on the felony-murder rule and
child abuse.
In resolving Coleman's appeal, we conclude that NRS 51.345
is constitutional but clarify that the standard for admissibility of a
statement against penal interest offered to exculpate an accused—
"corroborating circumstances [that] clearly indicate the trustworthiness of
the statement"—must not be so rigorously applied that it ignores the
purpose for the rule and instead infringes the defendant's constitutional
right to a meaningful opportunity to present a complete defense. We
conclude that the district court, in applying this provision, abused its
discretion by refusing to permit two defense witnesses to testify about
admissions made by Gaynor concerning a methamphetamine explosion
and resulting burns to Tristen's body. In reversing this portion of the
decision, we take the opportunity to clarify the relevant considerations for
identifying the corroboration necessary to support the admission of a
hearsay statement under NRS 51.345. We also conclude that the
instructions were not in error.
FACTS
This case stems from the death of Tristen on Sunday, March 8,
2009, when he was just six weeks old. While Tristen was healthy and
alert at birth, Gaynor indicated that Tristen had breathing issues to the
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 point where he had stopped breathing and turned blue. Despite this and
the fact that he was small and had a weak cry, he was never taken to a
doctor because of a lack of health insurance. At the time of Tristen's
death, Gaynor lived in a house with her brother Brian Harris, her five-
year-old son Devin, and her then-boyfriend Coleman. During this time
period, Brian was using methamphetamine on a daily basis. To support
his addiction, Brian would often act as a middleman, procuring drugs for
acquaintances and receiving either money or drugs in return. It was not
uncommon for these acquaintances to stop by the house to either purchase
drugs from, or do drugs with, Brian. Brian sometimes took care of Devin,
but he was not entrusted with the care of Tristen. On the day of Tristen's
death, Brian spent much of the day in and out of the house with friends,
pursuing and using methamphetamine.
In Tristen's six weeks of life, Gaynor left him with Coleman on
three weekends, including the final weekend of Tristen's life. Tristen was
in Coleman's care that weekend because Gaynor was incarcerated for an
unrelated misdemeanor domestic violence conviction. Gaynor was home
that Friday and early Saturday morning, but turned herself in at the jail
around 8 a.m. on Saturday, March 7, 2009. When Coleman watched
Tristen, he would keep Tristen in the master bedroom with the door closed
and locked. Although a crib was available, Tristen slept between the
couch cushions.
Coleman called 911 on the night of Tristen's death. He met
the responding officers at the door and directed them to the back bedroom.
Besides the emergency personnel, the only individuals in the house were
Tristen, Coleman, and Devin. Upon entering the master bedroom, the
responding officers found Tristen lying on the floor, unconscious, and not

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 breathing. Tristen was cold to the touch but was not stiff. A number of
responders testified to observing red blotches or burns on Tristen's face
and body. Many also noted that the burns appeared to be recent.
Responders performed CPR, but it was unsuccessful and Tristen was
pronounced dead. Officers on the scene found Tristen's blood and pieces of
sloughed skin around the house.
Examination of Tristen's body revealed that he suffered from
many health issues and injuries at the time of his death that indicated
that he had been abused and neglected. He was extremely small and
malnourished, weighing only five and a half pounds (less than he weighed
at birth). His brain was small and swollen and some of the brain tissue
was dead. Due to the damage to his brain, Tristen may have had
problems crying and feeding. Although no tests were conducted to
determine bone density, the medical examiner indicated that Tristen
likely did not get enough calcium in his diet, which would have affected
the density of his bones. Tristan also suffered numerous physical injuries.
There were debrided first- to second-degree burns across approximately 36
percent of his body, two skull fractures as the result of blunt force trauma,
fresh bleeding in the muscles of his back, and multiple fractured ribs
consistent with blunt force trauma. The cause of death was determined to
be inflicted head injuries and burns with starvation contributing to the
death, and the manner of death to be homicide.
The investigation focused on Coleman. According to the
medical examiner, it was not possible for the lethal burns or skull
fractures to have been inflicted before 10:00 a.m. on Saturday, March 7,
2009, because there was no evidence of healing This evidence suggested
that the injuries were inflicted while Tristen was in Coleman's care;

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 however, the healing process used to determine the time of injury can be
affected by a person's strength and the injuries, and in this case, Tristen's
immune system appeared to be inactive at the time of his death due to
stress and inadequate nutrition. When he was questioned on the day that
Tristen died, Coleman initially gave officers a false name. When asked
what had happened, Coleman said that he had bathed Tristen and put
him down to sleep. He indicated that he then also fell asleep and when he
woke he found Tristen unresponsive and with skin peeling from his burns.
There was some evidence that the burns could have happened when
Coleman bathed Tristen: the temperature of the hot water in the house
reached 131 degrees and a crime scene analyst observed that the hot and
cold faucets in the bathtub were reversed.
The State charged Coleman with one count of murder by child
abuse and two counts of child abuse and neglect with substantial bodily
harm. It also charged Gaynor with one count of child neglect with
substantial bodily harm. Both pleaded not guilty. The trials were
severed, and the State filed a notice of intent to seek the death penalty
against Coleman. The State subsequently filed an amended information
in which it solely charged Coleman with murder by child abuse.
Before trial, Coleman's counsel informed the court that he
intended to call three female witnesses who had been incarcerated with
Gaynor. These witnesses would testify about statements allegedly made
by Gaynor about burns that both she and Tristen suffered after being
splashed by cooking methamphetamine. The State objected to the
testimony on hearsay grounds, and Coleman argued that the statements
were admissible as statements against interest and pointed out that the
statements were exculpatory and relevant as to bias and a lack of

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 investigation. The district court held an evidentiary hearing and
ultimately found that the statements were exculpatory as to both Gaynor
and Coleman, but were so lacking in any indicia of trustworthiness that
they could not be admitted as statements against penal interest under
NRS 51.345. Coleman's attorney later lodged a complaint on the record
alleging potential due process issues with NRS 51.345.
After Coleman's trial began, instructions were proposed on the
felony-murder rule and child abuse. Coleman's counsel objected to the use
of the term "accidental" as being confusing given the nonaccidental
statutory definition of child abuse under the felony-murder rule in NRS
200.030. The State argued that the instruction was accurate given that
the killing can be accidental while the physical injury must be
nonaccidental. The district court allowed the instruction unaltered.
During the culpability phase of the trial, the jury ultimately
found Coleman guilty of first-degree murder by child abuse. In the
penalty phase of the trial, one or more of the jurors found several
mitigating circumstances, including an lalbsence of intent to cause death"
and "[iinvolvement of others in injuries to Tristen." The jury did not find
the aggravating circumstance of mutilation of the victim. It found that the
mitigating circumstances outweighed the single aggravating circumstance
(the victim's age), and imposed a sentence of life with the possibility of
parole after 20 years. Coleman now appeals from the judgment of
conviction.
DISCUSSION
Sufficiency of the evidence
Coleman argues that there is insufficient evidence to support
the conviction of first-degree murder by child abuse. Coleman argues that
his constitutional rights to due process of law, equal protection, a fair trial,
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 and conviction based upon only evidence establishing guilt beyond a
reasonable doubt were violated. Coleman points out that the State failed
to prove that he inflicted the fatal injuries and that the death was not
accidental. In response, the State argues that the evidence presented,
viewed in a light most favorable to it, clearly established each element of
first-degree murder by child abuse beyond a reasonable doubt.
Because "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," Rose v. State,
123 Nev. 194, 202, 163 P.3d 408, 414 (2007) (internal quotations omitted),
we conclude that sufficient evidence supported the verdict. While others
were in the house the weekend of Tristen's death, Coleman was the only
adult present when Tristen died. Additionally, while testimony provided
that Coleman did a good job of caring for Tristen, Tristen was seriously
abused from the time of his birth. The abuse was so severe that Tristen's
brain was not developing normally, parts of it were dead, and it had
shrunk since his birth. Tristen was malnourished, suffered from head and
rib fractures, had been burned, and his immune system• was not
functioning. While the cause of the burns was unknown, Coleman
indicated that he had bathed Tristen and put him to bed before he stopped
breathing. The medical examiner acknowledged that the burns could have
been caused by abnormally hot water found in the house and evidence
established that the faucets on the tub were reversed. There was no
testimony establishing how the fractures were inflicted, but Coleman was
alone with Tristen all weekend. The medical testimony, while
inconsistent, supported that the burns and fractures occurred while
Coleman was alone with Tristen. And the medical examiner concluded

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 that Tristen died of the burns and fractures. Viewing the evidence in the
light most favorable to the prosecution, we conclude that the evidence
presented could lead a rational trier of fact to conclude that Coleman
abused Tristen and that abuse led to his death. See Deveroux v. State, 96
Nev. 388, 391, 610 P.2d 722, 724 (1980) (noting that "circumstantial
evidence alone may sustain a conviction").
The exclusion of testimony from three defense witnesses
Coleman next attacks the constitutionality of NRS 51.345 and
argues that even if the statute is constitutional, reversal is still warranted
because the exclusion of the defense witnesses' testimony about Gaynor's
statements was an abuse of discretion. Coleman contends that Gaynor's
statements would subject her to criminal liability for child neglect and
were trustworthy based on corroborating circumstances, and that their
exclusion was highly prejudicial.
Constitutionality of NRS 51.345
Coleman argues that NRS 51.345 is unconstitutional because
it subjects certain exculpatory hearsay statements to a trustworthiness
determination based on corroborating circumstances that does not apply to
similar inculpating statements offered by the State.' Coleman also avers
that the statute arbitrarily allows the district court to preclude defense

1-The federal counterpart to NRS 51.345, Federal Rule of Evidence
804(b)(3), was amended in 2010 to make the requirement of corroborating
circumstances apply to all declarations against penal interest in criminal
cases.

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 evidence based upon a trustworthiness determination that should be
decided by a jury rather than a judge. 2
We review a challenge to the constitutionality of a statute de
novo. Aguilar-Raygoza v. State, 127 Nev. „ 255 P.3d 262,
264 (2011). "Because statutes are presumed to be valid, [the challenger]
bears the heavy burden of demonstrating that [the statute] is
unconstitutional." Id. at , 255 P.3d at 264.
Hearsay is an out-of-court statement "offered in evidence to
prove the truth of the matter asserted," NRS 51.035, and is inadmissible
unless within an exemption or exception. NRS 51.065. Hearsay evidence
has traditionally been excluded because it is not subject to the usual
method to test the declarant's credibility, since cross-examination to
ascertain a declarant's perception, memory, and truthfulness is not
available. Deutscher v. State, 95 Nev. 669, 684, 601 P.2d 407, 417 (1979).
Based on these concerns, additional requirements have been placed on
hearsay statements before they may be admitted. Chambers v.
Mississippi, 410 U.S. 284, 298-99 (1973) ("The hearsay rule, which has
long been recognized and respected by virtually every State, is based on
experience and grounded in the notion that untrustworthy evidence
should not be presented to the triers of fact. . . . A number of exceptions
have developed over the years to allow admission of hearsay statements
made under circumstances that tend to assure reliability and thereby

2 The
State argues that this issue was not preserved for appeal. We
disagree and conclude that the issue was preserved by the argument below
that the statute is unconstitutional and fundamentally unfair in violation
of due process because the defendant is held to a different standard for the
admission of hearsay evidence.

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 compensate for the absence of the oath and opportunity for cross-
examination."). A statement against interest is excepted from the hearsay
bar and is admissible, provided that the statement, at the time it is made:
(a) Was so far contrary to the pecuniary or
proprietary interest of the declarant;
(b) So far tended to subject the declarant to
civil or criminal liability;
(c) So far tended to render invalid a claim by
the declarant against another; or
(d) So far tended to make the declarant an
object of hatred, ridicule or social disapproval,
that a reasonable person in the position of the
declarant would not have made the statement
unless the declarant believed it to be true.
NRS 51.345(1). An additional requirement is imposed when a statement
"tending to expose the declarant to criminal liability [is] offered to
exculpate the accused in a criminal case." Id. Such a statement "is not
admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement." Id.
Coleman asserts that Holmes v. South Carolina, 547 U.S. 319
(2006), controls the constitutionality assessment of NRS 51.345. In
Holmes, the United States Supreme Court addressed the constitutionality
of "an evidence rule under which the defendant may not introduce proof of
third-party guilt if the prosecution has introduced forensic evidence that,
if believed, strongly supports a guilty verdict." 547 U.S. at 321. The
United States Supreme Court began by noting that while the Constitution
provides state and federal rulemakers with broad latitude to establish
exclusionary rules for evidence in criminal trials, that latitude is limited
by the Constitution's guarantee that a criminal defendant must have "a
meaningful opportunity to present a complete defense." Id. at 324
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 (internal quotations omitted). The Court stated that "ft] his right is
abridged by evidence rules that infringe upon a weighty interest of the
accused and are arbitrary or disproportionate to the purposes they are
designed to serve." Id. (internal quotations omitted).
However, the Court clarified that "well-established rules of
evidence permit trial judges to exclude evidence if its probative value is
outweighed by certain other factors such as unfair prejudice, confusion of
the issues, or potential to mislead the jury." Id. at 326. The Court then
critiqued the evidentiary rule at issue based on its focus on the strength of
the prosecution's case regardless of the credibility of the prosecution's
witnesses or the reliability of its evidence and without considering the
probative value of the proffered defense evidence. Id. at 329. The
Supreme Court concluded that the evidentiary rule did not "rationally
serve the end that. . . [it was] designed to promote, i.e., to focus the trial
on the central issues by excluding evidence that has only a very weak
logical connection to the central issues." Id. at 330. As a result, the Court
held that the rule was arbitrary and violated the defendant's right to a
meaningful opportunity to present a complete defense. Id. at 331.
We conclude that Holmes is not dispositive, as the exclusion of
the hearsay statements was not predicated on evidence of Coleman's guilt
but was based on NRS 51.345(1)'s requirement that la hearsay]
statement tending to expose the declarant to criminal liability and offered
to exculpate the accused in a criminal case is not admissible unless
corroborating circumstances clearly indicate the trustworthiness of the
statement." Moreover, in critiquing the evidentiary rule at issue in
Holmes, the Court indicated that rules based on the credibility of the
witnesses or the reliability of the evidence would be proper. Cf. 547 U.S.

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 at 329. Thus, Holmes actually supports the constitutionality of NRS
51.345(1).
Another court has addressed a similar challenge to an
evidentiary rule that is identical to NRS 51.345(1). In Summers v. State,
231 P.3d 125, 141 (Okla. Crim. App. 2010), the defendant argued that his
right to a fair trial was violated when the trial court refused to let him
present a witness's testimony that the witness ordered a third party to kill
the victims and that the third party made incriminating statements to the
witness that exculpated the defendant. The trial court determined that
the testimony could not be admitted as it was hearsay and the defense
failed to provide clear, corroborating circumstances that would indicate
the trustworthiness of the statement. Id. at 144-45. The appellate court
expressed concern that the evidentiary rule, which required corroborating
circumstances establishing the trustworthiness of a statement against
penal interest offered to exculpate a defendant, could violate a defendant's
constitutional rights. Id. at 148. In particular, if a court holds the defense
evidence to too high of a standard under the rule, "application of this
seemingly reasonable standard could, in fact, violate the defendant's right
to a meaningful opportunity to present his defense." Id. The court
explained that while courts have traditionally treated out-of-court
statements that tend to exonerate the defendant and implicate the
declarant with great suspicion, that concern does not "fully comport with
the later-developed, but now well-established doctrine regarding the
defendant's right to a meaningful opportunity to present his defense." Id.
"Such a rule, at least when too rigorously applied, would appear to be
'disproportionate' to the (reliability) end that it is intended to promote,
since it subjects the defendant's evidence to a more demanding

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 admissibility evaluation than it does the State's." Id. at 148-49. Despite
its concerns, the court did not "question the validity, in general, of this
well-established evidentiary rule." Id. at 148.
We find the observations in Summers to be persuasive and
agree with the Oklahoma court's concerns about the constitutional
implications of the standard for admissibility of statements against penal
interest that are offered to exculpate a defendant. In applying the
evidentiary rule, the court must balance fabrication concerns with the
constitutional right to have a meaningful opportunity to present a
complete defense. See Holmes, 547 U.S. at 324 (stating that a defendant is
constitutionally guaranteed "a meaningful opportunity to present a
complete defense" (internal quotations omitted)); Woods v. State, 101 Nev.
128, 132, 696 P.2d 464, 467 (1985) (explaining that the drafters of the
federal rule analogous to NRS 51.345 expressed concern about
fabrication). Our prior decisions applying NRS 51.345 reflect that careful
balance. We have explained that "the statutory test for determining the
admissibility of statements against penal interest under NRS 51.345 is
whether the totality of the circumstances indicates the trustworthiness of
the statement or corroborates the notion that the statement was not
fabricated to exculpate the defendant." Walker v. State, 116 Nev. 670, 676,
6 P.3d 477, 480 (2000). Our caselaw does not apply NRS 51.345 so
rigorously as to hold the defendant to a standard that is disproportionate
to the statute's intended goal of providing reliability or unfairly burdens
the defendant's constitutional rights. It also balances the principle that
the reliability of relevant testimony typically falls within the province of
the jury, Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009), with the need to
"compensate for the absence of the oath and opportunity for cross-

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 examination," Chambers, 410 U.S. at 299, that is at the heart of
exceptions to the hearsay rule such as NRS 51.345(1). Accordingly, based
on the balanced approach required to assess whether the statements
against penal interest should be admitted, NRS 51.345 is not
unconstitutional.
Application of NRS 51.345 to this case
Coleman contends that reversal is warranted because the
prohibition of the witnesses' testimony was an abuse of discretion as
Gaynor's statements would subject her to child neglect charges, were
corroborated and trustworthy, and the exclusion of the evidence was not
harmless. We agree. The district court abused its discretion in failing to
allow the testimony from two of the three witnesses.
While the application of NRS 51.345 is within the district
court's discretion, we will reverse the decision if it is an abuse of
discretion, meaning that the "decision is arbitrary or capricious or if it
exceeds the bounds of law or reason." Jackson v. State, 117 Nev. 116, 120,
17 P.3d 998, 1000 (2001); Sparks v. State, 104 Nev. 316, 320-21, 759 P.2d
180, 183 (1988).
The statements
The content of the proffered testimony is critical to our review
of the district court's evidentiary decision. Two of the proposed defense
witnesses (Erica Antolick and Dawn Makaroplos) testified in an offer of
proof outside the presence of the jury. Erica Antolick testified regarding
two statements made by Gaynor that the defense offered to exculpate
Coleman with respect to the burns suffered by Tristen. First, sometime in
2009, she overheard Gaynor say that while cooking methamphetamine
with her brother the mixture exploded and Tristen was splashed. Erica
asked what happened when the mixture exploded and Gaynor became
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 defensive, yelled, and very quickly lifted up her shirt to the extent that she
could with her shackles. Erica stated that Gaynor's skin appeared red.
Erica never heard Gaynor say that the baby suffered any burns, nor did
she hear Gaynor discuss how or why Tristen died. Erica also admitted
that she had no idea when the burning incident supposedly took place.
Second, during a transport ride to court, Erica overheard Gaynor talking
with Coleman and indicating that she knew that Coleman did not murder
Tristen and that her brother did it. Erica also mentioned the fact that
Tristen slept between the couch cushions. Erica admitted that she
disliked Gaynor and had even requested a transfer to a separate unit
because they did not get along. At the time of the hearing, Erica was on
probation after having been convicted of felony forgery.
Dawn Makaroplos, who was Gaynor's friend, also testified
about similar statements made by Gaynor that the defense offered to
exculpate Coleman with respect to the burns. Dawn indicated that she
saw scabs on Gaynor's chest in jail. When she asked Gaynor what
happened, Gaynor stated that she and her infant were burned and that
her infant had died as a result. Eventually, Gaynor opened up to Dawn
and, while crying, said that "her brother was batching meth and she was
feeding the baby and the pot exploded over the stove." After Gaynor
admitted to having burn marks, Dawn said, "[w] ell, if you're feeding, then
the baby got burn marks. . . . So how bad was the baby?" Gaynor would
not acknowledge the question. Dawn admitted that Gaynor started crying
every time she asked if the baby got burned, so she never obtained a direct
answer from Gaynor. She nevertheless maintained that Gaynor stated
that she had been holding the baby. Dawn stated that Gaynor told her
that the burn happened the Friday before thefl baby's death and that

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 Coleman was wrongly in jail for killing Tristen. According to Dawn,
Gaynor indicated that it was her brother's fault. Dawn testified that
Gaynor talked to and confided in her because everyone else in jail called
Gaynor a baby killer Dawn expressed some resentment toward Gaynor,
as Dawn was fighting for custody of her daughter at the time and Gaynor
was crying about her five-year-old when she had "killed a newborn." Upon
learning that Coleman had been living in Gaynor's house, Dawn admitted
that those were not the facts Gaynor told her. Gaynor had told her that
Coleman came from California to watch Tristen. Dawn also referenced the
fact that Gaynor said Tristen slept on the couch.
The district court excluded this testimony after concluding
that Gaynor's statements were not against penal interest and were so
lacking in any indicia of trustworthiness that they could not be admitted
under the NRS 51.345 hearsay exception. We address each of these
determinations in turn.
Potential for criminal liability
The district court emphasized that Gaynor's statements were
not self-incriminating. We disagree. Gaynor's alleged statements that she
was holding her baby next to where her brother was cooking
methamphetamine, resulting in splatter burns, tended to subject her to
additional criminal liability for child abuse or child neglect as she
admitted to holding a newborn next to highly explosive toxic substances.
See NRS 200.508(1) (a person is guilty of child abuse if he or she "willfully
causes a child who is less than 18 years of age to suffer unjustifiable
physical pain or mental suffering as a result of abuse or neglect or to be
placed in a situation where the child may suffer physical pain or mental
suffering as the result of abuse or neglect"); NRS 200.508(2) (a person is
guilty of child neglect if he or she "permits or allows that child to suffer
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 unjustifiable physical pain or mental suffering as a result of abuse or
neglect or to be placed in a situation where the child may suffer physical
pain or mental suffering as the result of abuse or neglect"); NRS
200.508(4)(a) ("Abuse or neglect' means physical or mental injury of a
nonaceidental nature, sexual abuse, sexual exploitation, negligent
treatment or maltreatment of a child under the age of 18 years, ... under
circumstances which indicate that the child's health or welfare is harmed
or threatened with harm."); see also In re A.K., 696 N.W.2d 160, 161 (N.D.
Ct. App. 2005) (noting the mother's conviction for methamphetamine-
related offenses and child abuse and neglect, following a fire that resulted
in severe burning of the child). Accordingly, the district court erred in
determining that the statement did not tend to subject Gaynor to criminal
liability.
Corroborating circumstances and trustworthiness
In determining that there were not sufficient corroborating
circumstances to indicate the trustworthiness of Gaynor's statements, the
district court noted that the statements were not made to a friend in the
comfort of a private residence, but were made in jail and in a
transportation van. Also, Gaynor was already implicated in the
underlying crime at the time the statements were made, rendering them
less trustworthy. Although these are relevant considerations, Coleman
presented evidence sufficient to warrant a finding of trustworthiness
regarding Gaynor's statements presented by Erica and Dawn.
Discussing the difficulties in precisely identifying the
corroboration necessary to support the admission of a hearsay statement,
the Fourth Circuit Court of Appeals has recognized several factors that
are relevant to the inquiry. Specifically,

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 (1) whether the declarant had at the time of
making the statement pled guilty or was still
exposed to prosecution for making the statement,
(2) the declarant's motive in making the statement
and whether there was a reason for the declarant
to lie, (3) whether the declarant repeated the
statement and did so consistently, (4) the party or
parties to whom the statement was made, (5) the
relationship of the declarant with the accused, and
(6) the nature and strength of independent
evidence relevant to the conduct in question.
United States v. Kivanc, 714 F.3d 782, 792 (4th Cir. 2013) (quoting United
States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995)). Other courts have
included for consideration (7) whether the statement was made
voluntarily after Miranda warnings, United States v. Nagib, 56 F.3d 798,
805 (7th Cir. 1995); United States v. Price, 134 F.3d 340, 348 (6th Cir.
1998), (8) "whether there is any evidence that the statement was made in
order to curry favor with authorities," Nagib, 56 F.3d at 805, and (9) the
spontaneity of the statement, United States v. Thomas, 571 F.2d 285, 290
(5th Cir. 1978).
At the time that the statements were made by Gaynor to Erica
and Dawn, Gaynor was exposed to prosecution for child abuse and
presumably had been given her Miranda warnings. She became very
upset after mentioning the splashing methamphetamine and reacted
emotionally by starting to cry or becoming angry. Gaynor also
spontaneously made, and repeated, these statements to both witnesses.
Gaynor was in a relationship with Coleman, giving her a
reason to lie to protect him. However, due to the emotionally charged
nature of her utterances and their inculpatory nature, the motive behind
making the statements is unclear.

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 Taking into consideration the parties to whom the statement
was made, it is apparent that neither Erica nor Dawn had a clear motive
to fabricate the statements. See Woods v. State, 101 Nev. 128, 133, 696
P.2d 464, 467 (1985) ("In determining whether the declarant in fact made
the proffered statement, the trial court may consider the credibility of the
witness."). They were not promised any deals or benefits for their
testimony such as a plea bargain or reduction in sentence. See Walker,
116 Nev. at 676, 6 P.3d at 481 (pointing out that the lack of an advantage
accrued in exchange for the testimony supported a trustworthiness
finding); Woods, 101 Nev. at 135, 696 P.2d at 469 (same). Although Dawn
harbored some resentment toward Gaynor concerning child custody issues,
she considered Gaynor a friend, providing an indicia of trustworthiness.
See Walker, 116 Nev. at 676, 6 P.3d at 481 ("[fit is well-settled that a
statement against interest made to a close friend or relative is considered
to be more reliable than a statement made to a stranger."). We
acknowledge, however, that Erica admitted to not liking Gaynor, which
may have given her some incentive to fabricate the statements. But
considering the other corroborating circumstances that indicate the
trustworthiness of the statements, we are not convinced that this
possibility warrants excluding the testimony.
We conclude that the nature and strength of independent
evidence relevant to the conduct in question support the admission of
Gaynor's statements. The statements were focused on Brian's undisputed
involvement with methamphetamine. Although the statements were
contradicted by Coleman's statements that Tristen was fine before his
death, Coleman's statements were less than trustworthy as, at the time,
he was attempting to protect himself, as evidenced by the use of a false

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 name. Erica and Dawn both saw burns on Gaynor's torso, corroborating
Gaynor's statements. 3 Erica and Dawn also both knew of the obscure fact
that Tristen slept on the couch, indicating that Gaynor must have told
them of this detail, corroborating the fact that conversations occurred
between them about Tristen. These circumstances corroborate the
hearsay statements and were not sufficiently considered by the district
court.
In evaluating the corroborating circumstances, the district
court also observed that the medical evidence showed that Tristen's burns
could not have occurred before Gaynor reported to jail on the morning of
Saturday, March 7, 2009. But the evidence concerning Tristen's burns
conflicted with the evidence of his lack of a functioning immune system
and inability to heal. The inconsistency of these findings would allow for a
jury to determine that the burns could have taken place on the Friday
before Tristen's death.
Considering the corroborating circumstances, we conclude that
the district court abused its discretion in excluding the testimony• from
Erica and Dawn concerning Gaynor's statements about the burns. Any
discrepancies with other evidence should be left to the jury to assess.
Woods, 101 Nev. at 136, 696 P.2d at 469-70 (stating that it is "for the jury
to evaluate [the] story and to decide how much credence it should be

3 Whileno other testimony directly corroborated the burns, the
detective did not see Gaynor's chest and did not make any attempt to see
the area even after having discussed the burns with Dawn. The detective
also failed to report his conversation with Dawn and failed to follow up on
Dawn's statements to the police.

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 given"). Accordingly, the district court abused its discretion in excluding
the testimony of Dawn and Erica on this ground.
However, we conclude that the district court did not abuse its
discretion in refusing to admit the testimony of the third defense witness.
Coleman's counsel proffered that the third witness's testimony would be
similar to Erica's testimony concerning the batching of methamphetamine
and the explosion. However, the third witness was unable to attend the
evidentiary hearing. Thus, the record is insufficient to assess the
trustworthiness of the statements Gaynor made to her as she did not
testify at the hearing. The district court therefore did not abuse its
discretion in excluding the third witness's testimony.
The error was not harmless
Any hearsay errors are evaluated for harmless error. Walker,
116 Nev. at 677, 6 P.3d at 481. Coleman contends that the exclusion of
this evidence was not harmless. We agree. Because the exclusion of the
defense evidence affected Coleman's constitutional right to a meaningful
opportunity to present a complete defense, the error is only considered
harmless if the court can determine "beyond a reasonable doubt that the
error complained of did not contribute to the verdict obtained." Chapman
v. California, 386 U.S. 18, 24 (1967). We cannot make this determination.
This evidence was very important to Coleman's defense as it showed that
he may not have been responsible for Tristen's burns, which were one of
the two potential causes of Tristen's death. Considering the mitigating
circumstance found by the jury of "ifinvolvement of others in injuries to
Tristen," we cannot conclude beyond a reasonable doubt that the jury
would have found Coleman guilty of murder had they heard this
testimony. Accordingly, this error was not harmless and warrants a new
trial.
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 Instructions on the felony-murder rule and child abuse
Coleman argues that two instructions misled and confused the
jury as they represented that a killing committed in the perpetration of
child abuse is deemed to be murder of the first degree, even if the killing
was accidental. The State asserts, and we agree, that the instructions
accurately informed the jury that, while the killing can be accidental, the
physical injury to the child (the child abuse) must be nonaccidental. Here,
the jury was instructed that:
There are certain kinds of murder which
carry with them conclusive evidence of malice
aforethought. One of these classes of murder is
murder committed in the perpetration or
attempted perpetration of child abuse. Therefore,
a killing which is committed in the perpetration of
child abuse is deemed to be murder of the first
degree, whether the killing was intentional or
unintentional or accidental. This is called the
Felony-Murder Rule.
The intent to perpetrate or attempt to
perpetrate child abuse must be proven beyond a
reasonable doubt.
Moreover, the jury was instructed that "[al person commits child abuse if
he willfully causes physical injury of a nonaccidental nature to a child
under the age of 18 years."
These instructions comply with our statutory scheme
concerning first-degree murder and child abuse. The instructions properly
indicate that the child abuse must be nonaccidental and, to find murder in
the first degree, the State must prove beyond a reasonable doubt that the
murder was committed in the perpetration of child abuse. The death could
have been intentional, unintentional, or accidental, but the child abuse
must have been nonaccidental. As the State pointed out, the rationale

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 behind the felony-murder rule is "to deter felons from killing negligently
or accidentally by holding them strictly responsible for the killings that
are the result of a felony or an attempted one." Payne v. State, 81 Nev.
503, 506, 406 P.2d 922, 924 (1965). The instructions comport with our
statutory scheme and the purpose behind the felony-murder rule. 'I
CONCLUSION
We conclude that the district court's decision not to allow the
testimony from two defense witnesses was an abuse of discretion and
prejudiced Coleman. Accordingly, we reverse the judgment of conviction
and remand for a new trial.

We concur:

J.
Hardesty

TcuiN ck.se J.
Parraguirre

4 Becauseof our resolution of this appeal, we decline to reach
Coleman's remaining contentions concerning the jury instructions.

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