digitally penetrated her vagina, put his mouth on her vagina, and digitally
penetrated her anus slightly. The victim offered the man food and a can of
soda to discourage him from taking her upstairs to her bedroom. When
the police arrived they discovered pry marks on the sliding glass door and
dusted the soda can for fingerprints. The fingerprints lifted from the soda
can matched Percy's fingerprints. The victim testified that she had never
met the perpetrator before. After a search warrant was executed at
Percy's home, law enforcement found a lug wrench and a black jacket with
red trim containing Percy's DNA in his bedroom. At trial, the victim
testified that Percy looked like the man who sexually assaulted her.
We conclude that a rational juror could infer from these
circumstances that Percy forcibly entered the victim's home with the
intent to commit a felony and committed three separate acts of sexual
assault on a victim 60 years of age or older.' See NRS 193.167(1)(g); NRS
200.366(1); NRS 205.067(1); NRS 205.060(1); see also NRS 200.364(5)
(defining "sexual penetration" as "cunniling -us, fellatio, or any intrusion,
however slight, of any part of a person's body or any object manipulated or
inserted by a person into the genital or anal openings of the body of
another"). "[lit is the jury's function, not that of the court, to assess the
weight of the evidence and determine the credibility of witnesses."
McNair, 108 Nev. at 56, 825 P.2d at 573. The verdict will not be disturbed
on appeal, where, as here, substantial evidence supports Percy's
convictions. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see
1 Because this is not a fingerprint-only case, we need not decide
whether the analysis conducted in Mikes v. Borg, 947 F.2d 353, 356-57
(9th Cir. 1991), should inform this court's sufficiency of the evidence
review in cases where the only evidence of identity is fingerprints.
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also Buchanan v. State, 119 Nev. 201, 217, 69 P.3d 694, 705 (2003)
(circumstantial evidence alone may sustain a conviction).
Second, Percy contends that his three counts for sexual
assault should merge because they were part of one continuous and
uninterrupted action. See Townsend v. State, 103 Nev. 113, 121, 734 P.2d
705, 710 (1987). We disagree. Percy digitally assaulted the victim's
vagina, poured water on her vagina and orally assaulted the victim,
instructed thefl victim to turn over onto her hands and knees before anally
assaulting her, and then instructed the victim to turn back over before
digitally assaulting the victim's vagina a second time. There is no merger
because the three acts were separate and distinct acts of sexual assault.
See Peck v. State, 116 Nev. 840, 848-49, 7 P.3d 470, 475 (2000), overruled
on other grounds by Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006);
see also Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981) ("The
great weight of authority supports the proposition that separate and
distinct acts of sexual assault committed as a part of a single criminal
encounter may be charged as separate counts and convictions entered
thereon."). These separate acts cannot be considered a "hypertechnical
division of what was . . . a single act." Townsend, 103 Nev. at 121, 734
P.2d at 710. Therefore, this claim lacks merit.
Third, Percy contends that the district court erred by
admitting hearsay. Percy objected to the admissibility of a 911 recording
in which the victim's friend, who was not present during the assault, spent
seventeen minutes relaying the details of what happened during the home
invasion and assault to the 911 operator. The State argued that the 911
recording was admissible under the business records exception to the
hearsay rule. Percy pointed out that the 911 recording contained third-
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party hearsay where the victim's friend related the victim's out-of-court
statements to the 911 operator. The district court overruled the objection
and admitted the evidence.
Hearsay is an out-of-court statement "offered in evidence to
proveS the truth of the matter asserted" and is generally inadmissible.
NRS 51.035; NRS 51.065(1). In this case there were multiple layers of
hearsay: the 911 recording itself and the victim's statement to her friend.
The business records exception to the hearsay rule applies to "fal
memorandum, report, record or compilation of data, in any form, . . .
unless the source of information or the method or circumstances of
preparation indicate a lack of trustworthiness." NRS 51.135. Even if we
assume that the methods or circumstances used to prepare the 911
recording were trustworthy, the victim's out-of-court statements that were
relayed to the 911 operator by the caller were not admissible unless they
were covered by a separate hearsay exception. The State failed to
establish during trial or on appeal any reliable basis for applying a
hearsay exception to the caller's statements. Therefore, the entire 911
recording was inadmissible and the district court erred by admitting it.
However, we agree with the State that its admission was harmless
because the recording was almost entirely cumulative of the victim's
testimony during trial. See Mejia v. State, 122 Nev. 487, 493 n.15, 134
P.3d 722, 725 n.15 (2006) (explaining that the victim's testimony alone is
sufficient to support a sexual assault conviction). Although the 911 caller
did disclose that Percy told the victim he was in jail for four days for traffic
tickets, in light of the substantial evidence presented here, we cannot
conclude that this information or any other part of the recording
substantially affected the jury's verdict. See Valdez v. State, 124 Nev.
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1172, 1189-90, 196 P.3d 465, 476-77 (2008). Therefore, Percy is not
entitled to relief on this claim.
Fourth, Percy contends that the district court admitted bad
acts evidence in violation of NRS 48.045(2) by admitting two different
statements. The first statement was contained in the 911 recording and
alleged that Percy had been in jail for traffic tickets. It does not appear,
however, that Percy made a contemporaneous objection to the 911
recording on this basis. See Sullivan v. State, 115 Nev. 383, 387 n.3, 990
P.2d 1258, 1260 n.3 (1999) (reviewing claim for plain error when appellant
failed to make a contemporaneous objection). Regardless, Percy is not
entitled to relief based on the admission of this statement under harmless
or plain error review because, as discussed above, this statement did not
substantially affect the jury's verdict. See NRS 178.598; NRS 178.602;
Valdez, 124 Nev. at 1189-90, 196 P.3d at 476-77. The second statement
was contained in a recorded conversation between Percy and his sister and
mother. Percy contends that his mother's statements implied that Percy
"had committed other crimes and/or bad acts" in violation of NRS
48.045(2). We disagree. The vague statement made by Percy's mother
was not character evidence that the jury may have believed was
introduced in order to show that Percy acted in conformity therewith on
the day of the home invasion. See NRS 48.045(2). Therefore, Percy is not
entitled to relief on these claims.
Fifth, Percy contends that the district court erred by failing to
issue a limiting instruction sua sponte. See Tavares v. State, 117 Nev.
725, 731, 30 P.3d 1128, 1132 (2001), holding modified by Mclellan v. State,
124 Nev. 263, 268-69, 182 P.3d 106, 110-11 (2008). During cross-
examination of a police officer, Percy asked the officer why law
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enforcement was monitoring people exiting city buses and stopped
"somebody" exiting the bus. The officer responded by stating, "[w]e had
several calls or cases within like a 30-day period involving a very generic
description." This vague statement about "somebody" did not require the
district court to issue a limiting instruction sua sponte because it did not
qualify as a prior bad act under NRS 48.045(2). Even if it did, the district
court's failure to give such an instruction was harmless. See Rhymes v.
State, 121 Nev. 17, 24, 107 P.3d 1278, 1282 (2005).
Sixth, Percy contends that the district court erred by refusing
to give an instruction on open or gross lewdness as a lesser-included
offense of sexual assault. This court has held that open lewdness involves
the intent to commit a sexual act that could be observed by another and
would be offensive to observers. Berry v. State, 125 Nev. 265, 280-82, 212
P.3d 1085, 1095 97 (2009), abrogated on other grounds by State v.
-
Castaneda, 126 Nev. , 245 P.3d 550 (2010). Gross lewdness involves
the intent to commit a sexual act which is glaringly noticeable or obviously
objectionable. Id. at 281, 212 P.3d at 1096. Open or gross lewdness would
be a lesser-included offense of sexual assault only if the elements of open
or gross lewdness are entirely included within the elements of sexual
assault—nonconsensual sexual penetration. Wilson v. State, 121 Nev. 345,
358-59, 114 P.3d 285, 294 (2005); see NRS 200.366. "The test ultimately
resolves itself on whether the provisions of each of the different statutes
require the proof of a fact that the other does not." Wilson, 121 Nev. at
359, 114 P.3d at 294-95. While it is true that nonconsensual sexual
penetration is a sexual act which could be observed and would be offensive
to any observer including the victim, it is not necessarily true that the two
offenses share the same elements. For example, the act of sexual assault
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always involves an act performed on the victim, while the sexual act of
open or gross lewdness could be performed on either the perpetrator or the
victim. The harm caused by open or gross lewdness involves the
possibility of observing an offensive sexual act while the harm caused by
sexual assault is being physically subjected to• nonconsensual sexual
penetration. Therefore, open or gross lewdness is not a lesser-included
offense of sexual assault and the district court did not err by refusing to
give the instruction.
Seventh, Percy contends that his sentence amounts to cruel
and unusual punishment under the United States and Nevada
constitutions. See U.S. Const. amend. VIII; Nev. Const. art. 1, § 6. Percy's
sentence of three consecutive terms of life in prison with a possibility of
parole after ten years, each with a consecutive term of 12 to 240 months, a
consecutive term of 96 months with a minimum parole eligibility of 38
months and a concurrent term of 98 months with a minimum parole
eligibility of 28 months, falls within the parameters provided by the
relevant statutes, see NRS 193.167(1); NRS 200.366(2)(b); NRS 205.060(2);
NRS 205.067(2), and the sentence is not so unreasonably disproportionate
to the gravity of the offenses as to shock the conscience, see CuIverson v.
State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979); Harmelin v.
Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion). Therefore,
Percy's sentence did not amount to cruel and unusual punishment. 2
2To the extent that Percy argues, for the first time in his reply brief,
that the procedures required in NRS 193.167(3) were not followed, we
decline to consider that allegation. See NRAP 28(c); see also Elvik v. State,
114 Nev. 883, 888, 965 P.2d 281, 284 (1998) (explaining that arguments
made for the first time in a reply brief prevent the respondent from
responding to appellant's contentions with specificity).
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Finally, Percy contends that cumulative error warrants
reversal. "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, 124 Nev. at 1195, 196 P.3d at 481 (internal quotation marks
omitted). Having considered these factors we conclude that the
cumulative effect of any errors does not entitle Percy to the reversal of his
convictions, and we
ORDER the judgment of conviction AFFIRMED.
J.
CelzmalaCit
Parraguirre
J.
cc: Hon. Valorie J. Vega, District Judge
Thomas Michaelides
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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