The district court conducted a Petrocellii hearing in July 2013.
At the hearing, only the three witnesses to the 2007 uncharged
misconduct testified. The court agreed with the State that their testimony
about the uncharged misconduct was relevant to prove identity and
absence of mistake. It specifically concluded that the testimony was
relevant to prove identity for two reasons. First, the three witnesses
testified that the man they saw in 2007 "was a black male who was of the
same general build" and had the "same general hairstyle," and was the
"same general age as the defendant." This, of course, was not unexpected
considering that each of those witnesses made an in-court identification of
Lawson during the Petrocelli hearing. Second, the district court concluded
that the 2007 incident was relevant because it occurred in the "northwest
area" of Las Vegas, in "public," during "daylight hours," and the man did
not stop masturbating when he was seen by other people during both
incidents.
On appeal, the State withdraws its absence-of-mistake
justification by admitting that the uncharged misconduct evidence "was
only actually used at trial to show identity," because Lawson "never put
forward a mistake defense." 2 It suggests that the 2007 uncharged
1Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).
2 Even if the State had not withdrawn its absence-of-mistake
justification and Lawson had argued that the victim was mistaken about
what he was doing in the alley, the fact that Lawson had masturbated in
public in a different location under different circumstances four years
earlier would not have tended to show the victim's absence of mistake. See
also David P. Leonard, The New Wigmore: A Treatise on Evidence:
Evidence of Other Misconduct and Similar Events § 7.2.2 (2009 & Supp.
2014) ("Absence of mistake or accident' is generally synonymous with
intent.").
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misconduct evidence was relevant to prove identity through modus
operandi reasoning or some other unspecified theory of identification. We
conclude that the district court clearly abused its discretion because the
witnesses' testimony was not relevant for a nonpropensity purpose and the
probative value of the evidence was substantially outweighed by the
danger of unfair prejudice.
We recently "reemphasize [d] that `[a] presumption of
inadmissibility attaches to all prior bad act evidence." Bigpond v. State,
128 Nev. , , 270 P.3d 1244, 1249 (2012) (second alteration in
original) (quoting Rosky v. State, 121 Nev. 184, 195, 111 P.3d 690, 697
(2005)). "In order to overcome the presumption of inadmissibility, the
prosecutor must request a hearing and establish that: (1) the prior bad act
is relevant to the crime charged and for a purpose other than proving the
defendant's propensity, (2) the act is proven by clear and convincing
evidence, and (3) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice." Id. at , 270 P.3d at
1250. Evidence is relevant if it has "any tendency to make the existence of
any fact that is of consequence to the determination of the action more or
less probable than it would be without the evidence." NRS 48.015. Within
the context of a Petrocelli determination, this fact of consequence must be
related to a nonpropensity purpose. Bigpond, 128 Nev. at 270 P.3d at
1249-50.
The State claims that the testimony of the three witnesses
was relevant to prove Lawson's identity as the person masturbating in an
alley near Cheyenne Avenue and Rainbow Road in June 2011 and not
simply to prove that Lawson acted in conformity with his character as a
person who has previously masturbated in public. As is the case here, the
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admission of uncharged misconduct evidence to prove identity without
first proving such a fact. as motive, opportunity, preparation, or plan, "has
a particularly great tendency to implicate the person's character and
conduct." Leonard, supra § 12.1. The three witnesses' descriptions of
Lawson's physical characteristics in 2007 during the Petrocelli hearing,
which included his race, gender, and height, did not have any tendency to
make it more likely that he was the person identified by the victim in
2011. For instance, there was no allegation that Lawson's physical
characteristics had changed between the time of the alleged act in 2011
and Lawson's trial in 2013, when he was physically present in court, or
that they more closely resembled his appearance in 2007. In fact, the
witnesses' in-court identification of Lawson during the Petrocelli hearing
in 2013 suggests that Lawson looked exactly the same as he did in 2007.
The jurors, therefore, could have simply compared the victim's physical
description of the man she saw in the alley to Lawson himself without
relying on the three witnesses' memory of a different unrelated incident
that occurred six years earlier.
It is not surprising that the 2007 uncharged misconduct
testimony was not directly relevant to prove identity. Although identity
"is indisputably one of the ultimate purposes for which evidence of other
criminal conduct will be received . . . it is rarely a distinct ground for
admission." Kenneth S. Broun, 1 McCormick On Evidence § 190 (7th ed.
2013). "Almost always, identity is the inference that flows from one or
more of the [other nonpropensity purposes]." Id. Here, the district court
concluded that the testimony about the 2007 uncharged misconduct was
not relevant to show a common scheme or plan but nonetheless admitted
the evidence to prove identity because it believed the 2007 incident was
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"strikingly similar" to the charged offense. Thus, it appears that the
district court concluded that Lawson's uncharged misconduct in 2007
established a modus operandi that would allow the jury to infer that he
was the person who was masturbating in the alley in 2011. In order to
draw this conclusion the State was required to demonstrate that the
methods used in both incidents were so similar or distinct that it was
reasonable to infer that they were both committed by the same person.
"For the common features to be distinctive, they must not be shared by
most offenses of that type." People v. Thigpen, 713 N.E.2d 633, 639 (Ill.
App. Ct. 1999). Where a party is pursuing a modus-operandi theory
rather than a common scheme or plan theory, "proper application of
modus operandi reasoning requires greater similarity between the charged
and uncharged conduct." Leonard, supra § 13.5 (emphasis omitted). The
common features cited by the district court in this case—daylight,
northwest Las Vegas, and the failure of the offender to stop committing
the offense when observed by a passerby—fell far short of the
distinctiveness required for admissibility under a modus-operandi theory.
Therefore, the district court abused its discretion.
Moreover, even if the 2007 incident had been marginally
probative for some nonpropensity purpose, the district court should have
concluded that the probative value of testimony about another incident of
open or gross lewdness by three different witnesses was substantially
outweighed by the danger of unfair prejudice and involved the needless
presentation of cumulative evidence. See NRS 48.035. In this case, that
danger of unfair prejudice was not unfounded and did, in fact, deny
Lawson the right to a fair trial. Any doubt about whether the State
intended the jury to use the uncharged misconduct testimony for a
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propensity purpose was removed when the State instructed the jury
during opening statements that it could use the 2007 incident to "assume"
that the victim's identification of Lawson in 2011 "as the person
masturbating in front of her was correct." We conclude that the district
court's error substantially affected the jury's verdict and we 3, 4
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Hardesty
'
Douglas
&4 79A ,J.
Cherry
cc: Hon. Stefany Miley, District Judge
Joshua R. Lucherini
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 Because we are reversing based on the district court's improper
admission of Lawson's uncharged misconduct, we need not address
Lawson's other claim of prosecutorial misconduct based on the State's
comments during opening statements and its misstatement of the
evidence during rebuttal closing arguments.
4The fast track statement and reply fail to comply with NRAP
3C(h)(1) and NRAP 32(a)(4) because they do not contain 1-inch margins on
all four sides. Counsel is cautioned that the failure to comply with the
briefing requirements in the future may result in the imposition of
sanctions. See NRAP 3C(n).
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Lawson (Timothy) v. State
Combined Opinion