137 Nev., Advance Opinion lob
IN THE SUPREME COURT OF THE STATE OF NEVADA
OSBALDO CHAPARRO, No. 81352
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. NOV 1 2021
DEPUTY CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of sexual assault, battery with the intent to commit sexual assault
upon a victim age 16 or older, and open or gross lewdness. Second Judicial
District Court, Washoe County; Egan K. Walker, Judge.
Affirmed.
John L. Arrascada, Public Defender, and Kathryn Reynolds, Deputy Public
Defender, Washoe County,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Jennifer P. Noble, Chief Appellate Deputy District
Attorney, Washoe County,
for Respondent.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, STIGLICH, J.:
It is well settled that a defendant has the right to be present at
all critical stages of a criminal proceeding, including the sentencing
hearing. In this opinion, we consider whether the defendant's right to be
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present was violated when the sentencing hearing was conducted by
simuhaneous audiovisual transmission over the Zoom videoconferencing
platform due to administrative orders issued by the district court forbidding
in-person hearings because of the COVID-19 pandemic. Appellant Osbaldo
Chaparro was convicted after a jury trial in February 2020. His sentencing
hearing took place in May 2020. All contemporary readers of this opinion
will instantly understand the import of those dates: the onset of the COVID-
19 pandemic in March 2020 impacted nearly every area of life. The criminal
justice system was no exception. While his trial occurred in person and in
court, Chaparro was sentenced in a hearing conducted over Zoom. Because
we conclude that Chaparro's sentencing hearing was fair and just
considering the surrounding circumstances, he is not entitled to relief on
this claim.
We also consider several challenges related to Chaparro's trial.
We conclude that the district court properly admitted evidence of
Chaparro's previous conviction for battery with intent to commit sexual
assault. We further conclude that the district court did not err in limiting
inquiry into Chaparro's prior conviction that the court had determined
would be admitted as evidence, as a party may not pre-try its case with the
jury during voir dire. Nevertheless, we direct that district courts should not
categorically limit questions about jurors views concerning whether a
defendant has prior convictions. And we recognize that inconclusive DNA
evidence may be relevant and admissible where permitted by the rules of
evidence, as here. Accordingly, we affirm.
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BACKGROUND
In December 2016, L.L. and a friend stayed at a hotel in
downtown Reno. In the early morning hours of December 17, L.L. was
walking alone towards the Harrah's casino when Chaparro grabbed her.
Chaparro groped L.L.'s buttocks and breasts, reached under her dress and
inside her tights, and digitally penetrated her. L.L. struggled and yelled
that she would call 9-1-1. Chaparro responded, "[Who are they going to
believe, me or you?" When L.L.'s friend approached, Chaparro hurried off.
L.L. reported the assault and underwent a sexual assault exam that same
morning. Harrah's security system captured the incident along with
footage.
The State charged Chaparro with sexual assault, battery with
the intent to commit sexual assault upon a victim age 16 or older, and open
or gross lewdness. Before trial, the State moved to admit evidence of
Chaparro's 2011 conviction for battery with the intent to commit sexual
assault. In that instance, Chaparro groped and accosted P.J. in the parking
lot of the Nugget Casino Resort. Chaparro opposed the motion, arguing the
evidence was unfairly prejudicial, but the district court granted the State's
motion and allowed P.J. to testify at trial. At trial, Chaparro did not dispute
that he was in the security footage or that he had committed open or gross
lewdness. Rather, Chaparro argued that he neither penetrated L.L. nor
intended to do so and was therefore innocent of sexual assault and battery
with the intent to commit sexual assault upon a victim age 16 or older.
The jury convicted Chaparro of all charges on February 14,
2020. In March 2020, the COVID-19 crisis prompted courts across the
country to consider alternatives to in-person hearings. The Second Judicial
District Court originally hoped to proceed with in-person appearances for
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"essential case types and hearings," including criminal sentencings. See In
re Second Judicial District Court's Response to Coronavirus Disease
(COVID- 19), Administrative Order 2020-2 (Mar. 16, 2020).1 But it soon
ordered all hearings to "be conducted by alternative means to in-person
hearings." See In re Second Judicial District Court's Response to
Coronavirus Disease (COVID-19), Administrative Order 2020-02(A) (Apr. 9,
2020). Chaparres sentencing hearing was held on May 20, 2020, over Zoom.
Chaparro joined the hearing from a jail courtroom and was able to
communicate confidentially with counsel via a headset, as well as see and
hear the other participants. The other participants could likewise see and
hear Chaparro. Members of the public who chose to watch, including
Chaparres friends and family, could also see and hear Chaparro, the
attorneys, and the judge, but they could not themselves be seen or heard by
Chaparro. Chaparro objected to the use of Zoom instead of an in-person
hearing, stating that he would like to be able to see his supporters, but the
district court overruled the objection and proceeded with the hearing. The
district court sentenced Chaparro to an aggregate sentence of life with
parole eligibility after 12 years. This appeal follows.
DISCUSSION
Chaparro's due process challenge to the sentencing hearing over Zoom
We begin at the end, with Chaparres sentencing hearing.
Chaparro argues that the district court's decision that the hearing proceed
1The Second Judicial District Court's COVID-19 orders are available
at https://www.washoecourts.com/main/covidl9response.
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over Zoom violated his clue process right to be present.2 Chaparro argued
he did not think it was "fair.. . . that I have to do something by video and
audio/visual because of a pandemic. That's not my fault. . . . [T]his isn't
what, you know, it should be like." The district court overruled Chaparro's
objection, stating—
I intend to proceed to sentencing today, because I
cannot predict with any reasonable certainty when
in the future we can conduct an in-person
sentencing.
And, in fact, it is more valuable to have
resolution in your case for purposes of vesting
jurisdiction for purposes of an appeal that I know
you want to take, for example, for finality for the
victims in this case and for a variety of reasons. It
makes no sense to continue this to a date uncertain
in the future, which we cannot predict. . . .
[Ulnder the circumstances, it is the best option
available.
"A criminal defendant has the right under the Confrontation
Clause of the Sixth Amendment and the Due Process Clauses of the Fifth
and Fourteenth Amendments to be present at every stage of the trial."
Collins v. State, 133 Nev. 717, 719, 405 P.3d 657, 661 (2017); see also United
States v. Gagnon, 470 U.S. 522, 526 (1985); Illinois v. Allen, 397 U.S. 337,
338 (1970); NRS 178.388(1). A sentencing hearing is a critical stage of the
2Chaparro also raises a violation of his confrontation rights. He raises
this claim for the first time on appeal, and we accordingly decline to consider
it. See Rippo v. State, 113 Nev. 1239, 1260, 946 P.2d 1017, 1030 (1997)
(declining to consider appellate claim where objection was not made below).
Insofar as Chaparro invokes Lipsitz v. State, that decision is
distinguishable, as it concerned whether a witness could testify remotely at
trial. See 135 Nev. 131, 442 P.3d 138 (2019); cf. Summers v. State, 122 Nev.
1326, 1333, 148 P.3d 778, 783 (2006) (concluding that right to confrontation
does not apply in capital sentencing proceedings).
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proceedings, see Cunningham v. State, 94 Nev. 128, 130, 575 P.2d 936, 938
(1978), and thus a defendant has the right to be present for sentencing. The
right to be present is not absolute, however. Gallego v. State, 117 Nev. 348,
367, 23 P.3d 227, 240 (2001), abrogated on other grounds by Nunnery v.
State, 127 Nev. 749, 263 P.3d 235 (2011). "[T]he presence of a defendant is
a condition of due process to the extent that a fair and just hearing would
be thwarted by his absence, and to that extent only." Gagnon, 470 U.S. at
526 (alteration in original) (quotation marks omitted); see also Kirksey v.
State, 112 Nev. 980, 1000, 923 P.2d 1102, 1115 (1996) ("The due process
aspect has been recognized only to the extent that a fair and• just hearing
would be thwarted by the defendant's absence.").
We thus consider whether Chaparro's hearing was fair and just
despite its unorthodoxy and conclude that the sentencing hearing was
appropriate considering the circumstances. Chaparro was able to be heard,
to be seen, to confidentially communicate with counsel, and to speak on the
record. Cf. People v. Lindsey, 772 N.E.2d 1268, 1276-79 (Ill. 2002) (holding
the due process right to be present was not violated where defendant
participated in critical stages of arraignment and jury waiver by
audiovisual transmission and "was able to interact with the court with
relative ea.se," and noting similar holdings by other state supreme courts).
Faced with an administrative order prohibiting in-person hearings, the
district court balanced Chaparro's right to be sentenced without
unreasonable delay, cf. NRS 176.015(1), his desire to appeal the conviction,
and the risk of furthering the spread of a contagious disease with his right
to be present at the hearing and the prospect of an indefinite delay. See
Bonilla v. State, 141 N.Y.S.3d 289, 291 (Ct. Cl. 2021) (recognizing the
Hobson's choice foisted on courts by the pandemic between exposing the
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public to a dangerous disease and delaying court proceedings and praising
virtual proceedings as a safe way to provide access to courts during the
crisis). Chaparro does not allege that he was prevented from presenting
argument or evidence on his behalf because of the way in which the hearing
was conducted. We note that the fairness and justness of a given proceeding
cannot be divorced from the circumstances in which the proceeding takes
place, and acknowledge the realities of this moment in assessing the district
court's decision to conduct the sentencing hearing over Zoom. See Snyder
v. Massachusetts, 291 U.S. 97, 116 (1934) ("Due process of law requires that
the proceedings shall be fair, but fairness is a relative, not an absolute,
concept. It is fairness with reference to particular conditions or particular
results."). Given the limited possibilities created by unprecedented
emergency circumstances, we conclude that a fair and just hearing was not
thwarted by Chaparro's absence from the courtroom.3
The district court did not abuse its discretion in admitting testimony
regarding the prior assault and conviction
We turn now from the sentencing hearing to the trial. Chaparro
argues that the district court abused its discretion in admitting victim
testimony regarding his 2011 conviction for battery with the intent to
commit sexual assault. The victim in that battery, P.J., testified at this trial
3Chaparro also argues that he had a right to the in-person presence
of friends and family, but he does not provide supporting authority for the
expansion of the right to be present to third parties, and we therefore
decline to consider this claim. See Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987). Similarly, Chaparro makes a single reference to his right
to a hearing open to the public, see United States v. Rivera, 682 F.3d 1223,
1225 (9th Cir. 2012) (noting that the right to a public trial extends to
sentencing), but he does not accompany this reference with supporting
authority or cogent argument, and we decline to consider the claim. See
Maresca, 103 Nev. at 673, 748 P.2d at 6.
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that Chaparro approached her in the parking lot of a casino. She testified
that Chaparro shoved her into her own car, grabbed her breast, and laid on
top of her such that she could feel his erection, all while saying "relax and
let it happen." Chaparro left when she yelled and struggled.
"NRS 48.045(3) unambiguously permits the district court to
admit prior sexual bad acts for propensity purposes in a criminal
prosecution for a sexual offense." Franks v. State, 135 Nev. 1, 4, 432 P.3d
752, 755 (2019). And each count charged against Chaparro was a "sexual
offense under NRS 48.045(3) and NRS 179D.097, as was the conviction in
the 2011 case. This court reviews a district court's decision to admit
evidence "for an abuse of discretion or manifest error." Thomas v. State,
122 Nev. 1361, 1370, 148 P.3d 727, 734 (2006). In determining whether to
admit a prior sexual offense pursuant to NRS 48.045(3), the district court
must (1) make a preliminary finding that the prior sexual offense is
relevant, and (2) find "that a jury could reasonably find by a preponderance
of the evidence that the bad act constituting a sexual offense occurred."
Franks, 135 Nev. at 5, 432 P.3d at 756. Finally, the district court should
evaluate whether the probative value of the evidence is substantially
outweighed by the danger of unfair prejudice by considering
(1) the similarity of the prior acts to the acts
charged, (2) the closeness in time of the prior acts
to the acts charged, (3) the frequency of the prior
acts, (4) the presence or lack of intervening
circumstances, and (5) the necessity of the evidence
beyond the testimonies already offered at trial.
Id. at 6, 432 P.3d at 756-57 (quoting United States v. LeMay, 260 F.3d 1018,
1028 (9th Cir. 2001) (quotation marks omitted)).
Chaparro does not dispute that his previous sexual offense was
relevant or that a jury could find by a preponderance of the evidence that
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the offense occurred. Instead, he argues that evidence of the previous
sexual offense was not necessary to the States case and that the district
court erred in evaluating whether the probative value of his previous sexual
offense was outweighed by the danger of unfair prejudice. We disagree.
Initially, we note that the factors for evaluating whether the probative value
is substantially outweighed by the danger of unfair prejudice are not
elements to be met before evidence is admissible but considerations for the
district court to weigh. Turning to the district court's evaluation of the
factors, the court noted the similarities in the previous assault and the
assault of L.L.—both occurred near casinos, when the women were alone,
and Chaparro talked to both women during the attacks. The assaults
occurred approximately five years apart, and nothing in the record shows
intervening circumstances affecting the balance of the previous crimes
probative value and the risk of prejudice. While the State had other
evidence of Chaparro's guilt, including the security footage and Chaparro's
concession to the open or gross lewdness charge, the previous conviction for
battery with the intent to commit sexual assault was "simply . . . helpful or
practically necessary" to show Chaparro's intent in assaulting L.L. and his
propensity to commit the crime. Franks, 135 Nev. at 7, 432 P.3d at 757
(quotation marks omitted). Accordingly, we conclude the district court did
not abuse its discretion in admitting this evidence at trial.
The district court did not err in limiting uoir dire
By the time of voir dire, Chaparro was aware that the district
court would allow trial testimony by P.J. regarding the 2011 battery with
intent to commit sexual assault. Chaparro argues that he was improperly
barred from asking prospective jurors questions regarding the effect
evidence of that conviction might have on their deliberation in this case.
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This matter was discussed in camera. The district court noted
Chaparres objection and barred his proposed questioning on the previous
conviction. The court determined that such questions would "pre-try facts
of [the] case" and that propensity evidence is significant enough that it
"would be unnecessarily volatile with this or any other jurr "to ring the bell
of Mr. Chaparres conviction for battery to commit sexual assault when he
stands accused of the same thing." Chaparro argued that a fair trial
required ensuring that the empaneled jury be able to deliberate only on the
facts of this offense, despite knowing of his prior conviction for the same
offense.
NRS 175.031 provides that "Mlle court shall conduct the initial
examination of prospective jurors, and defendant or the defendant's
attorney and the district attorney are entitled to supplement the
examination by such further inquiry as the court deems proper. Any
supplemental examination must not be unreasonably restricted." Voir dire
serves to determine whether jurors "can and will, in accordance with their
oath, render to the defendant and the state a fair and impartial trial on the
facts allowed to be presented to them by the court." Oliver v. State, 85 Nev.
418, 422, 456 P.2d 431, 434 (1969). Both the scope and method of voir dire
are within the district court's discretion, Salazar v. State, 107 Nev. 982, 985,
823 P.2d 273, 274 (1991), and we review for an abuse of discretion or a
showing that the defendant was prejudiced, Leonard v. State, 117 Nev. 53,
64, 17 P.3d 397, 404 (2001).
We conclude that the district court appropriately limited
Chaparro from inquiring into specific evidence that would be presented at
trial. See Witter v. State, 112 Nev. 908, 915, 921 P.2d 886, 892 (1996)
(concluding that parties may not ask jurors about hypothetical facts that
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would reveal whether a potential juror would find the defendant guilty
because such a question goes "beyond determining whether a potential juror
would be able to apply the law to the facts of the case"), abrogated on other
grounds by Nunnery, 127 Nev. 749, 263 P.3d 235. As noted by the district
court here, that Chaparro was previously convicted of the same offense he
stood accused of had significant potential to influence the jury. This posed
a serious risk of causing jurors to prejudge the facts of the case.4 See
Browning v. State, 124 Nev. 517, 531 n.32, 188 P.3d 60, 70 n.32 (2008)
(impliedly recognizing that it is error to ask a potential juror to prejudge
the merits of a case); 58 Am. Jur. 3d Proof of Facts § 21 (2021 Supp.)
(observing that it is universally recognized that voir dire may not be used
to pre-try the case). In doing so, this line of questioning risked depriving
Chaparro of an impartial jury. See People v. Carasi, 190 P.3d 616, 632 (Cal.
2008) (observing that voir dire seeks to uncover jurors views in the abstract
to ensure that they consider the facts with an open mind and that this aim
is undermined by overly specific questions that expose the facts of the case).
Rather, Chaparro could have protected his interest in ensuring that jurors
apply the law to the facts of the case by voir dire questions regarding a
potential juror's perspective on defendants with prior convictions, without
specifically inquiring into his own previous conviction. The district court
did not categorically obstruct inquiry into the general issue of potential
jurors' views on defendants with previous convictions and thus did not err
here. See id. at 632-33 (recognizing that district courts err in categorically
limiting inquiry into case-specific issues). Accordingly, we conclude that
4This risk is exacerbated by the fact that this "evidence would be
received by the jury during voir dire without context or instruction from the
court as to its proper use.
11
Chaparro has not shown that the district court abused its discretion or that
he was prejudiced.
The district court did not abuse its discretion in allowing testimony on
inconclusive DNA evidence
The pair of tights L.L. wore during the incident were examined
for DNA evidence. The results were inconclusive, showing a mixture of
DNA for which no person could be excluded. Chaparro argues that the
district court abused its discretion in admitting the evidence because the
results were inconclusive and could not have any effect on the probability
that he digitally penetrated L.L.
Again, when reviewing a district court's decision to admit
evidence, this court reviews "for an abuse of discretion or manifest error."
Thomas, 122 Nev. at 1370, 148 P.3d at 734. Evidence that is relevant is
generally admissible. NRS 48.025(1). Relevant evidence is "evidence
having 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. Whether inconclusive DNA evidence
is relevant is a question of first impression for this court.5
Other courts considering this question have concluded that
such "evidence may be independently relevant to show that police conducted
a thorough investigation." People v. Marks, 374 P.3d 518, 524 (Colo. App.
5Chaparro points us to Valentine v. State, 135 Nev. 463, 472, 454 P.3d
709, 718 (2019), the only instance where this court has addressed
inconclusive DNA evidence. However, that matter involved an entirely
different question. In Valentine, we found prosecutorial misconduct when
the State encouraged jurors to look at an inconclusive DNA report and
"Em]ake your own determination" as to what they, as untrained laypersons,
believed it proved. Id. (emphasis omitted). But we did not address the
admissibility of that evidence in the first place.
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2015); accord Commonwealth v. Cavitt, 953 N.E.2d 216, 231 (Mass. 2011)
(providing that when the thoroughness of an investigation is challenged,
"DNA test results, even those that are inconclusive, [are] relevant and
probative to establishing the integrity and adequacy of the police
investigation"). We find this conclusion balances the interests relevant to
this question nicely. Inconclusive results may be of minimal probative value
to a defendant's guilt or innocence, but they may be relevant to show the
jury the thoroughness of the steps taken by law enforcement in order to
investigate the victim's account.6
Independent from the relevance of showing a thorough
investigation, inconclusive evidence may be relevant to the State's
presentation of a complete story regarding a particular piece of evidence.7
In Old Chief v. United States, 519 U.S. 172, 188-89 (1997), Justice Souter
eloquently described this dynamic:
Mhere lies the need for evidence in all its
particularity to satisfy the jurors expectations
about what proper proof should be. Some such
demands they bring with them to the courthouse,
assuming, for example, that a charge of using a
firearm to commit an offense will be proven by
introducing a gun in evidence. A prosecutor who
fails to produce one, or some good reason for his
6 We note that this determination does not alter our holdings on
course-of-investigation evidence. See, e.g., Collins, 133 Nev. at 726, 405
P.3d at 666 ("Course-of-investigation testimony does not give carte blanche
to the introduction of unconfronted hearsay, or evidence concerning matters
irrelevant to guilt or innocence." (citations omitted)).
70ur determination in this regard does not affect our previous
holdings regarding the "complete story of the crime doctrine. See, e.g.,
Bellon v. State, 121 Nev. 436, 444, 117 P.3d 176, 181 (2005) (discussing the
doctrine and providing that it must be construed narrowly).
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failure, has something to be concerned
about. . . . The use of witnesses to describe a train
of events naturally related can raise the prospect of
learning about every ingredient of that natural
sequence the same way. If suddenly the
prosecution presents some occurrence in the series
differently, as by announcing a stipulation or
admission, the effect may be like saying, "never
mind whaes behind the door," and jurors may well
wonder what they are being kept from knowing.
This concern is greater today than when Justice Souter wrote for the Court
in 1997, due to the so-called "CSI effect." See generally Clifford S. Fishman
& Anne T. McKenna, 7 Jones on Evidence § 60:46(a) (7th ed. 2019) ("But
evidence is also relevant if the absence of such evidence might lead a jury
to make negative assumptions about the party with the burden of producing
evidence."). Public fascination with forensic technology has led to increased
juror expectations that every case involves forensic evidence and to the risk
that jurors may make negative assumptions about the States case when
forensic evidence is not presented. See id.
Here, L.L. testified that Chaparro pulled down her tights and
digitally penetrated her. A Sexual Assault Nurse Examiner testified that
she collected the tights L.L. wore during the incident within hours of the
assault. The DNA results from the tights were inconclusive as to possible
contributors but showed the thoroughness of the investigation and
completed the "story" of the evidence already presented regarding L.L.'s
tights. Therefore, the inconclusive DNA evidence was relevant.
Chaparro also argues that the danger of undue prejudice
substantially outweighed the probative value of the inconclusive DNA
evidence. We disagree. As the video evidence showing that Chaparro was
the man touching L.L. was not in dispute and the DNA evidence did not
inculpate Chaparro, the risk of unfair prejudice did not outweigh the
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relevance of the inconclusive DNA evidence. See NRS 48.035(1). We
conclude the district court did not abuse its discretion in admitting this
evidence.
Cumulative error
Finally, Chaparro contends that cumulative error denied him a
fair trial. Because we have rejected Chaparro's assignments of error, we
conclude that his allegation of cumulative error lacks merit. See United
States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990) ("[A] cumulative-error
analysis should evaluate only the effect of matters determined to be error,
not the cumulative effect of non-errors.").
CONCLUSION
Unusual, historic circumstances can require unusual,
temporary accommodations. We conclude that Chaparro was not denied a
fair and just sentencing hearing where a pandemic made his physical
presence at the hearing unsafe and he was provided with an appropriate
alternative, in light of the extraordinary circumstances of the moment. We
further apply the analysis set forth in Franks v. State, 135 Nev. 1, 432 P.3d
752 (2019), and conclude that the district court did not err in admitting
evidence of Chaparro's prior conviction for battery with intent to commit
sexual assault. And we determine that while district courts should not
categorically limit inquiry during voir dire into jurors views regarding
defendants with prior convictions, the district court did not err in this
regard here when it barred inquiry into their views as to Chaparro's prior
conviction because that would have risked having jurors prejudge the
evidence, depriving Chaparro of an impartial jury. Finally, we affirm the
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conviction and clarify that inconclusive DNA evidence may be admitted
where relevant and otherwise in accord with the rules of evidence.
2 J.
Stiglich
We concur:
Hardesty Parraguirre
'441Zeit.) , J.
Silver
A , J.
Pickering Herndon
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