Crawford v. State

Mowbray, C. J., with whom Springer, J., joins,

dissenting:

Respectfully, I dissent.

After a jury trial, David Crawford was found guilty of the crimes outlined in the majority opinion. Now, the majority concludes that the district court prejudiced the appellant and that the jury’s verdicts must be rejected. However, for the following reasons, I believe the appellant’s convictions should be affirmed.

BAD ACT TESTIMONY

In general, evidence of other crimes, wrongs, or acts cannot be admitted at a defendant’s trial to show the defendant acted in conformity therewith. NRS 48.045(2). However, “[t]he state is entitled to present a full and accurate account of the circumstances of the commission of the crime, and if such an account also implicates the defendant or defendants in the commission of other crimes for which they have not been charged, the evidence is nevertheless admissible.” State v. Izatt, 534 P.2d 1107, 1110 (Idaho 1975); see also Allan v. State, 92 Nev. 318, 549 P.2d 1402 (1976); State v. Sikes, 427 P.2d 756 (Or. 1967). First, the majority reasons Crawford’s convictions cannot stand because he *353was prejudiced by improper bad act testimony at his trial. I disagree.

A.

Near the beginning of November 1988, Lash Felger and his girlfriend moved into an apartment at the Racquet Club Apartments. Approximately two to three days thereafter, Felger was hired to work at the apartment complex; however, appellant Crawford fired Felger the same day Felger was hired because another person with better qualifications applied for the job.

A few weeks later, Felger moved into another apartment at the same complex. Felger shared this apartment with appellant Crawford for approximately five days before Felger moved into a third apartment, again in the same apartment complex.

Felger testified that on the last day of November 1988, Crawford came to Felger’s apartment and expressed concern that he may have contracted a venereal disease from a girlfriend. One day later, in the early morning hours of December 1, 1988, Crawford invited Felger to his apartment. Thereafter, Felger asserts he was sexually assaulted by Crawford.

One of the essential elements of the crime of sexual assault is consent. See NRS 200.366(1). Felger’s belief that Crawford may have been suffering from a venereal disease is probative and relevant to the issue of consent. The decision to allow Felger to recount Crawford’s concerns regarding venereal disease to the jury rested with the sound discretion of the trial court, Brinkley v. State, 101 Nev. 676, 680, 708 P.2d 1026, 1029 (1985), and should not be disturbed in this appeal absent a showing that the district court was manifestly wrong when it allowed the admission of this evidence. Hill v. State, 95 Nev. 327, 330, 594 P.2d 699, 701 (1979). The district court did not manifestly abuse its discretion when it allowed Felger to discuss Crawford’s concerns regarding venereal disease.

B.

The majority also concludes that there was no probative reason for the district court to allow testimony that Crawford had beaten his wife. I agree. However, I cannot agree that this error was prejudicial to the appellant.

Guidelines for ascertaining harmless error include whether the issue of innocence or guilt is close, the quantity and character of the error, and the gravity of the harm charged. Weakland v. State, 96 Nev. 699, 615 P.2d 252 (1980). The decision of the district court to allow evidence that appellant once beat his wife seems inconsequential in light of the entire record and does not mandate a reversal of the jury’s verdicts.

*354 IMPEACHMENT EVIDENCE

Pursuant to NRS 50.095, a witness may be impeached by a prior conviction.1 At the trial, appellant Crawford sought to impeach Felger’s testimony by submitting a document that allegedly showed Felger had previously been convicted of grand larceny in the State of Florida. The district court would not allow the submission of the document because the court was concerned that the information included in the document was not reliable and did not properly represent a felony conviction. The majority opinion concludes the district court erred in this regard. I cannot agree.

The document submitted to the district court does not show a prior felony conviction; rather, it indicates Felger, a minor at the time of the alleged olfense in Florida, was treated as an adult and sentenced to probation, but that adjudication was withheld. Clearly, the district court did not err when it refused to allow evidence of a witness’ prior felony conviction when the face of the document submitted to support this contention clearly shows the alleged conviction was nonexistent.

SUFFICIENCY OF THE EVIDENCE

“[I]t is the function of the jury, not the appellate court, to weigh the evidence and pass upon the credibility of the witness.” Walker v. State, 91 Nev. 724, 726, 542 P.2d 438, 439 (1975). Further, this court has repeatedly held that it is for the jury to determine the weight and credibility assigned to conflicting testimony. See Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981); see also Porter v. State, 94 Nev. 142, 576 P.2d 275 (1978); Stewart v. State, 94 Nev. 378, 580 P.2d 473 (1978); Hankins v. State, 91 Nev. 477, 538 P.2d 167 (1975).

*355The majority concludes the district court erred when it submitted supplemental jury instructions after the jury had commenced deliberations. Here, the majority reasons that the supplemental instructions were inappropriate because there was insufficient evidence produced at trial to support a conclusion that Crawford had failed to insert his penis into Felger’s anus. Again, I respectfully disagree with the majority’s conclusions.

Felger testified he was invited to Crawford’s apartment on the night in question. After arriving at the apartment, Felger told the jury that Crawford produced a knife, held it to Felger’s throat, and forced Felger to take off his clothes. Felger then told the jury that his anus was penetrated three separate times by Crawford’s penis. However, prior to trial, Felger’s rectum was swabbed and blood, saliva, and hair samples were taken from both Felger and Crawford. Scientific tests on these items failed to corroborate Felger’s assertion that his anus had been penetrated by Crawford’s penis. Further, an examination of Felger’s rectum failed to indicate trauma or an abnormal anal scope.

The jury was asked to evaluate this contradictory evidence. They did and concluded that even though Crawford had attempted to sexually assault Felger, Crawford was unsuccessful. The fact that Felger believed otherwise does not indicate the jury’s conclusion was wrong, nor does it mandate a finding from this court that there was insufficient evidence to support the district court’s supplemental jury instructions. On the contrary, the lack of semen and serological evidence in Felger’s rectum is sufficient to support the jury’s conclusion that Crawford was unsuccessful when he tried to sexually assault Felger. The jury’s factual findings on this issue are supported by the evidence and should be affirmed by this court.2

Accordingly, I must dissent.

NRS 50.095 provides:

1. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime was punishable by death or imprisonment for more than 1 year under the law under which he was convicted.
2. Evidence of a conviction is inadmissible under this section if a period of more than 10 years has elapsed since:
(a) The date of the release of the witness from confinement; or
(b) The expiration of the period of his parole, probation or sentence, whichever is the later date.
3. Evidence of a conviction is inadmissible under this section if the conviction has been the subject of a pardon.
4. Evidence of juvenile adjudications is inadmissible under this section.
5. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
6. A certified copy of a conviction is prima facie evidence of the conviction.

The majority is concerned that Felger concocted his allegations of sexual assault to avenge his termination as an employee of the apartment complex. It is difficult to understand why Felger would create such an immense fabrication simply because he was terminated from a job he held for one day. Also, a concern that Felger may have wrongfully accused Crawford of sexual assault seems inconsistent with the facts in the record: Felger accused Crawford of sexual assault a number of weeks after Felger lost his job at the apartment complex, and during this intervening period of time, Felger and Crawford shared an apartment, visited each other, and exchanged confidences.

Even more important is the fact that the jury was allowed to consider the events surrounding Felger’s termination and whether Felger’s allegations of sexual assault were contrived. Again, the jury should be allowed to assess conflicting facts and arrive at a conclusion without interference from this court. The jury decided Felger had not fabricated the crimes alleged against the appellant, and this court should defer to the jury’s findings on this issue.