Alfaro v. State

139 Nev., Advance Opinion c:91-1

IN THE SUPREME COURT OF THE STATE OF NEVADA

WILLIAM RENE ALFARO, No. 83316
Appellant,
vs. 1.4

THE STATE OF NEVADA,
Respondent.

Appeal from a judgment of conviction, pursuant to jury verdict,
on seven counts of sexual assault against a child under 14 and three counts
of lewdness with a child under 14. Second Judicial District Court, Washoe
County; Barry L. Breslow, Judge.
Affirmed in part, reversed in part, and remanded.

Las Vegas Defense Group, LI,C, and Michael V. Castillo and Michael L.
Becker, Las Vegas,
for Appellant.

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Jennifer P. Noble, Deputy District Attorney, Washoe
County,
for Respondent.

BEFORE THE SUPREME COURT. CADISH and PICKERING, JJ., and
GIBBONS, Sr. J.1

1The IIonorable Mark Gibbons, Senior Justice. participated in the
decision of this matter under a general order of assignment.

2. 3 2.119k:11
 OPINION
By the Court, PICKERING, J.:
A jury convicted appellant William Alfaro of seven counts of
sexual assault against a child under 14 and three counts of lewdness with
a child under 14 for acts cornmitted against ED, the daughter of a family
friend, between June and December 2015. Alfaro denies the charges and
raises insufficiency of the evidence as a principal issue on appeal. He also
argues that the district court erred in not dismissing the lewdness counts
as redundant to the sexual assault counts; in admitting evidence that he
committed other uncharged bad acts against ED; in giving and refusing
certain jury instructions; and in imposing the maximum sentence allowed
by law, for an aggregate total of 275 years to life. We reverse one of the
lewdness convictions as redundant to a sexual assault involving the sarne
episode. And, while we agree with Alfaro that the district court erred in
admitting two of the uncharged bad acts and in issuing a jury instruction
unnecessarily defining "lewdness" separate from the statutory definition
provided by NRS 201.230, we find those errors harmless. Finding no
reversible error except the redundant lewdness count, we otherwise affirm.

A.
Alfaro was a family friend of ED's mother, Sara, and ED grew
up calling him "Uncle Bill." ED's parents struggled with homelessness and
addiction. When Sara, ED, and ED's younger brother found themselves
with no place to live, Sara turned to Alfaro, who drove to California, picked
them up, and brought them to Fernley, Nevada. In Fernley, Sara and the
children lived with Alfaro, first at a house he had been sharing with a friend
and, later, at the Lazy Inn motel.
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 ED's father, Naylan, followed Sara and the children to the Lazy
Inn. A heavy drinker, Naylan often fought with Sara and occasionally hit
the children. When money for the motel ran out, Sara returned to
California, and NayIan and the children moved from Fernley to a
rehabilitation shelter in Reno. The shelter evicted them after NayIan
violated its ban on drugs and alcohol. Again without a place to live, Naylan
and the children rejoined Alfaro, who had by then rented a room at the
Gateway Inn in Reno.
The family stayed with Alfaro at the Gateway Inn from June 1
through December 31, 2015. During this time, ED turned ten and entered
the fourth grade. The room had one bed, which ED shared with Alfaro,
while her brother slept on the floor with NayIan (or Sara, when she visited).
Alfaro's charged acts of sexual assault and lewdness against ED all occurred
at the Gateway Inn during this seven-month span, either at night while
ED's father and brother were sleeping or when she and Alfaro were alone
in the room together. The State would later charge Alfaro with, among
other acts, forcing ED to fellate him and penetrating her vaginally with his
penis and fingers and anally with his penis, his fingers, and a Sharpie pen.
ED said nothing about the abuse until Naylan moved the
children from the Gateway Inn to the home of his girlfriend, Rochelle.
MonthS later, the couple left the children with a friend of Rochelle's, to
whom ED disclosed Alfaro's abuse. The friend called Child Protective
Services, which interviewed ED and referred the case to law enforcement.
Detective Ashley Harms interviewed ED and had her examined by Dr.
Kristen MacLeod, a pediatrician board-certified in child abuse and neglect.
The examination revealed no genital trauma, which Dr. MacLeod described

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 as normal in child sex abuse cases, especially those involving delayed
reporting.
Alfaro voluntarily submitted to an interview with Detective
Harms, which lasted more than three hours. In the interview, Alfaro
adamantly denied abusing ED but corroborated basic details of ED's
account, including date range, location, that the two shared a bed, that they
occasionally engaged in what he characterized as horseplay, and that he
had a prescription for Soma, a muscle relaxant that ED told Harms Alfaro
would give her to facilitate his assaults. Alfaro also consented to a search
of his personal storage unit and his room at the Gateway inn. The searches
turned up Sharpie pens, which ED had said Alfaro used to assault her, but
did not uncover any nude pictures of ED, which ED also referenced in
speaking to Detective Harms.
B.
The State charged Alfaro with eight counts of sexual assault
against a child under 14 and three counts of lewdness with a child under 1.4
for his acts at the Gateway Inn in Reno between June and December 2015.
He was not charged for any acts in Fernley, located about 30 miles outside
of Reno in Lyon County. Before trial, the district court granted the State's
motion to admit evidence at trial of four uncharged acts: that Alfaro took
nude photographs of ED, gave her Soma, showed her pornography, and had
her dress in fishnet. stockings. The former two acts were admitted as prior
uncharged sexual offenses under NRS 48.045(3), and the latter two as res
gestae under NRS 48.035(3).
Although the charged acts dated back to 2015, trial di.d not
occur until 2021. At trial, the State presented testimony from ED, who was
by then 15 years old. It also called the woman to whom ED confided the
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 abuse, Detective Harms, and Dr. MacLeod. The State did not call Rochelle
or any members of ED's family, and the defense called no witnesses. On
stipulation of the parties, the State played a videotape of Alfaro's interview
with Detective Harms during its case-in-chief.
The jury convicted Alfaro on all counts, except one the State
abandoned during closing. Alfaro filed a motion for acquittal under NRS
175.381(2) and for a new trial under NRS 176.515(4) on the bases of
insufficient evidence and conflicting evidence; respectively. Alfaro also
challenged his lewdness convictions as redundant to his convictions for
sexual assault. The motions were denied. Rejecting both Alfaro's and the
State's recommendations, the district judge imposed the maximum
sentence allowed by law, 10 consecutive terms of incarceration totaling 275
years, in the aggregate, to life. This appeal timely followed.

Alfaro argues that we must reverse his convictions because they
are not supported by sufficient evidence. The Due Process Clause of the
Fourteenth Amendment protects a defendant in a criininal case against
conviction "except upon sufficient proof—defined as evidence necessary to
convince a trier of fact beyond a reasonable doubt of the existence of every
element of the offense." Jackson v. Virginia, 443 U.S. 307, 316 (1979). In
deciding a challenge to the sufficiency of the evidence, the reviewing court
does not "ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt." Id. at 318-19 (internal
quotation omitted). Instead, it asks "whether, 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."
Id. at 319. See Franks v. State, 135 Nev, 1, 7, 432 P.3d 752, 757 (2019)

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 (stating that the "test for sufficiency upon appellate review is not whether
this court is convinced of the defendant's guilt beyond a reasonable doubt,
but whether the jury, acting reasonably, could be convinced to that certitude
by evidence it had a right to accept") (quoting Edwards v. State, 90 Nev.
255, 258-59, 524 P.2d 328, 331 (1974)).
A.
Alfaro makes two distinct sufficiency-of-the-evidence
arguments. First, he argues, as he did in district court, that the State did
not prove he subjected ED to the "sexual penetration" required by NRS
200.366(1) to convict him of the sexual assaults charged in count I (alleging
that Alfaro "put his penis into ED's anus on multiple occasions"), counts III
and IV (alleging that he "put his penis into ED's vagina" two different
times), and count VII (alleging that he "put his finger(s) into ED's anus").
See Kassa v. State, 137 Nev. 150, 152, 485 P.3d 750, 755 (2021) (noting that
appellate review of an order denying a motion for a judgment of acquittal is
essentially the same as a review for the sufficiency of the evidence). Second,
citing LaPierre v. State, 108 Nev. 528, 531, 836 P.2d 56, 58 (1992), and the
lack of independent, corroborating evidence, Alfaro argues that ED's
testimony lacked the specificity needed to support the convictions, requiring
reversal on all counts.
The State sufficiently proved penetration for a rational juror to
convict Alfaro on the contested sexual assault counts. As written at the
relevant time, NRS 200.366(1) (2007) defined sexual assault as "subject[ing]
another person to sexual penetration," while NRS 200.364(5) (2013) defined
[slexual penetration" to mean "cunnilingus, fellatio, or any intrusion,
however slight, of any part of a person's body or any object m.anipulated or
inserted by a person into the genital or anal openings of the body of another,

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 including sexual intercourse in its ordinary meaning." (emphases added).
Alfaro points to instances during ED's testimony where she answered, "I
can't remember" to a question about Alfaro putting "his front private part,
his penis, into your body," or denied that he was able to "get any of his penis
into your front private," as establishing a failure to prove penetration. But
ED continued, explaining that when Alfaro tried to "push his penis into
me ... it wouldn't work because I had started crying and said that it
hurt . . . and was begging him stop," that Alfaro got the tip of his penis in
her ants, and that he would use lubricants to facilitate his assaults when
he had difficulty inserting his penis or fingers into her vaginal or anal
openings. A rational juror could reasonably interpret this testimony to say
that, while Alfaro could not fully insert his penis, penetration, "however
slight" occurred, NRS 200.364(5), since ED would not have cried out in pain
unless it did. See State v. Toohey, 816 N.W.2d 120, 129-31 (S.D. 2012)
(finding sufficient proof of penetration under a similar statute where the
child testified that the assault caused her pain) (collecting cases).
Alfaro's close parsing of ED's trial testimony also disregards the
other evidence the jury properly could consider. That evidence included the
handwritten note ED gave Detective Harms during their initial interview
in 2016, in which ED wrote that Alfaro "would stick his front private part
in my back private part, and push it in"; testimony from Detective Harms
that, during the same interview, ED disclosed that Alfaro put his "front
private part" in her "front and back private parts" and his fingers in her
anus; arid testimony from Dr. MacLeod about similar statements ED made
when she examined ED, also in 2016. Although Alfaro omitted ED's
handwritten note from the record on appeal, he stipulated to its admission
as a trial exhibit and Detective Harms read from it during her testimony.

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 See Snipes 1). State, No. 82384, 2022 WI, 500678, at *1 & n.2 (Nev. Feb. 17,
2022) (relying on testimony a witness read from an exhibit omitted from the
record on appeal and noting that, since the appellant has the burden to
provide a complete record on appeal, missing portions are presumed to
support the judgment below). The jury also was entitled to consider ED's
prior statements to Detective Harms and Dr. MacLeod in making its
decision. See Crowley v. State, 120 Nev. 30, 35, 83 P.3d 282, 286 (2004)
(holding that "when a trial witness fails, for whatever reason, to remember
a previous statement made by that witness, the failure of recollection
constitutes a denial of the prior statement" that makes the prior statement
admissible as substantive proof).
Alfaro builds his case for complete acquittal on the same flawed
foundation. He concentrates on the generality of and occasional
inconsistencies in Ell's testimony and emphasizes the lack of independent
corroborating evidence. But "the testimony of a sexual assault victim alone
[can be] sufficient to uphold a conviction." LaPierre, 108 Nev. at 531, 836
P.2d at 58; see Franks, 135 Nev. at 7, 432 P.3d at 757 ("a lewdness victim's
testimony need not be corroborated"). Our case law recognizes "that it is
difficult for a child victim to recall exact instances when the abuse occurs
repeatedly over a period of time." LaPierre, 108 Nev. at 531, 836 P.2d at 58.
While the child must "testify with sorne particularity" about the charged
incidents and do so in a way that supplies "reliable indicia that the . . . acts
charged actually occurred," the child's testimony alone, if it meets these
standards, can be sufficient to convict. Id.; see Rose v. State, 1.23 Nev. 194,
163 P.3c1408 (2007). ED's testimony distinguished between Fernley, where
Alfaro's uncharged grooming of her allegedly began, and the Gateway Inn
in Reno, where the charged acts occurred. She adequately described the

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 time frame, place, and inanner of the activity underlying each count at trial,
and her consistent, repeated disclosures to third parties, some of whom
testified to those disclosures at trial, bolstered her testimony.
Almost six years passed between the charged acts of abuse and
the trial. To the extent ED's testimony contained internal inconsistencies
or conflicted with Alfaro's account, resolving competing narratives is the
province of the jury, not to be disturbed if their verdict is supported by
substantial evidence. See Guitron v. State, 131 Nev. 215, 221, 350 P.3d 93,
97 (Ct. App. 2015).2 Because a rational trier of fact could have found in ED's
testimony and the other evidence at trial the elements necessary to convict
Alfaro, we reject Alfaro's argument for reversal on all counts.
B.
Alfaro was convicted on three counts of lewdness with a child
under 14, pursuant to NRS 201.230, for touching or fondling E.D.'s breasts
(count IX) and buttocks (count X) and kissing her on the mouth (count XI).
On appeal, he challenges these convictions as redundant because the State
failed to provide sufficient evidence that the lewd acts were separate and
distinct from the acts for which he was convicted of sexual assault. On one
count, we agree with Alfaro.

2Alfaro also challenges the order denying his motion for a new trial
under NRS 176.515(4), based on conflicts in the evidence as to his guilt. See
State v. Purcell, 110 Nev. 1389, 1394, 887 P.2d 276, 278-79 (1994). But NRS
176.515(4) is permissive, see Washington v. State, 98 Nev. 601, 603, 655 P.2d
531, 532 (1982), and reposes discretion in the district judge, whose exercise
of discretion is not reversible except for "palpable" abuse, Domingues v.
State, 112 Nev. 683, 695, 917 P.2d 1364, 1373 (1996). The district court did
not abuse its considerable discretion in denying Alfaro's motion for new trial
based on conflicts in the evidence.
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101 19.17A
 NRS 201.230(1) defines lewdness with a child as "any lewd or
lascivious act, other than acts constituting the crime of sexual assault . . ."
(emphasis added). This provision makes sexual assault and lewdness with
a child alternative or mutually exclusive offenses, "meaning as a matter of
statutory interpretation that the same act can yield a conviction for sexual
assault or lewdness [with a child] but not both." Jackson v. State, 128 Nev.
598, 612, 291 P.3d 1274, 1283 (2012) (discussing Braunstein v. State, 118
Nev. 68, 79, 40 P.3d 413, 421 (2002), and Crowley, 120 Nev. at 33-34, 83
P.3d at 285); see State v. Koseck, 113 Nev. 477, 479, 936 P.2d 836, 838 (1997).
Because "[t]he State has the burden to shoW that the defendant committed
a crime," and because a lewd act must not also constitute sexual assault,
NRS 201.230(1), "the State has the burden, at trial, to show that the
lewdness was not incidental to the sexual assault"—that is, that the lewd
and assaultive acts were adequately "separate and distinct" to support
convictions for both, Gaxiola v. State, 121 Nev. 638, 651-53, 119 P.3d 1225,
1234-35 (2005). To meet that burden, the State must provide sufficient
evidence of separateness such that a rational juror could reasonably find
two separate crimes. See Jackson v. Virginia, 443 U.S. at 316. If the State
fails in that burden, the lewdness conviction must be reversed as redundant
to the sexual assault. Braunstein, 118 Nev. at 78-79, 40 P.3d at 420-21.
Separately charged acts of lewdness with a child and sexual
assault can occur "as part of a single criminal encounter," see Townsend v.
State, 103 Nev. 113, 120-21, 734 P.2d 705, 710 (1987) (analogizing to
multiple acts of sexual assault), if the defendant "stopped [the lewd] activity
before proceeding" to the assault, id. at 121, 734 P.2d at 710. The lewd act
cannot, however, be a mere "prelude" intended to "arouse" the victim or
"predispose" them to the assault. Crowley, 120 Nev. at 34, 83 P.3d at 285.

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 If the State charges both sexual assault and lewdness with a child and fails
to provide "any evidence regarding the sequence of events and under what
circumstances the lewdness occurred," we must assume, lacking any
evidence to the contrary, that the charges are redundant. See Gaxiola, 121
Nev. at 653, 119 P.3d at 1235-36 (noting also that the victim did not indicate
whether the lewd act "occurred on a separate day or time frame" from the
charged sexual assault).
ED testified that Alfaro touched her breasts and buttocks at the
Gateway Inn, but her testimony does not establish that these acts occurred
at a time separate and distinct from his assaults, nor did the State ever ask
any clarifying questions to that effect. However, in his interview with law
enforcement, while Alfaro denied that he sexually assaulted ED, he stated
that he pinched ED's breasts and buttocks as a form of horseplay. Dr.
MacLeod later testified that grooming behavior can include "close physical
contact" and that it is inappropriate for an adult man to pinch a nine-year-
old girl's chest or buttocks. Because Alfaro's own statements describe acts
separate from a sexual assault that involved touching or fondling ED's
breasts and buttocks and Dr. MacLeod's testimony supports a finding that
Alfaro had the requisite "lewd and lascivious" sexual intent, NRS 201.230,
and ED's testimony places such acts in Reno, we conclude that a rational
juror could have found the same beyond a reasonable doubt and reject his
redundancy challenges to counts IX and X.
However, Alfaro did not admit to kissing ED on the mouth, and
her only relevant testimony at trial was that she awakened "one time" at
the Gateway Inn to find Alfaro digitally penetrating her and that he then
"French kissed" her. The State did not prove any other mouth kissing
separate and distinct from a charged sexual assault and, in fact, ED's trial

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i(
 testirnony was that this only occurred once. The State therefore failed its
burden to provide sufficient evidence "regarding the sequence of events"
involving both lewd and assaultive acts, see Gaxiola, 121 Nev. at 653, 119
P.3d at 1235-36, and we reverse Alfaro's conviction under count XI
(lewdness with a child under 14) for kissing ED on the mouth.
HI.
In the alternative, Alfaro seeks a new trial based on evidentiary
and instructional error. While we agree that the district court erred in
admitting two pieces of prior misconduct evidence and in giving an
unnecessary jury instruction, the errors were harmless and do not provide
a basis for a new trial.
A.

NRS 48.045(2) states the general rule against using prior
misconduct to prove criminal propensity: "Evidence of other crimes, wrongs
or acts is not admissible to prove the character of a person in order to show
that the person acted in conformity therewith." Despite this rule, the

prosecution often seeks to introduce evidence of a defendant's uncharged
misconduct in sexual assault cases. Nevada's evidence code offers three
possible paths to the admission of such evidence. First, as with any other
prior misconduct evidence, evidence of uncharged sexual misconduct may
be admitted under NRS 48.045(2) for a non-propensity purpose "such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident." Second, the Legislature adopted NRS
48.045(3) in 2015 to permit evidence of an uncharged sexual offense to
support a normally forbidden inference of criminal propensity in a sexual
offense prosecution. See Franks, 135 Nev. at 4, 432 P.3d at 755. And third,
NRS 48.035(3) permits the admission of evidence "so closely related" to the

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 charged act that the act cannot otherwise be described, commonly known as
res gestae evidence.
Before trial, the State filed a motion to permit it to introduce
evidence at trial of four instances of uncharged misconduct by Alfaro. The
State did not argue, either in district court or on appeal, that the evidence
qualified for admission under NRS 48.045(2)—a steep path that would have
required the State to prove each act by clear and convincing evidence and
to identify a legitimate non-propensity purpose for its admission. See
Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985), superseded in
part by statute as stated in Thomas v. State, 120 Nev. 37, 44-45, 83 P.3d 818,
823 (2004). Instead, the State moved for the prior acts' admission as
evidence of uncharged sexual offenses under NRS 48.045(3), and as res
gestae evidence under NRS 48.035(3). The district court admitted two acts,
taking nude photographs of ED and giving her Soma, as evidence of
uncharged sexual offenses under NRS 48.045(3), and two acts, making ED
wear fishnet stockings and showing her pornography. as res gestae evidence.
The district court abused its discretion in admitting evidence of
the nude photographs and the fishnet stockings on the bases it did. See
Newman v. State, 129 Nev. 222, 231, 298 P.3d 1171, 1178 (2013) (reviewing
the adrnission of prior misconduct evidence for an abuse of discretion). This
evidence did not meet the requirements for the admission of prior sexual
offense and res gestae evidence. Although we ultimately determine its
admission was harmless, the evidence was unnecessary and the errors
avoidable, so we address them fully. Regardless of the path •taken to
admission, compliance with the procedural requirements for admitting
uncharged misconduct evidence is essential to balance the unique

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 challenges of prosecuting sexual offenses involving children with the
defendant's right to a trial free frorn undue prejudice.
1.

NRS 48.045(3) creates an exception to NRS 48.045(2)'s ban on
propensity evidence. It permits "the admission of evidence in a criminal
prosecution for a sexual offense that a person committed another crime,
wrong or act that constitutes a separate sexual offense." The requirements
for admission under NRS 48.045(3) are set out in Franks v. State: (1) the
uncharged act must constitute a sexual offense under NRS 179D.097; (2) it
must be relevant to the charged offense; (3) the district court must make a
preliminary finding that "a jury could reasonably find by a preponderance
of the evidence that the act had occurred"; and (4) using the factors
enumerated in United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001),
the district court must determine that the probative value of the act. is not
substantially outweighed by the danger of unfair prejudice. 135 Nev. at 4-
6, 432 P.3d at 755-57. The State must obtain advance permission to
introduce such evidence by motion to the district court, outside the presence
of the jury. Id. at 5, 432 P.3d at 756.
Both acts admitted under NRS 48.045(3) easily satisfy the first
two Franks requirements. Taking nude photographs of a minor is a crime
under NRS 179D.097(1)(h) and NRS 200.710 (criminalizing the production
of child pornography), and giving Soma to ED prior to sexual contact is a
crime under NRS 179D.097(e) (providing that a "sexual offense" includes
administering a drug with the intent to enable or assist the commission of
another sexual offense). Furthermore, both acts are relevant to the charged
offenses because they demonstrate that Alfaro had a propensity to engage
in sexual behavior with a child. See Franks, 135 Nev. at 6, 432 P.3d at 757.

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 The State stumbles on the quantum of proof regarding the nude
photographs. The district court decided the State's motion based on the
preliminary hearing transcript and did not reserve or revisit its pretrial
admissibility determination to take into account the evidence adduced at
trial. While ED testified at the preliminary hearing and at trial that Alfaro
gave her Soma to facilitate his assaults, see Keeney v. State, 109 Nev. 220,
229, 850 P.2d 311, 317 (1993) (concluding that victim testimony alone met
the higher standard of clear and convincing evidence required by NRS
48.045(2)), overruled in part on other grounds by Koerschner v. State, 116
Nev. 1111, 13 P.3d 451 (2000), only Detective Harms testified regarding the
nude photographs based on her original interview with ED, and even that
testimony was minimal and lacked specificity. Searches of Alfaro's
electronic devices, motel room, and storage unit failed to turn up any
physical evidence of the photographs, nor did Alfaro admit to their
existence.
This dearth of relevant supporting facts is also relevant to the
last step of Franks. There, the district court weighs the probative value of
the evidence with the threat of undue prejudice, which must include an
evaluation based on a nonexhaustive list of factors from LeMay:
(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.

Franks, 135 Nev. at 6, 432 P.3d at 756 (quoting LeMay, 260 F.3d at 1028).
While these factors are useful, their isolated presentation in
Franks implies that consideration of the list is both necessary and
sufficient. See State v. Eighth Judicial Dist. Court (Doane), 138 Nev., Adv.
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t h 1047,\
 Op. 90, 521 P.3d 1.215, 1222 (2022) (emphasizing that district courts must
consider each LeMay factor). But revisiting LeMay reveals a more
thoughtful, holistic analysis, including considerations of whether the prior
acts were based on "proven facts," whether the acts corroborated or
bolstered the victim's testimony and credibility, and whether their
probative value was clear and not "capable of multiple characterizations."
LeMay, 260 F.3d at 1028-29. LeMay emphasized that neither these factors
nor the ones adopted in Franks were exhaustive citing to yet more factors
from the Tenth Circuit. Id. at 1032 n.1. And while we do not prescribe the
same approach to the district courts. LeMay also stressed the
appropriateness of the district court's decision to prevent the government
from using such evidence in opening statement "until after the prosecution
had introduced . . . its other evidence, in order to get a feel for the evidence
as it developed at trial before ruling on whether LeMay's prior acts of child
molestation could come in." Id. at 1028.
A careful reading of LeMay does not support rote processing of
factors to arrive at a pretrial decision that is then cast in stone. Rather, the
district court's task is to evaluate the probative value of the uncharged
misconduct in relation to the charged crime and the state of the evidence,
weighed against the threat of undue prejudice arising from any
unnecessarily inflammatory, factually unsupported, or unduly duplicative
aspects of the evidence. The five listed LeMay factors, adopted in Franks,
can and should be used in service of that goal, but the reviewing district
court should not feel constrained to use only those factors to the exclusion
of other meaningful and helpful guidance provided in LeMay and elsewhere.
See Chaparro u. State, 137 Nev. 665 670 497 P.3d 1187, 1.193 (2021) ("[T]he

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,)
 [LeMay] factors . . . are riot elements to be met before evidence is admissible
but considerations for the district court to weigh.").
Returning to the evidence at issue here, admitting the nude
photograph evidence cannot be justified under LeMay. Scant proof exists in
the record that Alfaro took nude photographs of ED. But even accepting
arguendo that the proof was enough to meet the Franks threshold
preponderance-of-the-evidence test, the creation of child pornography is
also a grave and separate offense that added little to the narrative
underlying the charged offenses in this case. To justify the risk of prejudice
and distraction this evidence carried, more in the way of certainty of the
photographs' existence was needed. See 2 Christopher B. Mueller & Laird
C. Kirkpatrick, Federal Evidence § 4:86 (4th ed. 2022 Update) (discussing
FRE 414, the federal analog to NRS 48.045(3), and noting that "uncertainty
over prior [sexual] bad acts lessens their probative value and raises the risk
of prejudice"). Evidence concerning the Soma pills, by contrast, met the
LeMay standards: ED testified that Alfaro had her take Soma; this evidence
was corroborated by Alfaro's prescription for Soma; and the evidence had
high probative value since it strengthened ED's testimony by explaining
how Alfaro used Soma to facilitate his assaults.
11.

The other two acts, making ED watch pornography and wear
fishnet stockings, were admitted under NRS 48.035(3) as res gestae
evidence. Both the State and the district court refer to res gestae evidence
as evidence that "explains." provides "background" for, "completes the
picture" of, or is "relevant" to the charged crime, and evince an
understanding that virtually any act committed during the entire course of
the charged conduct can be admitted as res gestae. These characterizations
are not accurate.
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 NRS 48.035(3), codifying res gestae, is an "extremely narrow"
basis for admissibility. Weber v. State, 121 Nev. 554, 574, 119 P.3d 107, 121
(2005), overruled on other grounds by Farmer v. State, 133 Nev. 693, 698,
405 P.3d 114, 120 (2017); see Bellon v. State, 121 Nev. 436, 444, 1.17 P.3d
176, 181 (2005); Sutton v. State, 114 Nev. 1327, 1331, 972 P.2d 334, 336
(1998). It is insufficient that the uncharged acts "explain," "make sense of,"
or "provide a context for" the charged crimes, Weber, 121 Nev. at 574, 119
P.3d at 121, or that the acts occurred at sorne ambiguous point in time
during the charged course of conduct. An uncharged act may only be

admitted as res gestae if it is part of the same "transaction"-the same
temporal and physical circumstances-as the charged act. See Dutton v.
State, 94 Nev. 461, 464, 581 P.2d 856, 858 (1978) (admitting evidence of a
defendant's possession of a stolen item exchanged at the same time as the
stolen item for which he was charged), overruled on other grounds by Gray
v. State, 100 Nev. 556, 558 n.1, 688 P.2d 313, 314 n.1 (1984); Allan v. State,
92 Nev. 318, 320, 549 P.2d 1402, 1403 (1976) (admitting testimony from two
boys the defendant assaulted immediately prior to the charged crime in the
same room). The uncharged act and the crirne "must be so interconnected"
that it is nearly iinpossible for the witness to describe the crime without
referring to the uncharged act. Bellon, 121 Nev. at 444, 117 P.3d at 181; see
Cirillo v. State, 96 Nev. 489, 493, 611 P.2d 1093, 1096 (1980) (noting that
the uncharged act must be a "necessary incident" or "immediate
concomitant" of the charged crirne, or part of the same "continuous
transaction ).3

3The strict requirements of res gestae evidence reflect its derogation
of the general rule that the use of prior bad acts is "heavily disfavored,"
Tavares v. State, 117 Nev. 725, 730, 30 P.3d 1128, 1131 (2001), and that it
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 The State also relies on Perez v. State to argue that prior acts
are admissible if they constitute evidence of "grooming behavior," facially
innocuous acts such as "gifts, praises, and rewards" used to "develop a bond
between the victim and offender and, ultimately, make the victim more
receptive to sexual activity." 129 Nev. 850, 853, 855, 313 P.3d 862, 864, 866
(2013). But Perez speaks to the admissibility of certain expert testimony on
grooming. Id. at 859, 313 P.3d at 868. That issue is not raised here, and
this court has never held, nor does any statute provide, that evidence of
grooming is categorically admissible, as res gestae evidence or otherwise.
Because ED testified that Alfaro made her watch pornography
while committing the charged acts, and that Alfaro mimicked the acts in
the pornography as she was watching it, the act qualifies as res gestae
because it occurred at the same time and in the same place as the charged
acts. The evidence that Alfaro had ED dress up in fishnet stockings,
however, does not qualify. The fishnet stocking incident(s) occurred in
Fernley, months prior to the charged acts, such that Ell could, and in fact
did, describe the charged acts without referring to the fishnet stockings
incident(s). Therefore, the district court erred in admitting evidence that
Alfaro made ED wear fishnet stockings.

does not balance prejudicial effect against probative value, State v. Shade,
111 Nev. 887, 894, 900 P.2d 327, 331 (1995). Of note, and for these reasons,
res gestae is falling out of favor nationwide. See, e.g., Rojas v. People, 504
P.3d 296, 307 (Colo. 2022) (abolishing res gestae, following the "many
jurisdictions [that] have determined that res gestae is incompatible with the
modern Rules [of evidence]"); State v. Gunby, 144 P.3d 647, 663 (Kan. 2006)
(same); see generally Daniel J. Capra & Liesa L. Richter, Character
Assassination: Amending Federal Rule of Evidence 404(b) to Protect
Criminal Defendants, 118 Colum. L. Rev. 769, 798-802 (2018).
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 B.
Having concluded that the district court erroneously admitted
two prior bad acts, we consider the gravity of the error. We will affirm the
otherwise erroneous admission of evidence if it could have been admitted
another way, Ledbetter v. State, 122 Nev. 252, 260, 129 P.3d 671, 677 (2006),
or if the error was harmless such that it did not have "a substantial and
injurious effect or influence in determining the jury's verdict," Tavares v.
State, 117 Nev. 725, 732, 30 P.3d 1128, 1132 (2001) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)).
Evidence of the nude photographs, erroneously admitted under
NRS 48.045(3) (prior sexual offenses), could not have been admitted as res
gestae because the State provided no evidence as to when or under what
circumstances the photographs were taken. Conversely, evidence regarding
the fishnet stockings incident(s), erroneously admitted under NRS
48.035(3), could not have been admitted under NRS 48.045(3) because the
record does not support a determination that the act constitutes a sexual
offense under NRS 179D.097. See Franks, 135 Nev. at 4-5, 432 P.3d at 756.
And, while perhaps the erroneously admitted evidence could have been
admitted under NRS 48.045(2), the State did not make that argument in
district court or on appeal, thereby failing to identify the permissible non-
propensity purpose for admitting the evidence and, as to the nude
photographs, failing to prove the uncharged act by the clear and convincing
evidence required. See Petrocelli, 101 Nev. at 52, 692 P.2d at 508.
The question, then, is whether the error in admitting evidence
concerning the nude photographs and fishnet stockings was harmless. The
record in this case demonstrates that the erroneously admitted uncharged
acts had marginal relevance, and their potential for prejudice paled in

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 comparison to the acts with which Alfaro was charged, which the State
adequately proved. We therefore deem the erroneous admission of the two
prior acts harmless under the "substantial and injurious effect" standard
applicable to evidentiary error. 4
C.
As for the jury instructions, Alfaro first contends that the court
erred by rejecting his proposed instruction that a defense attorney may
argue negative inferences arising from the State's failure to call important
witnesses, citing Rimer v. State, 131 Nev. 307, 329, 351 P.3d 697, 713 (2015).
But license to make an argument does not entitle Alfaro to a jury instruction
to that effect, so we reject this claim out of hand.
Second, he argues that jury instruction no. 23, defining
"lewdness" as it appears in Black's Law Dictionary and Berry v. State, 125
Nev. 265, 280, 212 P.3d 1085, 1095 (2009), overruled on other grounds by
State v. Castaneda, 126 Nev. 478, 245 P.3d 550 (2010), conflicts with the
definition of "lewdness" in the statute criminalizing lewdness with a child.
NRS 201.230, under which Alfaro was charged. On de novo review, we
agree that instruction no. 23 is not an accurate statement of the law, and
the district court erred in giving it. Berry, 125 Nev. at 273, 212 P.3d at
1091. Instruction no. 23 stated, "[1]ewdness is defined as sexual conduct
that is obscene or indecent; tending to moral impurity or wantonness," but

'Neither Alfaro nor the State discuss harmless error as to the specific
evidentiary errors that occurred, instead deferring the discussion to the
larger context of Alfaro's cumulative error claim. Alfaro does not argue that
the State's failure in this regard triggers a waiver analysis under Belcher v.
State, 136 Nev. 261, 464 P.3d 1013 (2020). Assuming without deciding that
Belcher applies, it is appropriate to address harmlessness because the
record is short, and the issue is not close applying the Kotteakos standard.
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 "lewdness with a child" already has a statutory definition with four distinct
elements, was laid out in instruction no. 20, and does not require further
commentary, Summers v. Sheriff, 90 Nev. 180, 182, 52] P.2d 1228, 1228-29
(1974). Furthermore, since instruction no. 23 does not mention physical
contact and "lewdness with a child" requires it, instruction no. 23 perrnitted
the jurors to convict Alfaro for merely "obscene or indecent" behavior, even
if they found he never touched ED. This is not reversible error here,
however, since it was plain from the evidence, the other jury instructions,
and the charges themselves that the lewd acts for which Alfaro was Charged
required a touching. See Carver v. El-Sabawi, 121 Nev. 11, 14, 107 P.M
1283, 1285 (2005) (noting t.hat an instructional error is only reversible if it
"resulted in a miscarriage of justice").
Iv.
Alfaro argues two errors at sentencing. First, he posits that the
district court impermissibly relied on "prior uncharged crimes" in
determining the appropriate sentence, in violation of Denson v. State, 112
Nev. 489, 493-94, 915 P.2d 284, 287 (1996) (permitting the use of past "life,
health, habits, conduct, and mental and moral propensities," but not prior
crimes), as evidenced by Judge Breslow's statement, "Crimes like this are
against all little girls. They're against society.... [S]ome crimes just
transcend the actual people involved. This is one of them." While we do not
condone the court's statements, they show that Judge Breslow was
"offended by the facts of the crime committed," Canteron v. State, 114 Nev.
1281, 1283, 968 P.2d 1169, 1171 (1998) (internal citations omitted), rather
than prejudiced by "information or accusations founded on facts supported
only by impalpable and highly suspect evidence," Silks v. State, 92 Nev. 91,
94, 545 P.2d 1159, 1161 (1976).

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 Second, Alfaro argues that the length of his sentence violates
the Eighth Amendment's prohibition against cruel and unusual
punishment because it is unreasonably disproportionate to the crime. See
Blurne v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (holding that a
sentence within statutory limits is not cruel and unusual unless the statute
is unconstitutional, or the sentence is "so unreasonably disproportionate to
the offense as to shock the conscience") (internal quotation omitted). But
his aggregate sentence of 275 years to life is within the statutory limits. See
NRS 200.366(3)(c) (establishing range of 35 years to life for each sexual
assault against a child); NRS 201.230(2) (establishing range of 10 years to
life for lewdness with a child). Alfaro argued for a sentence of 35 years to
life, while the State recommended 45 years to life. The sentence the district
court imposed differed from the recommended sentences because it ran the
sentences on each count consecutively. This court has upheld consecutive
life sentences on similar charges. See Chavez v. State, 125 Nev. 328, 348,
213 P.3d 476, 490 (2009); but see Sirns v. State, 107 Nev. 438, 442, 814 P.2d
63, 65 (1991) (Rose, J., dissenting) (noting that, of the many bases for
reversal of a criminal conviction, the sentence "has the greatest ultimate
effect on the defendant"). While the sentence's length, the district court's
refusal to follow sentencing recommendations of either party, and the
court's remarks at sentencing are troubling, precedent does not support
reversal for resentencing where, as here, the sentence imposed is within
statutory limits and not unconstitutionally disproportionate.
V.
"The cumulative effect of errors may violate a defendant's
constitutional right to a fair trial even though the errors are harmless
individually." Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115

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 (2002). As discussed, the district court erred in admitting evidence of two
acts of uncharged misconduct and in giving instruction no. 23. We must
decide whether these errors, though harmless individually, support reversal
for cumulative error. In evaluating cumulative error, we consider

(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 v. State, 124 Nev.
1172, 1195, 196 P.3d 465, 481 (2008).
This case rests, as many cases of sexual assault do, on the
competing testimony of the victim and the defendant. There is no physical
evidence of Alfaro's crimes, no members of ED's family testified, and Alfaro
denied the charges against him in an interview played for the jury.
However, we have repeatedly held that a child victim's testimony is
sufficient for conviction, even if uncorroborated, if the victim testifies with
some particularity" and bears "some reliable indicia." LaPierre v. State,
108 Nev. 528, 531, 836 P.2d 56, 58 (1992). ED's testimony met those

requirements, and the district court, which observed the witnesses, found
Ell credible and her testimony convincing. Nor did the errors play an
important role at trial—the State did not dwell on the erroneously admitted
evidence, and the instructional error as to lewdness was not material to the
facts and charges in the case. So, while Alfaro's crime and sentence are
undoubtedly grave, the quantity and character of the errors was not such
as to affect the verdict and we reject the cumulative error claim.

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 For these rea.sons, we reverse Alfaro's conviction on count XI
and remand for entry of an amended judgment of conviction but otherwi.se
affirm.

We concur:

Cadish

Sr. J.
Gibb

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