IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 69522
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
FILED
DOUGLAS SMITH, DISTRICT JUDGE, JUL 1 4 2016
Respondents,
TRACE K. LINDEMAN
and CLERK OF SUPREME COURT
BY
DONALD EDWARD BROWN, DEPUTY CLERK
Real Party in Interest.
ORDER GRANTING PETITION FOR WRIT OF MANDAMUS
OR PROHIBITION
This is an original petition for a writ of mandamus or
prohibition challenging a district court order granting a motion for an
independent psychological examination of the victim of child abuse,
neglect, endangerment, and other physical abuse charges pending against
the real party in interest.
In 2014, real party in interest Donald Edward Brown was
charged with multiple counts of child abuse, neglect, or endangerment
regarding his fifteen-year-old stepdaughter. Brown brought a motion
asking the district court to order an independent psychological evaluation
of the minor child, which the district court granted. The State now
petitions this court for a writ of mandamus or, in the alternative,
prohibition to direct the district court to reverse the district court's order.
In its petition, the State raises the following issues: (1) whether the
district court had the authority to order an independent psychological
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evaluation of a child-victim that was not a victim of sexual abuse, (2)
whether the district court abused its discretion by failing to include
particularized factual findings in support of its order, and (3) whether the
district court abused its discretion by finding that there was a compelling
reason to order an independent psychological evaluation.
The district court abused its discretion by failing to include particularized
factual findings in support of its order
In State v. Eighth Judicial District Court (Romano), this court
stated that it is "require[d] that trial courts set forth a particularized
factual finding that there is reason to believe that a psychological
examination is warranted." 120 Nev. 613, 623, 97 P.3d 594, 601 (2004),
overruled on other grounds by Abbott v. State, 122 Nev. 715, 727, 138 P.3d
462, 470 (2006). While Romano was later overruled by Abbott, it was
overruled on the issue of whether a district court judge could order a child-
victim to undergo an independent psychological evaluation, not on
•whether the district court must set forth a particularized factual finding.
Abbott, 122 Nev. at 727, 138 P.3d at 470. Therefore, Romano remains
mandatory law on this issue.
Here, the district court's order summarily stated that Brown
had met the three Abbott criteria and granted Brown's motion for an
independent psychological examination. Its oral findings were similarly
sparse, only stating, "I think that the defense has met all three of [the
Abbott criteria] and I'm going to order a psychiatric evaluation." Thus,
neither the district court's order nor its oral findings set forth a
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particularized factual finding as to why a psychological examination was
warranted as required by Romano.'
Therefore, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its December 9, 2015, Order granting Defendant's
Motion for Independent Psychological Examination of the Alleged Victim
and to reconsider the motion in light of this order.
CLAA
Parraguirre
J. 614,14. J.
desty Douglas
TA 1\
At ail ,J.
Saitta
J.
CC: Hon. Douglas Smith, District Judge
Attorney General/Carson City
Clark County District Attorney
Turco & Draskovich
Eighth District Court Clerk
'Because we grant the State's petition on this ground and order the
district court to vacate and reconsider its order, we do not reach the other
issues raised in the petition.
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State v. Dist. Ct. Brown (Donald)
Combined Opinion