Lloyd Richard DEERE, Appellant,
v.
The STATE of Nevada, Respondent.
No. 14893.
Supreme Court of Nevada.
October 4, 1984.*323 Marc D. Risman, Las Vegas, for appellant.
D. Brian McKay, Atty. Gen., Carson City, Robert Miller, Dist. Atty., and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.
OPINION
PER CURIAM:
In August of 1982, appellant Lloyd Richard Deere kidnapped, beat, handcuffed and sexually assaulted a Las Vegas prostitute. He was convicted of one count each of first degree kidnapping and battery with intent to commit a crime, and four counts of sexual assault. On appeal, he raises eleven assignments of error. We conclude that appellant has failed to demonstrate prejudicial error, and affirm.
Appellant's principal contention is that the district court erred by denying a motion to dismiss based on the state's allegedly negligent failure to impound and preserve material and potentially exculpatory evidence, namely the blouse and undergarment of the victim. According to the victim's testimony, the undergarment had been torn and the blouse slashed with a knife during the sexual assaults. Appellant argued in his motion that the evidence would have been exculpatory on the issue of the use of force or a weapon during the assaults. He based his motion primarily on our decision in State v. Havas, 95 Nev. 706, 601 P.2d 1197 (1979), in which a majority of this Court upheld dismissal of a forcible rape charge because of the state's negligent failure to obtain and preserve the victim's undergarments, which were considered material and potentially exculpatory on the issue of the use of force.
We are persuaded that the motion to dismiss was properly denied. The general rule in this area is well settled. When an accused seeks dismissal for the state's good-faith loss or destruction of material evidence, he or she must show prejudice flowing from the unavailability of the evidence. To establish prejudice, the accused must make "some showing that it could be reasonably anticipated that the evidence sought would be exculpatory." Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 108 (1979). See Crockett v. State, 95 Nev. 859, 603 P.2d 1078 (1979). From our review of the record, we have concluded that appellant cannot demonstrate that it was reasonably likely that the lost evidence would have exculpated him; he thus cannot make the requisite showing of prejudice. Accordingly, the motion to dismiss was properly denied, and this assignment of error is without merit.
Nothing in Havas compels a contrary result. Havas was decided on its own facts, which are readily distinguishable from those of this case. The Havas majority's ruling hinged on the reasoning that the victim's undergarments were potentially exculpatory because her testimony on the use of force was not only ambiguous, but "subject to serious challenge concerning the manner the crime assertedly occurred." 95 Nev. at 709, 601 P.2d at 1198 (Gunderson, J., concurring). The underpinnings of the Havas majority's ruling are simply not present in the case before us, wherein the victim's testimony was not ambiguous and was amply corroborated by other testimony and by physical evidence.
Appellant appears to argue that Havas states a per se rule that a rape victim's undergarments are always material and potentially exculpatory evidence, at least where the garments are allegedly removed by force. This interpretation of Havas is erroneous. That decision does not state a per se rule, and does not alter or detract from the general rule as set forth in Boggs. The materiality and potentially exculpatory character of lost or destroyed evidence must be determined on an ad hoc basis on the facts of each particular case. Any language to the contrary in the Havas majority opinion is hereby disapproved.
*324 We have considered appellant's remaining assignments of error, and have concluded that they are either without merit or do not warrant reversal. Accordingly, the judgment of conviction is affirmed.