Harmful Error

In Rose v. State, the Nevada Supreme Court considers the appeal of a man convicted of 20 counts of sexual assault on a minor under the age of 14. The Court rejects the appellant's argument that his conviction was not supported by sufficient evidence and that the district court abused its discretion by refusing his proposed jury instruction that the victim must testify with "some particularity" regarding each charge. The Court finds it sufficient that the victim testified that the charged incidents occurred every weekend or nearly every weekend during a period of time and provided a description of the conduct. In reaching the decision, the Court distinguished the facts of this case from those in LaPierre v. State.

The Court next rejects the appellants argument that he was entitled to a jury instruction stating that "the victim must testify with some particularity regarding each incident charged for the jury to sustain a verdict of guilt on that particular charge." The Court finds that such an instruction would have been proper but was sufficiently covered by other instructions.

The Court next finds that the appellant was not prejudiced by the late disclosure of an audio tape, so it was not an abuse of discretion to deny a motion to continue the trial. The Court finds that a mistrial was not warranted based upon a witness's testimony that he had training in polygraph examinations, but only because the jury was adminished and because the witness did not state that he gave the defendant a polygraph examination.

The Court next finds that the appellant was not prejudiced by the fact that the district court held unrecorded bench conferences with four prospective jurors who stated that they could not be fair and impartial because they had previously been sexually assaulted or had friends or family who had been accused of sexual assault. The Court finds that because the jurors were dismissed due to the fact that they could not be fair and impartial to Rose, he was not prejudiced.

The Court next considers four claims of prosecutorial misconduct. The Court found that the prosecutor committed misconduct by arguing facts not in evidence and inferring that the defendant had a prior criminal history, but the Court finds that the misconduct was not prejudicial because the district court's admonishment was sufficient to cure any prejudice. As to the prosecutor's statement that the defendant was a predator who used his daughter to lure friends over to his house so that he could use there for his sexual pleasure, the Court finds that this did not amount to plain error (the standard applicable because there was no objection) and that to the extent that the prosecutor's characterization may have crossed the line of permissible arguments, it was not prejudicial. The Court next finds that asking the jury to be fair to the victims and appealing to the jurors' sympathies was improper and misconduct, but because the defendant failed to object and the misconduct was reviewed under a plain error standard, reversal was not mandated as the misconduct was not prejudicial. Likewise, the Court finds the prosecutor's argument that "Defense counsel comes in with smoke screens and flat-out deception," but finds that the comment does not amount to plain error because it was not prejudicial. Once again, trial counsel's failure to object to the misconduct resulted in the lower standard of review.

Finally, the Court finds that there is no cumulative error.

The decision was issued by Justices Cherry, Gibbons and Douglas.