Articles Posted in Criminal Law

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The Supreme Court affirmed in part and vacated and reversed in part Defendant’s convictions of child abuse and neglect, twenty-nine counts of use of a child in the production of pornography, ten counts of possession of visual presentation depicting the sexual conduct of a child, and open or gross lewdness. The court held (1) the State properly charged Defendant with two counts of violating Nev. Rev. Stat. 200.710(2) for each video file that depicted two minors; (2) Defendant was improperly convicted under section 200.730 on a per-image basis without showing the mechanics of how Defendant recorded and saved the various video files and digital images of children on his laptop; (3) Nevada’s statutes barring the “sexual portrayal” of minors do not implicate protected speech and are not unconstitutionally vague; (4) there was insufficient evidence to support Defendant’s conviction under Nev. Rev. Stat. 201.210; and (5) Defendant’s asserted trial errors did not warrant reversal. View "Shue v. State" on Justia Law

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The Supreme Court affirmed Appellant’s convictions for burglary, robbery, coercion, and other crimes and Appellant’s sentence as a habitual criminal. The court held (1) contrary to Appellant’s argument on appeal, the district court properly considered Appellant’s prior conviction from 1984 in sentencing Appellant as a habitual criminal because the conviction was not stale, and the prior conviction resulting from an offense Appellant committed as a minor could be used for habitual criminal sentencing; (2) Appellant’s sentence did not violate the Eighth Amendment; and (3) because there was no error established by Appellant on this appeal, there was none to cumulate. View "Mullner v. State" on Justia Law

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The general rule of privilege between psychologist and patient set forth in Nev. Rev. Stat. 49.209 applies when a criminal defendant seeks records related to a patient who is court-ordered to partake in therapy. J.A., a minor, was placed on probation for soliciting prostitution. As a condition of probation, J.A. was required to complete counseling with Dr. Shera Bradley. Based on J.A.’s statements to the police, Dontae Hudson was charged with first-degree kidnapping, sex trafficking of a child under the age of sixteen, and related crimes. Hudson filed a motion for discovery, including requests for J.A.’s counseling records. The district court ordered that Dr. Bradley disclose J.A.’s counseling records for in camera review. Dr. Bradley filed this petition for relief in the form of a writ of mandamus or prohibition challenging the discovery order. The Supreme Court granted the petition and directed the clerk of court to issue a writ of prohibition ordering the district court to halt the production of the documents, holding that the psychologist-patient privilege applies to J.A. and Dr. Bradley’s confidential communications, and Hudson failed to show that an exception to the privilege applied or that the privilege was waived. View "Bradley v. Eighth Judicial District Court" on Justia Law

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The Supreme Court affirmed the judgment of the district court convicting Defendant of first-degree murder and robbery and his sentence of life imprisonment without the possibility of parole. The court held (1) under the circumstances of this case, the district court did not deprive Defendant of his right under the Confrontation Clause and the Due Process Clause to be present at every stage of the trial when it excused Defendant from the courtroom for two hours on the first day of trial due to his disruptive conduct; (2) the district court did not abuse its discretion in allowing the lead investigator in this case to testify that his investigation into the victim’s death led to Defendant’s arrest; (3) the district court did not abuse its discretion in refusing to instruct the jury on voluntary manslaughter; and (4) there was sufficient evidence to support Defendant’s convictions. View "Collins v. State" on Justia Law

Posted in: Criminal Law

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Defense counsel’s affirmative misrepresentation regarding filing a postconviction petition and subsequent abandonment of Petitioner can be an impediment external to the defense to satisfy cause of the delay under Nev. Rev. Stat. 34.726(1)(a) for filing an untimely petition. Petitioner filed an untimely postconviction petition for a writ of habeas corpus stemming from his conviction of battery with the use of a deadly weapon resulting in substantial bodily harm. Petitioner stated that he had good cause for the delay in filing his petition because he believed his counsel had filed a petition on his behalf, his belief was reasonable, and he filed the petition within a reasonable time of discovering his petition had not been filed. The district court dismissed the petition as time-barred. The Supreme Court reversed and remanded for further proceedings, holding (1) to demonstrate good cause for the delay in filing an untimely petition, a petitioner must show four factors; and (2) Petitioner demonstrated good cause for his delay under this test. View "Harris v. State" on Justia Law

Posted in: Criminal Law

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The Supreme Court granted the petition for a writ of mandamus filed by Petitioner, the City of Las Vegas challenging an appellate court’s review of unpreserved trial error, holding that the district court, acting in its appellate capacity, considered an unpreserved claim but ignored the clear record and speculated as to facts that could demonstrate error. After the municipal court found Steven Kamide guilty of domestic battery and simple battery, Kamide appealed, alleging for the first time a violation of the witness exclusion rule, Nev. Rev. Stat. 50.155(1). The district court found that the rule had been violated and concluded that prejudice had to be presumed because the record did not clearly show the absence of prejudice. The Supreme Court reversed the district court’s reversal of Kamide’s convictions, holding that the district court arbitrarily and capriciously exercised its discretion under the plain error rule to consider an issue that was not preserved for appeal. View "City of Las Vegas v. Eighth Judicial District Court" on Justia Law

Posted in: Criminal Law

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The Supreme Court affirmed the trial court’s judgment convicting Appellant of four counts of sexual assault, eight counts of open or gross lewdness, and one count of indecent exposure. The convictions stemmed from accusations that Appellant used his position as a certified nursing assistant to take advantage of multiple patients in his care. The court held (1) under the circumstances of this case, the trial court did not abuse its discretion in granting the State’s motion to join the offenses under the theory that they were committed pursuant to a common scheme or plan under Nev. Rev. Stat. 173.115(2); and (2) Appellant’s rights under state and federal law were not violated before trial, during trial, or at sentencing. View "Farmer v. State" on Justia Law

Posted in: Criminal Law

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At issue was whether, under the statutory definitions existing in 2012, the offense of statutory sexual seduction is a lesser-included offense of sexual assault when that offense is committed against a minor under fourteen years old. In applying the elements test, the Supreme Court determined (1) a statutory element that serves only to determine the appropriate sentence for an offense but has no bearing as to the guilt for the offense is an element of the offense for purposes of a lesser-included-offense analysis; and (2) the elements of only one of the alternative means need be included in the greater, charged offense so that the defendant is entitled to an instruction on the lesser offense. Applying the above principles to the statutes at issue, the Supreme Court held (1) statutory sexual section, as defined in Neb. Rev. Stat. 200.364(5)(a), is not a lesser-included offense of sexual assault even where the victim is a minor, Neb. Rev. Stat. 200.366(1), because statutory sexual seduction contains an element not included in the greater offense; and (2) the district court did not err in refusing to give a lesser-included-offense instruction on statutory sexual seduction in this case. View "Alotaibi v. State" on Justia Law

Posted in: Criminal Law

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When the Supreme Court reverses a death sentence on direct appeal and remands for a new penalty hearing, there is no longer a final judgment that triggers the one-year period set forth in Nev. Rev. Stat. 34.726(1) for filing a postconviction petition for a writ of habeas corpus. Appellant was convicted of multiple counts of first-degree murder and sentenced to death. On direct appeal, the Supreme Court reversed Appellant’s death sentences and remanded with instructions for the district court to conduct a new penalty hearing. On remand, the jury returned death sentences for the murder convictions, and the district court entered a judgment of conviction setting forth the death sentences. On direct appeal, the Supreme Court affirmed the judgment. Within one year after remittitur issued from that decision, Appellant filed a petition for writ of habeas corpus challenging his convictions and death sentences. The district court denied Appellant’s petition. The Supreme Court affirmed, holding (1) Appellant’s petition was timely filed; and (2) the district court did not err in denying the petition on the merits. View "Johnson v. State" on Justia Law

Posted in: Criminal Law

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Where an offender was sentenced pursuant to a statute that requires a minimum term of not less than a set number of years but does not mention parole eligibility, credits apply to eligibility for parole as provided in Nev. Rev. Stat. 209.4465(7)(b), which provides that credits earned pursuant to Nev. Rev. Stat. 209.4465 apply to eligibility for parole unless the offender was sentenced pursuant to a statute that specifies a minimum sentence that must be served before a person becomes eligible for parole. Appellant was convicted of six counts of driving a vehicle with a prohibited substance in her blood or urine causing death. Appellant later petitioned for a writ of habeas corpus, arguing that she was entitled to have credits earned pursuant to section 209.4465 apply to her eligibility for parole. The district court denied the petition, concluding that a prison must serve his or her minimum term before being eligible for parole and, therefore, the credits did not apply to Appellant’s eligibility for parole. The Supreme Court reversed and remanded the matter, holding that credits that Appellant earned under section 209.4465 should be applied to her parole eligibility for any sentence she is currently serving and on which she has not appeared before the parole board. View "Williams v. State, Department of Corrections" on Justia Law