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Rugamas v. Eighth Judicial District Court ex rel. County of Clark

Supreme Court of Nevada

July 3, 2013

Giovanni O. RUGAMAS, Petitioner,
v.
The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF CLARK; and the Honorable Abbi Silver, District Judge, Respondents, and The State of Nevada, Real Party in Interest.

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Philip J. Kohn, Public Defender, and Jennifer L. Schwartz, Deputy Public Defender, Clark County, for Petitioner.

Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Real Party in Interest.

BEFORE GIBBONS, DOUGLAS and SAITTA, JJ.

OPINION

SAITTA, J.

The State sought an indictment against petitioner Giovanni O. Rugamas on charges of sexual assault and lewdness involving a child who was under 10 years of age. During the grand jury proceedings, the State presented testimony about out-of-court statements made by the child-victim describing the alleged sexual conduct. With some exceptions, an out-of-court statement offered to prove the truth of the matter asserted is " hearsay." NRS 51.035. Under Nevada law, a grand jury cannot receive hearsay. NRS 172.135(2).

In this original writ proceeding, we consider whether the child-victim's out-of-court statements were properly received by the grand jury on either of two grounds: as non-hearsay because they were inconsistent with the victim's grand jury testimony or as admissible hearsay under NRS 51.385, which provides that statements about any act of sexual conduct made by a child who was less than 10 years old are admissible " in a criminal proceeding" if a court finds sufficient guarantees of trustworthiness. We conclude that the statements were not properly before the grand jury. Because the victim was not subject to cross-examination concerning the out-of-court statements, those statements were not excluded from the definition of hearsay under NRS 51.035(2)(a). Although hearsay that falls within a statutory exception set forth in NRS Chapter 51 may be considered by a grand jury, Gordon v. Eighth Judicial Dist. Court, 112 Nev. 216, 223, 913 P.2d 240, 245 (1996), we conclude that the exception in NRS 51.385 for trustworthy statements by a child-victim of sexual assault does not apply to grand jury proceedings. Because the statements were hearsay and did not fall within an exception that makes hearsay admissible, the grand jury could not consider the statements. Absent

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the hearsay evidence, there was not sufficient legal evidence to support a finding of probable cause and the indictment cannot ...


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