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Perez v. State

Supreme Court of Nevada

November 27, 2013

Noe Ortega PEREZ, Appellant,
v.
The STATE of Nevada, Respondent.

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[Copyrighted Material Omitted]

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David Phillips, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and James R. Sweetin, Deputy District Attorney, Clark County, for Respondent.

Robert Arroyo and Amy Coffee, Las Vegas, for Amicus Curiae Nevada Attorneys for Criminal Justice.

Richard A. Gammick and Terrence P. McCarthy, Reno, for Amicus Curiae Nevada District Attorneys Association.

OPINION

PARRAGUIRRE, J.:

In this appeal, we are concerned with the admissibility of expert testimony related to sex offender grooming behavior and the effect that behavior has on a child victim. " Grooming" generally describes conduct or actions by an offender that are undertaken to develop a bond between the victim and offender and, ultimately, make the victim more receptive to sexual activity with the offender. In particular, we address whether (1) the district court abused its discretion in concluding that the State's expert was qualified to offer grooming behavior testimony, (2) the expert's testimony improperly vouched for the complaining witness's testimony, and (3) the expert witness notice was insufficient.

As a general matter, we hold that whether expert testimony on grooming behavior

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is admissible in a case involving sexual conduct with a child must be determined on a case-by-case basis, considering the requirements that govern the admissibility of expert testimony. Those requirements include whether the particular expert is qualified to testify on the subject, whether the testimony is relevant and the product of reliable methodology such that it will assist the jury to understand the evidence or to determine a fact in issue, and whether the testimony is limited in scope to matters that are within the expert's specialized knowledge. Applying those considerations, we conclude that the district court did not abuse its discretion in admitting the expert testimony in this case. We further conclude that the expert's testimony did not improperly vouch for the complaining witness's testimony and that the State's pretrial notice was sufficient. We therefore affirm the judgment of conviction.

FACTS AND PROCEDURAL HISTORY

Appellant Noe Perez was convicted of six counts of lewdness with a minor under 14 years of age and two counts of sexual assault of a minor under 14 years of age, involving his niece. At trial, the victim testified that her relationship with Perez began to change after she turned 13. He began calling her more and complimenting her, as well as winking at her when they attended the same parties. After driving her and a couple home one evening, Perez kissed the victim and touched her thigh when they were alone. He later called her and told her about a dream he had about undressing her and said that he was uncomfortable when she was close to other boys.

In September 2008, Perez invited the victim to accompany him and his wife, Maria, to Las Vegas, Nevada, for a concert. Perez's own children did not come on this trip. On the first evening, Perez played with the victim's feet under the table at dinner, hugged her while they walked along the street, and kissed the victim while Maria was in the shower. The next day, Perez again played with the victim's feet while she was swimming in the hotel pool, and the victim indicated that she wanted to spend time alone with Perez.

In the hotel room, Perez began kissing the victim after Maria had entered the bathroom and turned on the shower. Perez undressed the victim, kissed her breasts, rubbed her vaginal area, and penetrated her vagina with his fingers and tongue. Maria emerged from the shower and began screaming at Perez and the victim and slapping the victim. Hotel security arrived shortly thereafter, and the victim told them that Perez had pinned her down and touched her. The victim testified that she told security that Perez forced her down because she feared Maria would leave her in Las Vegas. While Maria's reports to hotel security and responding officers were consistent with the victim's testimony, Maria testified that she only saw Perez kissing the victim, who was fully clothed.

Dr. John Paglini testified that the grooming relationship is a deceptive relationship with the intent of sexual contact. Dr. Paglini testified that an uncle touching his niece's foot under a table, winking at her, calling her and talking about how pretty she was, pulling her close while walking, touching her feet and arm in a swimming pool, touching her thigh, kissing her, showing concern for her spending time with other suitors, telling her about a dream in which he undressed her, and inviting her to attend an out-of-town concert with him could be construed as grooming behavior. In particular, he noted that showing concern for her spending time with other boys acts to isolate her from other intimate relationships and telling her about the dream is a method of probing her resistance to engaging in sexual behavior. The ultimate goal of such behavior is to establish a trusting relationship that lowers the child's resistance to engaging in sexual activity. Dr. Paglini also testified that whether a victim discloses abuse " is based upon the relationship to the perpetrator, the impact on the family and also the perceptions of the alleged victim regarding the people they're being interviewed on." Dr. Paglini noted that grooming typically results in lower rates of abuse disclosure.

DISCUSSION

The issues raised in this appeal involve

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expert testimony on " grooming" behavior.[1] The term " grooming" describes when an offender prepares a child for victimization by " ‘ getting close to [the] child, making friends with the child, becoming perhaps a confidant of the child, [and] getting the child used to certain kinds of touching, [and] play activities.’ " State v. Stafford, 157 Or.App. 445, 972 P.2d 47, 49 n. 1 (1998) (quoting trial expert testimony). It can also include gifts, praises, and rewards, id.; State v. Hansen, 304 Or. 169, 743 P.2d 157, 160 (1987), superseded by statute on other grounds as stated in Powers v. Cheeley, 307 Or. 585, 771 P.2d 622, 628-29 n. 13 (1989), as well as exposure to sexual items and language, People v. Ackerman, 257 Mich.App. 434, 669 N.W.2d 818, 825 (2003). This conduct is undertaken to develop an emotional bond between the victim and offender, Hansen, 743 P.2d at 160; Morris v. State, 361 S.W.3d 649, 651 (Tex.Crim.App.2011), and may even lead the victim to feel responsible for his or her own abuse, Stafford, 972 P.2d at 49 n. l. The offender engages in grooming activity to reduce the child's resistance to sexual activity and reduce the possibility that the victim will report the abuse. Ackerman, 669 N.W.2d at 824-25.

Expert qualification

Perez contends that the State failed to present sufficient evidence of Dr. Paglini's qualifications to testify as an expert. He therefore argues that the district court abused its discretion in allowing Dr. Paglini to testify as an expert on grooming activity.

" The threshold test for the admissibility of testimony by a qualified expert is whether the expert's specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue." Townsend v. State, 103 Nev. 113, 117, 734 P.2d 705, 708 (1987); see NRS 50.275 (" If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge." ). Expert testimony is admissible if it meets the following three requirements, which we have described as the " qualification," " assistance," and " limited scope" requirements:

(1) [the expert] must be qualified in an area of " scientific, technical or other specialized knowledge" (the qualification requirement); (2) his or her specialized knowledge must " assist the trier of fact to understand the evidence or to determine a fact in issue" (the assistance requirement); and (3) his or her testimony must be limited " to matters within the scope of [his or her specialized] knowledge" (the limited scope requirement).

Hallmark v. Eldridge, 124 Nev. 492, 498, 189 P.3d 646, 650 (2008) (second alteration in original) (quoting NRS 50.275); see also Higgs v. State, 126 Nev. ----, ----, 222 P.3d 648, 658 (2010). We review a district court's decision to allow expert testimony for an abuse of discretion. Hallmark, 124 Nev. at 498, 189 P.3d at 650. As explained below, we conclude that Dr. Paglini's testimony satisfied the three requirements identified in Hallmark.

Qualification requirement

Perez argues that there was nothing to indicate that Dr. Paglini had sufficient training or experience to assert an opinion as to the effect of grooming behaviors on the young victim. Further, Perez complains that this was the first time that Dr. Paglini had testified regarding grooming behaviors and he failed to establish that his findings were subjected to peer review or that he had received specialized training in the area of sex offender grooming behaviors. Amicus NACJ asserts that the record is insufficient to support a conclusion that Dr. Paglini was qualified to testify to ...


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