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Appeal from a conviction by a jury of incest, four counts of sexual assault with a minor under the age of 14, and two counts of lewdness with a minor under the age of 14. Eighth Judicial District Court, Clark County; Kathleen E. Delaney , Judge.
Phillip J Kohn, Public Defender, and Amy A. Feliciano and Kedric A. Bassett, Deputy Public Defenders, Clark County, for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Elissa Luzaich, Deputy District Attorney, Clark County, for Respondent.
BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
In this appeal, we consider whether evidence presented at trial was sufficient to support a jury verdict finding appellant Miguel Guitron guilty of incest and sexual assault with a minor under the age of 14. Additionally, we must determine whether the district court erred by denying Guitron's motion to admit evidence of the victim's prior sexual knowledge, and clarify the procedure for the admission of such evidence. We also consider whether the district court erred by refusing to give Guitron's proposed inverse instruction and denying Guitron's Batson challenges. Although we conclude the district court erred in denying the motion to admit evidence and in failing to give the proposed instruction, these errors were harmless. Accordingly, we affirm
Guitron met the victim's mother, Anita, in Las Vegas in 1997 or 1998. The couple dated for some time, after which Anita moved to Michigan. When she left Las Vegas, Anita was approximately two to three months pregnant with the victim, who she asserts is Guitron's child. However, Anita did not tell Guitron she was pregnant and she had no contact with Guitron for some years after leaving Las Vegas. When the victim was five years old, Anita applied for child support from Guitron, which the court awarded following a positive paternity test.
In October 2010, Guitron called Anita while she was living in Ohio with the victim and her two other children fathered by another man. The victim, who was then 11 years old, overheard the conversation, realized it was her father on the phone, and asked to speak with him. The victim testified that during this first telephone conversation, Guitron told her he was her father. Anita described the victim as " a kid in a candy store" upon speaking with her father for the first time.
Following this phone call, Anita moved back to Las Vegas in late 2010 and resumed her relationship with Guitron. The victim, who was in elementary school and enrolled in an Individualized Education Plan because she was a slow learner, was thrilled to finally meet her father. Guitron began living with the family shortly after the move. During this time, the victim discussed sex with Anita and had at least some knowledge and understanding of sex.
When the victim was 12 years old, Anita realized the victim was pregnant. Initially, the victim told Anita a neighbor boy was the father. The next day, Anita took the victim to a pregnancy center where medical personnel confirmed she was eight months pregnant. Based on the victim's statements during the examination, the medical staff called the police and alleged Guitron had sexually assaulted the victim. The victim then admitted to both Anita and the police that Guitron was the baby's father. She explained she initially lied because Guitron told her to say the neighbor boy was the father. DNA testing by the Las Vegas Metropolitan Police Department conclusively proved Guitron was the father of the victim's baby. Additionally, Guitron sent letters to the victim during the pendency of the case, openly admitting he was the baby's father.
At trial, based on his statement during an interview to detectives prior to his arrest, Guitron asserted he and the victim only engaged in sex on one occasion. Further, he alleged the victim initiated that single sexual encounter, which occurred while Guitron was intoxicated and partially unconscious. Guitron argued the victim was sexually curious and wanted to have sex with him, and she was capable of understanding the consequences of her actions despite her age. He also asserted the State did not meet its burden of proof on the incest charge because the State did not present DNA evidence proving he was the victim's father. The State countered with evidence Guitron had groomed the victim and engaged in sexual conduct with her on multiple occasions, even when the victim resisted his advances. The State also
presented witness testimony that Guitron was the victim's father.
The jury convicted Guitron of incest, four counts of sexual assault with a minor under the age of 14, and two counts of lewdness with a child under the age of 14. Guitron appeals.
On appeal, Guitron contends (1) the State presented insufficient evidence for the jury to convict him of incest and sexual assault with a minor under the age of 14; (2) the district court erred by denying Guitron's motion to admit evidence of the victim's prior sexual knowledge; (3) the district court erred by refusing to give Guitron's proposed inverse instruction; and (4) the district court erred by denying Guitron's Batson challenges.
Sufficiency of evidence
Guitron contends the State presented insufficient evidence for the jury to convict him of incest and sexual assault with a minor under the age of 14. We disagree.
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution and determine whether " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis omitted); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008). As " it is the function of the jury, not the appellate court, to weigh the evidence and pass upon the credibility of the witness," Walker v. State, 91 Nev. 724, 726, 542 P.2d 438, 439 (1975), we do not determine the defendant's guilt, but rather consider " whether the jury, acting reasonably, could have been convinced [beyond a reasonable doubt] by the evidence it had a right to consider," Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). The jury deter mines the weight and credibility of conflicting testimony, and we will not disturb the jury's verdict where substantial evidence supports the jury's findings. See Shannon v. State, 105 Nev. 782, 791, 783 P.2d 942, 947 (1989); Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
NRS 201.180 defines incest as occurring when " [p]ersons being within the degree of consanguinity within which marriages are declared by law to be incestuous and void [either] intermarry with each other or. . . commit fornication or adultery with each other." A parent and natural child are within the degree of consanguinity wherein a marriage between the two would be declared by law incestuous and void. See NRS 122.020(1), held unconstitutional on other grounds by Latta v. Otter, 771 F.3d 456, 476-77 (9th Cir. 2014). Further, fornication is defined as sexual intercourse between two unmarried people. Douglas v. State, 130 Nev. , , 327 P.3d 492, 494 (2014).
On appeal, Guitron argues his conviction for incest is not supported by the evidence, solely because the State failed to present DNA evidence ...