from a judgment of conviction, pursuant to a Jury verdict, of
burglary, first-degree kidnapping, two counts of sexual
assault with a minor under 14 years of age, two counts of
lewdness with a child under 14 years of age, and coercion.
Eighth Judicial District Court, Clark County; Stefany Miley,
Gentile Cristalli Miller Armeni Savarese and Dominic P.
Gentile and Vincent Savarese, III, Las Vegas, for Appellant.
Paul Laxalt, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Ryan J. MacDonald, Deputy
District Attorney, Clark County, for Respondent.
THE COURT EN BANC.
appeal, we are asked to determine 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 14 years of age. Under the elements test, for an uncharged
offense to be a lesser-included offense of the charged
offense so that the defendant is entitled to a jury
instruction on the lesser offense, all of the elements of the
lesser offense must be included in the greater, charged
offense. In applying the elements test in this case, we must
resolve two issues related to the elements that make up the
charged and uncharged offenses. First, we consider whether a
statutory element that serves only to determine the
appropriate sentence for the offense but has no bearing as to
guilt for the offense is an element of the offense for
purposes of the lesser-included-offense analysis. We hold
that it is not. Second, we consider how to apply the elements
test when a lesser offense may be committed by alternative
means. We hold that the elements of only one of the
alternative means need be included in the greater, charged
offense to warrant an instruction on the lesser offense.
these principles to the statutes at issue, we conclude that
statutory sexual seduction, as defined in NRS 200.364(5)(a)
(2009), is not a lesser-included offense of sexual assault
even where the victim is a minor, NRS 200.366(1) (2007),
because statutory sexual seduction contains an element not
included in the greater offense. Thus, the district court did
not err in refusing to give a lesser-included-offense
instruction on statutory sexual seduction.
morning of December 31, 2012, appellant Mazen Alotaibi
arrived at the Circus Circus hotel where his friends had a
room. In the hallway outside the hotel room, Alotaibi
encountered A.D., a 13-year-old boy who was staying at the
hotel with his grandmother. A.D. asked Alotaibi for
marijuana, and they went outside the hotel to smoke it.
Alotaibi made sexual advances toward A.D. in the elevator and
outside the hotel, despite A.D.'s resistance. Alotaibi
then offered A.D. money and marijuana in exchange for sex.
A.D. testified that he agreed but intended to trick Alotaibi
into giving him marijuana without engaging in any sexual
went back to the hotel room where Alotaibi's friends were
staying, and Alotaibi took A.D. into the bathroom and closed
the door. Alotaibi told A.D. that he wanted to have sex and
began kissing and touching him. A.D. testified that he told
Alotaibi "no" and wanted to leave the bathroom but
Alotaibi was standing between him and the door. A.D.
testified that Alotaibi forced him to engage in oral and anal
intercourse. After leaving the hotel room, A.D. reported to
hotel security that he had been raped.
his interview with the police, Alotaibi admitted meeting A.D.
in the hallway of the hotel and stated that A.D. had asked
him for money and weed. Alotaibi initially denied touching
A.D. or bringing him into the bathroom, but then admitted
engaging in the sexual acts in the bathroom of the hotel
room. According to Alotaibi, it was A.D.'s idea to have
sex in exchange for money and weed, A.D. went willingly with
him into the bathroom and initiated the sexual acts, and
Alotaibi did not force him.
upon this incident, Alotaibi was charged with numerous
offenses, including two counts of sexual assault. In settling
jury instructions, Alotaibi requested an instruction on
statutory sexual seduction as a lesser-included offense of
sexual assault, arguing that evidence indicated the victim
consented to the sexual activity. The district court
determined that statutory sexual seduction was not a
lesser-included offense because it contained an additional
element (the consenting person being under the age of 16) not
required by sexual assault. Noting that there was evidence of
consent to support the lesser offense, the district court
instead offered to instruct the jury on statutory sexual
seduction as a lesser-related offense of sexual assault, but
Alotaibi declined such an instruction.
jury found Alotaibi guilty of two counts of sexual assault
with a minor under 14 and other offenses. Alotaibi now