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Farmer v. State

Supreme Court of Nevada

November 16, 2017

STEVEN DALE FARMER, Appellant,
v.
THE STATE OF NEVADA, Respondent.

         Appeal from a judgment of conviction, pursuant W a jury-verdict, of four counts of sexual assault, eight counts of open or gross lewdness, and one count of indecent exposure. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.

          Philip J. Kohn, Public Defender, and Ryan J. Bashor and Deborah L. Westbrook, 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 Brian J. Kochevar, Deputy District Attorney, Clark County, for Respondent.

         BY THE COURT, EN BANC.

          OPINION

          PICKERING, J.

         Appellant Steven Farmer was charged with numerous sexual offenses based on accusations that he used his position as a certified nursing assistant (CNA) to take advantage of multiple patients in his care. The State of Nevada argued that Farmer should face five of his accusers in one trial, and Farmer argued in favor of separate trials. After a hearing on the matter, the trial court granted the State's motion to join the offenses under the theory that they were committed pursuant to a common scheme or plan according to NRS 173.115(2). In this appeal, Farmer argues that this court has construed the common scheme or plan language to permit joinder only where the defendant had an overarching plan which involved committing each offense as an individual step toward a predetermined goal, and since his offenses were crimes of opportunity, the trial court erred by joining them. We disagree with his arguments and conclude that the court properly joined the offenses in a single trial. Because we further conclude that his remaining claims lack merit, we affirm the judgment of conviction.

         I.

         Five female patients who were treated at Centennial Hills Hospital over a two-month period in 2008 testified that Farmer, a CNA employed by the hospital, touched them in a sexual manner. The first patient, L.S., [1] was taken by ambulance to Centennial Hills in April 2008, following a suicide attempt. She was introduced to Farmer the next day. While she sat in her hospital bed waiting to be moved to a mental health facility, Farmer chatted with L.S. and pushed his groin against her foot. L.S. tried to move away but Farmer continued to push his groin into her while smirking. L.S. and her aunts, who were also in the room, discussed the incident afterward but did not report it to the hospital or to law enforcement at the time.

         About two weeks later, M.P. was taken by ambulance to Centennial Hills after experiencing a seizure that left her unable to speak or move. While recovering, M.P. awoke to find Farmer pinching and rubbing her nipples. When Farmer realized M.P. was awake, he told her that one of the leads of her electrocardiogram (ECG) machine had come off. Later, he lifted M.P.'s hospital gown and peered at her exposed body. He then informed M.P. that she had*fecal matter on her underside, lifted her legs, and stuck his thumb in her rectum. After that, he penetrated her vagina with his fingers, explaining that he was checking her catheter. When she regained the ability to speak, M.P. told her sons that Farmer had touched her inappropriately, but she did not report the incident to the hospital or to law enforcement at the time.

         A few days later, H.S. was taken by ambulance to Centennial Hills following a seizure. Farmer, who was assigned to transport H.S. to her room, told her when they were alone in an elevator that he should remove the ECG leads. As she lay on the gurney, Farmer opened H.S.'s hospital gown and exposed her breasts. He then removed the leads from her chest, grazing her breast, but did not remove the other leads from her body. Feeling uncomfortable about the situation, H.S. closed her gown and Farmer nervously laughed. Later, Farmer told H.S.'s husband that the ECG leads were tangled in her blanket. Without adjusting the blanket, Farmer exposed and began touching H.S.'s breasts. Her husband covered her and asked Farmer why he had not been more modest. Farmer quickly left the room. H.S, and her husband did not discuss the incidents until later and did not report them at the time.

         The same day, R.C. was taken by ambulance to Centennial Hills following a seizure. Farmer was assigned to transport her to her room. Once they were alone in an elevator, Farmer reached underneath R.C.'s blanket and rubbed her thigh. Farmer told R.C. that the medications administered by the hospital would take effect and she would fall asleep. After transporting R.C. to her room, Farmer repeatedly told her that she needed to relax. He then penetrated her vagina with his fingers, explaining that it was procedure and would help her rest. He also squeezed R.C.'s breasts and, according to R.C, performed cunnilingus. Afterwards, Farmer told the nurses assigned to R.C. that they did not need to check on her because she was highly medicated and would not know whether they visited. R.C, reported the incident to the hospital and police, leading to an investigation.

         The next day, D.H. was transported by ambulance to Centennial Hills after experiencing chest pains and shortness of breath. While her nurse was out of the room, Farmer walked in, announced that he was there to check on her, then opened D.H.'s hospital gown and exposed her breasts. Farmer touched the ECG leads on D.H.'s abdomen and chest, grazing her breast, but did not touch the remaining leads. D.H. felt uncomfortable because there was no apparent need for Farmer to be in the room or to expose her breasts, but she did not report the incident at the time. D.H.'s nurse, who had witnessed the incident, reported Farmer's conduct.

         R.C. was the first patient to report that Farmer had touched her sexually. After law enforcement issued a media release, L.S., M.P., H.S., and D.H. came forward. At trial, each woman testified about Farmer's actions, [2] and other witnesses, including a witness offered by the defense, testified about Farmer's unusual behavior, corroborating portions of the victims' testimonies. Farmer was convicted by a jury of four counts of sexual assault, eight counts of open or gross lewdness, and one count of indecent exposure, and was sentenced to three consecutive terms of life imprisonment with the possibility of parole after ten years, as well as other concurrent sentences.[3] This appeal followed.

         II.

         Farmer's main contention on appeal, which is the focus of this opinion, is that the trial court abused its discretion by granting the State's motion to join the offenses alleged by L.S., M.P., H.S., R.C, and D.H., and by denying his motion to sever the charges. He argues that the reasoning behind the trial court's decision-that the offenses were parts of a common scheme or plan-was erroneous because the State did not show that each offense was an integral part of an overarching criminal enterprise. The State counters by pointing to the striking similarities between the offenses, which it argues demonstrate that they were committed pursuant to design as opposed to being crimes of opportunity. Both parties cite authority in support of their positions, revealing some tension in our joinder jurisprudence.

         A.

         NRS 173.115 provides that separate offenses may be joined if they are (1) "[biased on the same act or transaction" or (2) "[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan."[4] An examination of this court's jurisprudence applying NRS 173.115(2) reveals that, historically, this court has focused on whether the offenses shared certain elements in common when determining whether they were properly joined, at least insofar as those similarities were striking enough to suggest that the offenses were committed as part of a scheme or plan. In Mitchell v. State, for example, we held that the trial court erred by joining charges arising from two separate incidents, 45 days apart, where the defendant sexually assaulted women after taking them to the same bar. 105 Nev. 735, 738, 782 P.2d 1340, 1342 (1989). In doing so, we noted that there were some minor similarities between the two incidents, but not enough to suggest that the incidents were committed pursuant to design: "[T]aking two different women dancing and later attempting intercourse [cannot] be considered part of a common plan just because the women are taken in part to the same bar." Id. But in Shannon v. State, we held that the trial court appropriately joined charges arising out of two separate incidents where the defendant met his young victims, both of the same age group, through his role as leader of a canoe club, placed himself in a position of trust over them, then committed sexual acts on them while on canoe trips. 105 Nev. 782, 786, 783 P.2d 942, 944 (1989). In upholding that decision, we stated that "[g]iven the closeness of the acts, the similar circumstances, and the same modus operandi, the criterion of a common scheme or plan was sufficiently satisfied." Id. We used the same analysis in other cases, conducting a fact-specific inquiry comparing the offenses to be joined and discussing whether there were sufficient connections to give rise to the inference that the offenses were committed pursuant to a common scheme or plan rather than unrelated crimes of the same ilk. E.g., Middleton v. State, 114 Nev. 1089, 1107, 968 P.2d 296, 308-09 (1998); Tillema v. State, 112 Nev. 266, 269, 914 P.2d 605, 607 (1996); Graves v. State, 112 Nev. 118, 128, 912 P.2d 234, 240 (1996); Griego v. State, 111 Nev. 444, 449, 893 P.2d 995, 999 (1995), abrogated on other grounds by Koerschner v. State, 116 Nev. 1111, 13 P.3d 451 (2000).

         Although our analyses focused on whether the joined offenses shared features in common, we were not always clear regarding which portion of NRS 173.115(2) we were relying upon in reaching our decisions. See, e.g., State v. Boueri, 99 Nev. 790, 796, 672 P.2d 33, 37 (1983). In Weber v. State, this court took its first real stab at providing guidance regarding the phrase "connected together or constituting parts of a common scheme or plan." 121 Nev. 554, 571-73, 119 P.3d 107, 119-20 (2005). Looking to our prior cases, we held that offenses were "connected together" when evidence of the offenses would be cross-admissible at separate trials, a consideration that had always floated around in our prior decisions but had not been moored to any particular language in the joinder statute. Id. at 573, 119 P.3d at 120. We also defined the words "scheme" and "plan" for the first time. Id. at 572, 119 P.3d at 119-20. Looking to Black's Law Dictionary, we defined scheme as "a design or plan formed to accomplish some purpose; a system, " and plan as "a method of design or action, procedure, or arrangement for accomplishment of a particular act or object. Method of putting into effect an intention or proposal." Id. (internal quotation marks omitted). We then considered the facts of that case in the context of those definitions and held that the offenses were connected together but were not adequately shown to have been parts of a common scheme or plan. Id. at 573, 119P.3datl20.

         B.

         Farmer argues that Weber changed the joinder calculus. Specifically, he argues that Weber eliminated any consideration of whether the offenses to be joined share sufficient similarities and refocused the analysis on whether each offense was a pre-planned step up the ladder toward a specific, predetermined goal. Farmer reads Weber too narrowly. Nothing in Weber (or the prior-bad-acts line of cases upon which he also relies) indicates an intent to overrule decades of this court's joinder jurisprudence. We recognize, however, that Weber's definitions of "scheme" and "plan" arguably leave little room for the broader similarity analysis that we have historically employed in joinder cases. Nothing about those definitions is facially wrong, and Weber's holding was correct based on the facts of that case. But Weber construed the words "scheme" and "plan" as synonyms. Defining different words, separated by the conjunction "or, " to mean the same thing is incorrect under the canons of statutory interpretation. Colautti v. Franklin, 439 U.S. 379, 392 (1979), overruled in part on other grounds by Webster v. Reproductive Health Servs., 492 U.S. 490 (1989). And interpreting "scheme" and "plan" as having nearly identical meanings ignored the common usage of the words in the evidentiary context. See generally David. P. Leonard, The New Wigmore: A Treatise on Evidence: Evidence of Other Misconduct and Similar Events § 9.2.2 (2009).

         Contrary to our discussion in Weber, the words "scheme" and "plan" as used in NRS 173.115(2) have different implications and ground different theories of joinder. Instead of reading NRS 173.115(2)'s "parts of a common scheme or plan" language as one phrase with one meaning, NRS 173.115(2) is properly understood as permitting joinder if the offenses are "parts of a common scheme" or "parts of a common plan." And "the terms 'common scheme' and 'common plan' are not synonymous." Scott v. Commonwealth, 651 S.E.2d 630, 635 (Va. 2007). In the joinder context, "the term 'common plan' describes crimes that are related to one another for the purpose of accomplishing a particular goal." Id. In contrast, "[t]he term 'common scheme' describes crimes that share features idiosyncratic in character." Id.

         Thus, in addition to rejecting any reading of Weber that would suggest a narrowing of our decisions, we clarify that the similarity analysis in our prior decisions derives from NRS 173.115(2)'s language that offenses may be joined when they are committed as parts of a common scheme.[5] While there may be valid reasons to limit the circumstances in which different offenses may be joined, [6] defining the "common scheme" theory of joinder as we do is not only consistent with its understanding in the evidentiary context, giving independent meaning to the word "scheme" where there otherwise would be none, it is consistent with our well-settled understanding of NRS 173.115(2) and the traditional understanding of joinder generally. See Clifford S. Fishman & Ann T. McKenna, Jones on Evidence: Civil and Criminal § 17:17 (7th ed. Supp. 2016) ("Separate crimes committed with a similar, unusual modus operandi, or with sufficient similar characteristics, also may be joined for trial.").

         C.

         We now turn to the question of whether joinder was appropriate in this case. For the purposes of this opinion, we focus on whether the various offenses were shown to have been parts of a common scheme.[7] As our prior decisions demonstrate, the fact that separate offenses share some trivial elements is an insufficient ground to permit joinder as parts of a common scheme. See, e.g., Mitchell, 105 Nev. at 738, 782 P.2d at 1342. Instead, when determining whether a common scheme exists, courts ask whether the offenses share such a concurrence of common features as to support the inference that they were committed pursuant to a common design. State v. Lough,889 P.2d 487, 494 (Wash. 1995). Features that this court has deemed relevant to this analysis include (1) degree of similarity of offenses, Tabish v. State,119 Nev. 293, 303, 72 P.3d 584, 591 (2003); (2) degree of similarity of victims, id. at 303, 72 P.3d at 590; (3) temporal proximity, Mitchell, 105 Nev. at 738, 782 P.2d at 1342; (4) physical proximity, Griego, 111 Nev. at 449, 893 P.2d at 999; (5) number of victims, id.; and (6) other ...


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