Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lipsitz v. State

Supreme Court of Nevada

June 6, 2019

RYAN MATTHEW LIPSITZ, Appellant,
v.
THE STATE OF NEVADA, Respondent.

          Appeal from a judgment of conviction, pursuant to a guilty verdict, of indecent exposure, two counts of sexual assault, attempted sexual assault, battery with the intent to commit sexual assault, open or gross lewdness, and sexually motivated coercion. Eighth Judicial District Court, Clark County; Eric Johnson, Judge.

          Terrence M. Jackson, Las Vegas, for Appellant.

          Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.

          BEFORE HARDESTY, STIGLICH and SILVER, JJ.

          OPINION

          HARDESTY, J.

         Appellant Ryan Matthew Lipsitz was convicted of seven sexually related counts, including sexual assault and attempted sexual assault. He argues that the district court erred when it allowed the victim to testify by two-way audiovisual transmission, which violated his rights under the Confrontation Clause of the Sixth Amendment. We take this opportunity to adopt the test set forth in Maryland v. Craig, 497 U.S. 836, 850 (1990), to determine whether a witness's testimony at trial via two-way audiovisual transmission violates a defendant's right to confrontation. Under Craig, two-way video testimony may be admitted at trial in lieu of physical, in-court testimony only if (1) it "is necessary to further an important public policy," and (2) "the reliability of the testimony is otherwise assured." 497 U.S. at 850. Applying this test here, we conclude that the district court did not abuse its discretion in allowing the victim, who was admitted to an out-of-state residential treatment center, to testify by two-way audiovisual transmission at trial. First, the use of the audiovisual procedure was necessary to protect the victim's well-being, an important public policy goal, while also ensuring that the defendant was provided a speedy trial. And second, the audiovisual transmission procedure, as set forth in Supreme Court Rules Part DC-A(B), adequately ensured the reliability of the testimony, as it allowed Lipsitz to cross-examine the victim and the jury could hear and observe the victim.

         Lipsitz also argues that the district court abused its discretion in proceeding to trial after the State expressed concerns about his competency. Based on the record before us, we conclude that the district court did not abuse its discretion in proceeding to trial without holding a competency hearing.

         Finally, Lipsitz argues that the district court erred in convicting him of both sexual assault and attempted sexual assault because they were based on the same underlying conduct. The State concedes this point and we agree. The State should have charged these counts in the alternative, but did not. The district court then compounded the error by convicting Lipsitz of both counts. As there was insufficient evidence for the sexual-assault conviction (count 2), we reverse that part of the judgment of conviction. We uphold the remaining convictions.

         FACTS AND PROCEDURAL BACKGROUND

         Lipsitz trespassed into a residential treatment facility, where he sexually assaulted the victim, an 18-year-old patient seeking treatment for substance abuse and trauma related to her experience as a victim of sex trafficking. On the morning in question, the victim fell asleep while reading in the recreation room around 4 a.m. Approximately one hour later, the victim awoke to find Lipsitz, whom she had never seen before, standing at the end of the couch. Lipsitz exposed himself and forced the victim to have sex with him. Lipsitz then attempted to force the victim to perform fellatio on him, but her mouth was closed. And when he failed, he became upset, mumbled something under his breath, and walked away. Another patient and several staff members at the treatment center saw Lipsitz exiting the treatment center through the front gate. He was nearby the center when police officers found him.

         Lipsitz was indicted and subsequently invoked his right to a speedy trial. The State moved to allow the victim to testify via simultaneous audiovisual transmission because she was unavailable as a witness for trial. Lipsitz opposed this motion, arguing that it was essential for the victim to be physically present at trial as the case "rises and falls on the victim's credibility." The district court granted the State's motion, reasoning that the victim was unavailable as a witness for trial because she was a patient at an out-of-state treatment center. Moreover, the district court noted that Lipsitz invoked his right to a speedy trial, and he refused to agree to a continuance of the trial for her to be released from the facility. Therefore, the only way she could testify on the dates set for trial was by alternative means: deposition or audiovisual transmission.

         During the same hearing, the State informed the district court that Lipsitz had been referred to competency court in a separate case pending in a different department. The district court asked Lipsitz's attorneys whether they had any concerns about his competency; they denied any concerns and urged the district court to proceed to trial. The district court engaged in a lengthy canvas of Lipsitz. At the conclusion of the hearing, the district court stated that it had no basis to doubt Lipsitz's competency because he "seem[ed] to have a clear understanding in terms of the facts [and] his discussion with his attorneys." The next day, the court reconsidered Lipsitz's competency after a sidebar with counsel. Lipsitz stated that he was unaware that he had been referred for a competency evaluation in the other case. The district court canvassed him again to ensure that he understood the charges and that he was able to communicate with and assist his attorneys in his defense. Satisfied with Lipsitz's responses, the district court proceeded to trial.

         On the first day of trial, Lipsitz refused to change into a suit, which prompted the court to question his competency again. The district court asked him if he understood that remaining in his jail clothes might prejudice the jury against him, to which he responded "yes." Eventually, Lipsitz agreed to put on a suit. The district court asked Lipsitz's counsel whether they still had no concerns about his competency. Lipsitz's counsel confirmed that they had no concerns and would inform the district court if that changed during the trial. The district court noted for the record that Lipsitz appeared competent.

         After the district court impaneled the jury, Lipsitz engaged in an increasingly obstinate exchange with the district court, rebuking the justice system because the district court had allowed the victim to testify by audiovisual transmission and rebuffing his counsel. The district court explained that the use of audiovisual transmission would allow Lipsitz to confront the victim at trial. The court also explained that the victim had submitted "sufficient documentation that she medically cannot appear .... So I mean if we're going forward today, we're going to be going forward with audio/video technology." The court further ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.