Vasquez-Reyes (Armando) v. State ( 2022 )

Supreme Court
OF
Nevaba
1Or NTA SRR
IN THE SUPREME COURT OF THE STATE OF NEVADA
ARMANDO VASQUEZ-REYES, A/K/A No. 80293
ARMANDO VASQUIEZREYES,
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of two counts of lewdness with a child under the age of 14 and
eight counts of sexual assault with a minor under the age of 14.1 Eighth
Judicial District Court, Clark County; Michelle Leavitt, Judge. The district
court sentenced appellant Armando Vasquez-Reyes to an aggregate
sentence of life with the possibility of parole after 45 years and required him
to register as a sex offender upon release. Vasquez-Reyes raises numerous
issues on appeal.
Sufficiency of the evidence
Vasquez-Reyes summarily argues that the State did not
present sufficient evidence to support his convictions. We disagree. The
State presented testimony from the victims that supported each of Vasquez-
Reyes’ convictions. Both victims testified with particularity about the
crimes, including when and where in the household the sexual abuse
occurred. That testimony alone is sufficient to support the convictions. See
Gaxiola v. State, 121 Nev. 638, 648, 119 P.3d 1225, 1232 (2005) (explaining
that “the uncorroborated testimony of a victim, without more, is sufficient
to uphold a rape conviction”). Moreover, Vasquez-Reyes confessed to
1Pursuant to NRAP 34()(1), we conclude that oral argument is not
warranted.
2 r-08614
Supreme Court
OF
Nevana
(0) 194TA sea
touching one of the victims (G.A.) on multiple occasions, including on her
breast and legs, and to sexually penetrating her. Therefore, we conclude
that a rational juror could find the essential elements of the crimes beyond
a reasonable doubt. See NRS 200.364(9) (defining “sexual penetration”);
NRS 200.366(1)(b) (sexual assault with a minor); NRS 201.230 (ewdness
with a minor); see also Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d
1378, 1380 (1998) (holding that, in reviewing sufficiency of the evidence
challenges, the relevant inquiry is “whether, after reviewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt”
(quoting Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984))); McNair
v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (providing that “it is the
jury’s function, not that of the court, to assess the weight of the evidence
and determine the credibility of the witnesses”).
Prosecutorial misconduct
Vasquez-Reyes also argues that the State committed
prosecutorial misconduct.” In resolving claims of prosecutorial misconduct,
we first determine whether misconduct occurred and then decide whether
any misconduct denied the defendant a fair trial. Valdez v. State, 124 Nev.
1172, 1188, 196 P.3d 465, 476 (2008). As relevant here, with respect to the
second step, we “will not reverse a conviction based on prosecutorial
misconduct if it was harmless error,” and where the error is not of
constitutional dimensions, we “will reverse only if the error substantially
affects the jury’s verdict.” Id. at 1188-89, 196 P.3d at 476.
2Vasquez-Reyes objected below to each alleged instance of
prosecutorial misconduct addressed in this order.
2
em]
Supreme Court
oF
Nevapa
1 7A 99 Nev. 72, 75, 657 P.2d 1157, 1159 (1983); see also
NRS 175.211 (defining reasonable doubt and providing that no other
definition may be given). Nevertheless, we conclude that the prosecutor's
statement was harmless because the district court correctly instructed the
jury on the definition of reasonable doubt. See Randolph v. State, 117 Nev.
970, 981, 36 P.3d 424, 431 (2001) (holding that “incorrect explanations of
reasonable doubt [are] harmless error as long as the jury instruction
correctly defined reasonable doubt”).
Vasquez-Reyes next argues that the prosecutor misstated
evidence, improperly introduced personal opinion during rebuttal, and
improperly vouched for G.A. We agree that the State technically misstated
evidence as to the average IQ and improperly stated that Vasquez-Reyes
had groomed G.A. Nevertheless, this does not warrant reversal because the
prosecutor made these statements in passing and a witness provided the
jury with the correct IQ information. See Byars v. State, 130 Nev. 848, 865,
336 P.3d 939, 950-51 (2014) (holding that this court will not lightly overturn
a jury verdict based on a prosecutor’s statements); Anderson v. State, 121
Nev. 511, 516, 118 P.3d 184, 187 (2005) (recognizing that comments
constituting misconduct that are “merely passing in nature” are harmless
beyond a reasonable doubt). We reject Vasquez-Reyes’ remaining
arguments on this issue, however, because the context reveals that the
prosecutor was responding to Vasquez-Reyes’ challenges to the victims’
3
Supreme Court
oF
NEVADA
(On t7A eRe Re
credibility. See Rowland v. State, 118 Nev. 31, 40, 39 P.3d 114, 119 (2002)
(reviewing a prosecutor's statements in context and noting that the State
has “reasonable latitude ...to argue the credibility of the witness” when
the case’s outcome relies on “which witnesses are telling the truth”).
Vasquez-Reyes also argues that the State committed
prosecutorial misconduct by misstating evidence regarding disagreements
in Vasquez-Reyes’ family and improperly shifting the burden of proof. We
disagree, because the statements did not call attention to Vasquez-Reyes’
failure to testify and, in context, were reasonably inferred from the
responding officer’s testimony and responsive to defense counsel’s argument
regarding G.A.’s testimony. See Allred v. State, 120 Nev. 410, 418, 92 P.3d
1246, 1252 (2004) (“[A]s long as a prosecutor's remarks do not call attention
to a defendant’s failure to testify, it is permissible to comment on the failure
of the defense to counter or explain evidence presented.” (internal quotation
marks omitted)); Williams v. State, 113 Nev. 1008, 1018-19, 945 P.2d 438,
444-45 (1997) (holding that a prosecutor may respond to a defense
argument), overruled on other grounds by Byford v. State, 116 Nev. 215, 994
P.2d 700 (2000); Parker v. State, 109 Nev. 383, 392, 849 P.2d 1062, 1068
(1993) (holding that a “deduction or a conclusion from the evidence
introduced in the trial, [is] permissible and unobjectionable” (internal
quotation marks omitted)). We similarly reject Vasquez-Reyes’ argument
that the State committed misconduct by stating that no evidence supported
his argument that he, G.A., and G.A.’s siblings argued often, with police
getting involved on occasion. A prosecutor may respond to defense theories,
see Williams, 113 Nev. at 1018-19, 945 P.2d at 444-45, and the prosecutor's
statements here were properly deduced from the evidence, see Parker, 109
Nev. at 392, 849 P.2d at 1068.
Supreme Court
OF
Nevapa
toy 19a7A, ceo
We also reject Vasquez-Reyes’ argument that the State elicited
improper vouching testimony by asking the responding officer about G.A.’s
demeanor, with the officer responding that she seemed “very genuine.” This
testimony did not touch upon G.A.’s testimony and, in context, described
G.A.’s demeanor without opining as to her truthfulness. See Farmer v.
State, 133 Nev. 693, 705, 405 P.3d 114, 125 (2017) (rejecting the appellant's
claim that the “State’s witnesses inappropriately vouched for one another
by making statements regarding the victims’ demeanor”); Perez v. State, 129
Nev. 850, 861, 313 P.3d 862, 870 (2013) (“A witness may not vouch for the
testimony of another or testify as to the truthfulness of another witness.”).
Finally, we reject Vasquez-Reyes’ argument that the State disparaged the
defense, because the prosecutor commented on weaknesses in the defense
theory, rather than defense counsel or their tactics.2 See Butler v. State,
120 Nev. 879, 897-98, 102 P.3d 71, 84 (2004) (describing instances where a
prosecutor’s statement amounted to disparagement of counsel or of the
defense theory).
Jury instructions
Vasquez-Reyes challenges several jury instructions. “The
district court has broad discretion to settle jury instructions, and this court
reviews the district court's decision for an abuse of that discretion or judicial
error.” Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005). “An
3Vasquez-Reyes also appears to argue that the prosecutor's alleged
mischaracterization of the defense theory constituted misconduct
warranting reversal and notes the denial of his motion for mistrial based on
cumulative prosecutorial misconduct. Vasquez-Reyes neither cogently
argues these points nor provides relevant authority to support them so we
decline to address them further. See Maresca v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987) (“It is appellant’s responsibility to present relevant
authority and cogent argument; issues not so presented need not be
addressed by this court.”).
Supreme Count
OF
NEVADA
on PATA aie:
abuse of discretion occurs if the district court’s decision is arbitrary or
capricious or if it exceeds the bounds of law or reason.” Jackson. v. State,
117 Nev. 116, 120, 17 P.3d 998, 1000 (2001).
We first reject Vasquez-Reyes’ contention regarding the no-
corroboration instruction because the given instruction is nearly identical
to the one we approved in Gaxiola v. State, 121 Nev. 638, 649, 119 P.3d
1225, 1233 (2005). We decline Vasquez-Reyes’ invitation to revisit Gaxiola.*
We further reject his claims regarding the reasonable doubt instruction
because it is consistent with the law. See NRS 175.211(2) (providing that
“(nJo other definition of reasonable doubt may be given by the court to juries
in criminal actions in this State”); Batson v. State, 113 Nev. 669, 674-75,
941 P.2d 478, 482 (1997) (rejecting a challenge to a jury instruction using
the language required by NRS 175.211).
Next, we reject Vasquez-Reyes’ challenges to several
instructions because they allegedly contained superfluous language; other
instructions or proposed instructions more accurately reflected the law;
and/or the given instructions were irrelevant, cumulative, and confusing.
The challenged instructions applied to the facts of this case, clarified a
potentially confusing issue for the jury, accurately represented the law,
and/or addressed the elements the State was required to prove. See NRS
201.230 (elements and punishment for lewdness with a child); NRS 200.366
(elements of sexual assault); Gaxiola, 121 Nev. at 651, 119 P.3d at 1234;
Crowley v. State, 120 Nev. 30, 34, 83 P.3d 282, 285 (2004) (distinguishing
between sexual encounters constituting separate and distinct acts and
those that are part of the same episode); Jackson, 117 Nev. at 121-22 & n.6,
4For this reason, we further reject Vasquez-Reyes’ related argument
that his proposed Instruction I would have ameliorated the purported
prejudice of Jury Instruction 13 regarding corroboration.
6
SuPREME Court
OF
NEvapa
OOM 1947 A
ts.
ee need
17 P.3d at 1001-02 & n.6 (holding that the district court did not abuse its
discretion despite superfluous language in a jury instruction if it otherwise
applies); LaPierre v. State, 108 Nev. 528, 531, 826 P.2d 56, 58 (1992)
(holding that “the victim must testify with some particularity regarding the
incident”); McNair v. State, 108 Nev. 53, 56-57, 825 P.2d 571, 574 (1992)
(providing that the essential elements of sexual assault include
“nonconsent” but not “[p]hysical force”).
Vasquez-Reyes also challenges the district court’s decision to
reject several of his proposed jury instructions. The given instructions
adequately covered Vasquez-Reyes’ proposed instructions on witness
credibility and the victims’ motives, see Vallery v. State, 118 Nev. 357, 372,
46 P.3d 66, 77 (2002) (holding that a court may refuse an instruction where
it is substantially covered by other instructions); the jurors knew they could
request playbacks if needed, cf. Miles v. State, 97 Nev. 82, 84, 624 P.2d 494,
495 (1981) (holding that the district court did not abuse its discretion by
refusing to provide a read back of testimony); the fact that Vasquez-Reyes
did not flee “is open to multiple interpretations, many of which have litle
to do with consciousness of guilt, and which could actually reflect a strategic
choice,” Commonwealth v. Hanford, 937 A.2d 1094, 1097 (Pa. 2007) (citing
cases); and the district court did not have to give the proposed
circumstantial evidence instruction because it properly instructed the jury
on reasonable doubt, see Bails v. State, 92 Nev. 95, 97-98, 545 P.2d 1155,
1156 (1976) (holding that where “the jury was properly instructed on the
standards for reasonable doubt . . . it was not error to refuse the requested
[circumstantial evidence] instruction”). Thus, the district court did not
abuse its discretion in refusing to give the defense’s proposed instructions
in these areas. See Crawford, 121 Nev. at 748, 121 P.3d at 585. We further
reject Vasquez-Reyes’ argument that the district court erred by rejecting his
7
Supreme Count
OF
Nevapa
1 7A ee
proposed verdict form with “not guilty” as the first option because he only
relies on distinguishable, nonbinding authority for support. See Smith v.
State, 290 S.E.2d 43, 47 (Ga. 1982) (addressing a situation where the verdict
form entirely omitted “not guilty by reason of insanity,” and ultimately
concluding that the placement of the judgment forms was not reversible
error); see also Joshua v. State, 507 S.W.3d 861, 864 (Tex. Ct. App. 2016)
(“[P]lacement of ‘Guilty’ before ‘Not Guilty’ in an otherwise proper verdict
form does not indicate a trial court is biased or influenced a jury to vote a
particular way.”).
Motions to suppress confession
Vasquez-Reyes argues that the district court erred by denying
his motions to suppress his incriminating statements to officers because (1)
his confession was not voluntary; (2) he did not knowingly and intelligently
waive his Miranda’ rights; and (3) he made the statements while unlawfully
detained. In reviewing challenges to denials of a motion to suppress, “we
review the district court’s legal conclusions de novo and its factual findings
for clear error.” Lamb v. State, 127 Nev. 26, 31, 251 P.3d 700, 703 (2011).
We reject Vasquez-Reyes’ arguments regarding voluntariness because his
purported medical condition, alone, is insufficient to demonstrate that his
statements were involuntary. See Passama v. State, 103 Nev. 212, 216,
735 P.2d 321, 324 (1987) (citing Colorado v. Connelly, 479 U.S. 157, 167
(1986) (“[C]oercive police activity is a necessary predicate to the finding that
5Miranda v. Arizona, 384 U.S. 436 (1966).
6On appeal, Vasquez-Reyes claims his low IQ score rendered his
confession involuntary. In addition to the fact that he did not present this
argument as part of his motions to suppress, and that there was conflicting
expert testimony on the reliability of the tests, Vasquez-Reyes fails to
demonstrate how this relates to coercive police conduct. See Connelly, 479
US. at 167,
Supreme Court
OF
Nevapa
Oy UST A SE
a confession is not ‘voluntary’ within the meaning of the Due Process Clause
of the Fourteenth Amendment.”)); see also Allan v. State, 118 Nev. 19, 4, 38
P.3d 175, 178 (2002) (“[A] confession is involuntary only if the suspect’s
ability to exercise his free will was overborne by police coercion.”), overruled
on other grounds by Rosky v. State, 121 Nev. 184, 191 & n.10, 111 P.3d 690,
695 n.10 (2005). And he failed to demonstrate any coercive police conduct
during his interrogation. See Passama, 103 Nev. at 214, 735 P.2d at 323(reviewing the totality of the circumstances in determining the
voluntariness of a confession and outlining factors for courts to consider);
see also Connelly, 479 U.S. at 167; State v. Dobbs, 945 N.W.2d 609, 632-33
(Wis. 2020) (declining the appellant’s invitation to assess the voluntariness
of his statements based solely on his physical and mental condition and
concluding that “based upon the lack of proof of any improper police
practices, [the appellant’s] statements were voluntary’).
We similarly reject Vasquez-Reyes’ argument that he did not
knowingly and intelligently waive his Miranda rights before confessing
because the totality of the circumstances shows otherwise.? See Mendoza v.
7Vasquez-Reyes also argues that his waiver was not voluntary. The
voluntariness inquiry for a Miranda waiver is subject to the same standard
as the voluntariness inquiry under the Due Process Clause. See Connelly,
479 U.S. at 169-70 (“There is obviously no reason to require more in the way
of a ‘voluntariness’ inquiry in the Miranda waiver context than in the
Fourteenth Amendment confession context.”). For the same reasons we
reject his arguments about the voluntariness of his confession, we conclude
that Vasquez-Reyes fails to demonstrate that his Miranda waiver was
involuntary. Additionally, in his first motion to suppress, Vasquez-Reyes
also argued that law enforcement did not inform him of his Miranda rights
before the custodial interrogation. He appears to abandon this argument
on appeal. To the extent he has not, any error would have been harmless
because he ultimately did receive the Miranda warnings before confessing.
See Dobbs, 945 N.W.2d at 631 (holding that admitting pre-Miranda
continued on next page...
g
Supreme Court
oF
Nevapa
ay 987A cg
State, 122 Nev. 267, 277, 130 P.3d 176, 182 (2006) (“A review of the totality
of the circumstances reveals that [appellant] voluntarily, knowingly, and
intelligently waived his Miranda rights.”). Vasquez-Reyes received the
Miranda warning in English and Spanish with assistance from an
interpreter, stated that he understood his rights, signed a Miranda card in
Spanish, and agreed to talk about the incidents. Although he indicated that
he felt dizzy and lightheaded during the questioning because of his diabetes
and high blood pressure, the interviewing detective told him that an
emergency medical technician could give him medical attention if needed.
Vasquez-Reyes never sought the medical attention and did not appear in
distress during the interview. Accordingly, we conclude that that the
district court did not err in denying the motion to suppress Vasquez-Reyes’
statements to police based on a Miranda violation.
Lastly, we reject Vasquez-Reyes’ argument that his confession
should have been suppressed because he gave it while unlawfully detained
in violation of NRS 171.123(4). Cf. Powell v. State, 113 Nev. 41, 46, 930 P.2d
1123, 1126 (1997) (noting that a confession may be excluded where given
during a detention that was unlawful because the defendant was not
afforded a probable-cause hearing within 48 hours of his warrantless
arrest). Here, the district court was not required to suppress Vasquez-
Reyes’ confession because G.A.’s statements to police provided sufficient
probable cause to arrest him. See State v. McKellips, 118 Nev. 465, 472-73,
49 P.3d 655, 660-61 (2002) (reversing the district court’s grant of the
defendant’s suppression motion because probable cause supported the law
enforcement officer's de facto arrest); Thomas v. Sheriff, Clark Cty., 85 Nev.
statements was harmless error where the appellant made the incriminating
statements after waiving his Miranda rights).
10
Supreme Court
OF
Nevapa
10) 19a7A 2
551, 552-54, 459 P.2d 219, 220-21 (1969) (holding that a witness’s statement
to police provided sufficient probable cause for arrest).
Evidentiary determinations
Vasquez-Reyes also challenges various evidentiary
determinations. We review a district court’s decision to admit or exclude
evidence for an abuse of discretion. Franks v. State, 135 Nev. 1, 3, 432 P.3d
752, 755 (2019).
Regarding G.A.’s statements to law enforcement, we agree the
district court abused its discretion in admitting them as prior consistent
statements because the alleged motive to fabricate—that G.A. wanted
Vasquez-Reyes out of the house—arose before she made the prior consistent
statements. See NRS 51.035 (providing that a witness’ prior consistent
statements offered to prove the truth of the matter asserted are generally
considered to be inadmissible hearsay, and listing exceptions); Runion v.
State, 116 Nev. 1041, 1052, 13 P.3d 52, 59 (2000) (holding that, for prior
consistent statements to be admissible, they “must have been made at a
time when the declarant had no motive to fabricate”); Daly v. State, 99 Nev.
564, 569, 665 P.2d 798, 802 (1983) (hinging its prior consistent statement
analysis on what the defendant alleged was the victim’s motive), holding
modified on other grounds by Richmond v. State, 118 Nev. 924, 59 P.3d 1249(2002). Nevertheless, we conclude that the error was harmless because
Vasquez-Reyes elicited nearly identical testimony from the detective, G.A.
testified to any possible discrepancy between her various statements to law
enforcement, Vasquez-Reyes cross-examined her on this issue, and there
was overwhelming evidence of Vasquez-Reyes’ guilt. See Turner v. State,
98 Nev. 243, 246, 645 P.2d 971, 972 (1982) (reviewing errors regarding
admitting evidence determinations for harmless error).
11
Supreme Court
OF
Nevapa
1 ITA SEE
Next, Vasquez-Reyes argues that the district court erred by
admitting G.A.’s testimony that Vasquez-Reyes performed uncharged
sexual acts on her because the State did not show that testimony was
necessary to prosecute its case in light of the danger of substantial
prejudice.2 We disagree because the evidence helped the State’s case by
establishing Vasquez-Reyes’ propensity to commit the charged crimes, and
allowed the jury to see the steps Vasquez-Reyes took before committing the
charged acts on G.A. See NRS 48.045(3) (“Nothing in this section shall be
construed to prohibit the admission of evidence in a criminal prosecution
for a sexual offense that a person committed another crime, wrong or act
that constitutes a separate sexual offense.”); Franks, 135 Nev. at 5-7, 432
P.3d at 756-57 (establishing the framework for admitting evidence under
NRS 48.045(3) and explaining that “evidence need not be absolutely
necessary to the prosecution’s case in order to be introduced; it must simply
be helpful or practically necessary” (quoting United States v. LeMay, 260
F.3d 1018, 1029 (9th Cir. 2001))).
We also reject Vasquez-Reyes’ argument that the district court
erred in granting the State’s motion, under NRS 50.090 (Nevada’s rape
shield statute), to exclude reference to and evidence that G.A. had tested
8Vasquez-Reyes also alleges that the district court erred by admitting
the evidence because it was not previously disclosed. But it is unclear
whether he is arguing that the State untimely sought to introduce the
evidence or whether the State should be barred from introducing it on other
grounds. Nevertheless, the district court considered the timing of the
disclosure and accepted the State’s argument that G.A. took time to reveal
the additional acts and details due to her shy and quiet demeanor coupled
with the sexually explicit nature of the acts. Under these facts, Vasquez-
Reyes fails to demonstrate that the district court abused its discretion by
admitting the evidence on these grounds. See Franks, 135 Nev. at 3, 432
P.3d at 755.
12
Supreme Court
OF
Nevapa
ao TTA Fea Sey
positive for a sexually transmitted disease (STD). Vasquez-Reyes fails to
demonstrate that his proffered reasons for using the evidence are sufficient
to overcome the rape shield prohibition. The STD evidence has little to no
probative value in challenging G.A.’s testimony—corroborated by Vasquez-
Reyes’ confession—that Vasquez-Reyes had abused her for years. See NRS
50.090; Johnson v. State, 113 Nev. 772, 776-77, 942 P.2d 167, 170 (1997)
(holding that evidence must have probative value to overcome the rape
shield prohibition); Summit v. State, 101 Nev. 159, 162-63, 697 P.2d at 1376-
77 (1985) (explaining the purpose of rape shield statutes and the applicable
exceptions). And any error in excluding this evidence was harmless in light
of Vasquez-Reyes’ confession.
Finally, we reject Vasquez-Reyes’ argument that the district
court erred by denying his request that the court conduct an in camera
review of G.A.’s counseling records to determine whether they contained
discoverable evidence.? Vasquez-Reyes did not make a particularized
showing of the exculpatory evidence he expected to find in those records.!°
°Vasquez-Reyes also argues that he was entitled to a hearing under
Brady v. Maryland, 373 U.S. 83 (1963), to determine if officers had to wear
body cameras when G.A. gave her statements. We disagree, as any Brady
analysis hinges on how the evidence affected the outcome of the trial, and
thus, cannot form the basis for the evidentiary hearing Vasquez-Reyes
sought. See Bradley v. Eighth Judicial Dist. Court, 133 Nev. 754, 759-60,
405 P.3d 668, 673 (2017) (holding that a Brady analysis is “applied
retrospectively”).
lOVasquez-Reyes also argues that the district court erred by admitting
a video of his initial police interview, claiming it “contained clear and
obvious redactions.” The case Vasquez-Reyes cites is distinguishable in that
it involved a redaction of a defendant's name from a codefendant’s
confession in violation of Bruton v. United States, 391 U.S. 123 (1968), and
the United States Supreme Court held that the redaction encouraged the
jurors to speculate about the reference such that “the redaction may
continued on next page...
13
Supreme Court
OF
Nevapa
1 7A Se
See Bradley v. Eighth Judicial Dist. Court, 133 Nev. 754, 761 n.5, 405 P.3d
668, 674 n.5 (2017) (explaining that while a criminal defendant may not be
entitled to such records in pretrial proceedings, he or she may be entitled to
them at trial); Sonner v. State, 112 Nev. 1328, 1341, 930 P.2d 707, 716
(1996) (approving the denial of a request for an individual’s records because
the “request was based on nothing more than the assertion of a general right
to search for whatever mitigating evidence might be found in [the] records”).
Alleged restrictions of Vasquez-Reyes’ defense and cross-examination
Vasquez-Reyes argues that the district court erroneously
precluded him from questioning a detective about G.A.’s statements. We
review “a trial court’s evidentiary rulings for an abuse of discretion and the
ultimate question of whether a defendant’s Confrontation Clause rights
were violated de novo.” Farmer v. State, 133 Nev. 693, 702, 405 P.3d 114,
123 (2017). Because G.A. was available and subject to cross-examination,
we conclude that the district court did not violate Vasquez-Reyes’ rights
under the Confrontation Clause. See U.S. Const. amend. VI; United States
vu. Owens, 484 U.S. 554, 560 (1988) (concluding that a confrontation analysis
overemphasize the importance of the confession’s accusation.” Gray v.
Maryland, 523 U.S. 185, 193 (1998). Here, Vasquez-Reyes concedes that
there is no Bruton issue. Moreover, he fails to identify which portions of the
video demonstrated clear and obvious redactions. See Thomas v. State, 120
Nev. 37, 438, 83 P.3d 818, 822 (2004) (declining to address claims not
supported by adequate citations to the record). For this reason, we conclude
that Vasquez-Reyes’ additional argument that the district court abused its
discretion by denying his motion for a mistrial on this issue lacks merit. See
Rudin v. State, 120 Nev. 121, 142, 86 P.3d 572, 586 (2004) (“The trial court
has discretion to determine whether a mistrial is warranted, and its
judgment will not be overturned absent an abuse of discretion.”). Vasquez-
Reyes does not cogently articulate whether he also argues that the district
court abused its discretion by denying his motions for mistrial on other
evidentiary grounds, so we do not consider it. See Maresca, 103 Nev. at 673,
748 P.2d at 6.
14
Supreme Court
OF
NEvaDA
(Ol DHTA Eb
is unnecessary “when a hearsay declarant is present at trial and subject to
unrestricted cross-examination”). We further conclude that the district
court properly limited Vasquez-Reyes’ cross-examination of the detective
about G.A.’s statements that a responding officer relayed to the detective
given that the statements involved two layers of hearsay for which Vasquez-
Reyes failed to provide exceptions. Cf. Carson v. State, 106 Nev. 922, 803
P.2d 230 (1990) (applying hearsay rules to a defendant’s presentation of
evidence). And G.A.’s initial statement was not inconsistent with her later
statements because, contrary to Vasquez-Reyes’ position, she never
explicitly stated that the last incidence of vaginal penetration occurred one
week before Vasquez-Reyes’ arrest. Instead, G.A. more broadly stated that
the last incident occurred approximately one week earlier and without
giving specific details of the nature of the incident.
Dr. Sandra Cetl’s remote testumony
Vasquez-Reyes argues that the State’s presentation of Dr.
Sandra Cetl’s testimony through remote means violated his rights under
the Sixth Amendment Confrontation Clause. We review de novo, see Chavez
v. State, 125 Nev. 328, 339, 213 P.3d 476, 484 (2009), and agree. The State
failed to demonstrate that permitting Dr. Cetl’s remote testimony here was
necessary to further an important public policy. See Maryland v. Craig, 497
U.S. 836, 850 (1990) (holding in relevant part that “a defendant’s right to
confront accusatory witnesses may be satisfied absent a physical, face-to-
face confrontation at trial only where denial of such confrontation is
necessary to further an important public policy”). Nevertheless, we
conclude that error was harmless beyond a reasonable doubt considering
the limited nature of Dr. Cetl’s testimony and the strong evidence of guilt
including G.A.’s testimony and Vasquez-Reyes’ confession. See Medina v.
State, 122 Nev. 346, 355, 143 P.3d 471, 476 (2006) (explaining that
15
Supreme Court
OF
Nevapa
(On ETA Se
Confrontation Clause errors are subject to a “harmless beyond a reasonable
doubt” standard and outlining the relevant factors).
Interpreter’s testumony
Vasquez-Reyes also argues that the district court erred by
denying his motion to strike the testimony of the interpreter who was
present at the scene and during the interrogation because she did not
qualify as an expert. But Vasquez-Reyes has not demonstrated that the
interpreter’s qualifications and certifications were insufficient. See
Baltazar-Monterrosa v. State, 122 Nev. 606, 614, 137 P.3d 1137, 1141-42
(2006) (noting that, unlike the statute affording persons with “a
communications disability,” the right to an interpreter with certain
qualification and certification requirements, NRS 171.1538(2); NRS
656A.100, there is no statute requiring certain qualifications or
certifications for individuals requiring a language interpreter). Moreover,
Vasquez-Reyes does not argue that the interpreter’s translations were
inaccurate or inadequate. See id. at 613, 137 P.3d at 1142 (holding that
individuals challenging an interpreter’s translations bear the “burden of
proving that the...translations were fundamentally inaccurate or
inadequate”). Because Vasquez-Reyes fails to demonstrate that the
interpreter’s qualifications were insufficient, and the interpreter’s special
knowledge assisted the jury regarding the translations conducted in this
case, we conclude that the district court did not abuse its discretion by
admitting the interpreter’s expert testimony. See NRS 50.275 (providing
that “a witness qualified as an expert by special knowledge, skill,
experience, training or education may testify to matters within the scope of
such knowledge,” if such testimony “will assist the trier of fact to
understand the evidence or to determine a fact in issue”); Sampson v. State,
16
Supreme Court
OF
NevaDA
7 xe
1) DNTA 121 Nev. 820, 827, 122 P.3d 1255, 1259 (2005) (“The district court has
discretion to determine the admissibility of expert testimony.”).
Dr. Lisa Roley’s rebuttal testumony
Vasquez-Reyes asserts that the district court erred by
permitting rebuttal testimony from Dr. Lisa Roley, a clinician at Stein
Diagnostic Center who evaluated Vasquez-Reyes over a two-month period.
He argues that the State provided inadequate notice of this witness’s
testimony and that the testimony exceeded the scope of the defense expert’s
testimony. We disagree. First, the State provided adequate notice of the
subject matter and substance of Dr. Roley’s testimony. See NRS
174.234(2)(a) (outlining the notice requirements for calling expert
witnesses); Grey v. State, 124 Nev. 110, 119, 178 P.3d 154, 161 (2008)
(preserving NRS 174.234’s constitutionality by expanding its notice
requirement to rebuttal expert witnesses). Second, Dr. Roley’s testimony
was responsive to the defense expert’s testimony about Vasquez-Reyes’
neurological evaluation in that Dr. Roley addressed the limitations of the
testing conducted by the defense expert. Thus, it was proper rebuttal
testimony. See Morrison v. Air Cal., 101 Nev. 233, 235-37, 699 P.2d 600,
602 (1985) (explaining the scope of rebuttal evidence); see also United States
v. Burch, 153 F.3d 1140, 1144 (10th Cir. 1998) (holding that rebuttal
evidence is admissible where a “defendant opens the door to the subject
matter” (internal quotation marks omitted)). Therefore, we conclude the
district court did not abuse its discretion by admitting Dr. Roley’s
testimony. See Sampson, 121 Nev. at 827, 122 P.3d at 1259.
Cumulative error
Finally, Vasquez-Reyes argues that cumulative error warrants
reversal. Having considered the relevant factors, see Valdez v. State, 124
Nev. 1172, 1195, 196 P.3d 465, 481 (2008) (discussing the factors to consider
17
Supreme Court
OF
NEvaADA
cy UTA 2eSgR
for a cumulative error claim), and the errors discussed above, we disagree,
see Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002)
(concluding “that any errors which occurred were minor and, even
considered together, do not warrant reversal’).
We therefore
ORDER the judgment of conviction AFFIRMED.
/ Aw. Laake J.
Hardesty
Gos (~~,
Stiglich Herndon
ec: Hon. Michelle Leavitt, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
18