Engelson (Cole) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
COLE DUANE ENGELSON, No. 82691
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. MAR 1 8 2022
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of first-degree murder. Fifth Judicial District Court, Nye
County; Robert W. Lane, Judge.
Appellant Cole Engelson was taking care of his girlfriend's
three-year-old daughter, Yessenia Camp, when she was killed. Yessenia's
mother, Victoria, had left Yessenia alone with Engelson at the time of the
murder and, although Engelson asserted he did not remember how
Yessenia died, he stated multiple times to detectives that he was
responsible for Yessenia's death, including that the cause of her death was
"literally" at his hands. A jury convicted Engelson of first-degree murder
and he was sentenced to life in prison without parole.
On appeal, Engelson advances multiple arguments in support
of a new trial, including that the district court improperly admitted
evidence of two prior bad acts, denied a motion to suppress statements he
made to detectives, and admitted a witness's deposition transcript. For the
reasons set forth below, we affirm the judgment of conviction.'
We have reviewed the record and the additional arguments on appeal
1
and we conclude (1) that the district court did not err by denying Engelson's
motion to disqualify the Nye County District Attorney's Office where the
evidence does not support that Engelson's prior attorney was not properly
2 -03C/
We first address the prior bad acts evidence. The district court
allowed the State to introduce evidence that, three months before the
murder, Yessenia fell and cut her chin while Engelson was babysitting her
and that Engelson immediately notified Victoria of that injury. The district
court also admitted a statement Engelson made to Victoria, about a month
prior to the murder, that he had spanked Yessenia too hard.
We review for an abuse of discretion the district court's decision
to admit prior bad act evidence and we will not reverse absent an abuse of
discretion. Randolph v. State, 136 Nev. 659, 661, 477 P.3d 342, 346 (2020).
A threshold requirement for admission is that the evidence must be
relevant. NRS 48.025(1). NRS 48.045(2) provides that evidence of prior bad
acts "is not admissible to prove the character of a person in order to show
that the person acted in conformity therewith" although it may be
admissible for other purposes, including to show absence of mistake or
accident. However, the probative value must not be substantially
outweighed by the prejudicial effect. See Randolph, 136 Nev. at 661, 477
P.3d at 346. We assess unfair prejudice by looking at the need for the
evidence, the basis for its admission, "the use to which the evidence was
actually put," and whether the evidence will "rouse the jury to
screened off the case or that any prejudice was fairly imputed to the entire
office; (2) Yessenia's autopsy photographs were properly admitted to help
explain the expert's testimony; and (3) Engelson's sentence fell within the
statutory limits and was appropriate for the crime. To the extent there was
any error regarding mention of Engelson's "jail calls," the error was
harmless considering the overwhelming evidence against Engelson
presented at trial, as addressed below. See NRS 178.598. Finally, even
assuming, arguendo, any non-victim gave improper victim-impact
statements at sentencing, any error was harmless because the non-victims
and the victims asked for the same sentence. See id.
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overmastering hostility." id. at 665, 477 P.3d at 349 (internal quotation
marks omitted).
The prior bad act evidence here was inadmissible. The State
sought to introduce evidence of the chin injury to contrast it with the
murder and to argue that Engelson's failure to immediately alert Victoria
of Yessenia's injuries on the day she died suggested that the killing, unlike
the earlier chin injury, was not an accident. The district court admitted
evidence of the cut to Yessenia's chin to prove absence of mistake. But
evidence concerning the chin injury has little, if any, relevance here.
Engelson argued he did not remember what happened to Yessenia, and so
contrasting the two incidents proves little about the nature of the killing.
Moreover, an accidental chin cut three months before the murder bears no
similarity to the extensive, traumatic, and deadly injuries Yessenia
sustained on the day she was killed. The evidence also lacked probative
value considering the fact that Engelson confessed to killing Yessenia and
the circumstantial evidence adduced at trial supported the conclusion that
the killing was not accidental. Finally, the prejudice accompanying this
evidence was high, where the jury could view it as a possible earlier incident
of child abuse.
Similarly, Victoria's testimony that sometime prior to the
killing Engelson said he had spanked Yessenia "too hard, that he had
popped her a good one," should not have been admitted. The State argued
the testimony shows Engelson knew to not hit Yessenia too hard and the
evidence therefore went to Engelson's mens rea. The district court likewise
admitted this evidence to prove absence of mistake, but the evidence has no
relevance. Again, because Engelson's defense was that he did not know
what happened to Yessenia, showing that he knew what constituted hitting
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"too hard" does little to counter his defense, and, moreover, spanking a child
"too hard" is distinct from beating a child to death, as the State argued
happened here. Further, the prejudice outweighs any probative value, as
the jury could improperly infer from this evidence a propensity to hit
Yessenia and a pattern of child abuse. And, again, this evidence was
unnecessary in light of the evidence adduced at trial. Therefore, the district
court erred by admitting the prior bad act evidence.
We nevertheless conclude the error was harmless here. See
NRS 178.598 ("Any error, defect, irregularity or variance which does not
affect substantial rights shall be disregarded"); Hubbard v. State, 134 Nev.
450, 459, 422 P.3d 1260, 1267 (2018) (explaining an error that does "not
have a substantial and injurious effect or influence in determining the jury's
verdict" will not warrant reversal). Engelson was the only person present
with Yessenia at the time of the murder, he confessed to killing Yessenia—
i ndicating he caused her death "literally" with his hands—and Engelson
had marks on his knuckles that were consistent with hitting a person.
Yessenia had abrasions and contusions over her entire head and body, and
the autopsy showed that Yessenia had been injured so severely her internal
organs were damaged, including her brain and eyes, and she had sustained
blunt force trauma similar to the trauma caused by a car accident. The
doctor who perforrned the autopsy concluded the manner of death was
homicide. As to the spanking evidence in particular, Engelson also told
detectives that he had previously spanked Yessenia and that he was "heavy-
handed." Moreover, although Engelson claimed he could not recall what
happened to cause Yessenia's death, he was able to provide details
regarding events that occurred the day before and after she died,
undermining the veracity of his defense. Given the overwhelming evidence
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against Engelson, the admission of the prior bad act evidence does not
warrant reversa1.2
Next, we address the district court's denial of Engelson's motion
to suppress the statements he made to the detectives. Engelson talked to
Detective Fernandes when she arrived at the scene, and he later confessed
to her. Detective Fernandes did not read him his Miranda rights when she
first made contact with him, but she read him his Miranda rights after he
confessed.
We conclude Engelson was not in custody when Detective
Fernandes initially questioned him and that when Detective Fernandes
first arrived on the scene, she was investigating the crime and gathering
facts about the criine. State v. Taylor, 114 Nev. 1071, 1082-83, 968 P.2d
315, 323-24 (1998) (deciding an individual is generally not in custody for
Miranda purposes when he is questioned during the fact-finding process
and concluding the defendant was not in custody where officers did not
move or restrain him, did not handcuff or draw their guns on defendant,
and did not accuse defendant of anything or inform him he was not free to
leave); Belcher v. State, 136 Nev. 261, 264, 464 P.3d 1013, 1021 (2020)
(reviewing the totality of the circumstances "including the interrogation
site, any objective indicia of arrest, 'and the length and form of questioning"'
to determine whether defendant is in custody and entitled to a Miranda
warning)(quoting Carroll v. State, 132 Nev. 269, 282, 371 P.3d 1023, 1032
2Enge1son also argues the evidence was insufficient to support his
conviction for first-degree murder. For the reasons stated here, we are not
persuaded by this argument. See Valentine v. State, 135 Nev. 463, 467-68,
454 P.3d 709, 715 (2019) (evidence is sufficient if, when viewed in the light
most favorable to the prosecution, the evidence is such that any rational
factfinder could find the elements of the crime beyond a reasonable doubt).
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(2016)). Here, Engelson and Detective Fernandes were standing outside
Engelson's house, and Engelson—who had not been arrested, detained, or
told he was not free to leave—voluntarily described bathing Yessenia and
showed Fernandes the bathroom. Moreover, Engelson was not restrained
or handcuffed during this time. And as soon as Engelson stated he killed
Yessenia, Fernandes stopped questioning him, handcuffed him, and read
him his Miranda rights. Accordingly, the district court did not err in
denying Engelson's motion to suppress his statement to Detective
Fernandes.
Later, while in custody, Engelson was interviewed by
detectives, was read his Miranda rights, and waived them. However, he
argues he was intoxicated, hungover, sleep deprived, and mentally unstable
as evidenced by the suicide smock he was placed in, and therefore, he could
not have voluntarily, knowingly, and intelligently waived his Miranda
rights.
We conclude the record does not support Engelson's arguments
and instead shows he was coherent and able to recall detailed facts during
the three times he spoke to detectives. See Tucker v. State, 92 Nev. 486,
488, 553 1.2d 951, 952 (1976) (deciding proof of the defendant's intoxication
during the time of the confession will not, in the absence of additional facts
demonstrating distress, prevent the admission of his confession); Pickworth
v. State, 95 Nev. 547, 549, 598 P.2d 626, 627 (1979) (deciding a defendant's
confession was voluntary where the defendant suffering frorn withdrawal
was coherent, able to recall facts in great detail, and showed no signs of
discomfort). Accordingly, the district court did not err in denying his motion
to suppress the staternents he made to detectives during this interview.
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Another detective interviewed Engelson later in the same day,
and this detective did not re-read Engelson his Miranda rights. The
detective did ask Engelson if he remembered the earlier Miranda warning
and understood his Miranda rights.
We conclude the district court did not err in denying Engelson's
motion to suppress his statements in the later interview. See Taylor v.
State, 96 Nev. 385, 386, 609 P.2d 1238, 1239 (1980) (explaining warnings do
not need to be repeated each time questioning is commenced); Koger v.
State, 117 Nev. 138, 142-44, 1.7 P.3d 428, 431-32 (2001.) (deciding the most
relevant factor in determining whether an earlier warning has become stale
is the arnount of time lapsed between warnings, but other factors include
"the degree to which the defendant was reminded of [his] rights in the
subsequent interrogation before questioning and the degree to which the
defendant indicated she remembered and understood those rights prior to
questioning.") Although the two interviews were conducted by different
detectives, the detective that interviewed Engelson later in the same day
reminded Engelson that his Miranda rights still applied during that later
interview.3
Finally, we address the district court's decision to admit a
witness's deposition at trial. Prior to trial, the State deposed Christopher
Pullen, who had been incarcerated with Engelson. Pullen testified that
Engelson related that on the day of the murder, he spanked Yessenia on
two occasions, both times causing Yessenia to fall and hit her head, after
3Engelson also argues his state of mind was different for the earlier
interview because he was hungover, exhausted, and mentally unstable . We
conclude the record does not support this argument for the same reasons
stated above.
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which Engelson put Yessenia to bed. Engelson was present and represented
by counsel at the deposition. Pullen promised the court and the State that
he would appear at trial, but instead he disappeared after he was released
from prison and did not respond when the State emailed his subpoena to
the prison system. The State moved to admit the deposition during trial,
explaining they had been unable to locate Pullen, and the district court
granted the motion.
NRS 174.125 required the State to move to admit the deposition
at least 15 days prior to trial, unless the opportunity did not exist before
trial or the State was then unaware of the grounds for the motion. NRS
174.125(1) (3). The State's failure to timely file the motion here is
uncontroverted, and nothing in the record suggests that the State was
unaware that Pullen would likely be unavailable at trial or did not have an
opportunity to timely file the motion. Moreover, even assuming the
untimely motion was proper here, NRS 174.125(4) requires a party to
support an untimely motion with an affidavit—something the State again
did not do. See also Hernandez v. State, 124 Nev. 639, 648, 188 P.3d 1126,
1132-33 (2008) (explaining that to support an untimely motion the State
must provide an affidavit or sworn testimony explaining its efforts to timely
procure the evidence prior to the deadline), abrogated on other grounds by
State v. Eighth judicial Dist. Court (13aker), 134 Nev. 104, 412 13.3d 18
(2018). Accordingly, we conclude the district court erred by admitting
Pullen's deposition at trial. However, other evidence established that
Yessenia was fatally injured while in Engelson's care, and because the
evidence against Engelson was overwhelming we conclude this error was
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ultimately harm1ess.4 See Hernandez, 12/1 Nev. at 652, 188 13.3d at 11.35-36
(reviewing a decision to admit prior testimony for harmless error).
Accordingly, we
ORDER, the judgment of the district court AFFIRMED.
J.
Silver
Cadish
C40K J.
J.
Pickering
cc: Hon. Robert W. Lane, District Judge
Special Public Defender
Boskovich :Law Group, PlA,C
Attorney General/Carson City
Nye County District Attorney
Nye County Clerk
4 We also conclude the cumulative effect of the errors did not violate
Engelson's right to a fair trial or warrant reversal under these facts. See
Turner v. State, 136 Nev. 545, 556, 473 P.3d 438, 449 (2020) ("When
evaluating a claim of cumulative error, we consider the following factors: (1)
whether the issue of guilt is close, (2) the quantity and character of the
error, and (3) the gravity of the crime charged.").
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