Defining Penetration, Involuntary Intoxication Defense, Dealing with Prior Convictions, and More!

Rodriguez v. State of Nevada

(Unpublished Supreme Court Order) Petition for Writ of Mandamus Denied

A sexual assault case which originally involved a pre-trial petition of habeas corpus, which was denied. This petition for Writ of Mandamus then arose, seeking to overrule a prior decision in Maes v. Sheriff that defined fellatio as not requiring penetration. In this appeal, the defense argues that there was insufficient evidence at the preliminary hearing to show the victim was sexually assaulted. NRS 200.364 defining sexual assault requires penetration, but no evidence proved that penetration of the victim's mouth occurred. The court declined to consider because he was challenging factual sufficiency of evidence, but this is interesting to solidify the definition of sexual assault.


Vergara-Martinez v. State of Nevada

(Unpublished Supreme Court Order) Conviction of all Counts Affirmed


Appeal from district court denying post-conviction petition writ of habeas corpus.  Vergara-Martinez was accused of showing up at his ex-girlfriend's work, and striking her with a machete as she walked out.  He was convicted at trial of attempted murder with a deadly weapon, battery with a deadly weapon resulting in bodily harm constituting domestic violence, and mayhem. He argued ineffective counsel because they failed to investigate his voluntary intoxication defense.  The State had proved that he was indeed intoxicated during the incident, but "These actions showed that the appellate was guilty of the charged crimes despite any intoxication." The Nevada Supreme Court ruled that no more could have been done in part of the defense counsel, with new counsel he would have gotten the same result.  As with his other claims of ineffective counsel for not getting a change of venue and for being charged with both battery and mayhem. The Court declares that he did not prove his counsel was deficient in any way, and again that his case would not have gone any better with another counsel and it does not add up to needing a new trial. The court affirmed the lower courts decision. 


Sindelar v. State of Nevada

(Unpublished Supreme Court Order) Conviction of Felony DUI Affirmed

In 2004, Sindelar was arrested in Nevada for driving under the influence.  She had two prior DUI convictions from Utah and received a third. This qualified as a felony under Utah law, because a third offense in 10 years results in a felony. She served some time for this and had her sentence suspended. A few years later in Nevada she is arrested with another DUI, where NV law says 3 offenses within a 7 year period results in a felony charge. She was charged with a felony DUI. On her appeal, she argues that if the 2004 conviction had happened in Nevada she would have only gotten a misdemeanor with this latest DUI since there would not have been 3 offenses within the 7 year cut-off, so the instant offense should not have been a felony.

Secondly, she argues that the state prosecutor acted with misconduct by objecting to the defense cross-examining the states witnesses. The Nevada Supreme Court rules that her first claim is irrelevant, the issue is not of a geographic location or the shorter window of time in Nevada's law, but the issue is whether or not Nevada law and Utah law prohibiting drinking and driving are prohibiting the same actions. The Court deemed that they are. As to her second claim, the Court explains that because of the defense counsel telling the jury to consider the defendants "liberty interest" resulted in the objection of continuing questing with the states' witnesses. The defense was trying to bring up issues of law that were already set before the trial. The court rules that her conviction is to be upheld and that no misconduct occurred.



(Unpublished Supreme Court Order) Affirmed Prior Ruling

Appeal from judgment of conviction, jury verdict of one count each of conspiracy to rob, burglary with firearms, 1st degree kidnapping with deadly weapon, robbery with a deadly weapon, battery, and battery with intent to commit a crime. The defendant claims there was insufficient evidence to support the kidnapping conviction because any restriction of the victim was incidental to the robbery, it was not kidnapping in itself with the intent to kidnap. This appeal was brought because the defense believed a jury instruction should have been made to include different possible verdicts. The Nevada Supreme Court decided to affirm the prior ruling on this case, on the basis of no jury instructions having been proposed by the defense and the fact that the jury unanimously found him guilty of all counts, so such a jury instruction would not have been beneficial.


Walker v. Warden

(Unpublished Supreme Court Order) Petition Denied

Writ of Mandamus challenging district court order denying a motion to disqualify Judge Adair based upon her ruling and comments she made during the litigation of his first post-conviction petition. Her comments seemed to indicate that her mind was already made up about the case. The defense argued that the judge overlooking his motion to disqualify Adair on this basis had abused his discretion by denying the motion to disqualify Judge Adair. Judge Baker should not have relied on Adair's own assessment of what happened in deciding on the motion. Was this Judge abusing his discretion in his decision? The Nevada Supreme Court finds that he did not, he read the court transcripts and said Walker failed to show Adair's bias sufficiently in his motion.