Premeditation for Murder? Kidnapping? Medical Exception to Sexual Assault? All Answered by the Nevada Supreme Court

Leonardo Cardoza v. State of Nevada (unpublished opinion reversing in part and remanding)

Defendant Cardoza had been drinking alcoholic beverages when he followed a girl and her boyfriend home in an alleged road rage incident and ran her over, killing her.  Cardoza was charged with first-degree murder with the use of a deadly weapon.  He was convicted at jury trial and his appellate attorney argued that the judge erred in instructing the jury on the elements for first-degree murder. 

  • The trial judge used an instruction similar to an instruction in Kazalyn v. State (1992) which impermissibly conflated the concepts of deliberation and premeditation, thus blurring the distinction between first- and second-degree murder.  The Court reiterated the only instruction that courts should use was set out in Byford v. State (2000).
  • The Court found this reversible error because the evidence of deliberation was not overwhelming (drunk, wandering around outside the vehicle after striking victim, crashing into fence, and stumbling back into victim's home) and the jury may not have found Cardoza guilty of first-degree murder had it been instructed that he must have weighed the reasons for or against his action and that an unconsidered and rash act is not deliberate per the Bydford instruction.

Michael Schofield v. State of Nevada (published opinion, kidnapping conviction reversed)

Defendant Schofield was accused of first-degree kidnapping for his son, Michael, whose legal custody belonged to ex-wife/mother.  During a visit with his son, Schofield ordered Michael to go into a grocery store with him.  Michael refused and tried to run away.  Schofield caught up with Michael, put him in a headlock or chokehold, dragged Michael outside, and threw Michael into his van.  Schofield was stopped by neighbors.  Schofield was charged with child abuse, domestic violence (strangulation), burglary, and first-degree kidnapping.  A jury convicted Schofield of child abuse and first-degree kidnapping, but acquitted him on domestic battery (strangulation) and burglary. 

  • On appeal, Schofield argued that the phrase "intent to keep" in the first-degree kidnapping statute NRS 200.310(1) was ambiguous and that there was insufficient evidence to support a kidnapping conviction.
  • The Court examines the word "keep."  Schofield argues that it means "permanently or for a protracted period of time."  The State argued keep meant "possess for any amount of time against a legal guardian's wishes."
  • The Court, using the rule of lenity in statutory interpretation, ruled "intent to keep" requires "an intent to keep a minor permanently or for a protracted period of time."
  • The Court, in examining the trial facts, found that no rational juror, beyond a reasonable doubt,could have found that Schofield intended to keep Michael permanently or for a protracted period. 

Donald Taylor v. State of Nevada (published opinion, affirming conviction for murder and robbery with deadly weapon)

Defendant Taylor was accused of robbing a drug associate and killing him during the robbery.  One eyewitness to the incident testified that she had turned her back prior to hearing the shooting.  The witness changed her identification of Taylor from "just [did not] recognize that to be him" to "it looks like him" after several pressing questions from the officer asking her to "focus" on the identification.  Another witness was asked to identify Taylor with a single picture of Taylor (aka single show-up). 

Investigating officers located a phone number in the deceased's cell phone that was linked to Taylor.  Officers retrieved Taylor's historical CSLI (cell phone location information) which shows incoming/outgoing calls and text messages, times, dates, duration of each, and the location of the cell towers routing the calls.  Officers did not get a warrant for the historical CSLI information.  The State introduced this evidence to show Taylor was in the area at the time of the murder and made prior calls to the victim. 

  • Taylor appealed arguing Fourth Amendment violation for the warrantless retrieval of the historical CSLI information.  The Court held that a warrant is not required for historical CSLI information as the police obtained a 18 USC Section 2703(d) order and listed "specific and articulable facts."
  • "Because Taylor does not have a reasonable expectation of privacy in business records made, kept, and owned by his provider, Sprint-Nextel, a warrant requiring probable cause was not required before obtaining that information."
  • Taylor also challenged the out-of-court and in-court witness identification.  The Court found that "exigent circumstances justified the show-up identification procedure.  Specifically, the show was necessary to quickly apprehend a dangerous felon." 
  • Lastly, the Court examined the prosecutor's closing PowerPoint where a slide had the word "GUILTY" superimposed on it.  Found that it did not deprive Taylor of a fair trial as "a photograph with the word 'guilty' across the front shown during closing arguments is not, on its own, sufficient for a finding of error." 

James Johnson v. State of Nevada (unpublished opinion affirming conviction)

Defendant Johnson was convicted of numerous counts alleging sexual assault and lewdness of a child under the age of 14.  Johnson's main appellate argument was that the trial court abused its discretion by allowing expert testimony regarding "grooming."

  • The Court held that district court did not abuse its discretion by admitting this testimony as it could aid the jury in "assessing the victim's resistance and delaying a victim's disclosure" and was relevant to assist the jury in "assessing the victim's credibility."

Joshua Jones v. State of Nevada (unpublished opinion affirming conviction)

Defendant Jones argued that the evidence presented at trial was insufficient to support the jury's finding of guilt for the crime of obtaining money under false pretenses and that separate acts cannot be aggregated to achieve the amount of $650 under NRS 205.380.  Jones was incarcerated and, via recorded phone jail calls, told his girlfriend to continue to file and collect his unemployment benefits for him.  Jones received nine (9) weekly payments totaling $1440. 

  • The Court found a jury could reasonable infer from this evidence that Jones, counseled, encouraged, hired, commanded, induced or otherwise procured another to obtain more than $650 by false pretenses.
  • Jones failed to raise the aggregation argument at trial so the Court refused to consider that argument. 

State of Nevada v. Dwight Solander and Janet Solander (unpublished reversal and remand)

The Solanders won a pretrial writ of habeas corpus after preliminary hearing by arguing the insertion of a catheter into the urethra of a minor under the age of 14 cannot constitute sexual assault.  The district court agreed and the State appealed the decision.  The Solanders were foster parents accused of catheterizing three foster girls as a form of punishment for urinary incontinence.  The Solanders denied catheterizing the girls, but argued that even if they did, it was for a legitimate medical purpose and without sexual motivation.  The trial court concluded that the statutory meaning or legislative intent of sexual assault did not include insertion of a catheter.

  • The Court examined NRS 200.366 (defines sexual assault) and NRS 200.364 (defines sexual penetration).  In 2015, state legislation amended NRS 200.364(5) to add "the term sexual penetration does not include any such conduct for medical purposes."
  • The Court concluded that neither "sexual assault" nor "sexual penetration" includes an element of sexual gratification or motivation.  The Court compared these statutes to NRS 200.364(6) which defines "statutory sexual seduction" as that statute expressly requires sexual motivation in addition to sexual penetration.
  • The Court rejected the Solanders' argument that the catheterization was for legitimate medical purposes as the preliminary hearing transcript showed that Solanders committed the catheterization as a form of punishment, not medical use.  "The reasons why a catheter was used, and the manner in which it was used, are questions of fact for the jury, not the court, to decide."