Findley v. State

577 P.2d 867, 94 Nev. 212, 1978 Nev. LEXIS 524

• Court: Nevada Supreme Court
• Decided: April 24, 1978
• Docket: 9092
• Status: Published

Opinions

OPINION

By the Court,

THOMPSON, J.:

A jury convicted Robert Lee Findley of the crime of lewdness with a child under the age of fourteen years. The victim, a five-year-old girl, testified that Findley had placed his hand upon her “private parts” on several occasions. Findley denied that this had occurred. During the State’s case in chief, two adult women were permitted to testify, over objection, that Findley, some nine years earlier, had molested them in the same way. The admission of such testimony gives rise to this appeal and presents the controlling issue for our decision.

In a sex crime case we recently have approved a trial court ruling which allowed the complaining witness to testify to other similar acts with the defendant not remote in time to the offense for which he was on trial. McMichael v. State, 94 Nev. 184, 577 P.2d 398 (1978). The instant case concerns similar acts with persons other than the complaining witness which occurred nine years earlier. Cf. Allan v. State, 92 Nev. 318, 549 P.2d 1402 (1976).

The crime is described by NRS 201.230(1).¹ Intent, by reason of the words of the statute, is an element of the crime and directly placed in issue by the not guilty plea of the accused. Overton v. State, 78 Nev. 198, 205, 370 P.2d 677 (1962). The district judge received the challenged testimony to prove intent, or the absence of mistake or accident. NRS 48.045(2).² He so determined to receive it after balancing prejudice and probative value, a decision addressed to his discretion. Brown v. State, 81 Nev. 397, 400, 404 P.2d 428, 430 (1965); McMichael v. State, supra. The jury was specifically informed as to the limited purpose of such evidence.

Although the other acts of molestation were remote in point of time, and may for that reason impeach credibility to some degree, it does not destroy admissibility. Bails v. State, 92 Nev. 95, 545 P.2d 1155 (1976); Bishop v. State, 92 Nev. 510, 554 P.2d 266 (1976). The testimony of the two adult witnesses was not their first exposition of the molestations. They had complained to church authorities where Findley was then employed as pastor. Their testimony at trial simply was a reiteration of statements made shortly after the occurrences and, to that extent, possess a trustworthiness which, perhaps, they would not possess if uttered for the first time nine years later.

Evidence showing that an accused possesses a specific emotional propensity for sexual aberration is relevant, and outweighs the prejudicial possibility that a jury might convict for general rather than specific criminality. McMichael v. State, supra; State v. McDaniel, 298 P.2d 798 (Ariz. 1956).

Affirmed.

Mowbray, J., concurs.

1 NRS 201.230(1): “Any person who shall willfully and lewdly commit any lewd or lascivious act, other than acts constituting the crime of rape and the infamous crime against nature, upon or with the body, or any part or member therof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be punished, . . .” This statute was amended in 1977, see Stats. Nev. 1977, 867, 1632, without substantial change in content.

2 NRS 48.045(2): “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”