Newman v. State

298 P.3d 1171, 129 Nev. 222, 129 Nev. Adv. Rep. 24, 2013 WL 1715252, 2013 Nev. LEXIS 30
CourtNevada Supreme Court
DecidedApril 18, 2013
Docket56151
StatusPublished
Cited by39 cases

This text of 298 P.3d 1171 (Newman v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newman v. State, 298 P.3d 1171, 129 Nev. 222, 129 Nev. Adv. Rep. 24, 2013 WL 1715252, 2013 Nev. LEXIS 30 (Neb. 2013).

Opinions

OPINION

By the Court,

Pickering, C.J.:

Appellant Shawn Newman appeals his conviction, on jury verdict, of one count of willfully endangering a child as a result of child abuse, a gross misdemeanor, and one count of battery by strangulation, a felony. The charges grew out of an incident in which Newman yelled at his son, Darian, in public; when Newman took off his belt to strike the boy, a witness, Thomas Car-mona, tried but failed to stop him. Newman and Carmona fought until Newman grabbed Carmona’s neck to choke him into submission. At trial, Newman admitted these facts and that he acted intentionally. His defense was justification: parental discipline privilege as to the child abuse charge; and, to some extent, self-defense as to the battery charge.

Newman raises two issues on appeal, both rooted in NRS 48.045’s prohibition against using character or prior-bad-act evidence to prove criminal propensity. First, the prosecution introduced evidence that Newman had struck his other son, Jacob, in public and that Newman got into a heated argument with nursing staff about Jacob while Darian was hospitalized for an appendectomy. The district court deemed this evidence admissible under NRS 48.045(2) to show absence of mistake or accident as to the child abuse charge. Second, the prosecution presented a surprise rebuttal witness, Connie Ewing, who reported that she, too, had a heated but nonphysical exchange with Newman over his disciplin-[227]*227mg a young boy outside a local Walmart. The district court allowed this testimony as rebuttal under NRS 48.045(1)(a) and NRS 48.055, to rebut Newman’s testimony that he strangled Carmona in self-defense.1

Evidence of one of the episodes involving Jacob was properly admitted to refute Newman’s claim of parental privilege. The other episodes involving Jacob were not proven by clear and convincing evidence, as required by our case law, and it was an abuse of discretion to admit the Ewing testimony. Nonetheless, Newman’s guilt was established by his own admissions and overwhelming evidence. We therefore conclude that the errors were harmless and affirm.

I.

A.

The incident underlying this appeal occurred on September 14, 2009. At the time, Newman was a single father raising two sons: twelve-year-old Darían and six-year-old Jacob. Darían had started middle school the previous week. Jacob’s day care opened at 7 a.m. and Darían needed to be to middle school by 7:30 a.m. The family’s apartment was close to both. Darían had recently gotten a bike with gear-speeds. The plan was for Darían, who felt uncomfortable riding double with Jacob, to walk Jacob and the bicycle to Jacob’s day care and to ride from there to middle school. The timing was tight and the first week this plan did not work out. One day, Newman went looking for Darían along what he thought was his route but could not find him. Another day, Darían got lost and was tardy.

Six weeks earlier, in late July, Darían had been hospitalized for appendicitis. A secondary infection developed that extended his hospital stay to 19 days. The wound was dressed, not sutured closed, meaning it had to be cleaned and the dressing changed daily while the open incision healed. On September 14, the wound had mostly closed but still required daily dressing, which Newman attended to.

On the day of the incident, Newman followed Darían in his truck to see his son’s exact route. All went well until Darían, who [228]*228had his new bike in third gear, could not make it up a hill. Newman got out of his truck, put and rode the bike in lower gear to show Darían how the gearing worked, and then held the bike for Darían to try. For whatever reason—Newman testified he saw Darían deliberately slip his foot off the pedal, while Darían told a responding officer he was tired and his stomach hurt—Darían did not succeed, even in the lower gear. Admittedly angry, Newman started yelling at Darían. He gave Darían an ultimatum: ride the bike up the hill or be spanked. Darían let go of his bike, went to a low wall nearby, and bent over to be spanked.

From his home across the street, Thomas Carmona heard the commotion and saw Newman take off his belt. Carmona ran over to stop him from striking the boy. They argued over Newman’s right to physically discipline his child and then fought. The fight did not end until Newman pinned Carmona to the ground in a stranglehold. Carmona and Newman accused each other of throwing the first blow. Newman is bigger than Carmona and, unlike Carmona, looked none the worse for wear after their fight. Car-mona and another eyewitness described Newman as in a rage and Darían as crying uncontrollably. One witness testified that Darían said his father terrified him.

When the police arrived, they found a red welt on Darian’s buttocks, which they photographed. They also photographed Dar-ian’s abdominal bandage and healing incision. Paramedics examined Darían and Carmona but did not take either to the hospital. Carmona’s Adam’s apple was sore and it hurt to swallow for some days afterward.

B.

Trial took four days. The prosecution presented its case-in-chief through eyewitness, responding officer, and expert medical testimony without using any prior-bad-act evidence. After the prosecution rested, the district court advised Newman of his right to testify in his own defense. The prosecution warned that it would explore prior bad acts if Newman testified that parental privilege justified his discipline of Darían.

The district court then heard from the lawyers on the prior-bad-act issue. No testimony was presented; the lawyers argued from a child protective services (CPS) report that the appellate record does not include. The transcript reveals that the CPS report lists two of the three incidents involving Jacob as “information only” under a heading, “unsubstantiated reports,” and that the police investigated one of the incidents but could not verify it. Despite this, the district court determined that the following incidents were established by clear and convincing evidence and could be used by the prosecution if Newman testified: (1) Newman hit Jacob in No[229]*229vember 2006, February 2009, and late July or early August 2009 when Darian was in the hospital; and (2) Newman had an ugly verbal run-in with hospital staff during Darian’s stay. Although the court deemed this evidence more probative than prejudicial, it did not identify a permissible nonpropensity purpose for admitting it until later in the trial, when it held that the evidence tended to show absence of mistake or accident as to the child abuse charge.

Newman elected to testify. His direct-examination testimony hewed close to the events of September 14. He gave background concerning Darian’s appendectomy and recuperation and explained why he followed Darian by truck instead of just driving him to school that day. He admitted that he gave Darian the choice of riding up the hill or being spanked; that he struck Darian on the buttocks with his belt, raising a welt; and that he fought with Car-mona and put him in a stranglehold when Carmona would not back off.

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Cite This Page — Counsel Stack

Bluebook (online)
298 P.3d 1171, 129 Nev. 222, 129 Nev. Adv. Rep. 24, 2013 WL 1715252, 2013 Nev. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newman-v-state-nev-2013.