Quevedo v. State

930 P.2d 750, 113 Nev. 35, 1997 Nev. LEXIS 9

• Court: Nevada Supreme Court
• Decided: January 3, 1997
• Docket: 25579
• Status: Published

Opinions

OPINION

By the Court,

Springer, J.:

Appellant Carlos Quevedo (Quevedo) was charged with seven counts of sexually assaulting his seven-year-old daughter. The charges were based on his daughter’s reports that her father had been engaging in intercourse with her and also forcing her to perform fellatio upon him. The victim made these reports to her third-grade teacher and to a Douglas County sheriff’s deputy. At trial, Quevedo’s daughter testified, as did her teacher and the deputy who interviewed her. Quevedo was convicted on all seven counts. He was sentenced to seven life sentences, three of them to run consecutively.

The district court erred by not adhering to the mandate of NRS 51.385; consequently, the convictions must be reversed.

NRS 51.385 provides, in part:

1. In addition to any other provision for admissibility made by statute or rule of court, a statement made by a child under the age of 10 years describing any act of sexual conduct performed with or on the child is admissible in a criminal proceeding regarding that sexual conduct if the:

(a) Court finds in a hearing out of the presence of the jury, that the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness; and

(b) Child either testifies at the proceeding or is unavailable or unable to testify.

This court has held that NRS 51.385 “requires that a hearing as to trustworthiness be held prior to admission of the child’s hearsay statements.” Lytle v. State, 107 Nev. 589, 590, 816 P.2d 1082, 1083 (1991).

Both the victim’s teacher, Susan Linn (Linn), and Sheriff’s Deputy Paul Pabon (Pabon) testified as to statements made to them by Quevedo’s daughter. These statements are hearsay. In Lytle, this court held that “NRS 51.385 clearly requires a hearing for the purpose of determining the trustworthiness of the offered hearsay statements prior to the statements being brought before the jury.” 107 Nev. at 591, 816 P.2d at 1083 (footnote omitted).

Lytle is factually almost identical to this case. In Lytle the defendant was convicted of open and gross lewdness with his five-year-old stepdaughter. The victim in Lytle testified, as did the victim in this case. Additionally, hearsay statements made by the victim to her mother and to juvenile authorities were admitted in Lytle. These statements are similar to the statements made to Linn and Pabon in this case. This court concluded in Lytle that “the district court’s failure to follow the specific requirements of NRS 51.385 [] justifies the reversal of appellant’s convictions.” Id.

We noted in Lytle that “[u]nder the opening phrase of NRS 51.385(1), this hearing is required unless the hearsay is otherwise admissible under a recognized exception to the hearsay rule.” Id. at n. 1. However, the statements made to Linn and Pabon do not fit into any of the recognized hearsay exceptions. In this case, the district judge did not mention any hearsay exception that would allow the statements, which was exactly the situation in Lytle. In fact, in Lytle, as in this case, no objection was made to the hearsay statements at trial. However, this court stated in Lytle that

[t]he State contends that the hearing is required only if the defendant objects to the introduction of the hearsay. This contention is simply not consistent with the clear language of NRS 51.385, which allows hearsay statements only if the “court finds, in a hearing out of the presence of the jury” sufficient guarantees of trustworthiness.

Id. We conclude that Lytle is directly on point and is controlling in this case. It was clearly error for the district court to fail to hold the hearing to determine the trustworthiness of the hearsay statements before allowing Linn and Pabon to testify. The convictions of Quevedo are therefore reversed, and the case is remanded to the district court for a new trial.

Young and Rose, JJ., concur.