Rugamas v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark

305 P.3d 887, 129 Nev. 424, 129 Nev. Adv. Rep. 46, 2013 WL 3366674, 2013 Nev. LEXIS 56
CourtNevada Supreme Court
DecidedJuly 3, 2013
DocketNo. 62251
StatusPublished
Cited by11 cases

This text of 305 P.3d 887 (Rugamas v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark) 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
Rugamas v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark, 305 P.3d 887, 129 Nev. 424, 129 Nev. Adv. Rep. 46, 2013 WL 3366674, 2013 Nev. LEXIS 56 (Neb. 2013).

Opinion

OPINION

By the Court,

Saitta, J.:

The State sought an indictment against petitioner Giovanni O. Rugamas on charges of sexual assault and lewdness involving a child who was under 10 years of age. During the grand jury proceedings, the State presented testimony about out-of-court statements made by the child-victim describing the alleged sexual conduct. With some exceptions, an out-of-court statement offered to prove the truth of the matter asserted is “hearsay.” NRS 51.035. Under Nevada law, a grand jury cannot receive hearsay. NRS 172.135(2).

In this original writ proceeding, we consider whether the child-victim’s out-of-court statements were properly received by the grand jury on either of two grounds: as non-hearsay because they were inconsistent with the victim’s grand jury testimony or as admissible hearsay under NRS 51.385, which provides that statements about any act of sexual conduct made by a child who was less than 10 years old are admissible “in a criminal proceeding” if a court finds sufficient guarantees of trustworthiness. We conclude that the statements were not properly before the grand jury. Because the victim was not subject to cross-examination concerning the out-of-court statements, those statements were not excluded from the definition of hearsay under NRS 51.035(2)(a). Although hearsay that falls within a statutory exception set forth in NRS Chapter 51 may be considered by a grand jury, Gordon v. Eighth [428]*428Judicial Dist. Court, 112 Nev. 216, 223, 913 P.2d 240, 245 (1996), we conclude that the exception in NRS 51.385 for trustworthy statements by a child-victim of sexual assault does not apply to grand jury proceedings. Because the statements were hearsay and did not fall within an exception that makes hearsay admissible, the grand jury could not consider the statements. Absent the hearsay evidence, there was not sufficient legal evidence to support a finding of probable cause and the indictment cannot stand. We therefore grant the petition.

FACTS AND PROCEDURAL HISTORY

Rugamas is awaiting trial on an indictment charging him with one count of sexual assault of a minor under the age of 14 years and one count of lewdness with a child under the age of 14 years. See NRS 200.366(3)(c); NRS 201.230(1). At the grand jury hearing, the State presented the testimony of four witnesses: die alleged victim (A.C.), her sister (Y.V.), her mother (Elsa), and a forensic interviewer with the Southern Nevada Children’s Assessment Center (Faiza Ebrahim).

The State presented evidence that Rugamas sometimes took care of the victim and her sisters, and that on one such occasion, he locked himself and the victim in a bedroom and touched her vaginal area both over and under her clothing. Unfortunately, A.C., who was six years old at the time of the hearing, was unable to recall significant details of the alleged sexual conduct other than Rugamas locking her in a bedroom while she and her sisters were in his care. She also did not remember telling the other witnesses that Rugamas sexually abused her.

Y.V. witnessed part of the incident but not any sexual conduct. She testified that she saw Rugamas put a blanket over A.C.’s head, take her to a bedroom, and shut the door and that she heard A.C. crying and unsuccessfully tried to open the locked bedroom door. Although Y.V. looked under the bedroom door, she could not see into the room. In addition to her observations, Y.V. testified to a statement made by the victim. Y.V. testified that sometime after the bedroom incident, A.C. told her that Rugamas had touched her and she pointed to her “private.”

Elsa did not witness any of the conduct. She testified to statements that Y.V. and A.C. made to her. During a discussion with her daughters about inappropriate touching, Y.V. told her that Rugamas put A.C. in a room with him and Y.V. heard A.C. cry, but Y.V. could not access the room. When Elsa asked A.C. where Rugamas touched her, A.C. held up two fingers and pointed toward her vaginal area.

[429]*429Ebrahim testified about her interview with A.C. and statements that A.C. made during the interview. A.C. told Ebrahim that Rugamas spanked her bottom with a belt and touched her vaginal area with his hand under her clothing and that “it hurt.” When asked where it hurt, A.C. indicated that it hurt inside her “private.” A.C. told Ebrahim that Rugamas also touched her vaginal area on top of her clothes. A.C. told Ebrahim that the incident occurred in a bedroom, she cried, and Rugamas told her not to tell anyone. At the conclusion of the testimony, the grand jury returned a true bill.

Rugamas filed a pretrial petition for a writ of habeas corpus challenging the grand jury proceedings on several grounds, including that the indictment was based on hearsay in violation of Nevada law. The State responded, asserting that the subject evidence was admissible under NRS 51.385. Rugamas countered, arguing that NRS 51.385 does not apply to grand jury proceedings because the statute conditions admissibility of the evidence upon a court making a determination that the evidence contains guarantees of trustworthiness. The district court denied the petition after a hearing. In its written order, the district court concluded that the victim’s statements were not hearsay because they were prior inconsistent statements, and if they were hearsay, they were admissible under NRS 51.385. This original petition for extraordinary relief followed.

DISCUSSION

Rugamas argues that the district court manifestly abused its discretion by denying his pretrial habeas petition because the grand jury was presented with nothing but inadmissible hearsay evidence and therefore the indictment was deficient. In particular, he argues that the testimony of Y.V., Elsa, and Ebrahim could not be admitted under NRS 51.385 until a court conducted a hearing and determined the trustworthiness of A.C.’s statements, and, because that was not done here, the challenged evidence remained inadmissible at the grand jury hearing. As to the district court’s conclusion that the evidence was admissible as prior inconsistent statements, Rugamas argues that the district court’s decision was wrong because he had no opportunity to cross-examine A.C.

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Bluebook (online)
305 P.3d 887, 129 Nev. 424, 129 Nev. Adv. Rep. 46, 2013 WL 3366674, 2013 Nev. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rugamas-v-eighth-judicial-district-court-of-the-state-of-nevada-ex-rel-nev-2013.