Petition for Writ of Certiorari — Cameron Thomas, Petitioner v. Nevada

Supreme Court briefSep 10, 2019

Ask Donna

What actually matters in this document.

Text

No. ______________

_____________________

IN THE SUPREME COURT OF THE UNITED STATES

_____________________

CAMERON THOMAS, Petitioner

THE STATE OF NEVADA, Respondent

_____________________

On Petition for Writ of Certiorari to the

Supreme Court of the State of Nevada

______________________

APPENDIX TO PETITION FOR WRIT OF CERTIORARI TO THE

NEVADA SUPREME COURT

VOLUME 2

______________________

Christopher R. Oram, Esq.

520 South 4th Street, Second Floor

Las Vegas, Nevada 89101

Telephone: (702) 384-5563

Fax: (702) 974-0623

E-mail: contact@christopheroramlaw.com

Counsel for Petitioner Cameron Thomas

TABLE OF CONTENTS

VOLUME 1

Order Affirming in Part, Reversing in Part, and Remanding . . . . App. 01-11

Order Denying Rehearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 12

Order Denying En Banc Reconsideration . . . . . . . . . . . . . . . . . . . App. 13-14

VOLUME 2

Appellant’s Opening Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 15-102

Respondent’s Answering Brief . . . . . . . . . . . . . . . . . . . . . . . . App. 103-185

Appellant’s Reply Brief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 186-223

VOLUME 3

Petition for Rehearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . App. 224-229

Petition for En Banc Reconsideration . . . . . . . . . . . . . . . . . . . App. 230-237

Order Directing Answer to Petition for En Banc Reconsideration. App. 238

Answer to Petition for En Banc . . . . . . . . . . . . . . . . . . . . . . . . App. 239-246

VOLUME 4

Jury Trial Dated May 26, 2016 . . . . . . . . . . . . . . . . . . . . . . . . App. 247-499

VOLUME 5

Jury Trial Dated May 20, 2016 . . . . . . . . . . . . . . . . . . . . . . . . App. 500-775

VOLUME 6

Jury Trial Dated May 23, 2016 . . . . . . . . . . . . . . . . . . . . . . . App. 776-1074

VOLUME 7

Jury Trial Dated May 24, 2016 . . . . . . . . . . . . . . . . . . . . . . App. 1075-1283

VOLUME 8

Jury Trial Dated May 25, 2016 . . . . . . . . . . . . . . . . . . . . . . App. 1284-1502

VOLUME 9

Jury Trial Dated June 2, 2016 . . . . . . . . . . . . . . . . . . . . . . . App. 1503-1700

VOLUME 10

Jury Trial Dated June 3, 2016 . . . . . . . . . . . . . . . . . . . . . . . App. 1701-2017

EXHIBIT D

Appellant’s Opening Brief pgs. 15-102

Respondent’s Answering Brief pgs. 103-185

Appellant’s Reply Brief pgs. 186-223

IN THE SUPREME COURT OF THE STATE OF NEVADA

*****

Electronically Filed

Jun 13 2017 03:11 p.m.

S.C. CASE NO. 71044

Elizabeth A. Brown

Clerk of Supreme Court

CAMERON THOMAS,

Appellant,

vs.

THE STATE OF NEVADA,

Respondent.

______________________________________________

APPEAL FROM JUDGMENT OF CONVICTION (JURY TRIAL)

EIGHTH JUDICIAL DISTRICT COURT

THE HONORABLE JUDGE KERRY EARLEY PRESIDING

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

APPELLANT'S OPENING BRIEF

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

ATTORNEY FOR APPELLANT

CHRISTOPHER R. ORAM, ESQ.

Attorney at Law

Nevada Bar No. 004349

520 South 4th Street, 2nd Floor

Las Vegas, Nevada 89101

(702) 384-5563

ATTORNEY FOR RESPONDENT

STEVE WOLFSON, ESQ.

District Attorney

Nevada Bar No. 001565

200 Lewis Avenue

Las Vegas, Nevada 89101

(702) 671-2500

APP015

Docket 71044 Document 2017-19603

TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Issues Presented for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Routing Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Arguments:

I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

IV. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

VII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

VIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

IX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

X. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

XI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

XII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

XIII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

APP016

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT

California v. Trombetta, 467 U.S. 479,104 S. Ct. 2528, 81 L. Ed. 2d 413(1984) 17

Chambers v. Mississippi, 410 U.S. 284 93 S. Ct. 1038, 35 L. Ed. 297 (1973) . . . 17

Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 636 (1986) . . . . . . 17

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,158 L. Ed. 2d 177(2004) 46

Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 347 (1974) . . . . . . . . . 17

Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). 46

Dennis v. United States, 339 U.S. 162, 70 S. Ct. 519, 94 L. Ed. 734 (1950) . . . . 75

Grannis v. Ordean, 234 U.S. 385, 34 S. Ct. 779, 58 L. Ed. 1363 (1914) . . . . . . . 17

Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990) . . . . . 64

In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed 682 (1948) . . . . . . . . . . . . . . 17

Nevada v. Jackson, 133 S. Ct. 1990, 186 L. Ed. 2d 62 (2013) . . . . . . . . . . . . . . . 64

Smith v. Phillips, 455 U.S. 209,102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). . . . . . . . 75

United States v. Vamezuela-Bernal, 458 U.S. 858, 102 S. Ct. 3440, 73 L. Ed. 2d

1193 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967). . . 17

Zafiro v. United States, 506 U.S. 534, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993) 71

iii

APP017

NEVADA SUPREME COURT

Abbott v. Nevada, 122 Nev. 715, 138 P. 3d 462 (2006) . . . . . . . . . . . . . . . . . . . . 62

Amen v. State, 106 Nev. 749, 801 P. 2d 1354 (1990) . . . . . . . . . . . . . . . . . . . . . . 70

Bails v. State, 92 Nev. 95, 545 P.2d 1155 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . 77

Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 48

Bigpond v. State, 128 Nev. 108, 270 P.3d 1244 (2012) . . . . . . . . . . . . . . . . . . . . 39

Collier v. State, 101 Nev. 473, 705 P. 2d 1126(1985) . . . . . . . . . . . . . . . . . . . . . 72

Crawford v. State, 121 Nev. 746, 121 P.3d 582 (2005). . . . . . . . . . . . . . . . . . . . . 22

Cunningham v. State, 100 Nev. 396, 683 P.2d 500 (1980) . . . . . . . . . . . . . . . . . . 48

Daniels v. State of Nevada 119 Nev. 498, 78 P.3d 890 (2003) . . . . . . . . . . . . . . . 56

Dechant v. State, 10 P.3d 108, 116 Nev. 918 (2000). . . . . . . . . . . . . . . . . . . . . . . 77

Felix v. State, 109 Nev. 151, 849 P.2d 220 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 63

Fields v. State, 125 Nev. 785, 220 P.3d 709 (2009) . . . . . . . . . . . . . . . . . . . . . . . 39

Garner v. State, 116 Nev. 770, 6 P.3d 1013 (2000) . . . . . . . . . . . . . . . . . . . . . . . 36

Jackson v. State, 117 Nev. 116, 17 P.3d 998 (2001) . . . . . . . . . . . . . . . . . . . . . . . 22

Koerschner v. State, 116 Nev. 111, 13 P.3d 451 (2000) . . . . . . . . . . . . . . . . . . . . 62

Lane v. Torvinen, 97 Nev. 121, 624 p.2d 1385 (1981) . . . . . . . . . . . . . . . . . . . . . 48

Laney v. State, 86 Nev. 173, 466 P.2d 666 (1970) . . . . . . . . . . . . . . . . . . . . . . . . 48

Lobato v. State, 120 Nev. 512, 96 P. 3d 765 (2004) . . . . . . . . . . . . . . . . . . . . . . . 18

APP018

McConnell v. State, 121 Nev. 25, 107 P.3d 1287 (2005) . . . . . . . . . . . . . . . . . . . 50

Petrocelli, 101 Nev. 46, 692 P.2d 503 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Preciado v. State, 130 Nev. Adv. Op 6, 318 P.3d 176 (2014) . . . . . . . . . . . . . . . . 56

Richmond v. State, 118 Nev. 924, 59 P.3d 1249 (2002) . . . . . . . . . . . . . . . . . . . . 71

Robins v. State, 106 Nev. 611, 798 P. 2d 558 (1990) . . . . . . . . . . . . . . . . . . . . . . 70

Rosky v. State, 121 Nev. 184, 111 P.3d 690 (2005) . . . . . . . . . . . . . . . . . . . . . . . 39

State v. Babayan, 106 Nev. 155, 787 P.2d 805(1990) . . . . . . . . . . . . . . . . . . . . . . 64

State v. Jones, 96 Nev. 71, 605 P.2d 202 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 48

State v. Shade, 111 Nev. 887, 900 P.2d 327 (1995) . . . . . . . . . . . . . . . . . . . . . . . 22

Tabish and Murphy, 119 Nev. 293, 72 P. 3d 584 (2003) . . . . . . . . . . . . . . . . . . . 70

Tavares v. State, 117 Nev. 725, 30 P.3d 1128 (2001) . . . . . . . . . . . . . . . . . . . . . . 39

Tinch v. Nevada, 113 Nev. 1170, 946 P.2d 1061 (1997) . . . . . . . . . . . . . . . . . . . 38

Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987) . . . . . . . . . . . . . . . . . . . . 74

Walker v. State, 112 Nev. 819, 921 P.2d 923 (1996) . . . . . . . . . . . . . . . . . . . . . . 38

Weber v. State, 121 Nev. 554, 119 P.3d 107 (2005) . . . . . . . . . . . . . . . . . . . . . . . 71

FEDERAL CIRCUITS

Hunter v. New Mexico, 916 F.2d 595, 599 (10th Cir. 1990) . . . . . . . . . . . . . . . . . 48

United States v. Konovsky, 202 F.2d 721 (7th Cir. 1953) . . . . . . . . . . . . . . . . . . . 53

United States v. Satuloff Bros., Inc, 79 F.2d 846 (2nd Cir. 1935) . . . . . . . . . . . . . 53

APP019

NEVADA REVISED STATUTES

NRS 48.045(2), (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

NRS 51.385. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

NRS 173.115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

NRS 174.165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

NRS 200.010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

APP020

ISSUES PRESENTED FOR REVIEW

MR. THOMAS WAS DENIED HIS FUNDAMENTAL RIGHT TO

PRESENT A THEORY OF DEFENSE IN VIOLATION OF THE

FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

II.

THE DISTRICT COURT IMPROPERLY PERMITTED THE STATE

TO INTRODUCE BAD ACT TESTIMONY AND QUESTION THE

DEFENDANT REGARDING SPECULATIVE BAD ACTS IN

VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION.

III.

THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT

REPEATEDLY PERMITTED HEARSAY STATEMENT PURSUANT

TO NRS 51.385 IN VIOLATION OF THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

IV.

MR. THOMAS IS ENTITLED TO A REVERSAL OF COUNTS ONE

AND TWO BASED UPON THE INSUFFICIENT NOTICE TO THE

DEFENDANT IN VIOLATION OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

MR. THOMAS IS ENTITLED TO A DISMISSAL OF COUNT TWO,

LEWDNESS OF A MINOR ON A.P.

VI.

THE DISTRICT COURT ERRED BY PERMITTING THE STATE TO

REPEATEDLY INTRODUCE EVIDENCE THAT A CIVIL SUIT

HAD RESULTED IN A SETTLEMENT FROM FACTS DIRECTLY

ASSOCIATED WITH THE CRIMINAL ACTION.

VII. THE DISTRICT COURT ERRED BY FAILING TO ENSURE THAT

A PROPER RECORD WAS PRESERVED FOR APPELLATE

REVIEW.

vii

APP021

VIII. THE DISTRICT COURT ERRED IN DENYING MR. THOMAS’

MOTION FOR AN INDEPENDENT PSYCHOLOGICAL

EVALUATION OF THE CHILDREN.

IX.

THE DISTRICT COURT ABUSED THE COURTS DESECRATION

WHEN IT PERMITTED HIGHLY IMPROPER AND BLATANT

CROSS-EXAMINATION OF THE DEFENDANT’S EXPERT IN

VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION.

MR. THOMAS WAS ENTITLED TO SEVERANCE OF COUNTS AS

THE COUNTS ARE NOT BASED ON THE SAME ACT OR

TRANSACTION AND DO NOT CONSTITUTE A COMMON

SCHEME OR PLAN.

XI.

THE DISTRICT COURT ERRED IN SENTENCING MR. THOMAS

AS TO COUNT SIX IN VIOLATION OF THE FIFTH, EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

XII. THE DISTRICT COURT ERRED IN FAILING TO GRANT THE

DEFENSE MOTION FOR A NEW JURY PANEL BASED UPON

CONTAMINATION AND FOR FAILING TO GRANT A VALID

CHALLENGE FOR CAUSE.

XIII. THE DISTRICT COURT ERRED BY REFUSING TO INCLUDE THE

DEFENDANT’S PROPOSED JURY INSTRUCTION.

XIV. MR. THOMAS’ CONVICTIONS MUST BE REVERSED BASED

UPON A CUMULATIVE EFFECT OF THE ERRORS DURING

TRIAL.

viii

APP022

JURISDICTIONAL STATEMENT

The Judgment of Conviction was filed on August 12, 2016 (A.A. Vol. 8 p.

766-769). A Notice of Appeal was filed August 10, 2016 (A.A. Vol. 8 p. 764-765).

ROUTING STATEMENT

This matter is presumptively assigned to the Nevada Supreme Court

pursuant to NRAP 17(b)(1) which states that the Court of Appeals is only

presumptively assigned direct appeals not involving a conviction for a category A

or B felony. This case involves a direct appeal of multiple category A felonies. Mr.

Thomas has no objection to this case being assigned to the Court of Appeals.

STATEMENT OF THE CASE

Mr. Thomas was charged by way of Information on November 22, 2011,

with six counts of sexual assault with a minor under fourteen years of age; fifteen

counts of lewdness with a child under the age of fourteen; and two counts of

attempt lewdness with a child under the age of fourteen (A.A. Vol. 2 p. 72-79).

Mr. Thomas pled not guilty and a jury trial began before the Honorable

Kerry Earley on May 16, 2016 (A.A. Vol. 12 p. 1235). On June 7, 2016, the jury

returned with a verdict as follows: Guilty of counts 1, 5, and 11 (sexual assault

with a minor under fourteen years of age); Guilty of counts 2, 6, 8, 12, 13, 16-18

(lewdness with a child under the age of fourteen); Guilty of counts 10, 15 (attempt

APP023

lewdness with a child under the age of fourteen); and Not Guilty of counts 3-4, 7,

9, 14, 19-23 (A.A. Vol. 17 p. 2586-2601).

Mr. Thomas was formally sentenced on August 5, 2016 (A.A. Vol. 17 p.

2602-2663). Mr. Thomas received an aggregate sentence of a maximum of life

with a minimum of forty years (A.A. Vol. 26 p. 4591-4592).

The Judgment of Conviction was filed on August 12, 2016 (A.A. Vol. 8 p.

766-769). A timely Notice of Appeal was filed August 10, 2016 (A.A. Vol. 8 p.

764-765).

STATEMENT OF THE FACTS

EVIDENTIARY HEARINGS PURSUANT TO NRS 51.985

On May 20, 2016, the district court held an evidentiary hearing pursuant to

NRS 51.385. April Reed is the mother of Z.F. (AA. Vol. 13 p. 1592-1593). In

December of 2010, April learned from Arizona authorities (CPS) that Z.F. claimed

to be the victim of sexual abuse (AA. Vol. 13 p.1593-1594). This was the first

time April became aware of the allegations (AA. Vol. 13 p.1594) April then

contacted her fiancé (who Z.F. refers to as “Mommy Kay”) (AA. Vol. 13 p.1595).

Later that day, April had a conversation with Z.F. in her bedroom (AA. Vol. 13

p.1598). Mommy Kay was also present during the conversation (AA. Vol. 13

p.1599). April then asked Z.F. if Cameron had been touching her inappropriately

APP024

(AA. Vol. 13 p.1600). Z.F. began crying and affirmed the allegation (AA. Vol. 13

p.1600). Z.F. told April that Cameron had touched her private area and that he had

put his mouth on her vagina (AA. Vol. 13 p.1600).

On December 9, 2010, Ms. Amanda Rand, an elementary school teacher,

had a conversation with Z.F. at the school (A.A. Vol. 16 p. 2373-2374). Z.F.

relayed that she had been sexually abused by Cameron Thomas (A.A. Vol. 16 p.

2376). On cross-examination, defense counsel was advised not to violate the

courts order by questioning Ms. Rand about the real reason she was questioning

Z.F. The real reason was she was conducing an investigation was because of Z.F

mother’s physical abuse. In fact, Ms. Rand talked to Z.F based upon another report

(A.A. Vol. 16 p. 2379) (the jury was not permitted to know this). However, Z.F

turned the allegations against Cameron Thomas (A.A. Vol. 16 p. 2380-2381).

Additionally, Ms Rand did not recall any discussion about “god dad.” (A.A. Vol.

16 p. 2378-2380, 2415).1

Interestingly enough, Z.F claimed the reason why Cameron Thomas came

up in the discussion with Ms. Rand was because Cameron Thomas was her

godfather. The conversation about Cameron Thomas came up towards the end of

the discussion (A.A. Vol. 10 p. 870-871). It was April Reed who was the target of

the investigation (A.A. Vol. 10 p. 874). April had allegedly whipped Z.F. with an

APP025

The district court held an evidentiary hearing, concerning Officer Kathleen

Vangordon. Officer Vangordon did a forensic interview with Z.F., who was nine

years old at the time of the interview (A.A. Vol. 10 p. 864-865). Z.F. described the

allegation against Cameron to defective Vangordon (A.A. Vol. 10 p. 868-871). At

the conclusion of Vangordon’s testimony, the court determined that he would be

permitted to testify regarding Z.F. disclosure pursuant to NRS 51.385 (A.A. Vol.

10 p. 881)

The district court held another hearing concerning Office James Sink.

Officer Sink traveled to Madison Rose Elementary School to interview Z.F (AA.

Vol. 10 P. 896 ). Officer Sink then described his conversation with Z.F where she

disclosed the allegations against Cameron Thomas (AA. Vol. 10 P. 898). At the

conclusion of the hearing the court determined that Officer Sink would be

permitted to testify pursuant to NRS 51.385.

The district court held another hearing concerning Ms. Faiza Ebrahim. Ms.

Ebrahim is a forensic interviewer at Southern Nevada’s Children’s Assessment

Center ( AA. Vol. 19 P. 2987). Ms. Ebrahim conducted an interview with M.S. on

electrical cord (A.A. Vol. 10 p. 874). Ms. Rand explained that after she was

finished questioning Z.F. about the physical abuse at the hands of her mother, Z.F.

turned the conversation to Cameron Thomas (A.A. Vol. 10 p. 874).

APP026

January 14, 2011 (AA. Vol. 19 P. 2988). During the interview, M.S. identified

Cameron Thomas as the man who sexually abused her (AA. Vol. 19 P. 2991). At

the conclusion of the hearing, the district court determined pursuant to NRS

51.385 that the she was reliable and permitted Ms. Ebrahim to testify.

The Court held a hearing pursuant to NRS 51.385 concerning Ms. Cheryl

Barbian. Cheryl is the mother of M.A.S. (AA. Vol. 20 P. 3079). M.A.S. was born

August 7, 2002 (A.A. Vol. 20 p. 3079).

On January 6, 2011, Cheryl heard the television news surrounding Cameron

Thomas. Later, M.A.S. told Cheryl that Cameron was in jail (AA. Vol. 20 P.

3082). Cheryl raised the topic to determine whether M.A.S. had been abused (AA.

Vol. 20 P. 3083). During the conversation, Cheryl directly asked M.A.S. whether

Cameron had touched her inappropriately (AA. Vol. 20 P. 3085). M.A.S. shook

her head in the affirmative (AA. Vol. 20 P. 3085). M.A.S. demonstrated with dolls

what had happened to her (AA. Vol. 20 P. 3086). M.A.S. demonstrated how

Cameron Thomas had allegedly touched her vagina with his fingers (AA. Vol. 20

P. 3087-3088).

Cheryl explained that M.A.S. had been at a neighbors house and had

conversations about Cameron being arrested, prior to the Sunday conversation

(AA. Vol. 20 P. 3095). M.A.S. had been impacted by the conversation at the

APP027

neighbors but did not reveal any allegations until she was directly questioned by

her mother (AA. Vol. 20 P. 3096).

The Court determined that the factors enunciated in NRS 51.385 had been

met (AA. Vol. 20 P. 3103-3106).

The Court held a hearing pursuant to NRS 51.385 in regards to Ms. Ramona

Slatterly. Romona is the mother of M.S. (AA. Vol. 20 P. 3242). M.S.’s date of

birth is January 25, 2002 (AA. Vol. 20 P. 3243). On January 6, 2011, Romona

learned from a friend that Cameron Thomas had been arrested for sexual assault

(AA. Vol. 20 P. 3245). When M.S. returned from school, Romona questioned her

regarding Cameron Thomas (AA. Vol. 20 P. 3249-3247). Romona asked her

daughter if Cameron Thomas had ever touched her inappropriately (AA. Vol. 20

P. 3247). At the time of the conversation, M.S. was only eight years old (AA. Vol.

20 P. 3248). After a pause, M.S. then stated that Cameron would put his hands

down her shirt (AA. Vol. 20 P. 3248). The next day, M.S. stated that Cameron

used to put his hands “..down her pants and watch me bathe” (AA. Vol. 20 P.

3249). The district court determined that Romona would be permitted to testify.

Ms. Martha Mendoza has been employed with the Department of Family

Services, as a forensic interviewer (AA. Vol. 21 P. 3344). On January 12, 2011, a

forensic interview was conducted of M.A.S. (AA. Vol. 21 P. 3346). M.A.S.

APP028

explained to the forensic interviewer that Cameron had touched her “bathroom

part” area with his hand while she sat on his lap (AA. Vol. 21 P. 3352-3354). The

judge ruled that the forensic interviewer would be allowed to testify as to the

hearsay statements (AA. Vol. 21 P. 3356).

STATEMENT OF FACTS

A.P. (also known as B.P.) was born March 11, 1999. At the time of trial,

A.P. attended eleventh grade and was 17 years old (AA. Vol. 13 p. 1743). A.P.

was being raised by her mother April and her mother’s lesbian partner, Kay (AA.

Vol. 13 p. 1744-1745). A.P. has three sister, Z.F., Z.F., and K.W. (AA. Vol. 13

p.1745). At one point, A.P. began attending Kids “R” Kids when she was six or

seven years old (AA. Vol. 13 p.1753). When she began attending Kids “R” Kids,

April, Kay and Cameron all worked at the day care (AA. Vol. 13 p.1753).

When A.P. was six or seven years old, A.P. spent the night at the

defendant’s house (AA. Vol. 13 p. 1763). Allegedly, Cameron placed his fingers

in A.P. vagina when she was in bed with her sister. (AA. Vol. 13 p.1765).

On another occasion, the defendant alleged placed his penis inside A.P.’s

vagina. (AA. Vol. 13 p.1772). It is important to remember that A.P. testified that

there were multiple children on or around the bed at the time this occurred (AA.

Vol. 13 p.1772-1773).

APP029

In a separate incident, Cameron allegedly lifted A.P. shirt up and placed his

tongue on her breast (AA. Vol. 13 p.1788). Allegedly, D.T. was present in the

room when this occurred (AA. Vol. 13 p.1790). Later that day, Cameron and A.P.

went to the store (AA. Vol. 13 p.1791). During the drive to the block buster store,

Cameron allegedly placed his fingers in A.P.’s vagina (AA. Vol. 13 p. 1792).

On another occasion A.P. was helping Cameron clean his fish tank (AA.

Vol. 13 p.1796). Allegedly, Cameron placed his penis in her vagina during this

incident (AA. Vol. 13 p.1800). On another occasion, Cameron allegedly took A.P.

home and was watching television. The news was reporting that Michael Jackson

had died (AA. Vol. 13 p. 1802). A.P. had gone home because she was not feeling

well (AA. Vol. 13 p.1805). Allegedly Cameron had placed his mouth on A.P.’s

vagina (AA. Vol. 13 p.1809).

A.P. admitted that at the preliminary hearing she testified that Cameron

kissed her breast but did not mention that Cameron had placed his penis in her

vagina (AA. Vol. 14 p.1912-1913). Also, A.P. admitted that she had failed to tell

the story of the fish tank cleaning incident when she talked to the police in her

voluntary statement in 2010 (AA. Vol. 14 p.1928 ). A.P. explained that she

disclosed this incident for the first time at the preliminary hearing (AA. Vol. 14

p.1928). A.P. also admitted that she never informed the police, in her formal

APP030

statement, about the Michael Jackson incident. She revealed the Michael Jackson

incident at the preliminary hearing as well (AA. Vol. 14 p.1944-1945).

At one point, A.P. became aware that her mothers and Cameron had a

dispute which caused them to move out of Cameron’s house (this is before the

disclosure) (AA. Vol. 14 p.1981).

A.P. admitted that she would get in trouble a lot and that she was fearful to

make her mother angry (AA. Vol. 14 p.2073).

At the time of her trial testimony, Z.F. was fifteen years old having been

born May 17, 2001 (AA. Vol. 14 p.2094). Z.F. was approximately four or five

years old when she began attending Kids “R” Kids (AA. Vol. 14 p.2096). Z.F.

explained that on one occasion she was folding clothes and Cameron came and

pulled her pants down and placed his mouth on her vagina (AA. Vol. 14 p.21062107).

On another occasion in D.T.’s room, Z. F. was playing with toys and

Cameron came in and attempted to place his penis in Z.F. vagina (AA. Vol. 14

p.2112). Z.F. claimed that her littler sister, K.W. was present in the room at the

time (AA. Vol. 14 p.2112).

On another occasion, Z.F. was playing hide and go seek and while in the

closet the defendant came in and removed her pants and placed his mouth on her

APP031

vagina (AA. Vol. 14 p.2117).

On another occasion in D.T. room, Z.F. was watching spongebob when

Cameron allegedly came in the room and pulled her pants down, but nothing

occurred (AA. Vol. 14 p. 2121-2123).

At Z.F.’s house, when she was in first or second grade, she was watching

television and Cameron allegedly told her to touch his penis (AA. Vol. 14 p.2124).

This occurred on the couch in the living room (AA. Vol. 14 p.2126-2127). Z.F. did

not touch his penis (AA. Vol. 14 p.2128). On yet on another occasion, at the same

house, Cameron allegedly made the same request again, Z.F. resisted. (AA. Vol.

14 p.2132). On one occasion, Z.F. was present in the jacuzzi with the defendant

(AA. Vol. 14 p.2133). All of Z.F. sisters, with the exception of K.W., were present

in the Jacuzzi (AA. Vol. 14 p.2134). Allegedly, Cameron placed his hand

underneath Z.F. bathing suit and started to rub her vagina (AA. Vol. 14 p.2136).

Z.F. was getting in trouble right at the time she first revealed the allegations

to Ms. Halpern (AA. Vol. 15 p.2211-2212). Z.F. also admitted that she got in

trouble for lying and stealing before she disclosed the allegations (AA. Vol. 15

p.2220). In fact, Z.F. described her conduct as “lying all the time ” (AA. Vol. 15

p.2221).

Z.F. testified that her mother April was very upset with the Thomas family

APP032

during this time period (AA. Vol. 15 p.2214). Additionally, Z.F. explained that

both April and Kay told her that she could not talk to Cameron (AA. Vol. 15

p.2215). They also told her that she would not be able to see Cameron anymore

(AA. Vol. 15 p.2215).

April Reed is the mother of both A.P. and Z.F. (AA. Vol. 15 p.2245-2247).

April’s significant other is Kay (Koshonda Williams) (AA. Vol. 15 p.2246). April

was a teacher at Kids “R” Kids for approximately two years, between 2005 and

2007 (AA. Vol. 15 p.2249). Kay began working shortly thereafter (AA. Vol. 15

p.2249). Kay and Cameron were best friends during this time period (AA. Vol. 15

p.2252).

April, Kay and their children became very close with Mr. Thomas and his

family (AA. Vol. 15 p.2253). The two families would socialize on a regular basis

(AA. Vol. 15 p.2253). Cameron was considered April’s daughter god father (AA.

Vol. 15 p.2254). Cameron treated the girls very nicely (AA. Vol. 15 p.2255).

In order to assist April and Kay, Cameron was generous enough to obtain a

loan so that April and Kay would have funds to relieve the financial distress (AA.

Vol. 15 p.2265). At Christmas time, Cameron and April were involved in a heated

discussion; April speculated this was because of the loan (AA. Vol. 15 p.2268).

April admitted she told her children that they would not be able to speak to or see

APP033

the defendant (AA. Vol. 15 p.2269).

April admitted that at the time that she and Kay defaulted on the loan from

Cameron, Kay had a gambling problem (AA. Vol. 15 p. 2312-2315). Kay began to

lie to April about the finances (AA. Vol. 15 p.2315). These lies impacted the

family (AA. Vol. 15 p.2315).

During the argument with Cameron, he referred to April as an unfit mother

(AA. Vol. 15 p.2320). Cameron also told her during the argument that he felt that

she and her family had taken advantage of him (AA. Vol. 15 p.2320).

Kay testified that when Z.F. and B.R. disclosed the allegations, neither one

of them stated that Cameron had vaginally penetrated them with his penis (AA.

Vol. 16 P. 2521).

M.S. was born January 25, 2002 (AA. Vol. 10 P. 970). M.S. attended Kids

“R” Kids (AA. Vol. 10 P. 972).On one occasion, M.S. parents went up to

Mountain Charleston and Cameron babysat her (AA. Vol. 10 P. 976-977). M.S.

claimed that Cameron touched her on her breast while they were sitting on the sofa

(AA. Vol. 10 P. 981).

M.S. also claimed that Cameron touched her rear end underneath her clothes

(AA. Vol. 10 P. 984). After the Mount Charleston incidents, M.S. spent the night

at Cameron’s again (AA. Vol. 10 P. 992). On this occasion, M.S. was in the living

APP034

room and she was sitting on the couch watching television (AA. Vol. 10 P. 993994). Again, M.S. claimed that Cameron touched her breast and rear end (AA.

Vol. 10 P. 999). M.S. did not disclose these allegations until her mother told her

that Cameron had been arrested (AA. Vol. 10 P. 1001).

M.S. had seen the news coverage on Fox (AA. Vol. 10 P. 1005). The news

reported that Cameron had been accused of doing “bad things” to other children

(AA. Vol. 10 P. 1006). Prior to talking to the authorities, M.S. talked to family

and “people from the church” (AA. Vol. 10 P. 1016-1017).

M.A.S. was thirteen years old at the time of her trial testimony (AA. Vol. 20

P. 3131). M.A.S. would attend Kids “R” Kids after school (AA. Vol. 20 P. 3134).

Cameron Thomas allegedly touched M.A.S.’s “private areas” at both Kids “R”

Kids and Bright Child (AA. Vol. 20 P. 3148). M.A.S. explained she was sitting on

Cameron’s lap when Cameron touched her vaginal area over her clothing (AA.

Vol. 20 P. 3149-3151). M.A.S. explained there would be other children around

when this occurred (AA. Vol. 20 P. 3153).

M.A.S. recalled her mother stating that Cameron was going to go to jail

because he was touching other children on their “privates”. (A.A. Vol. 20 p.

3171).

The defense called Bonnie Hart (AA. Vol. 21 P. 3402). Ms. Hart was the

APP035

owner of Kids “R” Kids for approximately thirteen years (AA. Vol. 21 P.3403).

Ms. Hart explained that there is a video camera system that operates twenty-four

hours seven days a week (AA. Vol. 21 P. 3403).

Ms. Hart described Cameron as a very professional employee who worked

well with children (AA. Vol. 21 P. 3420-3421). Ms. Hart never noticed any

unusual interaction between Cameron and the children (AA. Vol. 21 P. 3452). Ms.

Hart explained that it would not be unusual for a child to sit on a teachers lap (AA.

Vol. 21 P. 3477).

Ms. Mada Eddins-Smith stated that she observed A.P. and Z.F. interact with

Mr. Thomas and they seemed excited to be in his presence (in October of 2010)

(AA. Vol. 21 P. 3501-3503). Ms. Eddins-Smith provided good character evidence

on behalf of Cameron (AA. Vol. 21 P. 3497-3505).2

On June 25, 2009, Lisa Rampolla, along with Cameron Thomas, and a

The defense called a series of good character witnesses on behalf of

Cameron Thomas (AA. Vol.21 3323-3546, AA. Vol. 22 P. 3547-3744). Character

witnesses testified that Cameron watched their children and that he was very good

with the children (A.A. Vol. 22 p. 3457-3733). The character witnesses included

parents, teachers and friends who testified they had the highest respect for

Cameron.

APP036

group of children went on a trip to the Rancho Zoo (AA Vol. 11 p. 1138). Lisa

stated that the children would like to “hang out” with Cameron because he was

“cool” (AA. Vol. 11 P.1163).

The field trip lasted from 10:00 a.m. to 1:00 p.m. (AA. Vol. 11 P.1168).3

After the zoo field trip, Lisa and the children would go back to the classroom at

Kids “R” Kids (AA. Vol. 11 P. 1179).

Cameron Thomas testified on his own behalf (AA. Vol. 23 P. 3780-3781).

Mr. Thomas was adamant that he had never inappropriately touched the children

(AA. Vol. 23 P. 3836-3838).

ARGUMENT

MR. THOMAS WAS DENIED HIS FUNDAMENTAL RIGHT TO

PRESENT A THEORY OF DEFENSE IN VIOLATION OF THE

FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

Very rarely can a defendant argue that he received such a fundamentally

unfair trial as a result of the district court repeatedly refusing to permit him to

present his only valid theory of defense. Importantly, during closing argument, the

State, with unbelievable repetition, continued to argue facts that are completely

belied by the truth of the case.

Michael Jackson died on June 25, 2009.

APP037

A brief summary of the factual portion of this issue is necessary to

understand the unconstitutionality of the court’s ruling. There were a total of four

accusers. Z.F. initially disclosed these allegations to a teacher/administrator. At

trial, the court permitted, and the State took advantage of the opportunity to

continuously explain to the jury that Z.F. spontaneously disclosed sexual abuse to

this teacher/administrator. As can be expected, the State continuously seized on

the lack of motivation for an eight year old to spontaneously reveal these

allegations. However, this was patently false and misleading.

In reality, this is what occurred just prior to Z.F.’s disclosure: April Reed

had been physically abusing Z.F. There is some indication that April was beating

Z.F. with an electrical cord4 and the authorities became aware of this child abuse.

As a result of April’s abuse, Z.F was being brought to the principal’s office to be

questioned by this same administrator. Officer Sink responded to the school to

The allegation against April was that she had left marks on Z.F. as a result

of physical abuse with an electrical cord (AA. Vol. 13 P. 1633). Defense counsel

argued this was relevant in part to Z.F.’s state of mind and to the general theory of

defense (AA. Vol. 13 P. 1634). The State conceded that the case against April

Reed was substantiated (AA. Vol. 13 P. 1638). Yet, the district court still refused

to permit the defense to introduce the truth of the matter (AA. Vol. 13 P. 1638).

APP038

investigate April’s child abuse of Z.F.

Unbelievably, the defense was precluded from mentioning any of this.

Thereafter, the sanitized version presented to the jury, dictated that Z.F. made a

spontaneous disclosure followed by a full police investigation.

More importantly, the State continuously mocked the defendant’s lack of

theory of defense for why Z.F. and A.P. would be motivated to disclose sexual

abuse at the hands of the defendant. Yet, the defendant’s hands were completely

shackled as a result of the court’s ruling.

The United States Supreme Court has noted,

Whether rooted directly in the due process clause of the Fourteenth

Amendment, Chambers v. Mississippi, 410 U.S. 284 (1973), or in the

compulsory process or confrontation clauses of the Sixth

Amendment, Washington v. Texas, 388 U.S. 14, 23 (1967); Davis v.

Alaska, 415 U.S. 308 (1974), the constitution guarantees defendants

“a meaningful opportunity to present a complete defense.” California

v. Trombetta, 467 U.S. at 485. Crane v. Kentucky, 476 U.S. 683, 690

(1986).

The United States Supreme Court has noted, “we break no new ground in

observing that an essential component of procedural fairness is an opportunity to

be heard.” In re Oliver, 333 Us. 257, 237 (1948); Grannis v. Ordean, 234 U.S. 385,

394 (1914). “The opportunity would be an empty one if the state were permitted to

exclude component, reliable evidence bearing on the credibility.” In California v.

APP039

Trombetta, 467 U.S. 479 (1984), the United States Supreme Court explained,

“under the due process clause of the fourteenth amendment, criminal prosecutions

must comport with prevailing notions of fundamental fairness.” We have long

interpreted this standard of fairness to require that criminal defendants be afforded

a meaningful opportunity to present a complete defense. To safeguard that right,

the court has developed “what might loosely be called the area of constitutionally

guaranteed access to evidence.” See also, United States v. Vamezuela-Bernal, 458

U.S. 858, 867 (1982).

The fact that April was abusing Z.F. was admissible because “extrinsic

evidence relevant to prove a witness’s motive to testify in a certain way, i.e., bias,

interest, corruption or prejudice, is never collateral to the controversy...” See,

Lobato v. State, 120 Nev. 512, 96 P. 3d 765 (2004).

It is important to remember that Z.F. and A.P. had a lengthy relationship

with Cameron Thomas (i.e.. Godfather). Thus, once the children disclosed the

allegations, the defendant would have had no viable defense surrounding identity.

Therefore, the only available defense to Mr. Thomas was the notion that the

children were falsifying the allegations.

Obviously, the best defense would be that Z.F. and A.P. told authorities that

Mr. Thomas was molesting them in order to deflect attention away from their

APP040

mom’s child abuse that was being investigated. Both Z.F. and A.P. admitted that

they were frightened of their mother (this was the only fact that the defense was

permitted to present).

During trial, the State then meticulously demonstrated the unbelievability of

the defense that the children would make up these allegations based upon a loan

between Mr. Thomas and the girls moms (April and Kay). The State also

repeatedly argued that the children’s lawsuit would present no viable motivation.

The following are excerpts from the trial which should conclusively

establish the fundamental miscarriage of justice which occurred in this case. First,

during the defendant’s testimony, the defendant was asked about an angry phone

conversation between himself and April (April had already testified about this

conversation) (AA. Vol. 23 P. 3823-3824). The defendant stated that during the

conversation, he probably made April mad because he called her an “unfit mother”

(AA. Vol. 23 P. 3824). Then, Mr. Thomas was asked why he referred to her as an

“unfit mother” and the court sustained the objection. The defendant was not

permitted to explain why he called April an “unfit mother” and ultimately made

her mad. Interestingly enough, the defendant’s testimony occurred on the very last

day of trial. The court would have been able to see almost all of the testimony at

this point, yet still precluded the defendant from stating that April was an unfit

APP041

mother. Surely, beating your child with a cord gives rise to the defendant

concluding that April was an unfit mother.

Comically, it did not go unnoticed that the district court was extraordinarily

concerned about protecting April’s reputation in front of the jury. During a pretrial

hearing addressing the issue of introduction of the child abuse by April, the district

court stated,

I mean I will tell you this, I don’t want them to have to defend a case

that’s not in front of this court, that’s not part of this trial, and that it

is a major concern I have. I do not I do feel I don’t want them to have

to defend mom on a child abuse case. I want you to have to defend

you client, which you should, on the sexual assault. (AA. Vol. 22

P.3585 ).

Not only was the defendant not permitted to introduce evidence that April

had abused her child, the State was actually permitted to question Mr. Thomas’

wife about unsubstantiated, implicit abuse. The following questions by the

prosecutor occurred during examination of Cameron Thomas’ wife, Jennifer

Thomas.

Does punishment in your home ever include corporal

punishment?

Define corporal punishment.

Spanking, hitting with a belt, any kind of physical hands on

things, on a child. Does that ever include that.

We have had hands on.

Do you have hands on with Dontae?

We have.

APP042

Does your husband have hands on punishment with Dontae?

We have.

Has it been excessive?

No.

Never?

No.

But he would never hurt a kid right?

Well, you’re twisting that to be able to say that it was intended

to cause harm and to hurt that wasn’t an intention. (AA. Vol. 22

P. 3712-3713).

...

So you said he would never hurt anyone, so I’m asking you,

was he, has he used excessive corporal punishment on Dontae.

I said no (AA. Vol. 22 P. 3713).

Unbelievably, the defendant’s wife is questioned about some vague notion

of excessive corporal punishment at the hands of the defendant on his own child.

The court found this perfectly acceptable. Yet, bent over backwards to ensure that

the substantiated abuse of Z.F. at the hands of her mother was excluded. Again,

the authorities were investigating April’s abuse of Z.F. at the very moment in time

she deflected to discuss allegations of sexual abuse against Cameron Thomas. The

court’s ruling and the prosecutor’s questioning of Ms. Thomas is shocking. On the

one hand, unsubstantiated child abuse allegations against Mr. Thomas were

permitted and substantiated abuse by April on Z.F. was precluded. The district

court made clear that the defendant was at no time to violate the court’s order as to

the real reason why Z.F. was brought to the principle and the police were

APP043

beginning an investigation.

Abuse of discretion is synonymous with the “failure to exercise a sound,

reasonable, and legal discretion.” (BLACK’S LAW DICTIONARY 1610 (6th ed.

1990). “An abuse of discretion occurs if the district court’s decision is arbitrary or

capricious or if it exceeds the bounds of law or reason.” Crawford v. State, 121

Nev. 746, 748, 121 P.3d 582, 585 (2005) (citing, Jackson v. State, 117 Nev. 116,

120, 17 P.3d 998, 1000 (2001)). At one point, the district court indicated it had

reviewed State v. Shade, 111 Nev. 887 (1995), which supported the court’s

conclusion that the child abuse should be excluded (AA. Vol. 22 P. 3580). A

review of Shade provides no rational to exclude the child abuse. The case is

completely off point with the instant matter. The district court wrongfully

identified the issue as an attempt by a defendant to preclude evidence, as in Shade,

whereas in this case the defendant was seeking to present evidence consistent

with his theory of defense. The case cited by the district court is simply misplaced.

Here, the district court’s discretion was clearly abused when the defendant’s

wife was subjected to this type of speculation regarding the defendant’s potential

child abuse of his own child versus exclusion of the defendant’s desire to present

April’s substantiated abuse of Z.F. This defies logic and reason. In essence, the

trial provided a flavor that the prosecution would be permitted carte blanche

APP044

permission to attack the defendant irregardless of the validity of the questions.

Whereas, the defendant was precluded from even presenting a viable defense. This

alone should result in reversal.

COMMENTS FROM CLOSING ARGUMENT THAT

DEMONSTRATE THE UNFAIRNESS.

Unfortunately, this error became substantially worse during closing

argument. During closing argument, there were numerous comments by the

prosecution that establish the manifest injustice that occurred.

The prosecutor argued: “August 2010. Kay and April visit Vegas.

Again, no bad feelings, this is prior to the disclosure of [Z.F.]. This is all months

prior to [Z.F.’s] disclosure. So everyone is in a good place at this time. There is no

revenge at this time. There is no animosity, if you will.” (AA. Vol. 23 P. 3910).

This was a false statement. Clearly there was animosity and trouble based

upon the fact that April was physically abusing Z.F. Again, the prosecutor could

never make such a statement to the jury if the jury had been aware that April had

been beating Z.F.

The prosecutor explained, “on December 9 of 2010, notice four

months and seven months after everyone has been getting together, that’s when

[Z.F.] discloses. Officer Sink, with his sergeant goes to Madison Elementary

APP045

School down in Phoenix (AA. Vol. 23 P. 3710-3711).

The prosecutor’s statement is true in part. It is true that Officer Sink and his

sergeant went to the elementary school. Unfortunately, the defendant was not

permitted to state that Officer Sink and his sergeant went to the school to

investigate the physical abuse that April was inflicting upon Z.F. Instead, the jury

fully understood this to mean that the police were investigating Z.F.’s disclosure

of sexual abuse at the hands of Cameron Thomas. This is actually a falsehood.

The prosecutor further explained, “there’s no testimony. There is no

evidence in this case that there were any fights, any disagreements, any unresolved

issues on December 9 of 2010.” (AA. Vol. 23 P. 3911).

Again, the prosecution is right, there is no evidence before the jury of any

fights or disagreements. That is because the district court precluded the defense

from presenting the only viable defense and that was that April was physically

abusing Z.F.

Instead, the jury received a completely false picture of what was occurring

on December 9, 2010. It is clear that the investigation of Ms. Rand and the police

was targeting the child abuse by April. Yet, the jury would have undoubtedly all

unanimously believed that the investigation involved the spontaneous disclosure

of sexual abuse by Z.F.

APP046

The prosecution then continuously mocked the lack of motive for Z.F.

and A.P. to accuse Mr. Thomas of sexual abuse. The prosecution stated,

Were there motives at eight and nine years old money and revenge?

Were they greedy and vengeful eight - and nine year olds? I submit to

you there is not one piece of evidence in this case to impute the

motives and suggest motives, no evidentiary motives, but suggested

motives of the mother to those kids. The innuendo that mothers were

trying to get out of a 1,200 dollar bill, or, foresaw a 2014 lawsuit.

(AA. Vol. 23 P. 3918).

Alarmingly, the district court continued to observe this travesty of justice.

This was compounded by the prosecution rubbing it in the defendant’s face that he

could establish no viable motive. The error continued.

The prosecution told the jury that it would be impossible for April to

tell Z.F. what to say because she did not know that Z.F. would tell a teacher that

day (AA. Vol. 23 P. 3945). Well, if April was aware that she was being accused of

child abuse, then she would know that the investigation was imminent. Therefore,

the defendant wished to argue a reasonable inference that the mother advised her

children to deflect away from her own abuse and to accuse Cameron Thomas.

Again, it is not important whether or not the court agrees with that inference. It is

only important that the defendant had a fundamental right to present it and let the

trier of fact make that determination.

In rebuttal closing argument, the State continued to mock the defense

APP047

and their lack of viable motive for the children to fabricate a story. The prosecutor

argued, “so what is there motivation or what is the defense trying to say.” (AA.

Vol. 23 P. 4024).

The defense was trying to say that the children were motivated in an effort

to deflect from their mother being punished for her “vile” conduct.5

The prosecutor informed the jury that the only two possible defenses

were intentional lying or false memory, “there’s only two options.” (AA. Vol. 23

P. 4024).

The State was right, and the State was successful in preventing Mr. Thomas

from presenting evidence that the children were intentionally lying in an effort to

deflect punishment away from their mother.

The prosecution further explained, “there is no motivation for

revenge.” Then, the prosecution stated, “maybe that was genesis for April, this vile

human being, to have her children make this story up.” (AA. Vol. 23 P. 4026).

This is completely improper argument. If the jury had been aware of the

Mr. Thomas specifically refers to April’s conduct as “vile” because in

rebuttal closing argument the prosecutor refers to April as a vile mother not

because the prosecution was serious, but because they mocked the lack of

motivation. Basically, informing the jury that April was a good mother.

APP048

substantiated abuse at the hands of April, undoubtedly the jury would have all

agreed with the prosecutor’s reference to April as vile. Yet, the prosecution used

the word to describe April as a mockery to the defense (because there was no

evidence presented that April was anything other than a loving, caring, and

concerned mother). Again, this demonstrates a travesty of justice and a continuous

abuse of discretion. The district court should have sua sponte warned the

prosecutor that their arguments belied the truth of the situation.

The prosecutor further argued,

So for you to find that April is making these girls lie, this is a pretty

well thought out plan. So what would’ve happened was April

would’ve had to tell the girls what to say, and then just by chance

wait for a day that [Z.F.] gets called up to the office, and this eight

year old girl is going to know this is my time. This is the time to - the plan is now in motion, and I’m going to shout sexual abuse.” (AA.

Vol. 23 P. 4027).

The answer to the question is simple, April would know that the authorities

were probably going to investigate her for child abuse, which they in fact did.

10.

Particularly disturbing, the prosecutor argued, “somehow there is this

devious plan in the works and it always hinges on this eight year old going up to

her teacher and saying that she was sexually abused. Does it make sense, ladies

and gentleman? No.” (AA. Vol. 23 P. 4028).

The prosecutor is right, it makes no sense based upon the state of the

APP049

evidence presented to the jury. However, it would make reasonable sense and a

viable defense if the jury had been aware that Z.F. did not just go up to her teacher

and disclose sexual abuse allegations, spontaneously. In fact, Ms. Rand was

questioning Z.F. about her abusive mother. By changing the entire truth of what

occurred, the jury undoubtedly believed that Z.F. spontaneously disclosed based

upon years of legitimate frustration and pain. Although defense counsel

specifically requested permission to introduce this evidence in order to develop

the argument that Z.F. disclosed to deflect, this fell on deaf ears.

11.

Again, the prosecution argues, “there was no master plan, it makes no

sense. Mr. Mann points to April. She has to be this vile women to do this, right?”

(A.A. Vol. 23 p. 40229). The prosecution further explained, “putting her girls up

to be interviewed by police, by child protective services, being forensically

interviewed, getting medical examinations.” (AA. Vol. 23 P. 4029).

The prosecution was able to portray defense counsel as making a desperate

attempt to vilify April when she had done nothing wrong. The prosecutor’s

facetious reference to April as a “vile women” was correct in part. April’s abuse of

her child was vile and the jury would have agreed had they known the truth and

not been completely misled throughout the trial.

Next, the prosecution argues to the jury that what mother would put their

APP050

girls up to being interviewed by the police and child protective services. The

prosecution’s argument was successful in demonstrating that no good mother

would want their child to endure those type of interviews. However, the reality

and truth was that April’s physical abuse of Z.F. was causing Officer Sink and his

sergeant to go to Z.F.’s school to interview her and child protective services was

undoubtedly involved. The truth is that April’s “vile” abuse of Z.F. did result in

the police, child protective services and school officials having to interview Z.F.

In sum, the truth was so horribly twisted and the district court continued to permit

this travesty.

12.

Again, the prosecution stated, “do you really think April Reed is

going to put her children up to that? Absolutely not.” (AA. Vol. 23 P. 4029-4030).

Throughout the trial and extensively in closing argument, the jury was

hopelessly misled. The quotes in this brief come directly from the record. In the

State’s Answering Brief, they will be given no choice but to claim that these

quotes are taken out of context. None of them are taken out of context and Mr.

Thomas would respectfully invite the court to carefully review the entire closing

argument for the flavor of this trial. It is astonishing that the district court

permitted this.

///

APP051

TESTIMONY ELICITED BY THE PROSECUTION THAT

FURTHER DEMONSTRATES THE UNFAIRNESS.

During the prosecutor’s examination of A.P., the following exchange

occurred:

Are you scared if you say something wrong here today that

Mommy April is going to be upset?

No.

Are you saying these things because you think Mommy April is

going to be upset with you?

No.

When you spoke wit the police back in 2010, did you say

things because you were afraid of Mommy April?

At that point, I knew that I wasn’t going to get in trouble that

she had my back and she believed in me (AA. Vol. 23 P. 20862087).

Here, the prosecution was presenting evidence to relieve any suggestion that

A.P. and Z.F. would fabricate a story based upon fear of their mother. Presumably,

A.P. and Z.F. would be very fearful of Mommy April given the fact that she

physically beats Z.F. The child abuse was so obviously admissible as a theory of

defense that it seems unreasonable for Mr. Thomas to have to argue that the State

opened the door to this during this exchange with A.P. However, surely, this

would have opened the door to fair cross examination about whether A.P. was

frightened of her mother based upon knowledge or observation that her mother

was physically abusing Z.F.

///

APP052

AUTHORITY IN SUPPORT OF MR. THOMAS’ RIGHT TO

PRESENT HIS THEORY OF DEFENSE.

In 2013, the United States Supreme Court addressed the right of the

defendant to present a theory of defense. Nevada v. Jackson, 569 U.S. __, 133 S.

Ct. 1990 (2013). Jackson was charged with raping his ex-girlfriend. Shortly before

trial, the ex-girlfriend sent a letter to the judge recanting her testimony. At trial,

the theory of the defense was that the ex-girlfriend had fabricated the sexual

assault charge. To support the theory, the defense sought to introduce testimony of

police reports showing that the ex-girlfriend had called the police on several prior

occasions falsely claiming the defendant had raped her. Id. Ultimately, the United

States Supreme Court noted that the trial court gave the defense wide latitude in

cross examination of the ex-girlfriend regarding the prior reports but refused to

admit the reports themselves. Id.

The United States Supreme Court determined that the proffered evidence

had little impeachment value because it merely showed that the victim’s reports

could not be corroborated and the defendant had been given wide latitude to cross

examine the ex-girlfriend. Whereas here, Mr. Thomas was specifically precluded

from ever mentioning April’s substantiated physical abuse on Z.F. The district

courts ruling is clearly an unreasonable application of clearly established United

States Supreme Court law. In fact, the district court’s decisions amounted to

APP053

blatant abuse of discretion which permitted the State to present the facts that

occurred surrounding Z.F.’s disclosure in the most disingenuous manner.

Pursuant to the fundamental principles of the United States Constitution,

Mr. Thomas had a right to present a reasonable inference that April had

manipulated her daughter’s into fabricating these allegations in order to deflect

punishment away from her physical abuse and directly onto Cameron Thomas. The

issue is not whether the jury would have acquitted had this information been

presented, but rather the denial of the defendant to have a jury consider his theory

of defense. Reversal is mandated.

II.

THE DISTRICT COURT IMPROPERLY PERMITTED THE STATE

TO INTRODUCE BAD ACT TESTIMONY AND QUESTION THE

DEFENDANT REGARDING SPECULATIVE BAD ACTS IN

VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION.

BAD ACTS ELICITED DURING MR. THOMAS’ TESTIMONY

The district court canvassed Mr. Thomas about his constitutional right to

testify (AA. Vol. 22 P. 3629-3630). Mr. Thomas did testify. During the canvass,

Mr. Thomas was advised that the State could impeach him with an appropriate

felony conviction. At the conclusion of the canvas, the following occurred:

Prosecutor:

Judge, just for the record, he doesn’t have any

felony convictions, but based upon the testimony

if he does take the stand, the State intends. We

APP054

believe there is bad act information that will

confront.

District Court:

Okay

Defense counsel: I’m not being provided with that information

(AA. Vol. 23 P. 3631).

The prosecutor: It’s impeachment. Don’t need to.

District Court:

Just for the record so we know. Alright. (AA. Vol.

23 P. 3632).

The starting point for this issue is that the defendant was properly advised

of his right to testify and the law surrounding the State’s ability to properly

impeach Mr. Thomas with felony convictions. However, the State was not

concerned with the necessity for felony convictions, the State was prepared to

cross examine Mr. Thomas with “bad act” information which they thought could

be used for impeachment without any type of notice. As is cited above, defense

counsel explained that he was unaware of what these bad acts were. True to the

prosecutors word, the following cross-examination of the defendant occurred:

And there was this – S.K., she spent the night at your house on

several occasions, correct?

Correct.

And that she also attended parents night out, correct?

Correct.

That there was an incident at the daycare where you took S.K.

upstairs to change, correct?

Correct.

And that was at Kid “R” Kids, correct?

Correct.

And there was an issue that ultimately resolved with Kids “R”

Kids in relation to that, correct?

APP055

Not necessarily an issue but correct.

Alright, and ultimately you were terminated, correct?

I was on, I went on leave, and then I was arrested.

Okay, you were on leave prior to being arrested, correct?

Correct (AA. Vol. 23 P. 3868-3869).

Here, the defendant was questioned about a child, S.K., and there is nothing

in the record to explain this peculiar set of questions from the prosecution.

However, the tenner of the questions implied that something sinister had occurred

with this innocent child which resulted in the defendant being terminated from his

position. Appellant counsel is at a complete loss to determine the legal authority

which would permit the prosecution to question the defendant regarding this type

of sinister innuendo.

BAD ACTS ELICITED FROM THE DEFENDANT’S WIFE

This particular error must be considered simultaneously with the

prosecution’s examination of the defendant’s wife regarding the defendants use of

corporal punishment on his own child, D.T.6

Incredibly, the district court insured that there would be no questioning of

April or any other witnesses regarding her substantial abuse of Z.F. Yet, the

The prosecution’s examination of the defendant’s wife concerning corporal

punishment of Mr. Thomas’ child, D.T., is explained in detail supra at pages 4041.

APP056

defendant and his wife were subjected to extremely prejudicial innuendo without

the State or the district court insuring that the rules of evidence or constitutional

principles were being applied.

BAD ACTS ELICITED FROM THE STATE’S WITNESSES

Mr. Thomas’ presence in a fitting room and the daycare attic

Outside the presence of the jury, the State requested permission to introduce

bad acts surrounding the following incidents:

The defendant is present, shopping for bathing suits in WalMart, and is inside the changing room (AA. Vol. 14 P. 20162017).

The accusers described being in the attic area of Kids “R” Kids

(AA. Vol. 14 P. 2016-2024).

Unlike when the State examined the defendant and his wife, here the district

court actually applied the standard enunciated by this court in Tinch and

Petrocelli. The district court found that the allegations had been proved by clear

and convincing evidence and that the evidence is more probative than prejudicial

(AA. Vol. 14 P. 2023-2024). Curiously, the district court also conducted analysis

that somehow, the defense had opened the door to these bad acts (AA. Vol. 14 P.

2023). Additionally, the district court agreed with the State that these bad acts

were admissible to refute the allegations of recent fabrication (AA. Vol. 14 P.

APP057

2024).

Mr. Thomas’ son was acting out in a sexual manner

During the prosecutors examination of April Reed, the following exchange

occurred:

Do you know how [Z.F.] knew this word?

That was a word we used around the house to identify with

good touch and bad touch with other children because that was

one of our concerns at the time because Cameron’s son was

doing that (AA. Vol. 15 P. 2292).

Admittedly, there was no objection. April Reed’s statement implicitly

illustrated that Cameron’s child was acting out sexually, perhaps for some sinister

reason that should be projected on the defendant. Where an error has occurred and

there is no objection, this court can consider plain error. In Garner v. State, 116

Nev. 770, 6 P.3d 1013 (2000) this Court held that “to be plain, an error must be so

unmistakable that it is apparent from the casual inspection of the record.” Here,

the errors were plain.7

After April Reed’s testimony, during a break, defense counsel stated, “there

are so many things today. I’m trying to remember.” (AA. Vol. 15 P. 2346-2347).

Defense counsel further stated, “the defense complained there were statements that

were highly prejudicial again and inappropriate.” (AA. Vol. 15 P. 2346). Defense

counsel elaborated, “during [Z.F’s] cross examination, we had several bench

APP058

An allegation of sexual abuse concerning M.S. never mentioned

prior to trial

During the prosecutors examination of Ramona Slattery, the district court

permitted hearsay statements of Ms. Slattery’s daughter into evidence. During Ms.

Slattery’s testimony she blurted out, in an unsolicited style, that her daughter said

“mommy, I want to talk to you.” Ms. Slattery relayed how her daughter stated, “ I

remember now that Mr. Cameron used to put his hands down my pants close to my

peeps and watch me bathe and then he wanted me to sleep in with him naked. And

he used to make me put lotion down on my peeps and watch me.” (AA. Vol. 20 P.

3277).

Defense counsel requested permission to approach (AA. Vol. 20 P. 3277,

3282). The prosecution agreed that the statement should be stricken, and the

district court agreed that the defense had made a contemporaneous objection (AA.

Vol. 20 P. 3282). Defense counsel then complained that the district court had

conferences ... I was hoping that we could put those objections on the record.”

However, the court informed defense counsel that since he had not

contemporaneously objected, that the court considered the matter waived (AA.

Vol. 15 P. 2347). Therefore, although defense counsel did object, the court stated

that there was a waiver because of the lack of a contemporaneous objection.

APP059

permitted the mother to testify to these statements of her daughter pursuant to NRS

51.385 and was now in the position that the witness had blurted out numerous

prejudicial bad acts (AA. Vol. 20 P. 3283). Defense counsel moved for a mistrial

and complained that this was the first time that he had ever heard of these

allegations (AA. Vol. 20 P. 3290,3292). Defense counsel requested the district

court not admonish the jury to disregard the statement, as it would highlight the

prejudice (AA. Vol. 20 P. 3295). During argument, the court stated “right now I’m

not sure what to do with her [the witness]. How to handle it” (AA. Vol. 20 P.

3302).

Admittedly, the prosecution did not elicit these bad acts. However, it is

disturbing that the witness completely ignored the State’s admonition in an effort

to convict Mr. Thomas. The district court denied the defense motion for mistrial.

AUTHORITY AND ANALYSIS

Mr. Thomas specifically objected at trial to the admission of these bad acts.

In Tinch v. Nevada, 113 Nev. 1170, 946 P.2d 1061 (1997), this Court held

that a trial court “...must determine, outside of the presence of the jury, that: 1) the

incident is relevant to the crime charged; 2) the act is proven by clear and

convincing evidence; and 3) the probative value of the evidence is not

substantially outweighed by the danger of unfair prejudice.” 113 Nev. 1170, 1176.

APP060

(citing Walker v. State, 112 Nev. 819, 824, 921 P.2d 923, 926 (1996).

NRS 48.045(2)'s list of permissible nonpropensity uses for prior-bad-act

evidence is not exhaustive. Bigpond v. State, 128 Nev. _, 270 P.3d 1244, 1249

(2012). Nonetheless, while "evidence of 'other crimes, wrongs or acts' may be

admitted ... for a relevant nonpropensity purpose," Id. (quoting NRS 48.045(2)),

"'[t]he use of uncharged bad act evidence to convict a defendant [remains] heavily

disfavored in our criminal justice system because bad acts are often irrelevant and

prejudicial and force the accused to defend against vague and unsubstantiated

charges."' Id. (quoting Tavares v. State, 117 Nev. 725, 730, 30 P.3d 1128, 1131

(2001)). Thus, "'[a] presumption of inadmissibility attaches to all prior bad act

evidence."' Id. (quoting Rosky v. State, 121 Nev. 184, 195, 111 P.3d 690, 697

(2005)).

This court reviews a district court's decision to admit or exclude

prior-bad-act evidence under an abuse of discretion standard. Fields v. State, 125

Nev. 785, 789, 220 P.3d 709, 712 (2009).

In this case, the State utterly dismissed clearly established law. The State

questioned Mr. Thomas’ wife over sinister innuendo connected to corporal

punishment and questioned Mr. Thomas regarding S.K., implying something

sinister happened. Defense counsel complained that he was on no notice of the bad

APP061

acts the State could be referring to. Rather than ensure that the district court

conducts a Petrocelli hearing after appropriate notice, the State simply announced

their intention to use unknown bad acts.

Cleverly, the State did not bring notice because this would not have been

admissible pursuant to NRS 48.045. Again, as there was no Petrocelli hearing,

there was no determination that there was no clear and convincing evidence the

defendant had committed acts of excessive corporal punishment on his own child

or that something sinister had occurred with S.K. The district court did not weigh

the probative value versus the prejudicial effect. The district court did not even

make a ruling as to whether this type of questioning was even relevant, which it

was not. This was highly improper and extraordinarily prejudicial. To make

matters worse, the prosecutor made the following argument in closing:

[A.P.] was on the stand for almost seven hours, what else do you need

? Do you need a fifth victim? A sixth victim? How about even a

dozen? (AA. Vol. 23 P. 4020-4021).

Defense counsel objected on the basis that the State was implying there

were other victims. The district court determined the prosecution did not imply

there were other victims and found the argument to be proper. (AA. Vol. 23 P.

4020-4021).

This argument was improper. The prosecutors argument dovetailed with her

APP062

questioning of the defendant and the defendant’s wife. The fifth victim would

have been the defendant’s child for excessive corporal punishment. The sixth

victim would have be S.K. for some sinister unknown act that occurred.

Often, this Court wrestles with the determination of whether bad act

testimony is more prejudicial then probative after the district court entertained the

appropriate motions to permit the introduction of the bad acts testimony. Here,

there was no such motions filed and no hearing held. The failure to comply with

the rules of evidence, and clearly established case law resulted in highly

prejudicial improper cross-examination of the defendant and his wife which

deprived the defendant of his due process rights under the Fifth and Fourteenth

amendments to the United States Constitution.

III.

THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT

REPEATEDLY PERMITTED HEARSAY STATEMENT PURSUANT

TO NRS 51.385 IN VIOLATION OF THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

During trial, through seven different witnesses, the district court permitted

hearsay statements pursuant to NRS 51.385. On every single occasion, the district

court found there was sufficient trustworthiness surrounding the hearsay statement

rendering it admissible.

The following individual’s testimony was considered by the district court at

APP063

an evidentiary hearing pursuant to NRS 51.385.

Ms. Amanda Rand

Ms. Rand, a school teacher, was assigned to question Z.F. regarding April’s

electrical cord whipping of Z.F. Ms. Rand was questioning Z.F. when she decided

to allege Mr. Thomas had been sexually abusing her. The State desired to have

Ms. Rand testify, requesting the district court exclude any mention of Ms. Reed’s

child abuse so that the facts would best suit the State’s theory of prosecution. The

district court found the statement was trustworthy (AA. Vol. 16 P. 2393).

In Jefferson v. Nevada, 2014 Nev. Unpub. LEXIS 1222, (62120) (2014),

this Court considered the factors enunciated by NRS 51.385(1)(a)-(b), that the

district court must consider. This Court explained,

In determining the trustworthiness of the statement, the court shall

consider, without limitation, whether: a) the statement was

spontaneous; b) the child was subjected to repeated questioning; c)

the motive to fabricate; d) the child used terminology unexpected of

the child of similar age; e) the child was in stable mental state.

Defense counsel objected citing the factors enunciated by this court (AA.

Vol. 16 P. 2387-2388).

First, could the allegation really be considered spontaneous given the fact

that Ms. Rand was investigating child abuse of Z.F. by April Reed. Assuming

arguendo this Court determines that the statement was spontaneous, Z.F. clearly

APP064

had a motive to fabricate regardless of the district court’s determination. Z.F.

claimed that this abuse had occurred over a lengthy period of time, yet waited for

the very moment that her mom was in serious jeopardy to reveal this information.

Additionally, this Court considers the motive to fabricate and the mental stability

of the child. Defense counsel argued and Z.F. admitted that she had a history of

lying and theft.

The district court would have only had a short period of time to observe Z.F.

The district court was fully aware that Z.F. was an admitted liar and thief yet

found sufficient trustworthiness. It is very rare that the defense would be able to

obtain an admission from a witness that they had a history of lying and stealing.

For the court to determine that there is trustworthiness, appears to fly in the face of

logic and reason.

Comically, after the district court had made its decision, the court was left

with the dilemma of how to explain why Z.F. was in the principles office (AA.

Vol. 16 P. 2397).8 The district court would have had no difficulty with this

dilemma if the truth was told and the defense was able to put on their theory of the

The district court stated, “you know what, I don’t know how to get out of

the context when you get called to the principle’s office.” (AA. Vol. 16 P. 2397).

APP065

case. The district court’s solution with sanitation resulted in a clear cut

demonstration of a spontaneous statement made by Z.F. It appeared Z.F. told the

principle out of the blue about the alleged sexual abuse.

Additionally, Z.F. and her sister freely admitted that they were fearful of

their mother, giving rise to more evidence of a potential fabrication to avoid a

future whipping with an electrical cord. Moreover, Z.F. claimed the reason she

revealed to Ms. Rand the allegations is because they began to have a discussion

about “god dad” or “god father”. Yet, Ms. Rand denied having any such

conversation about “god dad” or “god father” (A.A. Vol. 16 p. 2378-2380, 2415).

Again, even more evidence of untrustworthiness and fabrication.

Officer Kathleen VanGordon

Officer Van Gordon conducted the forensic interview of Z.F. (AA. Vol. 10

P. 889). Defense counsel again objected stating,

Specifically, the -- we have heard from now three

separate witnesses regarding hearsay statements that

[Z.F.] has said. Three separate witnesses. The State is

now asking for number four and I believe that they are

going to be later asking for number five (AA. Vol. 10 P.

889).

The district court overruled the objection, again finding the trustworthiness

of Z.F., the admitted liar and thief.

APP066

There is no doubt, that the State’s presentation of credible professionals

gave an heir of believability to Z.F. The court ultimately concluded that the

hearsay statements of Z.F. could be testified to by April Reed, K, Ms. Rand,

Officer Van Gordon, and Officer Sink.

Officer Sink

Officer Sink stated that Z.F. complained that Mr. Thomas had sexually

abused her. (AA. Vol. 10 P. 898). The district court permitted this testimony.

Ms. Faiza Ebrahim

The district court determined that M.S.’s mother, Ms. Ebrahim, would be

permitted to testify to the hearsay statements of M.S. (AA. Vol. 19 P. 3000-3001).

Cheryl Barbian

M.A.S. had conversations with people surrounding Mr. Thomas a couple of

days before she disclosed these alleged allegations. The district court found

sufficient circumstantial guarantees of trustworthiness (AA. Vol. 20 P. 3105).

Defense counsel objected as to the lack of trustworthiness.

Interestingly enough, although the district court found the statement

trustworthy, the jury must not have. The jury acquitted Mr. Thomas of all of the

charges related to M.A.S.

Ramona Slattery

APP067

The district court found trustworthiness and permitted the hearsay

statements of M.S. (AA. Vol. 20 P. 3242-3255).

Ms. Martha Mendoza

At the conclusion of this hearing concerning Ms. Mendoza, defense counsel

stated, “your honor, considering your other rulings, I’ll submit it.” The district

court replied, “well, I am not quite sure considering my other rulings - -.” Defense

counsel then stated, “sorry, I’ll submit it, your Honor.” (AA. Vol. 21 P. 3355).

The district court’s rulings amounted to Mr. Thomas receiving a grossly

unfair trial. Additionally, it must be noted that defense counsel complained that

the forensic interviewers were clearly not spontaneously made, but made for the

purpose of a criminal investigation. This was testimonial hearsay in violation of

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004) and Davis v.

Washington, 547 U.S. 813, 126 S. Ct. 2266 (2006).

IV.

MR. THOMAS IS ENTITLED TO A REVERSAL OF COUNTS ONE

AND TWO BASED UPON THE INSUFFICIENT NOTICE TO THE

DEFENDANT IN VIOLATION OF THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

The defense filed a pretrial motion arguing improper notice in the

Information (A.A. Vol. 4 p. 277-299). Defense counsel also argued there was a

lack of specificity (AA. Vol. 13 P. 1696-1697). The defense complained that the

APP068

State was arguing three separate and distinct incidents where A.P. complained of

penile-vaginal penetration in a single count. Defense counsel objected pretrial and

again prior to closing argument. Defense counsel continuously complained of lack

of notice and confusion (AA. Vol. 13 P. 1702). Importantly, defense counsel

complained that A.P. never testified to penile vaginal penetration during the

preliminary hearing (AA. Vol. 13 P. 1704). In sum, defense counsel complained

that there was a complete lack of notice and requested a mistrial (AA. Vol. 13 P.

1716).

The issue before this Court is best illustrated during the prosecutor’s closing

argument. The prosecutor meticulously describes each allegation and count. On

count one, sexual assault of A.P., the prosecutor carefully illustrated three separate

incidents of penile-vaginal assault for the jury to choose from for a single count.

The prosecutor stated, “first count for [A.P.] is count one.” (AA. Vol. 23 P.

3927 ). The prosecutor then described how A.P. testified that she would watch

Saturday cartoons in the defendant’s bedroom and while watching Tom and Jerry

on the bed, the defendant placed his penis in her vagina (AA. Vol. 23 P. 39273928). The prosecutor then described a completely separate and distinct incident

that she refers to as the “fish tank” incident where she was sexually assaulted

while helping to clean the fish tank (A.A. Vol. 23 p. 3930-3932). On the third

APP069

occasion, A.P. described the “pizza incident.” (AA. Vol. 23 P. 3929). The

prosecutor explained how the defendant was present with her and K had left to

purchase pizza when she was sexually assaulted (AA. Vol. 23 P. 3929). The

defendant was charged with one count for these three separate and distinct

incidents. This amounts to a complete lack of notice and fails to establish that

there was any unanimity by the jury.

“Although any prosecutor might well desire the luxury of having an option

not to reveal his or her basic factual theories, and wish for the right to change the

theory of the case at will, such practices hardly comport with accepted notions of

due process.” Barren v. State, 99 Nev. 661, 668, 669 P.2d 725, 729 (1983). This

Court has held the information should be “sufficiently definite to prevent the

prosecutor from changing the theory of the case.” State v. Jones, 96 Nev. 71, 74,

605 P.2d 202, 204 (1980). The information “must include such a description of

the acts alleged to have been committed as will enable the accused to defend

against the accusation.” Lane v. Torvinen, 97 Nev. 121, 123, 624 p.2d 1385, 1386

(1981). Prejudice to the defendant is, of course, a controlling consideration in

determining whether an indictment or information is sufficient.” Laney v. State, 86

Nev. 173, 178, 466 P.2d 666, 669 (1970). A defendant is denied due process

“when the defendant is prejudiced in his defense because he cannot anticipate frm

APP070

the indictment what evidence will be presented against him.” Hunter v. New

Mexico, 916 F.2d 595, 599 (10th Cir. 1990). In Cunningham v. State, 100 Nev.

396, 400, 683 P.2d 500, 502 (1980), the Court stated that “the state should,

whenever possible, allege the exact date on which it believes a crime was

committed, or as closely thereto as possible.”

Here, the State did not allege an exact date nor an exact incident. Based on

the argument of the prosecutor, it is clear that there is no indication that the jury

had any unanimity with regard to any one of these three incidents. Obviously, the

defense does not know what the jury believed. Perhaps some jurors believed the

pizza incident but not the fish tank incident. Perhaps some jurors believed the

Saturday morning cartoons incident, but did not believe the pizza incident.

However, all jurors unanimously concluded that the defendant, on one of the three

occasions, had committed the crime; thus finding him guilty of count one.

MR. THOMAS IS ENTITLED TO A DISMISSAL OF COUNT TWO,

LEWDNESS OF A MINOR ON A.P.

The prosecutor explained in closing argument, “count two is the alternative

to count one.” (AA. Vol. 23 P. 3933). Again, for the reasons cited in the previous

argument, it is impossible to determine which incident the jury considered and

convicted Mr. Thomas of. Count two causes even more confusion. As the

APP071

prosecutor artfully explained,

So count two for [A.P.] is an alternative to count one. And how that

works is if you believe that there was not penetration for purposes of

sexual assault in all those acts we just talked about but you believe

that the defendant rubbed his penis on her genital area without

penetrating than lewdness with a minor would be your appropriate

verdict (AA. Vol. 23 P. 3933).

The same analysis for count one applies to count two. There is no way to

ascertain what the jury concluded.

A defendant is entitled to a unanimous verdict that he or she is guilty of a

particular crime. The State should have been forced to charge three separate

counts. Alternatively, an analogy can be made to capital murder proceedings in the

State of Nevada where a jury is given a special verdict to make the determination

whether the jury unanimously finds first degree murder as a result of felony

murder, premeditation, deliberation and willfulness, or any other theory of first

degree murder. See NRS 200.010. Pursuant to McConnell v. State, 121 Nev. 25,

107 P.3d 1287 (2005), this Court has mandated that district courts provide such a

special verdict.

The same applies to the instant case. Here, there is no way to determine that

unanimity resulted. Therefore, Mr. Thomas is entitled to a reversal of counts one

and two.

APP072

VI.

THE DISTRICT COURT ERRED BY PERMITTING THE STATE TO

REPEATEDLY INTRODUCE EVIDENCE THAT A CIVIL SUIT

HAD RESULTED IN A SETTLEMENT FROM FACTS DIRECTLY

ASSOCIATED WITH THE CRIMINAL ACTION.

Just prior to opening statements, the State requested permission to introduce

evidence that there had been a civil suit filed by the alleged victims which had

resulted in settlement (AA. Vol. 13 P. 1589-1587 ). The State also requested

permission to discuss the settlement in opening statement (AA. Vol. 13 P. 1587).

The district court inquired whether defense counsel intended to discuss the civil

case in opening statement. Defense counsel admitted that he may desire to

question witnesses over the bias of filing a civil suit, but did not intend to discuss

any financial settlement (AA. Vol. 13 P. 1588). More importantly, defense counsel

remained unsure whether he wished introduce any such evidence and did not

intend on mentioning it in opening statement (AA. Vol. 13 P. 1588). Defense

counsel admitted that the civil suit could be both helpful and damaging (AA. Vol.

13 P. 1587-1588).The district court explained, “I guess my answer is if he opens

the door, then the order will get in once he opens the door. If he doesn’t open the

door– however you want to handle it.” (AA. Vol. 13 P. 1589-1590).

Thereafter, without defense counsel opening the door or stating he was

going to introduce any evidence of the civil law suit settlement, the prosecutor

APP073

made the following statements in opening argument;

And that yes [M.A.S., Z.F., A.P. and M.S.] were all plaintiffs in that civil

suit. Okay. And so their main common allegations that they were doing –

that these allegations arose because of money. And I will tell you that the

civil suit had settled and that they did receive money and it is in a locked

account. The children and their families do not have access to that money

until the children are eighteen, and you will hear what those parents are

intending to with the money, its their children’s money.” (AA. Vol. 13 P.

1690-1691).

Moreover, during the prosecutor’s examination of April Reed, the following

questions occurred,

Do you know how much money is in the blocked account?

Its about the thirty one thousand.

And that was the civil suit against the Kids “R” Kids daycare?

Yes (AA. Vol. 15 P. 2304).

Next, the prosecutor highlighted the civil settlement during closing

argument stating,

And in August of 2014, the civil suit settled. So all financial gain at that

inception of the trial is off the table. Nobody is getting anything else. The

kids got thirty two thousand. Is thirty two thousand enough to get your kid

touched? Is Thirty two thousand that parent cant control, cant touch.” (AA.

Vol. 23 P. 3912).

April testified that her children received a civil settlement (AA. Vol. 15

p.2303). The money from the settlement remained in a “minors blocked account”

(AA. Vol. 15 p.2303). Each one of the children received a settlement of

APP074

approximately $30,000.00 from the Kids “R” Kids daycare (AA. Vol. 15 p.2304).9

Cheryl Barbin was permitted to state that there was a civil suit and eventual

settlement which was placed into a blocked account (AA. Vol. 20 P. 3211-3212).

The amount of the settlement was $50,000.00 after attorneys fees (AA. Vol. 20 P.

3212).10

M.S. received $32,000 after attorneys fees. Romona denied informing M.S.

that Cameron was in jail (AA. Vol. 21 P. 3365).

The adjudication of a fact in a civil proceedings, in view of the difference of

degree of proof in a criminal and civil cases, can afford no basis for the doctrine of

res judicata, when offered in a criminal case. United States v. Konovsky, 202 F.2d

721 (7th Cir. 1953). In Konovsky, the court explained that the entering of a civil

judgment into evidence would lead the jury to believe the same issues have

already been determined in the civil action. The court stated nothing could be

Up until this time, the defense had yet to make mention of any type of

lawsuit (AA. Vol. 15 p.2337). A short time later, a juror asked a question

concerning the lawsuit: How have the children received money from the lawsuit;

who sued them and why? (AA. Vol. 15 p.2337).

At this time, defense counsel had not mentioned the civil lawsuit. This

was all elicited by the State.

APP075

more prejudicial to a fair trial. 202 F.2d 721, 727. In United States v. Satuloff

Bros., Inc, 79 F.2d 846 (2nd Cir. 1935), the court held that judgments and decrees

rendered in civil suits are inadmissible in evidence in criminal prosecutions as

proofs of any facts determined by such judgments or decrees.

Defense counsel was unsure whether he intended to utilize the existence of

the law suit because he recognized it could be harmful to the defendant. Defense

counsel clearly seemed reluctant to state whether he intend to use the information.

However, the district court then determined that if defense counsel opened the

door, the court would make a decision as to the extent to which the civil law suit

could be considered. Then, without explanation, the State, in opening statement,

explains the existence of a civil law suit and the terms of the settlement. The State

then questioned witnesses about the settlement. Further, the State utilized this

information in closing argument.

Undoubtedly, the defendant should be permitted to question witnesses as to

the existence of a law suit for purposes of bias. However, the finality of a

settlement would lead a reasonable to juror to believe the matter at issue has

already been decided. Surely, a reasonable juror would recognize that tens of

thousand of dollars were not provided to alleged victims unless there had been

some type of finding the defendant was culpable for the alleged conduct.

APP076

No doubt the State will argue they addressed the issue prior to opening

statement and defense counsel appeared to be indecisive. However, this did not

give the State the right to then present the existence of the settlement throughout

the trial. This is obvious error and intruded upon the province of the jury’s

ultimate determination.

Interestingly enough, the district court explained that the court had

encountered this dilemma in the past (AA. Vol. 13 P. 1590).11

Mr. Thomas’ is entitled to a new trial. As the Seventh Circuit articulated

“..nothing could be more prejudicial to a fair trial.” Konovsky, 202 F.2d 72.

VII. THE DISTRICT COURT ERRED BY FAILING TO ENSURE THAT

A PROPER RECORD WAS PRESERVED FOR APPELLATE

REVIEW.

In this case, the district court held numerous unrecorded bench

conferences.12

This Court should take the opportunity to render a published opinion in

this matter to avoid further repetition of this prejudicial dilemma.

The following unrecorded bench conferences took place: AA. Vol. 12 P.

1278, 1406, 1437, 1461; AA. Vol. 24 P., p. 4098, 4104, 4172, 4249; AA. Vol. 25

P.: 4272, 4345, 4403, 4429, 4472; AA. Vol. 18 P.: 2700, 2724, 2816, 2860;

AA. Vol. 13 P.: 1679, 1732, 1741, 1841; AA. Vol. 14 P: 1868, 1960, 1983, 1986,

APP077

In Preciado v. State, 130 Nev. Adv. Op 6, 318 P.3d 176 (2014), this Court

stressed that bench conferences should be recorded and/or memorialized either

contemporaneously or by allowing counsel to make a record afterward in all cases,

not just capital cases. This Court explained,

Meaningful appellate review is inextricably linked to the availability

of an accurate record of the lower court proceedings regarding the

issues on appeal; therefore, a defendant is entitled to have the most

accurate record of his or her district court proceedings possible...Due

process requires us to extend our reasoning in Daniels to defendants

in noncapital cases, because regardless of the type of case, it is crucial

for a district court to memorialize all bench conferences, either

contemporaneously or by allowing the attorneys to make a record

afterward. Id.

Here, the district court did not record the bench conferences, which in this

case, amounted to the failure to properly preserve issues for appellate review. The

2072, 2088, 2144; AA. Vol. 15 P: 2174, 2176, 2202, 2205, 2210, 2242, 2297,

2336; AA. Vol. 16 P: 1230: 2419, 2456, 2464, 2480, 2525, 2529, 2564, 2570; AA.

Vol. 10 P: 908, 963, 966, 1033, 1034, 1048, 1053; AA. Vol. 11 P: 1151, 1184;

AA. Vol. 19 P: 2944, 2946, 2970, 2973, 3018, 3044, 3054, 3056, 3058; AA. Vol.

20 P. 3161, 3167, 3213, 3226, 3237, 3277; AA. Vol. 21 P: 3374, 3399, 3445,

3487, 3495, 3515, 3530, 3531; AA. Vol. 22 P, 3616, 3625, 3627, 3653, 3691,

3726; AA. Vol. 23 P: 3782, 3822, 3835, 3871, 3903.

APP078

district court record reflects the following statement every time there is an

unrecorded bench conference: “whereupon there was a conference at the bench

that was not requested to be reported.”

As an initial matter, it appears that the district court and the parties were

confused whether the bench conferences were actually being recorded. The district

court stated, “we are outside the presence of the jury. Do you want to put what

happened on the record? I didn’t realize it wasn’t on the record. It’s up to you.

You don’t have to - -.” (AA. Vol. 16 P. 2570). Defense counsel replied, “I am

trying to remember what it was.” (AA. Vol. 16 P. 2570). Although vague, it

appears the court was unaware of the lack of recording.

There are several reasons why the court’s failure to properly record

discussions prejudiced Mr. Thomas.

First, the district court permitted juror questions. The jurors questions were

addressed during unrecorded bench conferences. There is no record as to these

discussions.

Second, there were some attempts to recreate records concerning

unrecorded bench conferences. However, portions of the recreations highlight the

necessity for a proper recording to preserve appellate review. At one point in trial,

the court provided counsel the opportunity to recreate what had occurred during

APP079

the bench conferences (AA. Vol. 15 P. 2346-2351, 2354).

Defense counsel appeared to have difficulty recreating the objections.

Defense counsel stated, “I remember during my questioning, I think there were

two objections by the state that were made.” (AA. Vol. 18 P. 2665). Defense

counsel further stated, “and the other objection was, I guess, me referring too

many times to the possibility of kids lying.” (AA. Vol. 18 P. 2671).

The confusion continued concerning other important issues that occurred

during the trial. The district court explained, “the one other objection - - and I

looked at it at my notes last night, and I don’t know if we did it afterwards, so you

guys have to help me. Remember the lady who had children who were sexually

assaulted herself, number two.” ( AA. Vol. 18 P. 2674). Then, the following

exchange took place,

The Prosecutor:

District Court:

The Prosecutor:

Right.

Yes, right. And you did - - did you object?

To the golden rule argument? (AA. Vol. 18 P.

2674).

Defense Counsel: First of all, your honor, I absolutely, 100 percent,

did not ask her, if that was her kids, how would

she feel. What I asked her - - - (AA. Vol. 18 P.

2675-2676).

The confusion and inability to recreate the record continued. Defense

counsel stated, “um there is so many things today. I am trying to remember.” The

APP080

court responded, “it was a long day.” Defense counsel attempted to recreate the

bench conference by complaining that April Reed had made statements that were

prejudicial (AA. Vol. 18 P. 2852). The district court stated, “and did you do a

motion at that time to have it stricken? Did you do a motion or do anything at that

time? Because for the record, the witness - - nothing was done. The witness is

gone and has been dismissed.” (AA. Vol. 18 P. 2852). The court continued, “I

mean it’s been waived as far as I’m concerned under Nevada law.” (AA. Vol. 18

P. 2853). Defense counsel responded to the court stating, “um, there were - during [Z.F.’s] cross -examination, we had several bench conferences”. (AA. Vol.

18 P. 2853). Defense counsel continued, “several objections by the State to which

you ultimately ruled....I was hoping we could put those objections on the record.”

(AA. Vol. 18 P. 2853).

Thereafter, defense counsel began to attempt to recreate the bench

conferences.

Defense Counsel: And that’s when it was objected to. Um, and your

honor would not let me - - well, that’s what...

The Court:

That’s not - - Mr. Mann, I apologize. Let me

rephrase (AA. Vol. 18 P. 2855)

The Court:

Watch your wording because I will tell you, you

also were referencing either a voluntary statement

she made to the police, either CPS records or

preliminary hearing at the time when you were

asking those questions. You absolutely were

APP081

referencing that. That’s what called the objection.

Defense counsel, First of all, I wasn’t referencing CPS records

because I don’t have CPS records.

The court:

No. A statement or something made to the cps. I

don’t know. My - - what I wrote down three times

was either a voluntary statement that she gave the

police or the preliminary hearing transcript (AA.

Vol. 18 P. 2856)

Here, appellate counsel is attempting to decipher what occurred during the

bench conferences. The record reveals that defense counsel was attempting to

recreate the scenario and the district court disagreed with what occurred. The

district court accuses defense counsel of objectionable questioning with CPS

records and defense counsel comments that he did not even have CPS records.

Based upon the district court’s failure to record the bench conferences,

confusion was rampant. Shortly thereafter, in attempting to recreate the record, the

district court stated in part, “so I totally agree that was an improper use. You just

started reading whatever it was, whether it was from a preliminary hearing or - I’ve got two of them here. It doesn’t matter. Either way, one of her prior

statements, so I agreed and I did sustain the objection. I think there were, I don’t

know, two or three of those that was improper.” (AA. Vol. 18 P. 2856-2857).

Here, the court was unsure whether there were two or three objections

regarding this issue and the court was concerned about some statement made to

APP082

someone from “whatever”. This is a disastrous appellate record. There were

extraordinarily important evidentiary rulings that invariably the court ruled against

the defendant. And yet this is the state of the record.

At one point, the following exchange occurred,

Prosecutor:

District Court:

Prosecutor:

I made an inaccurate record. Your correct - - Mr.

Mann is correct. The question is why did she want

- -.”

Why did Ms. Halpren ask about a god dad. She did

say that. That was her testimony.

Right. And I think she even got out in part of her

response that that was somebody that she could

talk to (AA. Vol. 15 P. 2353-2355)

At one point, the defense and the court clashed over the accuracy of the

recreation of a bench conference. The prosecutor admitted that she had made an

incorrect record. Mr. Thomas is entitled to a new trial based upon inadequate and

incomplete appellate record.

VIII. THE DISTRICT COURT ERRED IN DENYING MR. THOMAS’

MOTION FOR AN INDEPENDENT PSYCHOLOGICAL

EVALUATION OF THE CHILDREN.

Pretrial, Mr. Thomas filed a motion requesting an independent

psychological evaluation of the children (A.A. Vol. 2 p. 81-118). The district court

denied this request (A.A. Vol. 2 p.143-165).13

As is discussed infra in argument IX, not only did the district court deny

APP083

In Abbott v. Nevada, 122 Nev. 715, 138 p.3d 462 (2006), this Court

determined that it is within the sound discretion of the district court whether to

grant or deny a defendant’s request for a psychological examination.

In Abbott, this Court explained,

First, under Koerschner, whether the State utilizes other tactics,

including a psychological expert, is merely a factor to be considered

with whether there is little or no corroboration evidence and whether

there is a reasonable basis for believing that the victim's mental or

emotional state may have affected his or her veracity. Also,

Koerschner contemplated that error was committed when a defendant

is refused a psychological examination of the victim where the State

has the benefit of an expert analysis and the other two factors are

satisfied. Finally, there may be instances where the veracity of a child

witness may be brought into question because of his or her emotional

or mental state and necessitate a psychological examination, even

though the State has had no access to or benefit from an expert

opinion. Id. at 468. (citations and internal quotations omitted).

In Abbott, this Court further explained,

A person need not be a licensed psychologist or psychiatrist in order

for their testimony to constitute that of an expert. Where a State's

expert testifies concerning behavioral patterns and responses

associated with victims of child sexual abuse, courts have recognized

that this type of testimony puts the child's behavioral and

psychological characteristics at issue. Id. at 470.

Mr. Thomas the opportunity to conduct an independent psychological evaluation,

the district court then allowed Mr. Thomas’ expert to be cross-examined regarding

his failure to conduct such an evaluation.

APP084

Therefore, pursuant to Abbott, when there is no independent corroboration

combined with a prima facia showing of a compelling need for a psychological

exam, the trial court should allow an independent psychological exam.

Here, all of the children had met with psychologists or counselors, and there

was reason to believe the state would (and did) use testimony of experts at trial

(AA. Vol. 19 p. 3019).

Regarding the second factor, there was no corroborating evidence. There

were no adults or other children who witnessed the abuse, even though in many

cases the sexual abuse allegedly occurred in front of adults and other children.

Specifically, A.P. testified that there were multiple individuals around when the

alleged abuse occurred (AA. Vol. 13 p.1772-1773); ( AA. Vol. 14 p.1974-1977).

There was no security camera footage of any abuse, even though some of the

alleged abuse took place in day care facilities with security cameras (AA. Vol. 21

p. 3403). There was no medical evidence that any of the children were sexually

abused.

In regards to the third factor, there was a reasonable basis to believe the

victim's mental or emotional state affected their veracity. Courts have identified a

number of reasons to believe a child's emotional or mental state may have affected

her veracity. These include: The child's statements are not consistent, placing

APP085

special importance on the child's earliest statements (Felix v. State, 109 Nev. 151,

181 (1993)); the child's testimony is incredible, fantastical or improbable (Id. at

174.); the statements were made in response to questioning, rather than

spontaneously (Id., citing Idaho v. Wright, 497 U.S. 805, 821 (1990)); or that the

child's memory was "contaminated" by receiving information from other sources

such as payments, interviewers and news reports (Felix v. State, 109 Nev. at 182,

citing State v. Babayan, 106 Nev. 155 (1990)).

In the instant case, most of the children's statements have been inconsistent,

even on important details of the abuse that children would normally remember.

Many of the stories told by Z.F., A. P., and M.A.S. are highly improbable because

they allege that Mr. Thomas sexually abused them, many times, in front of other

people, without anyone noticing (AA. Vol. 13 p.1772-1773); ( AA. Vol. 14

p.1974-1977).

Importantly, veractity was in question as Z.F. admitted that she was getting

in trouble a lot during that time period, for lying and stealing. (AA. Vol. 15 p.

2211). In fact, Z.F. described her conduct as “lying all the time ” (AA. Vol. 15 p

.2221).

Moreover, none of the children made their statements spontaneously, and all

the allegations were made in response to questioning (A. A. Vol. 13 p. 177264

APP086

1773). AP revealed allegations when questioned by CPS (AA. Vol. 13 p.1830).

M.A.S. recalled her mother stating that Cameron was going to go to jail because

he was touching children on their “privates” (AA. Vol. 20 P. 3171). M.S. did not

disclose these allegations until her mother told her that Cameron had been arrested

(AA. Vol. 10 P. 1001). M.S. stated that she disclosed this information after the

news coverage of Cameron’s arrest (AA. Vol. 10 P. 1005). M.S. had no idea when

these allegations occurred (date or day of the week) (AA. Vol. 10 P. 1004-1005).

M.S. had seen the news coverage on Fox (AA. Vol. 10 P. 1005). The news

reported that Cameron had been accused of doing “bad things” to other children

(AA. Vol. 10 P. 1006). Prior to talking to the authorities, M.S. talked to family

and “people from the church” (AA. Vol. 10 P. 1016-1017).14

The various contradictory, unclear, and improbable stories told by the

Curiously, Romona, M.S.’s mother, denied informing M.S. that Cameron

was in jail (AA. Vol. 21 P. 3365). In contrast to M.S.’s testimony where she said

she did tell her this. Curiously, Romona denied that people at her church knew

about the allegation and that people comforted M.S. Contrasting M.S.’s testimony,

where she said this occurred (AA. Vol. 21 P. 3368). In fact, Romona was a

hundred percent sure that no one else knew (AA. Vol. 21 P. 3368).

APP087

children clearly indicated a need for such an interview. Importantly, the jury

agreed with this contention specifically as to M.A.S. as they found Mr. Thomas

not guilty of these counts (A.A. Vol. 26 p. 4589-4590).

A psychological interview with a trained child psychologist would have

clarified for Mr. Thomas and the court any mental or emotional issues behind the

children's allegations. The psychologist could have discovered the children's

mental and emotional issues, clarify the allegations, and provide a safe space for

the children to tell the truth.

Mr. Thomas is entitled to a reversal based upon the district court’s failure to

allow him to conduct independent psychological evaluations of the children.

IX.

THE DISTRICT COURT ABUSED THE COURTS DESECRATION

WHEN IT PERMITTED HIGHLY IMPROPER AND BLATANT

CROSS-EXAMINATION OF THE DEFENDANT’S EXPERT IN

VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION.

The defense called Dr. William O’Donohue, a clinical psychologist at the

University of Nevada, Reno. (AA. Vol. 16 P. 2371). Dr. O’Donohue’s testimony

was the subject of pretrial litigation surrounding the extent in which he would be

permitted to provide an expert opinion. The district court concluded that Dr.

O’Donohue would be permitted to testify regarding the suggestibility of witnesses.

On cross examination, the prosecution questioned Dr. O’Donohue regarding

APP088

potential bias, including but limited to his hourly rate of $375.00 dollars. Dr.

O’Donohue’s was then questioned as follows:

Defense counsel:

Have you ever met A.P.

No.

Have you ever met Z.F.

No.

Objection, your honor. May we approach.

Whereupon an unrecorded bench conference occurred (AA. Vol. 16 P.

2434).

At the conclusion of the unrecorded bench conference, the prosecutor again

began questioning as follows:

Have you ever met A.P.

No.

Have you ever met Z.F..

No.

Have ever met M.S.

No.

Have you ever met M.S.

No. (AA. Vol. 16 P. 2435)

Later in the proceedings, in an attempt to recreate the bench conference,

defense counsel stated there had been an objection and he had began trying to

recreate the record as to this issue (AA. Vol. 16 P. 2469). Defense counsel

complained that the court had previously denied the defendant’s motion for an

independent psychological evaluation of all four children and felt it was highly

APP089

improper for the prosecutor to question the expert regarding his failure to

interview the children (AA. Vol. 16 P.2470) Defense counsel further complained it

was suggesting to the jury that “...he didn’t do what he was supposed to do in

order to evaluate what was going on.” (AA. Vol. 16 P.2470) The district court

stated, “I overruled his objection because I felt like this is proper cross

examination for the foundation of his testimony on the suggestibility, which it

happens many times.” (AA. Vol. 16 P.2471).

The district court then seemed to express confusion as to whether the prior

district court judge was responsible for denying the independent psychological

evaluation (AA. Vol. 16 P.2471). The court’s concern was of no consequence,

because this district court judge was aware that the motion for the independent

psychological evaluation had been denied even prior to trial. During a pretrial

hearing, defense counsel stated, “he was denied the ability to be able to examine

these children.” (AA. Vol. 9 P. 823). The district court replied, “well now we have

another issue.” (AA. Vol. 9 P. 823). Defense counsel explained, “so because of

that, you know, obviously he - - any professional could not give a statement as to

how the children - -.” (AA. Vol. 9 P. 823).

Assuming arguendo the district court had understandably forgotten about

the denial of the defense request for the independent psychological evaluation,

APP090

defense counsel contemporaneously objected and an unrecorded bench conference

occurred. It seems to be uncontradicted that defense counsel then informed the

district court of the entirely unfair examination that was occurring. The district

court overruled defense counsel’s objection and let the prosecutor proceed, citing

the appropriateness of this type of cross examination. This amounts to a manifest

injustice.

“An abuse of discretion occurs if the district court’s decision is arbitrary or

capricious or if it exceeds the bounds of law or reason.” Crawford v. State, 121

Nev. 746, 748, 121 P.3d 582, 585 (2005) (citing, Jackson v. State, 117 Nev. 116,

120, 17 P.3d 998, 1000 (2001)).

The Court grossly abused its discretion. The defense expert should have

been permitted to answer that he did not interview any of the children because the

court denied him the opportunity to interview the children and he did not want to

be in contempt of court. It is extraordinarily difficult to ascertain how the court

believed that this was proper cross examination. To the jury, the doctor appeared

to be remiss in his duties as an expert by failing to even bother to interview the

children. Numerous other witnesses and organizations had interviewed the

children. The jury must have wondered why the lazy doctor had not bothered to do

the same.

APP091

The court denied the doctor the opportunity to interview the witnesses and

then allowed him to be cross examined over his failure to do exactly what the

defense had requested. Nothing could be more unfair and unreasonable.

MR. THOMAS WAS ENTITLED TO SEVERANCE OF COUNTS AS

THE COUNTS ARE NOT BASED ON THE SAME ACT OR

TRANSACTION AND DO NOT CONSTITUTE A COMMON

SCHEME OR PLAN.

Mr. Thomas filed a motion for severance of counts (A.A. Vol. 2 P. 119-

142). The district court denied the motion (A.A. Vol. 26 p. 4524-4524). Mr.

Thomas was entitled to severance of counts and to proceed to trial separately for

each set of counts as they pertained to each alleged victim. It was error for the

district court to deny the motion.

NRS 173.115 provides:

Two or more offenses may be charged in the same indictment or

information in a separate count for each offense if the offenses

charged, whether felonies or misdemeanors or both, are:

Based on the same act or transaction; or

Based on two or more acts or transactions connected together

or constituting parts of a common scheme or plan.

Decisions to join or sever are left to the discretion of the trial court and will

not be reversed absent an abuse of discretion. Amen v. State, 106 Nev. 749, 756,

801 P. 2d 1354, 1359 (1990). An error arising from this joinder is subject to

harmless error analysis and warrants reversal only if the error had a “substantial

APP092

and injurious effect or influence in determining the jury’s verdict.” Robins v.

State, 106 Nev. 611, 619, 798 P. 2d 558, 564 (1990).

In Tabish and Murphy, this Court considered the rational of the United State

Court of Appeals for the Ninth Circuit. The Supreme Court quoted the Ninth

Circuit, wherein joinder may be so prejudicial “that the trial judge is compelled to

exercise his discretion to sever. Prejudice created by the district court’s failure to

sever the charges is more likely to warrant reversal in a close case because it may

prevent the jury from making a reliable judgement about guilt or innocence.”

Tabish and Murphy, 119 Nev. 293; 305 (citing Zafiro v. United States, 506 U.S.

534, 539, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993)); see also Lewis, 787 F. 2d at

1322 (considering relative strength of evidence underlying joined charges as

factors showing undue prejudice).

In the instant case, Mr. Thomas is in a very similar situation to Tabish and

Murphy. As in Tabish and Murphy, there was little correlation between the sets of

counts. Essentially, the State sought, and succeeded, to try the counts together to

demonstrate that Mr. Thomas is a person of poor character who should be found

guilty of all the counts.

The crimes alleged in the information against Mr. Thomas concern four

different victims over a period of over four years. They are clearly not part of the

APP093

same act. Merely having similar characteristics does not make acts part of a

common plan. Richmond v. State, 118 Nev. 924, 993 (2002). A common plan

requires that the crimes each be part of an overarching, purposeful design. Weber

v. State, 121 Nev. 554, 572 (2005). Mr. Thomas had no such overarching design.

Moreover, the crimes are not connected together because evidence of other

crimes would not be admissible in each trial. NRS 48.045 notes that evidence of

other crimes may be admissible to show "motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident." The evidence

satisfies no such purpose.

In order to promote judicial economy, avoid jury confusion, and prevent

unfair prejudice, the Court should have separated the charges into separate sets

based upon each alleged victim: A.P., Z.F., M.S. and MB.

Even if consolidation of these counts were permissible pursuant to NRS

173.115, it was error for the district court to fail to sever the counts because the

failure to do so was unfairly prejudicial to Mr. Thomas. The Court had a duty to

ensure that Mr. Thomas received a fair trial. Collier v. State, 101 Nev. 473 (1985).

NRS 174.165 makes it clear that counts otherwise properly joined should be

severed in cases of unfair prejudice to the defendant.

This Court has expressed, “[i]n assessing the potential prejudice created by

APP094

joinder, this Court had held that the test is whether joinder is so manifestly

prejudicial that it outweighs the dominant concern with judicial economy and

compels the exercise of this court’s decision to sever.” (quotations omitted).

Tabish and Murphy, 119 Nev. 293; 304, 72 P. 3d 584 (2003).

In the instant case, the district court’s failure to sever the counts resulted in

great prejudice to Mr. Thomas. As the counts were tried simultaneously, it is

highly likely that the jury found Mr. Thomas guilty simply because he had been

charged with numerous counts and therefore must be a bad person.

XI.

THE DISTRICT COURT ERRED IN SENTENCING MR. THOMAS

AS TO COUNT SIX IN VIOLATION OF THE FIFTH, EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION.

Mr. Thomas was sentenced ten to life for count six. Mr. Thomas was

charged with count five, sexual assault of a minor under fourteen years of age,

based upon an allegation of digital penetration of A.P. (AA. Vol. 13 P. 1648). Mr.

Thomas was also charged for the same conduct on A.P. with lewdness with a

minor under the age of fourteen. During closing argument, the prosecutor

meticulously went through each count and argued the facts were sufficient to

convict on each count. However, the prosecutor explained,

Count six is an alternative to count five. Where we have either the

penis touching the vagina or fingers touching the vagina. If you don’t

APP095

believe there was penetration, then your appropriate verdict is

lewdness with a minor. “I submit to you that child, well, gee, that it

hurt, it hurt.” (AA. Vol. 23 P. 3913).

The prosecution explained that count six was an alternative to count five if

the jury did not find penetration. Obviously the jury convicted Mr. Thomas of both

count five and count six and Mr. Thomas was sentenced on both counts. If the jury

found penetration, which it appeared they did as a result of the conviction for

count five, then he could not be convicted of count six. At no time has this issue

been addressed.

In Townsend v. State, 103 Nev. 113, 120, 734 P.2d 705 (1987), this Court

noted that the crimes of lewdness with a child under the age of fourteen and sexual

assault are mutually exclusive. This Court explained that lewdness with a child

under the age of fourteen cannot be deemed an included offense of the crime of

sexual assault because the express language of the statute precludes this. Id.

Hence, the conviction and sentence for count six must be reversed.

XII. THE DISTRICT COURT ERRED IN FAILING TO GRANT THE

DEFENSE MOTION FOR A NEW JURY PANEL BASED UPON

CONTAMINATION AND FOR FAILING TO GRANT A VALID

CHALLENGE FOR CAUSE.

After a member of the jury panel made an extremely prejudicial comment

that in her experience children do not lie, the district court erred in not providing

Mr. Thomas with a new jury panel. Moreover, the district court erred in denying

APP096

Mr. Thomas’ valid challenge for cause.

The United States Supreme Court concluded in Dennis v. United States, 339

U.S. 162, 168 (1950), that trial courts have a serious duty to determine the

question of actual bias, and a broad discretion in it’s ruling on challenges.

Therefore... “in exercising it’s discretion, a trial court must be zealous to protect

the rights of the accused”. A criminal defendant has a constitutional right to be

tried by a fair and impartial jury. U.S. Const. Amend. VI. Nev. Const. Art. I. This

“means a jury capable and willing to decide the case solely on the evidence before

it...” Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940 (1982).

DEFENSE COUNSEL’S MOTION FOR A NEW JURY PANEL WAS

IMPROPERLY DENIED.

During voir dire, a perspective juror made a comment that children do not

fabricate stories. This caused defense counsel to believe that the defendant was

prejudiced by the jurors comment (AA. Vol. 24 P. 4065-4067). The perspective

juror was a kindergarten teacher and defense counsel explained that he believed

her statement infected the entire jury panel. Defense counsel asked that the panel

be stricken.

Specifically, defense counsel stated, “and, your honor, as you remember,

there was a juror that had stood up and specifically said that children don’t lie

APP097

about - - .” The district court noted, “in her experience, as a kindergarten teacher,

children don’t lie.” The court continued, “in her experience as a kindergarten

teacher, children don’t lie.” Defense counsel then responded, “sure, and the entire

panel heard it and I asked to strike the panel. I asked to strike her.” (AA. Vol. 18

P. 2672).

It is important to note the district court summarized the juror as stating “in

her experience, as a kindergarten teacher, children don’t lie.” (AA. Vol. 18 P.

2672). This juror was excused, however, defense counsel felt that the prejudice

had already occurred. It was error for the district court to not provide a new jury

panel as the existing panel was likely infected by this prejudicial comment.

DEFENSE COUNSEL’S MOTION TO STRIKE JUROR 151,

ANDREA CATERINE WAS IMPROPERLY DENIED.

A juror expressed her opinion that the defendant was guilty even without

the presentation of evidence (AA. Vol. 18 P. 2680). The juror expressed doubts as

to the presumption of innocence (AA. Vol. 18 P. 2680-2681). The court noted the

juror admitted that she would be willing to hear both sides and could be open

minded and therefore the cause challenge was denied. The district court erred

when it failed to grant Mr. Thomas’ challenge for cause as the juror clearly was

not open minded in regards to Mr. Thomas’ presumption of innocence.

///

APP098

XIII. THE DISTRICT COURT ERRED BY REFUSING TO INCLUDE THE

DEFENDANT’S PROPOSED JURY INSTRUCTION.

The defense offered an instruction which provided:

If the evidence is susceptible of two reasonable interpretations, one

points to the defendant’s guilt and the other to his innocence, it is

your duty to adopt the interpretation which points to the defendant’s

innocence and reject the other which points to his guilt (AA. Vol. 23

P. 3750).

The defense cited Bails v. State, 545 P.2d 1155 (1976) in support of the

instruction.15 The court denied the request (AA. Vol. 23 P. 3750). Mr. Thomas

contends he was entitled to have the jury read this instruction.

XIV. MR. THOMAS’ CONVICTIONS MUST BE REVERSED BASED

UPON CUMULATIVE ERROR.

In Dechant v. State, 10 P.3d 108, 116 Nev. 918 (2000), this Court reversed

the murder conviction of Dechant based upon cumulative errors at trial. In

Dechant, this Court provided, “[W]e have stated that if the cumulative effect of

errors committed at trial denies the appellant his right to a fair trial, this Court will

reverse the conviction. Id. at 113. This Court explained that there are certain

Admittedly, a review of Bails holds that the Court had considered this

instruction in cases involving both direct and circumstantial evidence and has

ruled it is not error to refuse to give the instruction if the jury is properly instructed

regarding reasonable doubt.

APP099

factors in deciding whether error is harmless or prejudicial including whether 1)

the issue of guilt or innocence is close, 2) the quantity and character of the area

and 3) the gravity of the crime charged. Id.

Mr. Thomas would respectfully request that this Court reverse his

conviction based upon cumulative error.

CONCLUSION

Mr. Thomas respectfully requests that this Court grant find Mr. Thomas is

entitled to a new trial.

DATED this 5th day of June, 2017.

Respectfully submitted:

/s/ Christopher R. Oram, Esq.

CHRISTOPHER R. ORAM, ESQ.

Nevada Bar No. 004349

520 S. Fourth Street, 2nd Floor

Las Vegas, Nevada 89101

(702) 384-5563

APP100

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the formatting requirements of

NRAP 32(a)(4), the typeface requirements of NRAP 32(a)(5) and the type style

requirements of NRAP 32(a)(6) because this brief has been prepared in a

proportionally spaced typeface using 14 point font of the Times New Roman style.

I further certify that pursuant NRAP 32(7)(b) although this brief does not

comply with the type-volume limitation of NRAP 32(7)(b), the undersigned has

filed the appropriate motion seeking an extension of the word limitation pursuant

to NRAP 32(A)(7)(d) as it does contain more than 14,000 words, to wit, 17,778

words.

Finally, I hereby certify that I have read this amended appellate brief, and to

the best of my knowledge, information, and belief, it is not frivolous or interposed

for any improper purpose. I further certify that this brief complies with all

applicable Nevada Rules of Appellate Procedure, in particular NRAP 28(e), which

requires every assertion in the brief regarding matters in the record to be supported

by appropriate references to the record on appeal. I understand that I may be

subject to sanctions in the event that the accompanying brief is not in conformity

with the requirements of the Nevada Rules of Appellate Procedure.

DATED this 5th day of June, 2017.

Respectfully submitted by,

/s/ Christopher R. Oram, Esq.

CHRISTOPHER R. ORAM, ESQ.

Nevada Bar No. 004349

520 S. Fourth Street, 2nd Floor

Las Vegas, Nevada 89101

(702) 384-5563

Attorney for Appellant

CAMERON THOMAS

APP101

CERTIFICATE OF SERVICE

I hereby certify and affirm that this document was filed electronically with

the Nevada Supreme Court on the 5th day of June, 2017. Electronic Service of the

foregoing document shall be made in accordance with the Master Service List as

follows:

ADAM PAUL LAXALT

Nevada Attorney General

STEVE OWENS

Chief Deputy District Attorney

CHRISTOPHER R. ORAM, ESQ.

BY:

/s/ Jessie Folkestad

An Employee of Christopher R. Oram, Esq.

APP102

IN THE SUPREME COURT OF THE STATE OF NEVADA

Electronically Filed

Nov 29 2017 02:45 p.m.

Elizabeth A. Brown

Clerk of Supreme Court

CAMERON THOMAS,

Appellant,

THE STATE OF NEVADA,

Case No. 71044

Respondent.

RESPONDENT'S ANSWERING BRIEF

Appeal From Judgment of Conviction

Eighth Judicial District Court, Clark County

CHRISTOPHER R. ORAM, ESQ.

Attorney at Law

Nevada Bar #004349

520 South 4th Street, 2nd Floor

Las Vegas, Nevada 89101

(702) 384-5563

STEVEN B. WOLFSON

Clark County District Attorney

Nevada Bar #001565

Regional Justice Center

200 Lewis Avenue

Post Office Box 552212

Las Vegas, Nevada 89155-2212

(702) 671-2500

State of Nevada

ADAM PAUL LAXALT

Nevada Attorney General

Nevada Bar #012426

100 North Carson Street

Carson City, Nevada 89701-4717

(775) 684-1265

Counsel for Appellant

Counsel for Respondent

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

ANSW.BRF..DOCX

APP103

Docket 71044 Document 2017-41142

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................... iii

STATEMENT OF THE ISSUES.................................................................... 1

STATEMENT OF THE CASE ....................................................................... 2

STATEMENT OF THE FACTS .................................................................... 4

SUMMARY OF THE ARGUMENT ........................................................... 12

ARGUMENT ................................................................................................ 14

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

REGARDING THE ADMISSIBILITY OF PHYSICAL ABUSE

OF Z.F. BY HER MOTHER. ................................................... 14

II.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

REGARDING “BAD ACTS” EVIDENCE. ............................ 20

III.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

ADMITTING STATEMENTS UNDER NRS 51.385. ........... 34

IV.

APPELLANT HAD NOTICE OF COUNTS 1 AND 2. .......... 40

APPELLANT’S SENTENCE FOR COUNTS TWO AND SIX

SHOULD BE VACATED. ...................................................... 44

VI.

THE DISTRICT COURT DID NOT ERR REGARDING THE

CIVIL SUIT AND SETTLEMENT. ........................................ 45

VII.

THE DISTRICT COURT PRESERVED A RECORD FOR

APPELLATE REVIEW. .......................................................... 50

VIII.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

DENYING

THE

MOTION

COMPEL

PSYCHOLOGICAL EVALUATIONS OF THE FOUR

CHILDREN VICTIMS. ........................................................... 53

IX.

THE COURT DID NOT ABUSE ITS DISCRETION

REGARDING

THE

CROSS-EXAMINATION

APPELLANT’S EXPERT. ...................................................... 58

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

IN DENYING THE MOTION TO SEVER............................. 59

XI.

THE DISTRICT COURT DID NOT ERR REGARDING JURY

SELECTION. ........................................................................... 63

XII.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

REGARDING APPELLANT’S PROPOSED REASONABLE

DOUBT INSTRUCTION. ....................................................... 68

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

ANSW.BRF..DOCX

APP104

XIII.

THERE WAS NO CUMULATIVE ERROR. ......................... 70

CONCLUSION ............................................................................................. 70

CERTIFICATE OF COMPLIANCE ............................................................ 72

CERTIFICATE OF SERVICE ..................................................................... 73

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

ANSW.BRF..DOCX

APP105

TABLE OF AUTHORITIES

Page Number:

Cases

Abbott v. State,

122 Nev. 715, 736, 138 P.3d 462, 476 (2006) .............................................. 26, 54

Azbill v. State,

88 Nev. 240, 246, 495 P.2d 1064, 1068 (1972) ...................................................47

Bails v. State,

92 Nev. 95, 96, 545 P.2d 1155, 1155-56 (1976) ..................................................69

Bigpond v. State,

128 Nev. ___, 270 P.3d 1244, 1250 (2012) .........................................................28

Bushnell v. State,

95 Nev. 570, 599 P.2d 1038 (1979) .....................................................................47

Byford v. State,

116 Nev. 215, 241 (2000).....................................................................................70

Calvin v. State,

122 Nev. 1178, 1184, 147 P.3d 1097, 1101 (2006) .............................................22

Carter v. State,

121 Nev. __, __, 121 Nev. 759, 121 P.3d 592, 599 (2005) .................................32

Castillo v. State,

114 Nev. 271, 956 P .2d 103, 107 (1998) ............................................................38

Chambers v. Mississippi,

410 U.S. 284, 302, 93 S. Ct. 1038, 1049 (1973) ..................................................18

Colon v. State,

113 Nev. 484, 494, 938 P.2d 714, 720 (1997) .....................................................25

Crane v. Kentucky,

476 U.S. 683, 690, 106 S. Ct. 2142, 2146 (1986) ................................................18

iii

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

ANSW.BRF..DOCX

APP106

Crawford v. State,

121 Nev. 746, 748, 121 P.3d 582, 585 (2005) .....................................................38

Crawford v. Washington,

541, U.S. 36, 124 S. Ct. 1354 (2004) ...................................................................40

Culverson v. State,

95 Nev. 433, 435, 596 P.2d 220, 221 (1979) .......................................................55

Cunningham v. State,

100 Nev. 396, 400, 683 P.2d 500, 502 (1980) .....................................................43

Daniel v. State,

119 Nev. 498, 508, 78 P.3d 890, 897 (2003) .......................................................50

Davis v. Washington,

547 U.S. 813, 126 S. Ct. 2266 (2006) ..................................................................40

Dept. of Motor Vehicles and Public Safety v. Rowland,

107 Nev. 475, 479, 814 P.2d 80, 83 (1991) .........................................................31

Eckert v. State,

96 Nev. 96, 101, 605 P.2d 617, 620 (1980) .........................................................47

Fields v. State,

125 Nev. 785, 220 P.3d 709 (2009) .............................................................. 53, 60

Floyd v. State,

118 Nev. 156, 164, 42 P.3d 249, 255 (2002) ................................................ 38, 59

Garcia v. State,

121 Nev. 327, 340, 113 P.3d 836, 844 (2005) .....................................................69

Garner v. State,

116 Nev. 770, 783, 6 P.3d 1013, 1022 (2000) .............................................. 36, 45

Garnick v. First Judicial District Court,

81 Nev. 531, 407 P.2d 163 (1965) .......................................................................41

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

ANSW.BRF..DOCX

APP107

Gaxiola v. State,

121 Nev. 638, 648, 119 P.3d 1225, 1232 (2005) .................................................56

Glover v. Eighth Judicial District Court,

125 Nev. 691, 701-02, 220 P.3d 684, 692 (2009) ................................................31

Griego v. State,

111 Nev. 444, 893 P.2d 995 (1995) .....................................................................61

Hooper v. State,

95 Nev. 924, 926, 604 P.2d 115, 116 (1979) .......................................................69

Jacobs v. State,

91 Nev. 155, 158, 532 P.2d 1034, 1036 (1975) ............................................ 53, 60

Jefferson v. Nevada,

No. 62120, 2014 Nev. Unpub. LEXIS 1222 (Jul. 29, 2014) ...............................35

Jezdik v. State,

121 Nev. 129, 137, 110 P.3d 1058, 1063 (2005) .................................................26

Keeney v. State,

109 Nev. 220, 850 P.2d 311 (1993) .....................................................................28

Koerschner v. State,

116 Nev. 1111, 1115, 13 P.3d 451, 454 (2000 ........................... 14, 54, 55, 56, 57

LaPierre v. State,

836 P.2d 56, 58 (1992) .........................................................................................43

Ledbetter v. State,

122 Nev. 252, 264-5, 129 P.3d 671, 680 (2006) ..................................................32

Leonard,

117 Nev. at 65, 17 P.3d at 405 .............................................................................67

Lickey v. State,

108 Nev. 191, 196, 827 P.2d 824, 826 (1992) .....................................................56

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

ANSW.BRF..DOCX

APP108

Lisle v. State,

941 P.2d 459, 466 (1997) .....................................................................................62

Lobato v. State,

120 Nev. 512, 518, 96 P.3d 765, 770 (2004) .......................................................26

Lovell v. State,

92 Nev. 128, 546 P.2d 1301 (1976) .....................................................................62

M&R Investment Company, Inc. v. Mandarino,

103 Nev. 711, 718, 748 P.2d 488, 493 (1987) ........................................ 54, 58, 60

Maresca v. State,

103 Nev. 669, 673, 748 P.2d 3, 6 (1987) .............................................................30

Martinez v. State,

77 Nev. 184, 189, 360 P.2d 836, 838 (1961) .......................................................44

McConnell v. State,

125 Nev. 243, 259 (2009).....................................................................................70

Means v. State,

120 Nev. 1001, 1008, 103 P.3d 25, 29 (2004) .....................................................38

Morgan v. Illinois,

504 U.S. 719, 729, 112 S. Ct. 2222 (1992) ..........................................................64

Nevada v. Jackson,

569 U.S. __, 133 S. Ct. 1990 (2013) ....................................................................20

Nolan v. State,

122 Nev. 363, 132 P.3d 564 (2006) .....................................................................38

Origel-Candido,

114 Nev. at 381, 956 P.2d at 1380 .......................................................................55

Pantano v. State,

122 Nev. 782, 789-90, 138 P.3d 477, 482-83 (2006) (cert denied, 549 U.S. 1126,

127 S. Ct. 957 (2007) ...........................................................................................40

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

ANSW.BRF..DOCX

APP109

Parker v. State,

109 Nev. 383, 388-89, 849 P.2d 1062, 1066 (1993) ..................................... 31, 34

Patterson v. State,

111 Nev. 1525, 907 P.2d 984, 987 (1995) .................................................... 22, 45

Petrocelli v. State,

101 Nev. 46, 692 P.2d 503 (1985) .......................................................... 25, 27, 28

Preciado v. State,

130 Nev. 40, 318 P.3d 176 (2014) ................................................................ 51, 53

Rimer v. State,

131 Nev. Adv. Rep. 36, 351 P.3d 697, 712 (2015) ................................. 17, 36, 60

Robins v. State,

106 Nev. 611, 798 P.2d 558 (1990) .....................................................................61

Salgado v. State,

114 Nev. 1039, 1042-43, 968 P.2d 324, 326-27 (1998) ......................................25

Simpson v. Eighth Judicial Dist. Court,

88 Nev. 654, 503 P.2d 1225 (1972) .....................................................................42

Smith v. Phillips,

455 U.S. 209, 217, 102 S. Ct. 940 (1982) ............................................................64

Sonner v. State,

112 Nev. 1328, 930 P.2d 707 (1996) ...................................................................27

State v. Shade,

111 Nev. 887, 894, 900 P.2d 327, 331 (1995) .....................................................16

Sutton v. State,

114 Nev. 1327, 1332, 972 P.2d 334, 336 (1998) .................................................16

Tabish and Murphy,

119 Nev. 293, 72 P.3d 584 (2003) .......................................................................63

vii

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

ANSW.BRF..DOCX

APP110

Thomas v. State,

122 Nev. 1361, 1370, 148 P.3d 727, 734 (2006) .................................... 38, 53, 60

Townsend v. State,

103 Nev. 113, 734 P.2d 705 (1987) .....................................................................56

United States v. Konovsky,

202 F.2d 721 (7th Cir. 1953) ................................................................................49

United States v. Satuloff Bros., Inc.,

79 F.2d 846 (2nd Cir. 1935) .................................................................................49

Valdez v. State,

124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008) .................................................70

Wainwright v. Witt,

469 U.S. 412, 428-29, 83 L. Ed. 2d 841, 105 S. Ct. 844 (1985) .........................67

Walch v. State,

112 Nev. 25, 34, 909 P.2d 1184, 1189 (1996) .............................................. 37, 45

Ward v. State,

95 Nev. 431, 433, 596 P.2d 219, 220 (1979) .......................................................69

Weber v. State,

121 Nev. 554, 575, 119 P.3d 107, 121 (2005) ........................................ 38, 59, 61

Statutes

NRS 16.050(1)(f) .....................................................................................................67

NRS 48.035(3) .........................................................................................................16

NRS 48.045 ....................................................................................................... 13, 28

NRS 48.045(2) .........................................................................................................27

NRS 48.045(3) .................................................................................................. 28, 61

NRS 50.075 ..............................................................................................................47

NRS 50.085(3) .........................................................................................................20

NRS 50.700 ..............................................................................................................57

viii

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

ANSW.BRF..DOCX

APP111

NRS 50.700(1) .........................................................................................................57

NRS 51.385 ............................................................... 1, 13, 18, 34, 36, 37, 38, 39, 40

NRS 51.385(1) .........................................................................................................35

NRS 173.075 ...........................................................................................................41

NRS 173.075(2) .......................................................................................................42

NRS 173.115 ............................................................................................................60

NRS 173.115(2) .......................................................................................................61

NRS 175.036(1) .......................................................................................................67

NRS 175.211 ..................................................................................................... 69, 70

NRS 175.211(2) .......................................................................................................69

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

ANSW.BRF..DOCX

APP112

IN THE SUPREME COURT OF THE STATE OF NEVADA

CAMERON THOMAS,

Appellant,

THE STATE OF NEVADA,

Case No. 71044

Respondent.

RESPONDENT’S ANSWERING BRIEF

Appeal from Judgment of Conviction

Eighth Judicial District Court, Clark County

ROUTING STATEMENT

This case is not presumptively assigned to the Nevada Court of Appeals

because it is a direct appeal from a Judgment of Conviction based on a jury verdict

involving convictions for Category A felonies. NRAP 17(b)(1).

STATEMENT OF THE ISSUES

II.

III.

IV.

VI.

Whether the district court abused its discretion in determining the

admissibility of a prior allegation of physical abuse of one of the victims

by their parent.

Whether the district court abused its discretion by admitting “bad acts”

evidence.

Whether the district court abused its discretion in admitting child victims’

statements under NRS 51.385.

Whether Appellant had notice of Counts 1 and 2.

Whether the district court erred in sentencing Appellant on Counts 2 and

Whether the district court erred in admitting evidence of a civil suit and

settlement.

APP113

VII.

VIII.

IX.

XI.

XII.

XIII.

Whether the district court preserved a record for appellate review.

Whether the district court abused its discretion in denying psychological

evaluations of the four child victims.

Whether the district court abused its discretion by permitting the crossexamination of Appellant’s expert on whether he met with the victims.

Whether the district court abused its discretion by denying the motion to

sever.

Whether the district court erred in jury selection.

Whether the district court abused its discretion regarding jury instructions.

Whether there was cumulative error.

STATEMENT OF THE CASE

On November 22, 2011, the State charged Appellant with six counts of Sexual

Assault with a Minor Under Fourteen Years of Age (Category A Felony – NRS

200.364, 200.366), fifteen counts of Lewdness with a Child under the Age of 14

(Category A Felony – NRS 201.230), and two counts of Attempt Lewdness with a

Child under the Age of 14 (Category B Felony – NRS 201.230, 193.330). 2 AA 7279.1

On August 1, 2013, Appellant filed a Motion for Independent Psychological

Evaluations. 2 AA 81-118. The State opposed this motion. 2 AA 143-65.

On August 22, 2013, Appellant filed a Motion to Sever Charges. 1 AA 11942. The State opposed. 3 AA 216-40.

An Amended Information, correcting a clerical error, was filed on January 22,

2015. 4 AA 269-76. A Second Amended Information, restructuring how the counts

were set out, was filed on May 16, 2016. 8 AA 698-705; 12 AA 1236.

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP114

ANSW.BRF..DOCX

On February 4, 2015, Appellant filed a Motion to Dismiss the Information for

Vague and Insufficient Factual Detail (“Motion to Dismiss”). 4 AA 277-99. The

State opposed. 4 AA 312-30. After a hearing, the district court denied the motion. 9

AA 836-56.

On April 1, 2015, the State filed a Motion in Limine to Preclude Irrelevant

Evidence at Trial. 5 AA 421-30. Appellant opposed. 5 AA 449-56. On June 2, 2015,

the district court ordered additional briefing on the matter. 6 AA 498-553. On June

30, 2015, the State filed a Supplemental Brief, as did Appellant. 6 AA 457-69. On

March 17, 2016, the court granted the State’s motion. 26 AA 4555.

Appellant’s jury trial commenced on May 16, 2016, and on June 7, 2016, the

jury returned a verdict finding Appellant guilty of three of the five counts of Sexual

Assault with a Minor under Fourteen Years of Age (Counts 1, 5, and 11), eight of

the fifteen counts of Lewdness with a Child under the Age of 14 (Counts 2, 6, 8, 12,

13, 16, 17, and 18), and both counts of Attempt Lewdness with a Child under the

Age of 14 (Counts 10 and 15). 8 AA 716-21; 10 AA 857.

On August 5, 2016, Appellant was adjudged guilty and sentenced to

imprisonment as follows: Count 1 (Sexual Assault with a Minor Under Fourteen

Years of Age), 20 years to life; Count 2 (Lewdness with a Child under the Age of

14), 10 years to life, concurrent with Count 1; Count 5 (Sexual Assault with a Minor

Under Fourteen Years of Age), 20 years to life, consecutive to Count 1; Count 6

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP115

ANSW.BRF..DOCX

(Lewdness with a Child under the Age of 14), 10 years to life, concurrent with Count

1; Count 8 (Lewdness with a Child under the Age of 14), 10 years to life, concurrent

with Count 1; Count 10 (Attempt Lewdness with a Child under the Age of 14), 2 to

20 years, concurrent with Count 1; Count 11 (Sexual Assault with a Minor under

Fourteen Years of Age), 20 years to life, concurrent with Count 1; Count 12

(Lewdness with a Child under the Age of 14), 10 years to life, concurrent with Count

1; Count 13 (Lewdness with a Child under the Age of 14), 10 years to life, concurrent

with Count 1; Count 15 (Attempt Lewdness with a Child under the Age of 14), 2 to

20 years, concurrent with Count 1; Count 16 (Lewdness with a Child under the Age

of 14), 10 years to life, concurrent with Count 1; Count 17 (Lewdness with a Child

under the Age of 14), 10 years to life, concurrent with Count 1; and Count 18

(Lewdness with a Child under the Age of 14), 10 years to life, concurrent with Count

1. 8 AA 766-69. The district court imposed a special sentence of lifetime supervision

to commence upon Appellant’s release. 8 AA 766-69. The Judgment of Conviction

was filed August 12, 2016. 8 AA 766-69.

On August 10, 2016, Appellant filed a Notice of Appeal. 8 AA 764-65.

Appellant subsequently filed his Opening Brief and the State responds herein.

STATEMENT OF THE FACTS

The sexual abuse took place between 2006 and 2010, at multiple locations in

Las Vegas, involved four different victims aged approximately five, six, and seven

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP116

ANSW.BRF..DOCX

years old, and included (but was not limited to) vaginal intercourse. 8 AA 707-15.

The first two reporting victims, Z.F. and her sister A.P., were living with their

mother in Phoenix, Arizona when they disclosed what Appellant had done to them.

13 AA 1825-33. Appellant was a family friend of Z.F. and A.P., and the girls and

their family had previously resided with Appellant when they lived in Las Vegas.

13 AA 1748-49.

When Z.F. and A.P. reported this abuse, Appellant was the director of a

children’s daycare center, Kids R Kids, and had worked at another Las Vegas

daycare previously. 23 AA 3796-3802. Based on this employment history, the Las

Vegas Metropolitan Police Department (“LVMPD”) issued a media release.

Following the media release, two additional victims were identified: M.S. and M.SB. 20 3080-81; 21 AA 3368-69.

Z.F.

Z.F. first met Appellant at Kids R Kids when she was around five years old.

14 AA 2096. Z.F. testified regarding numerous instances in which Appellant

inappropriately touched her Z.F. – the first time was after Z.F. had gone to

Appellant’s house a few times. 14 AA 2101. On this occasion, Z.F. was spending

the night and Appellant asked her to come upstairs. Id. Upon entering Appellant’s

bedroom, Appellant removed her pants. 14 AA 2102. Z.F., however, knew that it

was wrong for Appellant to do that so she pulled her pants up and ran out of the

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP117

ANSW.BRF..DOCX

room. 14 AA 2103.

Another incident occurred when Z.F. was folding some clothes and Appellant

approached her, pulled her skirt and underwear down, and put his mouth on her

vagina. 14 AA 2106-07. Z.F. could not recall exactly when this happened or how

old she was. 14 AA 2111.

Another incident occurred when Z.F. was upstairs in Appellant’s son’s

bedroom. 14 AA 2112. Z.F. was playing with toys in the room when Appellant came

in. Id. Appellant pulled down his pants and put his penis near Z.F.’s vagina. Id.

Appellant then ejaculated on Z.F.’s leg. Id.

Z.F. testified regarding another incident in which Appellant performed

cunnilingus on her. 14 AA 2117. Z.F. and other children were playing hide-andseek, and Z.F. was hiding in the closet. Id. Appellant entered the closet and took her

pants off. 14 AA 2119. Appellant then got on his knees and put his mouth on her

vagina. Id.

Z.F. described another incident when she was watching cartoons in

Appellant’s son’s room. 14 AA 2121. She was sitting on the bed when Appellant

entered the room. Id. Appellant asked the other children to leave and go downstairs

to play video games. 14 AA 2121-22. Appellant then pulled her pants down, but Z.F.

quickly pulled them back up and left the room. 14 AA 2123.

Another incident took place in 2008 at Z.F.’s house when she was around

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP118

ANSW.BRF..DOCX

seven years old. 14 AA 2124. Appellant picked her up from daycare and took her

back to her house. Id. When Appellant was downstairs alone with Z.F., Appellant

told her to touch his penis. Id. Z.F. refused. 14 AA 2128.

However, another time in that same house Appellant made the same request.

Id. That tine, Appellant called her upstairs and already had his penis exposed when

Z.F. approached him. 14 AA 2131. Appellant grabbed Z.F.’s wrist and pulled her

hand towards his penis. 14 AA 2131-32. Z.F. was able to pull her hand away. 14 AA

2132.

Another incident occurred in a hot tub with Appellant. 14 AA 2133. Z.F., her

sisters, and Appellant were all in the hot tub. 14 AA 2134. Appellant then put his

hands down the bottom of Z.F.’s swimsuit and started rubbing her vagina. 14 AA

2136.

A.P.

A.P. met Appellant at Kids R Kids when she was around six years old. 13 AA

1751, 1753.

A.P testified regarding multiple instances when Appellant

inappropriately touched her – the first time A.P. could recall was when she first met

him. 13 AA 1763. A.P. explained that she and her sister, Z.F., were at Appellant’s

residence to spend the night. 13 AA 1763-64. Appellant came into the guest room

(where A.P. and Z.F. were to sleep) to put them to bed and laid down between A.P.

and Z.F. 13 AA 1764-65. Appellant then put his hand in her pants and vaginally

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP119

ANSW.BRF..DOCX

penetrated her with his fingers. 13 AA 1765. The following day, while driving to

daycare, Appellant told A.P. not to tell anyone about what happened the night before

and made her promise not to. 13 AA 1768-70.

On another occasion while A.P. was at Appellant’s residence, she was in

Appellant’s room with her sisters (Z.F. and Z.P.) and Appellant’s son and daughter

(D.T. and J.T.). 13 AA 1771-72. All of the children were watching Saturday morning

cartoons. 13 AA 1772-73. The children sat at the foot of the bed and watched

cartoons while Appellant sat at the head of the bed. 13 AA 1773. Appellant asked

A.P. to lay down next to him. Id. Appellant then pulled her shorts and underwear

down and vaginally penetrated her with his penis. Id. This happened on multiple

occasions. 13 AA 1773-74.

Another incident occurred when A.P. was in fourth grade. 13 AA 1777.

Appellant brought her and his son to A.P.’s home from daycare. 13 AA 1777-78.

Around dinnertime, A.P.’s mother left to get pizza and A.P., Appellant, and

Appellant’s son stayed at the house. 13 AA 1778. Appellant played a movie for his

son in A.P.’s mother’s room. 13 AA 1778-79. Appellant beckoned A.P. to come

into the room next door with him. 13 AA 1779. Once there, Appellant told her to lay

down next to him, and A.P. complied. Id. Appellant pulled down A.P.’s pants and

vaginally penetrated her with his penis. 13 AA 1780. Appellant stopped when his

son came into the room to tell him something about the movie he was watching. 13

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP120

ANSW.BRF..DOCX

AA 1784. After that, A.P. left the room and joined Appellant’s son in her mother’s

room. 13 AA 1788. Appellant followed A.P. into the bedroom, pulled up her shirt

and training bra, and licked her breasts. Id. Appellant stopped when his son turned

around and faced them. 13 AA 1790.

Another incident occurred when A.P. accompanied Appellant to Blockbuster.

13 AA 1791. While on their way to Blockbuster, Appellant put his hand down A.P.’s

pants and inserted his fingers into her vagina. 13 AA 1792-93. Appellant stopped

once they got to Blockbuster, but attempted to do the same thing on the way home.

13 AA 1794. A.P. kept resisting and pushing his hand away. 13 AA 1795.

Eventually, Appellant stopped trying. Id.

Another incident occurred at Appellant’s home. 13 AA 1796. After the end of

the work day, Appellant and A.P. drove back to Appellant’s home where she spent

the night. 13 AA 1797-98. The following morning when everyone but Appellant had

left the house, Appellant asked A.P. to lay down with him in the bed. 13 AA 1799.

A.P. complied. Id. Appellant then penetrated her vaginally with his penis. 13 AA

1800. Afterwards, they went downstairs to clean the fish tank. 13 AA 1801.

Another incident occurred in A.P.’s bedroom. Id. A.P.’s mother asked

Appellant to take A.P. home from school during his lunchbreak because A.P was

sick. 13 AA 1802. After arriving home, A.P. went to her bedroom and Appellant

followed. Id. A.P. got in bed, and Appellant sat on the floor next to her. 13 AA

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP121

ANSW.BRF..DOCX

1807. Appellant then removed A.P’s pants and underwear and placed his mouth on

her vagina. 13 AA 1808-09. A.P. was in fifth grade. 13 AA 1804.

Appellant performed cunnilingus on her another time. 13 AA 1810. A.P.

could not remember exactly when this happened but recalled that it was the night of

“some big event that the adults were going to.” Id. Afterwards, A.P. overheard a

conversation between Appellant and his wife in which his wife told Appellant that

“his mouth smelled like pee.” 13 AA 1812-14.

Another incident occurred in May of 2010 in Arizona when Appellant visited

A.P.’s family there. 14 AA 2045-46. One morning, when all of the other children

were asleep, Appellant approached A.P. and told her that “he was lonely.” 14 AA

2048. Appellant then laid down next to A.P. Id. Appellant pulled down A.P.’s pants

and vaginally penetrated her with his penis. 14 AA 2050.

A.P. also testified to two other incidents: in the first, A.P. and her sister went

bathing suit shopping with Appellant at Wal-Mart; Appellant came into the dressing

room with them and watched them while they were changing. 14 AA 1992-97. In

the second incident, A.P. was helping Appellant organize files in the Kids R Kids

attic, and Appellant tried to get A.P. to sit on him, and pulled at the buttons of her

clothes and at her hips until A.P. pushed him away. 14 AA 2001-06.

M.S.

On January 7, 2011, Detective Z. Johnson received a call from a parent who

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP122

ANSW.BRF..DOCX

indicated that she became aware of Appellant’s arrest and her daughter, M.S., had

attended both daycare centers where Appellant worked and told her that Appellant

had inappropriately touched her. 21 AA 3368-70. Appellant was a friend of their

family. 20 AA 3262-63.

M.S. testified regarding three instances when Appellant touched her – the first

time was the weekend of November 22, 2009, when she stayed overnight at

Appellant’s residence while her parents were at a couples’ retreat. 10 AA 976.

Appellant was reclined on the couch in his living room and called M.S. over to him.

10 AA 981, 1019. Appellant reached under her clothing and touched M.S. on the top

of her breast in a rubbing motion. 10 AA 982-83. Appellant put his hand down

M.S.’s pants and touched her buttocks in a rubbing motion. 10 AA 986. Appellant

moved his hand towards M.S.’s groin and started rubbing the area where the upper

thigh meets the pelvis. 10 AA 987-88, 990. Appellant stopped when he heard the

other children coming down the stairs. 10 AA 991. Appellant’s wife was at work

when these incidents occurred. 10 AA 987.

Another incident occurred in 2009 but M.S. could not remember exactly

when. 10 AA 992. M.S.’s mother dropped her off at Appellant’s home for a “play

date.” 10 AA 992-93. Appellant, who had been sitting on the couch in the living

room, had one of the other children tell M.S. to come down to see him. 10 AA 994.

When they were alone, Appellant told M.S. to sit on his lap. 10 AA 995. M.S.

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP123

ANSW.BRF..DOCX

complied and sat on Appellant’s lap facing outwards. 10 AA 996. Appellant then

touched M.S. between her breast and armpit. 10 AA 997-98. Appellant moved his

hand down to M.S.’s buttocks and towards M.S.’s groin where he again rubbed the

area where her upper thigh met her pelvis. 10 AA 998-99.

M.S-B.

On January 7, 2011, Detective Johnson received a call from another parent

who stated that she learned of Appellant’s arrest and her daughter, M.S-B., had

disclosed being touched by Appellant. 20 AA 3197, 3212-13.

M.S-B. testified that Appellant was a teacher and when she was at daycare,

Appellant would put her on his lap and touch her bottom, breasts, and vagina. 20 AA

3144, 3147-50, 3152. Appellant would move his hand on her vagina, over her

clothes. 20 AA 3150-51. She was seven years old. 20 AA 3178.

This happened more than once while M.S-B. was at Kids R Kids. 20 AA

3149, 3152.

SUMMARY OF THE ARGUMENT

First, the district court did not abuse its discretion by limiting evidence of

allegations of physical abuse of Z.F. by her parent, as it was unrelated to Appellant’s

sexual abuse.

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP124

ANSW.BRF..DOCX

Second, the district court did not abuse its discretion in admitting alleged bad

acts evidence because the evidence was appropriate impeachment evidence and/or

admissible under NRS 48.045.

Third, the minor victims’ statements were admitted under NRS 51.385 after

evidentiary hearings and considering the testimonies of the seven adult witnesses.

These child victims also testified at trial and were subject to cross-examination.

Fourth, the Information charging Appellant provided sufficient notice of the

elements of Count 1 and 2, and the State was not required to provide an exact date

for each sexual assault disclosed by A.P.

Fifth, Counts 2 and 6 are alternative counts to Counts 1 and 5, respectively.

As such, Appellant’s adjudication on Counts 2 and 6 should be vacated. Appellant’s

sentence on the remaining counts remains unchanged.

Sixth, since defense counsel stated his intent to present evidence of a civil

lawsuit and settlement to impeach the State’s witnesses, the district court did not err

in permitting questions about this topic.

Seventh, the district court preserved a record for appellate review, as the

content of all the unrecorded bench conferences was either apparent from the record

or later memorialized.

Eight, the district court did not abuse its discretion in denying the motion to

compel psychological examinations of the children victims because Appellant failed

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP125

ANSW.BRF..DOCX

to present a compelling reason for such examination and failed to satisfy the

Koerschner elements.

Ninth, the district court did not abuse its discretion in permitting the State to

cross-examine Appellant’s expert as to the foundation of his testimony.

Tenth, the district court did not abuse its discretion by denying the motion to

sever the counts because the evidence of Appellant’s sexual offenses regarding each

victim would have been admissible at severed trials as part of a common scheme or

plan.

Eleventh, the district court did not err in jury selection. The juror statement

challenged by Appellant did not taint the jury pool, and multiple jurors made

statements prejudicial to the State. Moreover, Appellant has failed to show that any

empaneled juror was biased against him.

Twelfth, the district court did not err in declining to give Appellant’s proposed

jury instruction on reasonable doubt.

Finally, there was no cumulative error that deprived Appellant of a fair trial.

ARGUMENT

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

REGARDING THE ADMISSIBILITY OF PHYSICAL ABUSE OF

Z.F. BY HER MOTHER.

Appellant argues that the district court erred in limiting testimony about an

allegation that Z.F. was physically abused by her mother, April Reed; Z.F. disclosed

I:\APPELLATE\WPDOCS\SECRETARY\BRIEFS\ANSWER & FASTRACK\2017 ANSWER\THOMAS, CAMERON, 71044, RESP'S

APP126

ANSW.BRF..DOCX

this physical abuse to her teacher before disclosing the sexual abuse by Appellant.2

AOB at 16, 23. Appellant asserts that the allegation of physical abuse was needed

to present the complete story of Z.F

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.