Morrison v. State

548 P.3d 431

Kwame De-Markquíse MORRISON, Appellant,

v.The STATE of Nevada, Respondent.

No. 85868-COA

Court of Appeals of Nevada.

Filed April 4, 2024

Appeal from a judgment of conviction, pursuant to a jury verdict, of three counts of sexual assault upon a minor under 14 years of age and one count of use of a minor under the age of 14 in producing pornography. Eighth Judicial District Court, Clark County; Mary Kay Holthus, Judge.

Law Office of Amanda Pellizzari, LLC, and Amanda Pellizzari, Las Vegas, for Appellant.

Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Alexander G. Chen and Karen L. Mishler, Chief Deputy District Attorneys, Clark County, for Respondent.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and WESTBROOK, JJ.

OPINION

By the Court, WESTBROOK, J.:

A jury convicted appellant Kwame De-Markquise Morrison of three counts of sexual assault upon a minor under 14 years of age and one count of use of a minor under the age of 14 in producing pornography. Morrison contends that the district court committed reversible error by instructing the jury that a lack of knowledge or a mistake as to the victim’s age is not a defense to a charge of using a minor in producing pornography. We agree that the instruction was inaccurate because the State is required to prove that the defendant "knowingly" used "a minor" in producing pornography. See NRS 200.710(1). Nevertheless, for purposes of determining the appropriate penalty for the offense, the State is not required to prove that the defendant knew or should have known that the victim was under the age of 14. See NRS 200.750(2). Here, because Morrison admitted that he believed A.M. was 16 years old—and therefore a minor—during their sexual relationship, the district court’s instructional error was harmless beyond a reasonable doubt. We also reject Morrison’s remaining claims on appeal, and accordingly, we affirm Morrison’s judgment of conviction.

FACTUAL AND PROCEDURAL HISTORY

In 2016, 21-year-old Morrison initiated a sexual relationship with A.M., who was only 12 years old at the time. In June 2017, A.M. discovered that she was pregnant and disclosed the relationship to her mother, who filed a police report that identified Morrison as A.M.’s sexual partner. In October 2017, shortly after turning 13 years old, A.M, gave birth to a boy who was later adopted.

Thereafter, A.M. participated in a forensic interview with Las Vegas Metropolitan Police Department (LVMPD) Detective Becky Salkoff. During her interview, A.M. identified Morrison as her sexual partner. Detective Salkoff then conducted two recorded forensic interviews with Morrison in July and August 2018. During the interviews, Morrison admitted he had sex with A.M. two to three times but stated that he believed A.M. was 16 years old.¹ Subsequently, Detective Salkoff subpoenaed Morrison’s Facebook records, which included sexually explicit pictures that A.M. had taken of herself and sent to him at his request. Detective Salkoff also collected DNA from Morrison, A.M., and A.M.’s child, which confirmed that Morrison was the child’s father.

The State ultimately charged Morrison by indictment with six counts of sexual assault upon a minor under 14 years of age and one count of use of a minor under the age of 14 in producing pornography. Morrison’s jury trial was scheduled for early June 2022, with calendar call one week prior to trial. Three days before calendar call, Morrison filed a motion to dismiss his appointed counsel in which he requested the appointment of new counsel. At calendar call, the district court denied Morrison’s request to appoint new counsel. Although Morrison initially indicated that he might be interested in representing himself at trial, he subsequently told the court that he did not want to be canvassed to represent himself. Though his jury trial was continued, at no point thereafter did Morrison ever raise any additional concerns about counsel, nor did he ever renew his request to represent himself.

Morrison’s three-day jury trial commenced in October 2022. A.M. testified that Morrison lived in the house next door to her and knew some of her other siblings. She first met Morrison in August 2016, on her first day of sixth grade when she and her siblings walked past his house on their way to school. A.M. was 11 years old at the time.²

According to A.M., her first sexual interaction with Morrison occurred when she was playing with her younger siblings in front of her house, Morrison asked her to come over to him, gave her a candy bar, and then propositioned her for sex. Although A.M. could not recall whether they had sex on that occasion, A.M. testified in detail about five other incidents that occurred while she was between the ages of 12 and 13. A.M. stated that on each occasion, Morrison inserted his fingers into her vagina and then had sexual intercourse with her. A.M. testified that the first incident occurred on a bathroom floor at Morrison’s house, the second incident occurred in Morrison’s bedroom, the third incident occurred behind a McDonald’s dumpster, and the fourth incident occurred at her house. The fifth incident occurred in November or December 2017 in her backyard, after the birth of her son.³

Next, the State published an exhibit containing Morrison’s Facebook communications with A.M. and asked her about several of the messages. A.M. testified that, at Morrison’s request, she sent him sexually explicit pictures of herself over Facebook, which included nude photos of her breasts and vagina. A.M. testified that in January 2017, when she was 12 years old, Morrison sent her a message directing her to "[t]urn on the light," and she sent him a photo in response. A.M. also testified about a message she received after she sent Morrison a photo, where Morrison told her, "Open your legs more. You don’t have a flash." Finally, A.M. testified about a message she received from Morrison in December 2017, when she was 13 years old, requesting another photo of her vagina.

The State presented testimony from two LVMPD forensic scientists establishing that Morrison was the father of A.M.’s son. Finally, Detective Salkoff testified about her investigation into Morrison’s case. She testified about her forensic interview with A.M.; her collection of DNA from A.M., A.M.’s son, and Morrison; and her two recorded interviews with Morrison. During her testimony, the State published the transcripts of Detective Salkoff's interviews with Morrison and played the recordings of those interviews for the jury. Although neither party included those transcripts in the record on appeal, the State’s closing argument indicates that Morrison told Detective Salkoff that he had sex with A.M. two or three times, and Morrison did not object to that representation of the evidence. Likewise, Morrison argued in closing that, in his statement to Detective Salkoff, "he told you he believed she was 16. And I’m sure that he believed that a 16 year old can consent to sex, as that is the law." Finally, the State’s rebuttal closing argument reflects that Morrison told Detective Salkoff he had sex with A.M. by a dumpster at McDonald’s and on his bathroom floor, corroborating two of the incidents to which A.M. testified. Morrison did not object to this description of the evidence either.

While settling jury instructions, the State proposed an instruction providing that a defendant’s lack of knowledge or mistake as to the victim’s age is not a defense to either of the charged crimes—sexual assault upon a minor under the age of 14 or use of a minor under the age of 14 in the production of pornography. Although Morrison agreed that the instruction was correct as applied to the sexual assault charges, he objected to its application to the pornography charge. Over Morrison’s objection, the district court included the State’s proposed jury instruction for all charges.

Ultimately, the jury found Morrison guilty of three counts of sexual assault upon a minor under 14 years of age and one count of use of a minor under the age of 14 to produce pornography. The jury acquitted Morrison of the remaining three sexual assault charges. The district court sentenced Morrison to imprisonment for life with the possibility of parole after 35 years for each sexual assault conviction and life with the possibility of parole after 10 years for using a minor under 14 to produce pornography, with all sentences to run concurrently. Morrison timely appealed.

ANALYSIS

Morrison contends that the district court incorrectly instructed the jury that a lack of knowledge or mistake of fact as to the victim’s age is not a defense to the charge of use of a minor in producing pornography. In addition, he argues that the district court abused its discretion by denying his motion to dismiss counsel and by failing to conduct a Faretta⁴ canvass, and that the State committed prosecutorial misconduct by knowingly allowing A.M. to testify falsely and by improperly commenting on the evidence. We address each argument in turn.

Although the district court provided an inaccurate jury instruction, the error was harmless beyond a reasonable doubt

Morrison argues that the district court committed reversible error when it gave the following instruction to the jury:

The lack of knowledge of the age, or a reasonable mistake as to the age, of a child victim of sexual assault of a minor under the age of fourteen and use of a minor under the age of fourteen in producing pornography is not a defense to the crimes of sexual assault of a minor under the age of fourteen and use of a minor under the age of fourteen in producing pornography.

Morrison contends that this instruction misstated NRS 200.710(1), which criminalizes "knowingly" using "a minor" to produce pornography.

[1, 2] District courts have "broad discretion" in settling jury instructions; therefore, this court generally reviews a district court’s decision regarding jury instructions for...