Rivas-Valenzuela v. State

484 P.3d 966 (Table)

Alex RIVAS-VALENZUELA, Appellant

v.The STATE of Nevada, Respondent.

No. 80652-COA

Court of Appeals of Nevada.

FILED APRIL 15, 2021

ORDER AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

Kristina Tremaine and Rivas-Valenzuela were romantically involved around the time of the alleged offenses. Tremaine often stayed with Rivas-Valenzuela at his Reno apartment, as she did on the night of July 13, 2019. The following morning, Rivas-Valenzuela took Tremaine's dog, Sparky for a walk. According to Tremaine, when Rivas-Valenzuela returned to the apartment, he untied Sparky, at which point Sparky ran out of the apartment. Rivas-Valenzuela charged at Tremaine and pushed her to the floor, and stated, "I'm going to kill you, bitch, I'm going to kill you."

Tremaine testified that, while straddling her on the floor, Rivas-Valenzuela wrapped the rope he used to walk Sparky around her neck. He then repeatedly cinched and loosened the rope, allowing Tremaine to gasp for air but tightening the rope immediately afterward. Tremaine eventually "smacked" Rivas-Valenzuela, which dazed him, and rolled Rivas-Valenzuela off her. Tremaine then crawled away, got up, and ran out of the apartment to look for Sparky.

By the time Tremaine found Sparky and returned to Rivas-Valenzuela's apartment, police had arrived in response to a call from the apartment manager. The manager called police because Tremaine had previously been removed from the property and told she could not return; the manager did not report an altercation. One of the responding officers called paramedics to examine Tremaine because she had ligature marks on her neck.

Police knocked on Rivas-Valenzuela's door but there was no answer. Police did not seek an arrest warrant for Rivas-Valenzuela, a search warrant for his apartment, or interact with Rivas-Valenzuela on July 14. Rivas-Valenzuela was arrested the following day. Police never recovered the rope that Rivas-Valenzuela allegedly used on Tremaine.

One of the responding officers obtained a statement from Rivas-Valenzuela's neighbor, Howard Foster. In his statement to police, Foster did not indicate that he heard Rivas-Valenzuela say that he was going to kill Tremaine or that he observed Rivas-Valenzuela hitting, choking, or pushing Tremaine, or any altercation at all.

The State filed an amended information alleging domestic battery by strangulation using a rope or rope-like object (count 1), coercion constituting domestic violence (count 2), and domestic battery with substantial bodily harm (count 3). Each count provided that Rivas-Valenzuela pushed Tremaine to the ground and placed "a rope or rope-like object around her neck."¹

A month after the State filed its amended information—four days before the start of Rivas-Valenzuela's October 2019 trial—the district court held a hearing in which it considered a number of matters, including the admissibility of Foster's testimony. The State did not file a motion or points and authorities regarding the admissibility of Foster's testimony.

During the pretrial hearing, Foster claimed for the first time that he saw Rivas-Valenzuela and Tremaine in a physical conflict in the doorway to Rivas-Valenzuela's apartment on July 14. In particular, Foster testified that Rivas-Valenzuela threatened to kill Tremaine at some point, struck Tremaine, choked her with his bare hands, and that Rivas-Valenzuela appeared to be pushing Tremaine out of his apartment. The State's amended information did not provide, nor was it ever amended to provide, separate charges for the acts Foster observed in the doorway or that the acts constituted alternative means of committing existing charges. Foster further testified that he could not see inside the apartment, did not observe Rivas-Valenzuela straddling Tremaine on the floor, and did not see Rivas-Valenzuela choke Tremaine with a rope or rope-like object. Foster explained that he did not report the physical conflict in his statement to police because he had recently completed probation, did not want to be involved with the law, and because he was scared of Rivas-Valenzuela.

In an oral ruling, the district court admitted Foster's testimony as res gestae evidence over Rivas-Valenzuela's objection. The court found that Foster's testimony was "day in question testimony" and stated, "[i]t's this court's feeling that [Foster's observations are] res gestae. These things happen contemporaneous with what was going on in that apartment, that [are] the basis for the underlying offenses all three of them in this case." The court did not rule on the State's alternative argument that Foster's testimony was admissible bad act evidence insofar as it could rebut Rivas-Valenzuela's potential claim of self-defense.

At trial, Tremaine testified to Rivas-Valenzuela's alleged attack. She added that, in the months following the alleged strangulation, she experienced difficulty swallowing, ongoing pain from contusions caused by the cinching of the rope, and chronic migraines, all of which she attributed to Rivas-Valenzuela attacking her.

Rivas-Valenzuela drew attention to potential issues with Tremaine's testimony on cross-examination. His questions suggested that Tremaine was biased and revealed that Tremaine could not remember details of events during and around the time of the offense.²

Diana Emerson, a forensic nurse practitioner, provided expert testimony on strangulation for the State. Emerson concluded that Tremaine was strangled with a ligature, leaving a pattern injury. The ligature marks were at two different locations on Tremaine's neck, which Emerson testified was consistent with a ligature being repeatedly applied and released. Further, Emerson testified that this type of strangulation caused a risk of death or substantial bodily harm. She also testified that strangulation victims can have trouble swallowing, headaches, and memory loss. Emerson agreed that she did not see any defensive injuries on Tremaine and there was no petechiae in Tremaine's eyes.

At trial, Foster again admitted that he did not disclose the extent of what he observed on July 14 in his statement to police and waited months to fully disclose his observations. He reiterated that, although he witnessed Rivas-Valenzuela and Tremaine in an altercation in the doorway, he never saw inside Rivas-Valenzuela's apartment, never witnessed Rivas-Valenzuela holding Tremaine down against her will, and did not observe a rope around Tremaine's neck—only Rivas-Valenzuela's bare hands.

Javier Fuentes, Rivas-Valenzuela's upstairs neighbor, testified that on July 14 he heard Rivas-Valenzuela say, "[g]et the fuck out, I'm gonna kill you," through the "[p]aper thin" walls of his apartment. When Fuentes walked out of his apartment, he saw Tremaine with blood on her face. Fuentes did not see any confrontation inside or outside of Rivas-Valenzuela's apartment, nor did he call the police.

In closing, the State argued that Rivas-Valenzuela strangled Tremaine with a rope inside Rivas-Valenzuela's apartment. The State, however, portrayed the battery and strangulation that Foster allegedly observed in the doorway as the same battery and strangulation that occurred inside the apartment according to Tremaine's testimony. After explaining that Rivas-Valenzuela strangled Tremaine with a rope while he straddled her on the floor, the State declared that Foster ‘‘saw the tail end of this fight." The State also commented, "apparently [Rivas-Valenzuela] didn't finish off what he did on that floor, putting his hands around her neck."³

Rivas-Valenzuela's closing argument posited inconsistencies in Tremaine's testimony and that she had incentives to lie. Rivas-Valenzuela argued that Tremaine likely lied to police to avoid being arrested for trespassing given that the manager forbade her from being on the premises. Rivas-Valenzuela highlighted that Tremaine was homeless when she reported Rivas-Valenzuela, but as a result of her cooperation with the State, she received a victim's advocate, financial assistance, and housing assistance. Rivas-Valenzuela argued that Tremaine would lose her assistance if she admitted that she and Rivas-Valenzuela had gotten into a fight or that she refused to leave the apartment on July 14. At one point, Rivas-Valenzuela contrasted Tremaine's testimony with Foster's testimony to show that Tremaine was unreliable, apparently presuming that bolstering Foster's testimony would not harm his case.

In rebuttal, the State continued to conflate the uncharged battery and strangulation in the doorway that Foster described with the charged offenses that Tremaine described in her testimony. The State declared that Foster "heard the defendant yelling ‘I'm gonna fucking kill you.’ He comes down and sees the tail end of the fight .... He saw the end of a strangulation." The State did not argue that Foster's testimony supported count 2, coercion.

During deliberations, the jury asked the district court about the instructions for count 1, domestic battery by strangulation: "[o]n the back of [page] 3 it states ‘placed a rope or rope-like object’ [b]ut on [page] 28 it just says ‘strangulation.’ Does the strangulation (count 1) have to include the rope?" The court directed the jury to apply the definition of strangulation that was already in the instructions. The jury responded with a more precise question: "We are not looking for the definition of strangulation, we are attempting to understand for count 1, must the strangulation occur by the rope or can the charge of the strangulation occur without the said rope or rope like object?" The district court answered, "No. Strangulation is established by any evidence introduced at trial that satisfies the definition of strangulation as provided in Instruction 34."

At one point, the jurors were "at a standstill with 11 to 1 with no further progress for one of the counts" and asked the district court how to proceed. The jury ultimately reached its verdict without receiving an...