Opinion
81967-COA
12-23-2021
IN THE MATTER OF: D. H-A, DOB 5/17/2005, A CHILD UNDER THE AGE OF EIGHTEEN YEARS. v. THE STATE OF NEVADA, Respondent. D. H.-A., Appellant,
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
Gibbons, C.J.
D. H.-A., a minor, appeals from a juvenile court order adjudicating him a delinquent child. Eighth Judicial District Court, Family Court Division, Clark County; William O. Voy, Judge.
D.H.-A. was charged by way of a delinquency petition with six counts of sexual assault on a child under 14 years of age. The State alleged that D.H.-A. sexually assaulted his younger cousin, H.E., on multiple occasions over the course of approximately two years. H.E. was eight and nine years old at the time of the abuse. D.H.-A., who is approximately three and one-half years older than H.E., was 12 and 13 years old during that period.
We recount the facts only as necessary for our disposition.
The juvenile court held an adjudicatory hearing pursuant to NRS 62D.040(2). H.E. testified as to each of the sexual assaults, but there was conflicting testimony from her and others. At the conclusion of the hearing, the juvenile court found beyond a reasonable doubt that D.H.-A. committed three counts of sexual assault on a child under 14 years of age 1 and adjudicated him a delinquent child. D.H.-A. now challenges on appeal whether sufficient evidence supported the juvenile court's findings and order.
D.H.-A. argues that the evidence at the adjudicatory hearing was insufficient to prove he had committed sexual assault. He further summarily argues that an adjudication based on insufficient evidence violates due process under both the United States and Nevada constitutions. The State counters that a sexual assault victim's testimony alone is sufficient to uphold an adjudication. It also argues that any conclusion as to H.E.'s credibility must be given great deference by this court.
Although D.H.-A. correctly notes that due process requires an adjudication to be supported by proof beyond a reasonable doubt, see Origel· Candida v. State, 114 Nev. 378, 382, 956 P.2d 1378, 1380 (1998), he has not cogently argued why due process is implicated in his case beyond challenging the sufficiency of the evidence presented at the adjudicatory hearing. Therefore, we need not consider his due process argument. See Edwards u. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (explaining that this court need not consider an appellant's argument that is not cogently argued or lacks the support of relevant authority); Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (same). ! However, to the extent that due process is implicated by D.H.-A.'s sufficiency of the evidence argument, we address that argument herein.
We review a juvenile court's adjudication of delinquency for sufficiency of the evidence, considering "whether, when viewing all of the evidence in the State's favor, a rational fact finder could have found the offense's essential elements beyond a reasonable doubt." In re T.R., 119 Nev. 646, 649, 80 P.3d 1276, 1278 (2003). In Nevada, a person commits sexual assault if he "[c]ommits a sexual penetration upon a child under the, age of 14 years." NRS 200, 366(1)(b). '"Sexual penetration' means . . . any 2 intrusion, however slight, of any part of a person's body . . . into the genital or anal openings of the body of another." NRS 200.364(9). Testimony of a sexual assault victim alone is sufficient to uphold an adjudication where the victim testifies with "some particularity regarding the incident." LaPierre v. State, 108 Nev. 528, 531, 836 P.2d 56, 58 (1992). Because "it is difficult for a child victim to recall exact instances when the abuse occurs repeatedly over a period of time," the victim need not "specify exact numbers of incidents, but there must be some reliable indicia that the number of acts charged actually occurred." Id. "[E]valuating the credibility of [a] witness[ ] and the weight to be given [her] testimony is within the fact finder's province." In re T.R., 119 Nev. at 649-50, 80 P.3d at 1278; see also Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008) ("This court will not reweigh the evidence or evaluate the credibility of witnesses because that is the responsibility of the trier of fact.").
Here, H.E. testified with some particularity as to each of the three sexual assaults the juvenile court found that D.H.-A. committed. She described details of the location, a bathroom and D.H.-A.'s bedroom, where the first two incidents occurred. She also described the location, outside, where the third incident occurred. She described what D.H.-A. wore during the first incident and what both she and D.H.-A. wore during the second incident.
Additionally, H.E. described the context of each incident and how D.H.-A. coerced her into complying with his demands. She was specific as to how he sexually penetrated her each time and to how he moved with his penis inside her. As to the first two incidents, H.E. described feeling D.H.-A.'s penis penetrate her without much physical discomfort. As to the 3 third incident, she described a rough pressure throughout the act. Finally, H.E. described the fear she felt during each of the incidents.
D.H.-A. argues H.E.'s testimony was illogical and inconsistent. He further argues that she is an admitted liar, based upon her admission at the hearing that on one occasion she had lied to her mother in an attempt to avoid being in trouble. We acknowledge that H.E.'s testimony contained inconsistencies. However, the juvenile court found that H.E. had testified in a manner consistent with her age and the time that had passed since the incidents occurred. Further, the court found several of the other witnesses that offered conflicting testimony were not credible or the testimony was immaterial. It is the fact finder's responsibility to evaluate a witness's credibility, see In re T.R., 119 Nev. at 649-50, 80 P.3d at 1278, and we do not reweigh evidence on appeal, see Mitchell, 124 Nev. at 816, 192 P.3d at 727. H.E. testified with some particularity as to three counts of sexual assault, and therefore the juvenile court's adjudication was supported by sufficient evidence. See In re T.R., 119 Nev. at 649, 80 P.3d at 1278. Accordingly, we
ORDER the judgment of the juvenile court AFFIRMED.
Gibbons, C.J., Tao, J. Bulla, J. 4
Hon. William O. Voy, District Judge. 5