Opinion
No. 76802-COA
08-27-2019
IN THE MATTER OF N. B.-D., A CHILD OVER THE AGE OF EIGHTEEN YEARS, AND UNDER THE AGE OF TWENTY-ONE YEARS. N.B.-D., Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a juvenile court order certifying N.B.-D. to stand trial as an adult. Ninth Judicial District Court, Douglas County: Thomas W. Gregory, Judge.
The juvenile court certified N.B.-D. to stand trial as an adult for a charge of sexual assault. N.B.-D. contends the juvenile court abused its discretion by certifying him because the facts of the incident do not support a finding that this case had prosecutive merit or that the charged offense was of a heinous and egregious nature. N.B.-D. argues the witnesses were unreliable and much of the evidence supports a finding that the victim consented to engage in sexual activity. N.B.-D. further argues the facts show that he was too intoxicated to know the victim did not or could not consent to sexual activity, particularly in light of the sexual nature of the party at which the incident occurred.
To determine whether the juvenile court should certify a juvenile to the district court for criminal proceedings as an adult, the State must establish the charge's prosecutive merit. In the Matter of Seven Minors, 99 Nev. 427, 437. 664 P.2d 947. 953 (1983), disapproved of on other grounds by In the Matter of William S., 122 Nev. 432, 442 n.23, 132 P.3d 1015, 1021 n.23 (2006). If the juvenile court determines that the State has demonstrated prosecutive merit under the probable cause standard, it next determines whether the case should be transferred by considering "first, nature and seriousness of the charged offense or offenses; second, persistency and seriousness of past adjudicated or admitted criminal offenses; and third, what we will refer to as the subjective factors, namely, such personal factors as age, maturity, character, personality and family relationships and controls." Id. at 434-35, 664 P.2d at 952. "The juvenile court must give primary consideration to the first two factors, although the decision to certify may rest on either or both of these factors." In re Eric A.L., 123 Nev. 26, 33, 153 P.3d 32, 36 (2007).
The juvenile court enjoys broad discretion when making certification decisions in accordance within the Seven Minors guidelines. Id. In addition, "the dispositive question to be addressed by the court is whether the public interest requires that the youth be placed within the jurisdiction of the adult criminal courts." Seven Minors, 99 Nev. at 434, 664 P.2d at 952.
Here, the juvenile court reviewed the evidence submitted in this matter, including DNA test results, sexual assault examination results, witness statements, and N.B.-D.'s statements to others concerning the incident, and concluded probable cause existed to believe "the sexual penetration was against [the victim's] will or was performed under circumstances in which [N.B.-D] knew or should have known that [the victim] was mentally or physically incapable of resisting or understanding the nature of the conduct." The record supports the juvenile court's finding of prosecutive merit. See Matter of Three Minors, 100 Nev. 414, 418, 684 P.2d 1121, 1124 (1984) (explaining a juvenile court may find prosecutive merit based upon "informal but reliable evidence," including "the petition, sworn investigative reports, witnesses' affidavits, [and] police affidavits"), disapproved of on other grounds by In re William S., 122 Nev. 432, 442 n.23, 132 P.3d 1015, 1021 n.23 (2006). Therefore, we conclude the juvenile court did not abuse its discretion by finding the State established prosecutive merit for the sexual-assault charge.
Next, the juvenile court concluded certification to the district court was warranted due to the nature and seriousness of the charged offense without consideration of the two additional categories from Seven Minors. The juvenile court noted sexual assault is a category A felony and is punishable by a sentence of life in prison with the possibility of parole after ten years, see NRS 200.366(2)(b), or after twenty-five years, if the victim was under the age of sixteen, see NRS 200.366(3)(b). The juvenile court found the evidence showed N.B.-D. took advantage of the victim's gross intoxication to sexually abuse her and did so despite warnings from a third party that the victim was not willing to engage in sexual activity with him. The juvenile court further found additional witness statements suggested that N.B.-D. had previously attempted similar conduct with other girls. The juvenile court concluded that this conduct was sufficiently "serious, egregious and outrageous to warrant certification." In addition, the juvenile court concluded it was in the public's interest to certify N.B.-D. to stand trial as an adult given the nature of the charged offense, the "controls, punishment, deterrence and retribution" available in the adult criminal system, and the procedural safeguards of the adult criminal system.
The record supports the juvenile court's findings and the juvenile court properly rested its decision upon the nature and seriousness of the charged offense, In re Eric A.L., 123 Nev. at 33, 153 P.3d at 36. Based upon the record before this court, we conclude the juvenile court did not abuse its discretion by certifying N.B.-D. to stand trial as an adult. Accordingly, we
ORDER the judgment of the juvenile court AFFIRMED.
In light of this order, N.B.-D.'s emergency motion for stay is denied as moot.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Hon. Thomas W. Gregory, District Judge
Julie Bachman
Attorney General/Carson City
Douglas County District Attorney/Minden
Douglas County Clerk