NRS 50.700 Bars Court-Ordered Psychological Exams of Sexual-Offense Victims; Lesser-Included Kidnapping May Be Added by Information Amendment Before Verdict

1. Introduction

This appeal arises from a jury-trial conviction for sexual assault, second-degree kidnapping, and grand larceny of a motor vehicle in the Fourth Judicial District Court (Elko County). The State’s theory was that Danielle Ronald Johns sexually assaulted a woman, restrained and moved her into her car, and then stole the vehicle after the victim escaped to a neighbor’s apartment.

Johns presented five appellate issues: (1) whether delay in holding the preliminary hearing required dismissal/habeas relief; (2) whether alleged discovery violations concerning DNA testing warranted dismissal or sanctions; (3) whether the jury should have received an adverse-inference instruction for uncollected evidence; (4) whether the defense was entitled to a compelled “secondary” psychological evaluation of the victim; and (5) whether the State could amend the information after the close of evidence to reduce first-degree kidnapping to second-degree kidnapping.

2. Summary of the Opinion

The Nevada Supreme Court affirmed. It held (a) the preliminary-hearing delays were attributable to Johns (including stipulations to continuances), so dismissal or pretrial habeas relief was unwarranted; (b) the district court did not abuse its discretion in denying dismissal/sanctions for the State’s decision not to test the victim’s clothing for DNA—particularly where the court offered a continuance and where the untested results were not material; (c) an adverse-inference instruction was properly denied because the allegedly missing security-camera footage did not exist (the cameras were not recording), and other adverse-inference theories were forfeited or failed plain-error review; (d) the court could not compel a psychological/psychiatric examination of a sexual-offense victim under NRS 50.700(1), and there was no “compelling need” justifying exclusion of the State’s psychological expert; and (e) the post-evidence amendment from first-degree to second-degree kidnapping was permissible under NRS 173.095(1) because it substituted a lesser-included offense and did not prejudice substantial rights.

3. Analysis

3.1 Precedents Cited

A. Timing, continuances, and trial-court discretion

• Means v. State, 120 Nev. 1001, 1007, 103 P.3d 25, 29 (2004) — supplied the abuse-of-discretion standard for discovery disputes. Although cited in the discovery section, its broader effect is to frame appellate review as highly deferential when the district court actively managed the dispute (here, by offering a continuance).

B. Discovery sanctions and materiality

• State v. Tapia, 108 Nev. 494, 498, 835 P.2d 22, 24 (1992) — used to support the proposition that dismissal is generally inappropriate absent bad faith, particularly where the district court uses less drastic remedies to protect the defense. The Opinion leans on the district court’s offered continuance as the key “protective” measure.
• Mazzan u. Warden, 116 Nev. 48, 66, 992 P.2d 25, 36 (2000) — provided the materiality standard: withheld or omitted evidence matters only if there is a “reasonable possibility” it would have affected the outcome. The court applied this to conclude that even a hypothetical absence of Johns’s DNA on the victim’s clothing would not overcome the multiple sources of inculpatory DNA (victim swabs; tape/drawstring).

C. Adverse-inference instructions and forfeiture/plain error

• Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001) — established abuse-of-discretion review for refusal to give a jury instruction.
• Randolph v. State, 117 Nev. 970, 987, 36 P.3d 424, 435 (2001) — set the substantive predicate for an adverse inference: government failure to collect evidence that is both favorable and material. The Opinion applied Randolph to reject the instruction because the neighbor testified the cameras were not recording, i.e., there was nothing to collect.
• Jeremias v. State, 134 Nev. 46, 60, 412 P.3d 43, 48 (2018) — used to enforce issue-preservation rules and to define “plain error.” Johns’s broader adverse-inference theory tied to DNA evidence was deemed forfeited, and the court found no plain error because the untested clothing evidence was not material.

D. Secondary psychological examinations of sexual-offense victims: case law displaced by statute

• Koerschner v. State, 116 Nev. 1111, 1115, 13 P.3d 451, 454 (2000) — recognized that compelled examinations could be ordered on a showing of “compelling need.” The Opinion treats Koerschner as superseded in relevant part by later legislation.

The Opinion’s core doctrinal move is statutory: since Koerschner, the Legislature enacted NRS 50.700(1), providing that “a court may not order the victim of or a witness to [a] sexual offense to take or submit to a psychological or psychiatric examination.” The court emphasized the statute’s remedial substitute: if there is a “compelling need” for an additional examination and the victim does not consent, the court “may instead exclude the State’s psychological expert.”

E. Amendments to charging documents and lesser-included offenses

• State v. Eighth Jud. Dist. Ct., 116 Nev. 374, 379, 997 P.2d 126, 130 (2000) — supplied the abuse-of-discretion standard for allowing amendment.
• Henderson City Atey v. Cerrone, 140 Nev., Adv. Op. 68, 557 P.3d 979, 983 (2024) — critical authority for the proposition that “a lesser-included offense is not a new or different offense under NRS 173.095.”
• McNamara v. State, 132 Nev. 606, 620, 377 P.3d 106, 116 (2016) — cited to confirm second-degree kidnapping is a lesser-included offense of first-degree kidnapping.
• Gazlay v. State, No. 66105, 2016 WL 2848905, at *2 (Nev. May 12, 2016) (Order of Affirmance) — additional support for the lesser-included relationship in Nevada practice.

3.2 Legal Reasoning

A. Preliminary hearing delay: attribution and remedy

Johns argued dismissal/habeas relief based on failure to hold a preliminary hearing within fifteen days and urged the court to weigh a constitutional interest in conditional pretrial liberty. The court’s reasoning was primarily factual and attribution-based: Johns was arrested out of state, extradited months later, and (critically) counsel stipulated to continuances “to prepare.” Because the record supported the district court’s finding that Johns caused the delay, the requested remedy (dismissal or habeas relief) was not warranted.

B. Discovery/DNA testing: no abuse, no bad faith, no material prejudice

The Opinion treated Johns’s complaint (State canceled promised DNA testing on the victim’s clothing) as a discovery-management question. Two considerations drove affirmance:

• Process and remedial options: Johns never moved to compel clothing testing and instead requested other expedited testing (tape/drawstring), which the State completed. The district court offered a continuance to allow additional DNA development; Johns refused. Under State v. Tapia, the availability of a less drastic remedy and absence of bad faith weigh heavily against dismissal.
• Materiality/harmlessness: Because Johns’s DNA was found on swabs from the victim’s body and on the tape/drawstring, the court found the evidentiary picture already strongly corroborative. Under Mazzan u. Warden, the purportedly omitted “no DNA on clothing” scenario was not reasonably likely to change the outcome.

C. Adverse inference: “missing evidence” must actually be missing, favorable, and material

The court’s refusal to give the adverse-inference instruction turned on a basic factual predicate: the neighbor testified the cameras were not recording at the time. Without a showing that evidence existed and was not collected, the Randolph v. State conditions were unmet. The court also enforced preservation rules: Johns’s expanded adverse-inference theory concerning DNA was not presented below and failed plain-error review under Jeremias v. State.

D. Secondary psychological evaluation: statutory prohibition plus a narrowed remedy

This is the Opinion’s most clearly articulated rule statement. Even if Koerschner v. State once permitted compelled examinations on “compelling need,” NRS 50.700(1) now categorically removes that judicial option in sexual-offense cases. The court explained the statute’s structural tradeoff: courts cannot compel the victim to undergo an exam; instead, if a compelling need exists and the victim does not consent, the court may exclude the State’s psychological expert (a remedy aimed at evidentiary fairness rather than compelled intrusion).

The Opinion then applied NRS 50.700(3) and found no compelling need to exclude the State’s expert—highlighting corroboration and the absence of a reasonable basis to question the victim’s ability to perceive or relate events.

E. Post-evidence amendment: lesser-included substitution and prejudice analysis

After the close of evidence, the district court announced it would instruct acquittal on first-degree kidnapping due to lack of evidence of specific intent under NRS 200.310(1). It then allowed amendment to second-degree kidnapping. The Supreme Court upheld the amendment under NRS 173.095(1) through a two-step inquiry:

• No “additional or different” offense: relying on Henderson City Atey v. Cerrone and the lesser-included authorities (McNamara v. State; Gazlay v. State), the court held second-degree kidnapping is not “new or different” when substituted for first-degree kidnapping.
• No prejudice to substantial rights: the essential facts and theory of prosecution were unchanged, and Johns’s defense strategy (attacking reliability and investigation) was not element-specific in a way that the amendment would undercut. The court also rejected the claim that additional cross-examination would have differed because the “acts” constituting the kidnapping were the same; only the degree (and intent requirement) changed.

3.3 Impact

• Sexual-offense victim examinations: The Opinion reinforces a bright-line practice point: Nevada trial courts may not order a victim/witness psychological or psychiatric exam in sexual-offense cases under NRS 50.700(1). Litigation will therefore shift to (i) whether the defense can demonstrate “compelling need” under NRS 50.700(3), and (ii) whether exclusion of the State’s psychological expert is an appropriate balancing remedy when the victim does not consent.
• Discovery disputes and requested testing: Defendants who want testing performed should make formal requests and, if necessary, move to compel. This Opinion illustrates how appellate courts may view late objections skeptically where the defense declined a continuance and did not pursue available procedural tools.
• Adverse inference instructions: The decision underscores that defendants must prove more than investigative “imperfection”; they must show the State failed to collect existing, favorable, and material evidence.
• Charging amendments late in trial: The Opinion, consistent with Henderson City Atey v. Cerrone, supports the State’s ability to amend to a lesser-included offense even after the close of evidence, so long as the factual theory is stable and the defense cannot show concrete prejudice to substantial rights.

4. Complex Concepts Simplified

• Preliminary hearing timing: A preliminary hearing is an early-stage proceeding to decide whether there is probable cause to hold the defendant for trial. Timing rules can be enforced, but delays attributable to the defense (including agreed continuances) generally undermine dismissal claims.
• Habeas corpus (pretrial): A pretrial habeas petition challenges the legality of detention or prosecution before trial. It is not a general tool to obtain dismissal where delay was caused or agreed to by the defense.
• Discovery sanctions: When evidence is not produced or developed, courts typically consider the State’s intent (bad faith or not), the availability of less drastic remedies (like continuances), and whether the missing item is truly important to the verdict.
• Materiality: Evidence is “material” if there is a reasonable possibility it would have changed the outcome. “It might have helped” is not enough under the standard the court applied.
• Adverse inference instruction: This tells jurors they may infer missing evidence would have hurt the party that failed to collect/preserve it. It generally requires a showing that the evidence existed, was favorable, and was important.
• Forfeiture and plain error: If an argument was not raised in the trial court, it is usually forfeited. Appellate review then is limited to “plain error,” meaning an obvious error that affected substantial rights.
• Lesser-included offense: A crime is “lesser-included” if it contains fewer (or less demanding) elements than the charged crime and is necessarily included within it. Charging a lesser-included offense is not treated as charging a wholly “new” offense for amendment purposes.
• Amending an information: Under NRS 173.095(1), an information may be amended before verdict if it does not add a new/different offense and does not prejudice the defendant’s substantial rights.

5. Conclusion

JOHNS (DANIELLE) v. STATE (CRIMINAL) affirms convictions while delivering two especially practical clarifications. First, in sexual-offense prosecutions, NRS 50.700(1) categorically prohibits trial courts from ordering victims or witnesses to submit to psychological or psychiatric examinations; the fairness “lever” is exclusion of the State’s psychological expert only upon a showing of compelling need and lack of consent. Second, consistent with modern Nevada amendment doctrine, the State may amend an information before verdict to substitute a lesser-included offense (here, second-degree kidnapping for first-degree kidnapping) when the factual basis is unchanged and the defendant cannot show prejudice to substantial rights.