WOODIN (JAMES) v. STATE (CRIMINAL)

importance. We disagree. Even assuming the interview was a custodial one for which a Miranda warning was required, the police appropriately advised Woodin of his constitutional rights before Woodin was interrogated and the incriminating statements were made. The police went through each right individually and ensured Woodin understood each of them. And the officer's comments that Woodin claims minimized those rights were made before the Miranda warning. Further, contrary to Woodin's assertions, the comments did not minimize the importance of Woodin's Miranda rights. Rather, the officer emphasized the fact that, unlike the way it may be portrayed in media, providing Woodin with a Miranda warning did not mean Woodin was under arrest. Accordingly, the district court did not err in determining Woodin's statement was obtained in compliance with Miranda.

Woodin also argues the police statement was involuntary. "In order to be voluntary, a confession must be the product of a rational intellect and a free will," rather than "physical intimidation or psychological pressure[J" and given without "compulsion or inducement." Passarna v. State, 103 Nev. 212, 213-14, 735 P.2d 321, 322-23 (1987) (citation modified). Whether a confession was voluntary presents a mixed question of law and fact. Rosky, 121 Nev. at 190, 111 P.3d at 694. The district court's purely historical fact findings are given deference and reviewed for clear error, but the court's legal determination as to whether the statement was voluntary is a question of law that we review de novo. Id. We look to the totality of the circumstances to determine whether the defendant's will was overborne by government actions when they confessed. See Chambers v. State, 113 Nev. 974, 981, 944 P.2d 805, 809 (1997).

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The district court found, and the record supports, several circumstances that indicate Woodin's statement was voluntary. Woodin was an adult who understood his rights, was not detained or questioned for an unreasonable amount of time, was not subjected to repeated or prolonged questioning, and was not subject to physical punishment or the deprivation of food or sleep. See Passarna, 103 Nev. at 214, 735 P.2d at 323 (outlining factors for courts to consider when considering the voluntariness of a confession under the totality of the circumstances); see also Steese v. State,

114 Nev. 479, 488, 960 P.2d 321, 327 (1998) ("Where the district court's determination that a confession is voluntary is supported by substantial evidence, we will not substitute our judgment for that of the district court."). Woodin argues that the statement was coerced and his will overborn by police deception. "Police deception is a relevant factor in determining whether or not a confession is voluntary." Sheriff, Washoe Cnty. v. Bessey, 112 Nev. 322, 325, 914 P.2d 618, 619 (1996). Police deception is permissible if "the methods used are not of a type reasonably likely to procure an untrue statement." Id. at 325, 914 P.2d at 620. Here, Woodin contends the police officer's remark—"Listen, dude, what we talk about here in this room does not go outside this door."—was unconstitutionally coercive and overbore Woodin's will. We disagree, as in these circumstances, the remark "did not interject the type of extrinsic considerations that would overcome [the defendant's] will by distorting an otherwise rational choice of whether to confess or remain silent." Id. (quoting Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992), cert. denied, 506 U.S. 1082 (1993)). The remark would not have implicated any concerns on Woodin's part "other than consideration of his own guilt or innocence and the evidence against him." Id. at 327, 914 P.2d at 621; cf.

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Lynumn v. Illinois, 372 U.S. 528, 534 (1963) (concluding that a confession was coerced when police threatened a defendant that "state financial aid for her infant children would be cut off, and her children taken from her, if she did not 'cooperate"). Accordingly, the totality of the circumstances supports the conclusion that Woodin made the statements voluntarily, and thus, the district court did not err in denying the motion to suppress. Batson challenges

Second, Woodin argues the district court erred in denying Batson challenges to the State's use of peremptory challenges to remove two Black veniremembers. Batson v. Kentucky, 476 U.S. 79 (1986). The district court must use a three-step analysis to assess a Batson challenge: (1) the opponent of the peremptory challenge must articulate a prima facie case of discrimination, (2) the proponent of the peremptory challenge must then assert a neutral explanation for the challenge, and (3) the trial court must determine whether the opponent of the peremptory challenge has proved purposeful discrimination. Williams v. State, 134 Nev. 687, 689, 429 P.3d 301, 305-06 (2018). "If, after conducting the inquiry, the district judge finds no unlawful discrimination occurred, we give great deference to the district court's finding and will only reverse if the district court clearly erred." Id. at 688, 429 P.3d at 305.

Here, the district court found a prima facie case of racial discrimination in the State's exercise of the two peremptory challenges. As required by step two of the Batson analysis, the State provided race-neutral explanations for the two peremptory challenges. The State explained it used a peremptory challenge on Juror 40 because of the juror's views on interfamilial discipline, relationship with the juror's autistic nephew, and the fact the juror worked for the Clark County School District. As to Juror

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179, the State explained it used a peremptory challenge because of the juror's social work, young age, and the fact the juror's brother was in prison for drug trafficking. After hearing argument, the district court concluded the peremptory challenges were not race-based or pretextual. And our review of the jury selection transcript demonstrates that no other veniremember was impaneled who displayed the characteristics for which the stricken veniremembers were dismissed. See King u. State, 116 Nev. 349, 354, 998 P.2d 1172, 1175 (2000) (finding defendant failed to demonstrate the State's race-neutral explanation was pretextual where "no other venireperson was impaneled who displayed the characteristics for which the stricken venireperson was dismissed"). Based on the record and giving deference to the district court's findings on discriminatory intent, we conclude that the district court did not err by denying Woodin's Batson challenges.

Prosecutorial misconduct

Third, Woodin argues the State committed prosecutorial misconduct during the proceedings. Specifically, Woodin points to alleged misconduct during the State's opening statement and while cross- examining a witness, as well as the State's treatment of the victim. This court employs a two-step process when considering prosecutorial misconduct. Valdez u. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). "First, we must determine whether the prosecutor's conduct was improper." Id. "Second, if the conduct was improper, we must determine whether the improper conduct warrants reversal." Id. The court considers challenged comments in context, and "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone." Hernandez u. State, 118 Nev. 513, 525, 50 P.3d 1100, 1108 (2002)

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(quoting United States u. Young, 470 U.S. 1, 11 (1985)). If a defendant failed to object to the alleged misconduct below, this court reviews for plain error. Valdez, 124 Nev. at 1190, 196 P.3d at 477. A plain error is one that is apparent from a casual inspection of the record and will "not require reversal unless the defendant demonstrates that the error affected his or her substantial rights, by causing actual prejudice or a miscarriage of justice." Id. (citation modified).

In the State's opening statement, Woodin points to allegedly improper comments about defense counsel's interactions with the victim. Woodin objected to these comments at trial. Because the district court sustained the objection, no further relief is warranted. See Pantano u. State,

122 Nev. 782, 794, 138 P.3d 477, 485 (2006) (concluding that defendant received the appropriate remedy "when the district court sustained his objection" to an improper statement). Woodin also points to a statement the prosecutor made that the victim should have their own representation but did not. Woodin did not object to this statement. The statement was correct, in that the victim did not have independent representation at trial, and Woodin fails to demonstrate misconduct amounting to plain error. Next, Woodin contends the State committed prosecutorial misconduct in its cross-examination of the father of the victim and the defendant. The father testified that he had diagnosed himself as autistic, believed Woodin to be autistic, and that autistic people needed to be directly taught things like proper social behavior. During cross-examination, the State asked the father if he had ever had sex with a sibling, which Woodin was accused of doing. Woodin objected. Because the district court sustained the objection, no further relief is warranted. See Pantano, 122 Nev. at 794,

138 P.3d at 485. The State then asked the father if he was ever taught not

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to have sex with a sibling. While uncomfortable, the question was a contextual rebuttal to Woodin's direct examination of the witness, which sought to establish that autistic people like the defendant and the witness required explicit instruction to understand social boundaries and behaviors that neurotypical people grasp intuitively. The question was a direct response to this narrative. Woodin did not object to the second question and fails to demonstrate plain error.

Finally, Woodin alleges the State's treatment of the victim constituted prosecutorial misconduct, specifically contending the State treated the victim with hostility and reported the family to Child Protective Services. These contentions are not supported by the record, and Woodin does not demonstrate they constituted prosecutorial misconduct. Corpus delicti

Fourth, Woodin argues the State failed to establish the corpus delicti of sexual assault. "The corpus delicti of a crime must be proven independently of the defendant's extrajudicial admissions." Doyle v. State,

112 Nev. 879, 892, 921 P.2d 901, 910 (1996), overruled on other grounds by Kaczlnarek v. State, 120 Nev. 314, 333, 91 P.3d 16, 29 (2004). "The independent proof may be circumstantial evidence," "and it need not be beyond a reasonable doubt." Id. (quoting People v. Alcala, 685 P.2d 1126, 1136 (Cal. 1984), superseded by statute on other grounds as stated in People

v. Falsetto, 986 P.2d 182, 186 (Cal. 1999)). "A slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient." Id. "If the independent proof meets this threshold requirement, the accused's admissions may then be considered to strengthen the case on all issues." Id.

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Woodin argues the State failed to establish the corpus delicti of sexual assault because the victim's testimony at trial suggested the sexual activity was consensual and, as to the third count, the State failed to establish the victim was under the age of fourteen when the sexual activity occurred. We disagree and conclude the State presented sufficient evidence at trial to satisfy the corpus delicti rule. The victim's prior statements to his mother and the police indicated nonconsent, as did some of the victim's responses during cross-examination. See McNair v. State, 108 Nev. 53, 61,

825 P.2d 571, 576 (1992) (noting it is for the jury to determine the weight and credibility to give conflicting evidence). And testimony was elicited permitting the reasonable inference that sexual activity occurred when the victim was under fourteen. Accordingly, the State provided the independent proof necessary to demonstrate the corpus delicti of sexual assault.

Surnrnitt rnotion

Fifth, Woodin argues the district court erred when it did not allow him to present relevant evidence admissible under Sumrnitt v. State,

101 Nev. 159, 697 P.2d 1374 (1985). We review a district court's decision to admit or exclude evidence for an abuse of discretion. Thornas v. State, 122 Nev. 1361, 1370, 148 P.3d 727, 734 (2006).

Nevada's rape shield law substantially limits a defendant's inquiry into the victim's sexual history. NRS 50.090; Guitron v. State, 131 Nev. 215, 225, 350 P.3d 93, 100 (Ct. App. 2015). Under Surnrnitt, the

"defendant may show that an alleged victim has experienced specific incidents of sexual conduct such that the alleged victim has the experience and ability to contrive sexual allegations against the defendant." Williams,

134 Nev. at 697, 429 P.3d at 311. The evidence must not be offered "to

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impeach the credibility of the complaining witness by a general allegation of unchastity," but instead must be offered to show the witness had

"knowledge of such acts" which could form the basis for the allegations against the defendant. Summitt, 101 Nev. at 163, 697 P.2d at 1377; see also Chapman v. State, 117 Nev. 1, 5, 16 P.3d 432, 434 (2001) ("A child-victim's prior sexual experiences may be admissible to counteract the jury's perception that a young child would not have the knowledge or experience necessary to describe a sexual assault unless it had actually happened."). Here, Woodin sought to introduce evidence of boundary issues and sexual contact the victim had several years prior with siblings other than Woodin. The record indicates Woodin did not intend to use this evidence to explain the source of the victim's knowledge of sexual acts, which is what is permitted under Summitt.

Woodin additionally argues this evidence was admissible under NRS 48.069, which permits the admission of evidence of the previous sexual conduct of a victim of sexual assault to prove the victim's consent. NRS 48.069, however, requires that the evidence be relevant to the issue of consent. NRS 48.069(3)(a). The district court determined this evidence, which addressed conduct that took place years earlier and did not involve sexual contact between the victim and Woodin, was irrelevant to the charges at issue. We discern no abuse of discretion by the district court. Child Protective Services workers' testimony

Sixth, Woodin argues the testimony of the Child Protective Services (CPS) workers was inadmissible. "Trial courts have considerable discretion in determining the relevance and admissibility of evidence," and their ruling will not be disturbed "absent a clear abuse of that discretion."

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Atkins v. State, 112 Nev. 1122, 1127, 923 P.2d 1119, 1123 (1996), overruled on other grounds by McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004). First, Woodin argues much of the testimony of the CPS workers was irrelevant and unfairly prejudicial. Relevant evidence "means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." NRS 48.015. Here, the evidence contextualized the actions of CPS, provided evidence of the family dynamic, and supported the State's narrative that the family was aligned with Woodin. Thus, this evidence was relevant. And Woodin does not demonstrate that its probative value was substantially outweighed by the danger of unfair prejudice. See NRS 48.035(1) (noting relevant evidence "is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice"). Second, Woodin argues the testimony constituted improper character evidence. See NRS 48.045(1) (providing evidence of a person's character or character traits is generally not admissible to prove conduct). • The CPS workers described their investigations. They did not opine specifically as to Woodin's character or character traits. Accordingly, Woodin has not demonstrated the district court abused its discretion in admitting the testimony of the CPS workers.

Finally, we conclude the district court erred in allowing evidence concerning the substantiation of the allegation, as this improperly invaded the province of the jury. See S. Pac. Co. v. Watkins, 83 Nev. 471, 488, 435 P.2d 498, 509 (1967) ("[N]onexpert witnesses may not be permitted to invade the province of the jury and testify directly to the ultimate fact in the case.") (quoting McLeod v. Miller & Lux, 40 Nev. 447, 478-79, 153 P.

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566, 570 (1917)). This error, however, was harmless in light of the evidence against Woodin.

Jury instructions

Seventh, Woodin argues the jury was not properly instructed on voluntariness and the jury instructions allowed the State to present a theory that was not contained in the charging document. We conclude that these arguments lack merit.

The jury instructions presented on voluntariness used the language Woodin requested. Thus, Woodin cannot now complain about the voluntariness instructions. See Belcher v. State, 136 Nev. 261, 274-75, 464 P.3d 1013, 1028 (2020) (concluding that a party cannot challenge on appeal an error that the party invited, induced, or provoked). Next, Woodin asserts the jury instructions improperly introduced an uncharged theory by including the full statutory definition of sexual assault, which includes language about the victim penetrating the defendant, which was not alleged here. Woodin did not object to the sexual assault instruction, so we review for plain error. See Green, 119 Nev. at 545, 80 P.3d at 95 (explaining that failure to object precludes appellate review except in circumstances amounting to plain error). The inclusion of the complete statutory language provided legal context and did not suggest an alternative theory of culpability. Nor did the State at any point argue Woodin was guilty because the victim penetrated Woodin. Accordingly, Woodin does not demonstrate plain error.

Jury's transcript request

Finally, Woodin argues the district court erred in declining the jury's request for a transcript of the victim's testimony. The district court observed that the testimony had not yet been transcribed and expressed

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hesitation about offering a full playback, as the victim's testimony was lengthy and the jury had deliberated only briefly before making the request. The district court opted to direct the jury to Instruction 6, which instructed them to rely on their recollection of the testimony, exhibits, and stipulated facts. The district court, however, left the door open for a more specific playback request, should the jury refine its request. The jury did not renew its request and returned a guilty verdict four hours later. As Woodin did not object to the district court's response to the jury's request, we review for plain error. Jeremias v. State, 134 Nev. 46, 49,

412 P.3d 43, 47 (2018). The district court has "wide discretion in the manner and extent of [its] response to a jury's request during deliberation" for replay of testimony. Miles v. State, 97 Nev. 82, 84, 624 P.2d 494, 495 (1981). Here, the district court made a reasoned decision, considering the length of testimony, the lack of a specific request, and the jury's brief deliberation period, and Woodin does not demonstrate the district court's decision was plain error.

Having considered Woodin's arguments, we conclude no relief is warranted, and we

ORDER the judgment of conviction AFFIRMED.

, C.J.

Herndon ell

c& tjti. Stiglich

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cc: Hon. Michelle Leavitt, District Judge Wright Marsh & Levy

Attorney General/Carson City

Clark County District Attorney Eighth District Court Clerk

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