ALEXANDROVICH v. DIST. CT. (STATE) (CRIMINAL)

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(stating "a direct appeal from a final judgment of conviction—the ordinary remedy in the criminal context—may be inadequate when errors in a grand jury proceeding are alleged because any error in the grand-jury proceeding is likely to be harmless after a conviction" (internal quotation marks omitted)). And although the appellate courts "generally [will] not review pretrial challenges to the sufficiency of an indictment," an exception has been recognized for purely legal issues, such as the failure to present exculpatory evidence to the grand jury. Ostman v. Eighth Jud. Dist. Ct., 107 Nev. 563, 565,

816 P.2d 458, 459-60 (1991). Based on the above, we elect to exercise our discretion to consider the petition.

First, Alexandrovich argues the State failed to present exculpatory evidence to the jury that would explain away the crime. The State is required to present all known exculpatory evidence to the grand jury that will explain away the charge. Chasing Horse, 140 Nev., Adv. Op. 63, 555 P.3d at 1213.

"The determination of whether particular evidence is exculpatory is generally left to the discretion of the district court." Id. (internal quotation marks omitted).

Alexandrovich was indicted for luring children or mentally ill persons with the use of technology with the intent to engage in sexual conduct. At the grand jury proceedings, the State presented evidence that Alexandrovich joined an application called Pure and began talking with an undercover officer. The conversation only lasted a short time on that platform before it moved over to another application called WhatsApp. The initial conversation on Pure was not preserved. The officer testified she tried to take a screenshot of the Pure conversation but the platform would not allow it. The WhatsApp messages were preserved. In the conversation on WhatsApp Alexandrovich was informed multiple times by the officer that she was 15-

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years old. The officer attempted to clarify what Alexandrovich was after in communicating with her, and Alexandrovich made statements like, "Do you want to go to a show or to a hotel," and "What do you want me to say? Sex?

Let's meet and see." He also told her to "prepare the max, IDK what to say"

and asked her if she "tried without" when referring to condoms. The two planned to go to a Cirque Du Soleil show after Alexandrovich specifically researched and confirmed that a 15-year-old girl would be old enough to attend. He also said he would bring condoms. They agreed to meet at a park, and Alexandrovich drove toward the park and was arrested near the park. Prior to the grand jury proceedings, Alexandrovich provided the State with a letter outlining the exculpatory evidence he wanted the State to introduce at the grand jury proceedings. Alexandrovich asked the State to present evidence: (1) that Pure required a person to be 18 years of age to join and had age verification requirements (Alexandrovich attached the requirements to the letter); (2) that Alexandrovich told law enforcement he was aware of the requirements for Pure and relied on them when he engaged with the undercover officer; (3) of the photographs the undercover officer showed Alexandrovich and the actual age of the persons depicted in the photos; (4) of how the undercover officer gained access to the Pure application; (5) that Alexandrovich drove his own rental vehicle to the meeting place rather than a rideshare and that he never actually made it to the meeting spot but was in the process of leaving when he was pulled over; (6) that no condoms were found on Alexandrovich or in his vehicle; (7) that he actually purchased tickets to a Cirque Du Soleil show, which he claimed was inconsistent with being accompanied by a 15-year-old girl; (8) that he took and passed a polygraph examination administered by the FBI confirming he never had improper

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contact with a minor; and (9) that the police failed to preserve evidence of the complete communication between Alexandrovich and the officer. After reviewing the record, the district court found that the State presented the requested exculpatory evidence, either through direct testimony or by providing Alexandrovich's letter with exhibits to the grand jury. The record supports the district court's decision. The State inquired of the undercover officer whether there were age requirements for joining Pure, and she testified that Pure required the parties to be 18. The State presented testimony that the officer did not remember whether she uploaded an I.D. to gain access to the site. Further, the State presented the photographs and video the officer sent to Alexandrovich depicting the person Alexandrovich thought he was meeting. And the State presented testimony that the persons depicted in the pictures and video were over the age of 18. The State also elicited a response from the FBI agent who interviewed Alexandrovich that Alexandrovich stated he thought the girl was 18-years old because that was a requirement of the Pure application. Testimony was presented that Alexandrovich drove his own rental vehicle to the meeting spot, that he did not make it to the spot before he was stopped, and that there were no condoms found on his person or in the vehicle. The State also presented testimony that the initial conversation on Pure was not preserved, and Alexandrovich did not allege what may have been in the messages that was exculpatory.¹As to the tickets and the polygraph examination results, that evidence was presented to the grand jury through Alexandrovich's letter. Further, Alexandrovich fails to

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demonstrate these pieces of evidence were either exculpatory or admissible such that the State was required to present them. In the WhatsApp messages, Alexandrovich stated that the plan was to see the show and go to a hotel and that he confirmed on the internet the minimum age to attend a show was five- years old. Thus, having the tickets was not exculpatory.²In regard to the polygraph examination, Alexandrovich fails to demonstrate that was admissible evidence. Jackson v. State, 116 Nev. 334, 336, 997 P.2d 121, 122 (2000) (stating that "[a]bsent a written stipulation, polygraph evidence may properly be excluded"). Based on all the above, we conclude Alexandrovich fails to demonstrate the district court manifestly abused its discretion by finding that the State presented the exculpatory evidence.

Second, Alexandrovich argues the State failed to make the grand jury aware of the difference between inchoate, non-criminal actions (mere preparation) and actionable, completed crimes. He also contends the State did not make the grand jury aware that Alexandrovich may have been entrapped or lacked the specific intent to commit the crime. The district court found that the grand jury was properly instructed. Alexandrovich fails to provide this court with a copy of the instructions given to the grand jury. We therefore presume that the missing portion of the record supports the district court's written order. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603,

172 P.3d 131, 135 (2007) (observing that "[w]hen an appellant fails to include necessary documentation in the record, we necessarily presume that the missing portion supports the district court's decision"); see also Greene v. State,

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96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make a proper appellate record rests on appellant.").

Further, Alexandrovich fails to demonstrate that the State was required to present the grand jury with instructions regarding inchoate, non- criminal actions and actionable, completed crimes or entrapment. The State's obligation at the grand jury proceedings was to present evidence to support the elements of the crime and to present exculpatory evidence. Chasing Horse, 140 Nev., Adv. Op. 63, 555 P.3d at 1212. "Although Nevada law requires the State to present exculpatory evidence to a grand jury, requiring the State to also instruct a grand jury on the legal significance of exculpatory evidence simply does not comport with the traditional investigative, accusatory role of a grand jury." Schuster v. Eighth Jud. Dist. Ct., 123 Nev. 187, 193, 160 P.3d 873, 877 (2007). "Rather, the full presentation and credibility of an accused's defense are matters reserved for the adversarial process of trial." Id. Therefore, we conclude Alexandrovich fails to demonstrate the district court manifestly abused its discretion by denying this claim. Accordingly, we

ORDER the petition DENIED. Bulla, C.J.

Gibbons, J. Westbrook, J. cc: Hon. Tina Talim, District Judge Attorney General/Carson City Attorney General/Las Vegas Chesnoff & Schonfeld

Clark County District Attorney Eighth District Court Clerk