Rugamas v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark
Rugamas v. Eighth Judicial District Court of the State of Nevada ex rel. County of Clark
Opinion of the Court
OPINION
By the Court,
The State sought an indictment against petitioner Giovanni O. Rugamas on charges of sexual assault and lewdness involving a child who was under 10 years of age. During the grand jury proceedings, the State presented testimony about out-of-court statements made by the child-victim describing the alleged sexual conduct. With some exceptions, an out-of-court statement offered to prove the truth of the matter asserted is “hearsay.” NRS 51.035. Under Nevada law, a grand jury cannot receive hearsay. NRS 172.135(2).
In this original writ proceeding, we consider whether the child-victim’s out-of-court statements were properly received by the grand jury on either of two grounds: as non-hearsay because they were inconsistent with the victim’s grand jury testimony or as admissible hearsay under NRS 51.385, which provides that statements about any act of sexual conduct made by a child who was less than 10 years old are admissible “in a criminal proceeding” if a court finds sufficient guarantees of trustworthiness. We conclude that the statements were not properly before the grand jury. Because the victim was not subject to cross-examination concerning the out-of-court statements, those statements were not excluded from the definition of hearsay under NRS 51.035(2)(a). Although hearsay that falls within a statutory exception set forth in NRS Chapter 51 may be considered by a grand jury, Gordon v. Eighth
FACTS AND PROCEDURAL HISTORY
Rugamas is awaiting trial on an indictment charging him with one count of sexual assault of a minor under the age of 14 years and one count of lewdness with a child under the age of 14 years. See NRS 200.366(3)(c); NRS 201.230(1). At the grand jury hearing, the State presented the testimony of four witnesses: die alleged victim (A.C.), her sister (Y.V.), her mother (Elsa), and a forensic interviewer with the Southern Nevada Children’s Assessment Center (Faiza Ebrahim).
The State presented evidence that Rugamas sometimes took care of the victim and her sisters, and that on one such occasion, he locked himself and the victim in a bedroom and touched her vaginal area both over and under her clothing. Unfortunately, A.C., who was six years old at the time of the hearing, was unable to recall significant details of the alleged sexual conduct other than Rugamas locking her in a bedroom while she and her sisters were in his care. She also did not remember telling the other witnesses that Rugamas sexually abused her.
Y.V. witnessed part of the incident but not any sexual conduct. She testified that she saw Rugamas put a blanket over A.C.’s head, take her to a bedroom, and shut the door and that she heard A.C. crying and unsuccessfully tried to open the locked bedroom door. Although Y.V. looked under the bedroom door, she could not see into the room. In addition to her observations, Y.V. testified to a statement made by the victim. Y.V. testified that sometime after the bedroom incident, A.C. told her that Rugamas had touched her and she pointed to her “private.”
Elsa did not witness any of the conduct. She testified to statements that Y.V. and A.C. made to her. During a discussion with her daughters about inappropriate touching, Y.V. told her that Rugamas put A.C. in a room with him and Y.V. heard A.C. cry, but Y.V. could not access the room. When Elsa asked A.C. where Rugamas touched her, A.C. held up two fingers and pointed toward her vaginal area.
Rugamas filed a pretrial petition for a writ of habeas corpus challenging the grand jury proceedings on several grounds, including that the indictment was based on hearsay in violation of Nevada law. The State responded, asserting that the subject evidence was admissible under NRS 51.385. Rugamas countered, arguing that NRS 51.385 does not apply to grand jury proceedings because the statute conditions admissibility of the evidence upon a court making a determination that the evidence contains guarantees of trustworthiness. The district court denied the petition after a hearing. In its written order, the district court concluded that the victim’s statements were not hearsay because they were prior inconsistent statements, and if they were hearsay, they were admissible under NRS 51.385. This original petition for extraordinary relief followed.
DISCUSSION
Rugamas argues that the district court manifestly abused its discretion by denying his pretrial habeas petition because the grand jury was presented with nothing but inadmissible hearsay evidence and therefore the indictment was deficient. In particular, he argues that the testimony of Y.V., Elsa, and Ebrahim could not be admitted under NRS 51.385 until a court conducted a hearing and determined the trustworthiness of A.C.’s statements, and, because that was not done here, the challenged evidence remained inadmissible at the grand jury hearing. As to the district court’s conclusion that the evidence was admissible as prior inconsistent statements, Rugamas argues that the district court’s decision was wrong because he had no opportunity to cross-examine A.C. as required by NRS 51.035(2)(a).
Rugamas seeks a writ of prohibition or mandamus. A writ of prohibition may issue to arrest the proceedings of a district court exercising its judicial functions, when such proceedings are in excess of the jurisdiction of the district court. NRS 34.320. Because the district court had jurisdiction to consider Rugamas’ pretrial petition for a writ of habeas corpus by virtue of NRS 34.700 and Rugamas’ petition did not challenge the district court’s jurisdiction to proceed, prohibition is not an appropriate avenue for extraordinary relief.
Rugamas’ original petition better suits the counterpart to prohibition, the writ of mandamus. A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, NRS 34.160, or to control a manifest abuse or arbitrary or capricious exercise of discretion, see Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). The writ will not issue, however, if a petitioner has a plain, speedy, and adequate remedy in the ordinary course of the law. NRS 34.170. Here, Rugamas has another remedy: if he is convicted, he could appeal from the judgment of conviction, see NRS 177.015(3), and seek review of the district court’s pretrial order as an intermediate order, NRS 177.045. See generally Lisle v. State, 114 Nev. 221, 224, 954 P.2d 744, 746 (1998). But that remedy is not adequate because a conviction would render any error in the grand jury proceeding harmless. See id. at 224-25, 954 P.2d at 746-47.
Ultimately, the decision to entertain an extraordinary writ petition lies within our discretion. In exercising that discretion, we must “consider[ ] whether judicial economy and sound judicial administration militate for or against issuing the writ.” Redeker v. Eighth Judicial Dist. Court, 122 Nev. 164, 167, 127 P.3d 520, 522 (2006), limited on other grounds by Hildalgo v. Eighth Judicial Dist. Court, 124 Nev. 330, 341, 184 P.3d 369, 377 (2008). “Where the circumstances establish urgency or strong necessity, or an important issue of law requires clarification and public policy is served by this court’s exercise of its original jurisdiction, this court may exercise its discretion to consider a petition for extraordinary relief.” Schuster v. Eighth Judicial Dist. Court, 123 Nev. 187, 190, 160 P.3d 873, 875 (2007). Rugamas’ petition raises an important issue of law that needs clarification: the applicability of
Hearsay and grand jury proceedings
The Nevada Legislature has chosen to preclude a grand jury from considering hearsay evidence. Under Nevada law, a “grand jury can receive none but legal evidence ... to the exclusion of hearsay or secondary evidence.” NRS 172.135(2). The threshold question thus is whether the victim’s out-of-court statements were hearsay for purposes of NRS 172.135(2).
We have observed that the “definition of hearsay as used in NRS 172.135(2) is the same as that found in NRS 51.035.” Gordon v. Eighth Judicial Dist. Court, 112 Nev. 216, 223, 913 P.2d 240, 245 (1996). NRS 51.035 defines hearsay as an out-of-court statement offered to prove the truth of the matter asserted. Excluded from that definition, however, are certain statements made by a person who testifies at the proceeding and is subject to cross-examination about the statements and certain statements made or adopted by a party-opponent or made by a party-opponent’s agent or cocon-spirator. NRS 51.035(2), (3). Here, the district court determined that the victim’s statements were not hearsay because they were inconsistent with her grand jury testimony.
When a witness’s out-of-court statements are inconsistent with her testimony, those statements are not hearsay if the witness “testifies at the . . . hearing and is subject to cross-examination concerning the statement.” NRS 51.035(2)(a). If these requirements are met, the statements are admissible as substantive evidence, Miranda v. State, 101 Nev. 562, 567, 707 P.2d 1121, 1124 (1985), overruled on other grounds as recognized in Bejarano v. State, 122 Nev. 1066, 1076 n.34, 146 P.3d 265, 272 n.34 (2006), even in grand jury proceedings, because they are by definition not hearsay. At least one of the statutory requirements was not met here. Although the victim testified at the grand jury hearing, she was not subject to cross-examination concerning the statements. The statements therefore were not excluded from the definition of
As a secondary basis for its determination that the statements were not hearsay, the district court also observed that the statements were “impeachment evidence of the victim.” This is true as a general proposition—a witness’s inconsistent statements may call the witness’s veracity into question, thus impeaching the witness’s credibility. Inconsistent statements may be used as impeachment evidence consistent with NRS 50.075 (cited in the district court’s order) and NRS 50.135. See Miranda, 101 Nev. at 567, 707 P.2d at 1124. When used solely for the limited purpose of impeachment, inconsistent statements are not hearsay because they are not being offered for the truth of the matter asserted in the statements. See NRS 51.035. But here the statements were used primarily (if not entirely) for the truth of the matter asserted in the statements—the statements were offered to prove that Rugamas touched the victim’s vaginal area over and under her clothing; there was no other evidence offered to prove that conduct. Evidence that is offered for the truth of the matter asserted is being used as substantive evidence. See Black’s Law Dictionary 640 (9th ed. 2009) (defining “substantive evidence” as that “offered to help establish a fact in issue, as opposed to evidence directed to impeach or to support a witness’s credibility”). Inconsistent statements may be used as substantive evidence only if they meet the requirements of NRS 51.035(2)(a); otherwise, they may be used solely for the limited purpose of impeachment.
NRS 51.385 and grand jury proceedings
Our conclusion that the statements were hearsay is not disposi-tive of the petition because the statutory exclusion of hearsay in
The hearsay exception set forth in NRS 51.385 is markedly different from other statutory hearsay exceptions. Unlike most other statutory hearsay exceptions, NRS 51.385 attaches specific conditions to the admission of evidence that necessitate a hearing and findings by the court before the evidence is admissible. Lytle v. State, 107 Nev. 589, 591, 816 P.2d 1082, 1083 (1991), overruled on other grounds by Braunstein v. State, 118 Nev. 68, 77, 40 P.3d 413, 420 (2002). We have described the statute as providing a setting in which “reliability may be more vigorously contested and more accurately discerned.” Bockting v. State, 109 Nev. 103, 109, 847 P.2d 1364, 1368 (1993). The language in the statute and the nature of grand jury proceedings lead us to conclude that this statutory hearsay exception does not apply to grand jury proceedings.
In deciding whether NRS 51.385 applies to grand jury proceedings, we first look to the plain language of the statute. “When a statute is facially clear, this court will give effect to the statute’s plain meaning and not go beyond the plain language to determine the Legislature’s intent.” Sonia F. v. Eighth Judicial Dist. Court, 125 Nev. 495, 499, 215 P.3d 705, 707 (2009); Speer v. State, 116 Nev. 677, 679, 5 P.3d 1063, 1064 (2000) (“ ‘Generally, when the words in a statute are clear on their face, they should be given their plain meaning unless such a reading violates the spirit of the act.’” (quoting Anthony Lee R. v. State, 113 Nev. 1406, 1414, 952
The State suggests that the safeguards contemplated by NRS 51.385 will not be obviated because the defendant can raise the ev-identiary issue after the grand jury proceeding by filing a pretrial
Having concluded that the victim’s out-of-court statements describing Rugamas’ alleged sexual conduct were hearsay and could not be admitted at the grand jury proceeding under the hearsay exception set forth in NRS 51.385, we must determine whether
Gibbons and Douglas, JJ., concur.
Rugamas also argues that the grand jury proceedings were deficient because the prosecutor failed to notify him of the time and date of the grand jury hearing as required by NRS 172.241 and did not present exculpatory evidence at the hearing as required by NRS 172.145(2). Because we grant Rugamas’ petition on another basis, we need not consider those challenges.
Although A.C.’s statements to Y.V. and Elsa about where Rugamas touched her were nonverbal (she pointed toward her vaginal area), her nonverbal conduct was intended as an assertion that Rugamas touched her private area. Those nonverbal assertions constituted hearsay. See NRS 51.045(2); see also 30B Michael H. Graham, Federal Practice & Procedure § 7002, at 24-25 (interim ed. 2011) (“Nodding, pointing, and the sign language of the hearing impaired are as plainly assertions as are spoken words.”).
Because the statements were not used for the limited purpose of impeachment, we need not address whether the testimony about the statements was extrinsic evidence of the victim’s prior inconsistent statements that would have been inadmissible under NRS 50.135(2) because Rugamas had no opportunity to cross-examine the victim about the statements.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.