JOSEPH MANUEL RODRIGUEZ, Appellant, v. THE STATE OF NEVADA, Respondent
Rodriguez v. State
JOSEPH MANUEL RODRIGUEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
JOSEPH MANUEL RODRIGUEZ, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 21226
June 27, 1991
813 P.2d 992
Morgan D. Harris, Public Defender, and Robert L. Miller, Deputy and Stephen J. Dahl, Deputy, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Rex Bell, District Attorney, and James Tufteland, Deputy and Robert Langford, Deputy, Clark County, for Respondent.
OPINION
Per Curiam:
A jury convicted Joseph Manuel Rodriguez of one count of first degree kidnapping and three counts of sexual assault. The indictment charged appellant as an aider and abettor in the commission of the kidnapping, and as an aider and abettor in two of the sexual assault charges. On appeal, Rodriguez challenges the sufficiency of the evidence supporting the convictions for which he was charged as an aider and abettor. We hold that there was insufficient evidence to support the challenged convictions and therefore reverse in part.
FACTS
On August 18, 1989, the victim went to the Guadalajara Bar. While there, she met a male acquaintance, who was accompanied by four other men. One of these men identified himself as "Carlos." After the victim left the bar on foot, she was accosted by Carlos and another man from the bar, later identified as William Bermudez. Carlos took the victim's purse. The victim protested, telling the men she wanted to go home. The men allowed the victim to continue on her way. The victim then walked in the direction of Fantasy Park. As she entered the park, the victim was suddenly grabbed from behind by Bermudez. Bermudez pushed the victim, she slipped, and they fell down onto the ground. Then, while Carlos held her hands above her head, Bermudez sexually assaulted the victim. The three other men from the Guadalajara Bar appeared on the scene. Carlos was the next to sexually assault the victim, followed by two of the other three men from the bar. Bermudez then got on top of the victim again, and was caught in that position by the arriving police.
At trial, the victim identified appellant as one of the men who had sexually assaulted her. Metropolitan Police Department Criminalist Terry Cook testified that appellant was among the three to three and one-half percent of the population which could not be eliminated as a donor of sperm found in vaginal swabs taken from the victim on August 18, 1989.
Following trial, the jury found appellant guilty on Count I (aiding and abetting in the commission of first degree kidnapping), Count IV (sexual assault as a principal), Count XI (aiding and abetting William Alexander Bermudez in the commission of sexual assault) and Count XII (aiding and abetting Cristobal Abrejo in the commission of sexual assault).
DISCUSSION
In reviewing the sufficiency of the evidence supporting a jury's verdict, the question is whether a rational jury could have been convinced of the defendant's guilt beyond a reasonable doubt by the evidence it had a right to consider. See Holyfield v. State, 101 Nev. 793, 805, 711 P.2d 834, 842 (1985); Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980).
The kidnapping charge was found in Count I of the indictment charging Cristobal Abrejo, William Alexander Bermudez and appellant. Count I charged the defendants with aiding and abetting each other in kidnapping the victim by physically restraining her and thereby preventing her escape, or by acting as lookouts for each other while each defendant sexually assaulted her.
Count XI of the indictment charged appellant with aiding and abetting William Alexander Bermudez in the sexual assault of the victim by physically restraining her and thereby preventing her escape, or by acting as a lookout while Bermudez committed the sexual assault. Count XII charged appellant with aiding and abetting Cristobal Abrejo in the sexual assault of the victim in the same way.
After reviewing the record and the briefs, and after hearing oral argument, we conclude that there was insufficient evidence to support the jury's verdicts of guilty under Counts I, XI and XII. While there was ample evidence presented that appellant personally sexually assaulted the victim, there was no evidence presented that appellant in any way aided and abetted the other suspects in kidnapping the victim or in sexually assaulting her. On the contrary, the evidence presented tended to show that appellant did not commit those crimes. For example, the victim, the sole witness of the attack who testified, stated that only Carlos and Bermudez were involved in forcing her into the park. The victim likewise identified only Carlos and Bermudez as having restrained her during the attack. The victim testified that appellant arrived on the scene after Bermudez had already sexually assaulted her, and testified to no actions by appellant except for the actual sexual assault. Finally, the victim made absolutely no mention of anyone acting as a lookout. In summary, the state presented absolutely no evidence to prove the specific acts charged in the indictment, i.e., that appellant prevented the victim's escape while others assaulted her, or acted as a lookout while others sexually assaulted her.
It is well established that mere presence at the scene of a crime cannot support an inference that one is party to an offense. Winston v. Sheriff, 92 Nev. 616, 555 P.2d 1234 (1976). Thus, although we share the jury's outrage over the acts of violence perpetrated against this young woman, we are unable to affirm the convictions that are based on aiding and abetting. Accordingly, we reverse the judgments of conviction for first degree kidnapping (Count I), and sexual assault by aiding and abetting (Counts XI and XII). We affirm appellant's judgment of conviction for sexual assault (Count IV).
NRS 200.310 provides in pertinent part:
1. Every person who willfully seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any person by any means whatsoever with the intent to hold or detain, or who holds or detains, the person for ransom, or reward, or for the purpose of committing sexual assault, extortion or robbery upon or from the person, or for the purpose of killing the person or inflicting substantial bodily harm upon him, or to exact from relative, friends, or any other person any money or valuable thing for the return or disposition of the kidnapped person . is guilty of kidnapping in the first degree.
NRS 200.366 provides in pertinent part:
1. A person who subjects another person to sexual penetration . . . against the victim's will or under conditions in which the perpetrator knows or should know that the victim is mentally or physically incapable of resisting or understanding the nature of his conduct, is guilty of sexual assault.