SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v. JERRY MILEY, Respondent
Sheriff v. Miley
Manoukian, C. J., and Mowbray, J., concur.
SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v. JERRY MILEY, Respondent.
SHERIFF, WASHOE COUNTY, NEVADA, Appellant, v. JERRY MILEY, Respondent.
No. 14627
May 19, 1983
663 P.2d 343
Mills B. Lane, District Attorney, Washoe County, for Appellant.
David G. Parraguirre, Acting Public Defender, Washoe County, for Respondent.
OPINION
By the Court,
Steffen, J.:
On August 4, 1982, Jerry Miley was charged by indictment with: (1) attempted murder in violation of NRS 200.010 and NRS 208.070; (2) child abuse causing substantial bodily and mental harm in violation of NRS 200.508; (3) lewdness with a child under the age of fourteen (14) in violation of NRS 201,230; and (4) battery with intent to commit sexual assault causing substantial bodily harm in violation of NRS 200.400(3). Thereafter, Miley petitioned the district court for a pretrial writ of habeas corpus contending that the evidence presented at the grand jury proceeding was insufficient to establish probable cause for the above four charges. After a hearing, the district court concluded that insufficient evidence was presented to support the charges of lewdness with a child under the age of fourteen and battery with intent to commit sexual assault. Accordingly, these charges were dismissed from the indictment and Miley was held for trial only on charges of attempted murder and child abuse. This appeal by the state followed. We reverse.
The evidence presented to the grand jury established that the victim, a 12-year-old female child, was staying at a motel one evening with her mother, her one-year-old sister, and Jerry Miley. The victim's mother had left the motel room, however, to go to work. The victim testified that she was lying on the bed watching television. She was wearing a nightgown and underpants. Miley lunged at her and began choking her while pinning her legs to the bed. Additionally, she testified that Miley put a pillow over her face so she could not breathe. She lost and regained consciousness periodically during the attack. She awoke to find blood running from her nose, mouth and throat. She was still wearing her nightgown; it was covered with blood. An ambulance was called by a neighbor and the victim was taken to the hospital. The treating physician testified to her numerous injuries including blood in the white areas of her eyes, bruised areas on her face and abrasions on her neck. He noted that her injuries were consistent with strangulation. He also discovered a clear fluid at the entrance of her vagina which was sent for a sperm analysis. He testified that the victim was not wearing underpants.
In grand jury proceedings, the state need only show that a crime has been committed and that the accused probably committed it. The finding of probable cause to support a criminal charge may be based on "slight, even 'marginal' evidence . . . because it does not involve a determination of the guilt or innocence of an accused." Sheriff v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180 (1980). "To commit an accused for trial, the State is not required to negate all inferences which might explain his conduct, but only to present enough evidence to support a reasonable inference that the accused committed the offense." Kinsey v. Sheriff, 87 Nev. 361, 363, 487 P.2d 340, 341 (1971).
Our dissenting brethren view the majority holding as an assault on the integrity of this court's ruling in Sheriff v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981). We do not so view it. The vitality of Provenza remains, including the standard of "substantial error" which it enjoins us to find as a predicate to overturning the granting of pretrial habeas petitions for a lack of probable cause. We must, however, apply that standard in the context of the state's burden to support a probable cause determination by evidence which is only "slight" or "marginal." Here, it is again noted that the record reflects the following salient testimony: (a) at the time the victim was attacked, there were three persons present (the victim, her one-year-old sister and Miley); (b) immediately prior to the attack, Miley was sitting at the head of the bed in his shorts, and the victim was lying at the foot of the bed in her underpants and nightgown watching television; (c) there had been no arguing between Miley and the victim; (d) without apparent provocation, Miley attacked the victim and commenced choking her and covering her face with a pillow; (e) the victim lost consciousness periodically during the attack and awoke from her final such episode to the screaming of her baby sister and the loud banging on the door by a neighbor; (f) the victim was bleeding from her nose and mouth, her nightgown was full of blood, and when the neighbor saw her he rushed to the phone; (g) the victim was taken to the hospital by ambulance; (h) the victim said she "couldn't tell" whether her underpants were on at the time she struggled from the bed to her neighbor at the door; (i) when the victim arrived at the hospital she heard someone "mention something" about her underpants; and (j) she had "no idea" where her underpants were finally discovered.
In light of the foregoing testimony, the "slight evidence" standard is clearly satisfied. It hardly offends reason to infer from the foregoing circumstances that Miley was sexually motivated to attack the child. She knew she was wearing her underpants prior to the assault, and although in her traumatized state immediately after reviving from her last period of unconsciousness she "couldn't tell" whether she was still wearing her underpants, it is most likely or at least inferable that she would have known thereafter if someone had removed them. At the time she was examined by the emergency room physician she was not wearing underpants and she had no idea what had happened to them. It would appear that one would have to strain to infer the likelihood of the removal of her underpants by ambulance personnel while enroute to the hospital. It seems equally strained to assume that the child, who was sufficiently alert to notice someone mentioning the subject of her underpants at the hospital, was unaware of the removal of this garment by hospital personnel if indeed such had occurred. The force of reason would thus seem to support the inference that the child's underpants were removed by Miley during the unprovoked assault. The fact that all other possible inferences are not eliminated by the testimony of record does not prevent a determination of probable cause. Kinsey v. Sheriff, supra.
The "slight evidence" standard is a salutary one which facilitates the legitimate public expectancy that persons charged with criminal conduct will be held to answer such charges when evidence exists upon which it may be reasonably inferred that the person so charged actually committed the offense. While considerations of judicial economy and fundamental fairness are important, they must not outweigh the state's imperative to prosecute those who are fairly within the probable cause category. In the instant case, as in all others, the state will have to prove Miley's guilt beyond a reasonable doubt. It should be allowed the opportunity to do so.
Based on the evidence presented to the grand jury, we believe there was probable cause to indict Miley for lewdness with a child under the age of fourteen and battery with intent to commit sexual assault. Furthermore, under the circumstances presented here, we conclude that the district court committed substantial error in granting Miley's petition. See Sheriff v. Provenza, supra. Accordingly, the order granting the pretrial writ of habeas corpus is reversed. The charges of lewdness with a child under fourteen and battery with intent to commit sexual assault are hereby reinstated.
Manoukian, C. J., and Mowbray, J., concur.
The results of this analysis were not introduced at the grand jury proceeding.
In light of this disposition, we need not address appellant's request for permission to file briefs or, alternatively, to argue orally this appeal. NRS 34.380(5).