his truthfulness based on the charges against him because he has a 

constitutional right to testify and is guaranteed the presumption of 

innocence. Wagstaff failed to object to these questions and comments, and 

we review for plain error. NRS 178.602; Green v. State, 119 Nev. 542, 545, 

80 F'.3d 93, 95 (2003). "In conducting plain error review, we must examine 

whether there was 'error,' whether the error was 'plain' or clear, and 

whether the error affected the defendant's substantial rights." Green, 119 

Nev. at 545, 80 P.3d at 95. Wagstaff has not cited to any relevant case law 

prohibiting the questions and comments made by the State, and our 

review of the record reveals that the jury was instructed that the 

defendant is presumed innocent until the contrary is proven. Accordingly, 

Wagstaff has failed to establish plain error. See id. (explaining that "the 

burden is on the defendant"). 

Third, Wagstaff contends that the State committed 

prosecutorial misconduct by mischaracterizing the evidence and 

inappropriately inserting its personal opinion during closing arguments. 

Only one of the comments was objected to by Wagstaff, and the jury was 

admonished to disregard the State's use of the word "we." We conclude 

that this error was harmless. See Summers v. State, 122 Nev. 1326, 1333, 

148 P.3d 778, 783 (2006) (explaining that this court generally presumes 

that a jury follows the district court's instructions). As to the State's other 

comments, we conclude that they referred to the testimony of witnesses or 

were permissible inferences based on the evidence presented. Accordingly, 

the State did not commit prosecutorial misconduct in this regard. 

Fourth, Wagstaff contends that the district court was required 

to instruct the jury, sua sponte, on the lesser-included offense of 

misdemeanor battery. Misdemeanor battery is not a lesser-included 

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offense of lewdness with a child because all of the elements of 

misdemeanor battery are not included in the greater offense. See Rosas v. 

State, 122 Nev. 1258, 1263, 147 P.3d 1101, 1105 (2006); see also NRS 

201.230(1); NRS 200.481(1)(a); State v. Catanio, 120 Nev. 1030, 1036, 102 

P.3d 588, 592 (2004) (explaining that lewdness with a child does not 

require force or violence). Therefore, this contention lacks merit. 

Fifth, Wagstaff contends that the district court erred by 

excluding a medical record. We disagree. NRS 52.015(1) requires 

documents to be authenticated before they are admitted into evidence. 

Wagstaff failed to authenticate the document, and we conclude that the 

district court did not err by excluding it. 

Sixth, Wagstaff contends that the district court erred by 

admitting prior uncharged acts of sexual misconduct to establish motive 

because his motive was not at issue and there was not clear and 

convincing evidence to support the admission of these acts. We disagree. 

The district court held the appropriate hearing and heard sufficient 

testimony from witnesses supporting the occurrence of these acts before 

making the appropriate findings as to each of the Tinch factors. See 

Bigpond v. State, 128 Nev. „ 270 P.3d 1244, 1249-50 (2012) 

(modifying Tinch and explaining that the three-factor test for 

admissibility includes a relevance requirement); see also NRS 48.015 

(defining relevant evidence). Furthermore, this court has explicitly found 

that prior uncharged acts of sexual misconduct are admissible under NRS 

48.045(2) to prove motive so long as the three-factor test for admissibility 

is satisfied. Ledbetter v. State, 122 Nev. 252, 262, 129 P.3d 671, 678 

(2006). Accordingly, we cannot conclude that the district court manifestly 

3 
abused its discretion by admitting this evidence. See Bigpond, 128 Nev. at 

270 P.3d at 1250. 

Seventh, Wagstaff contends that the State committed 

prosecutorial misconduct by repeatedly asking him on cross-examination 

whether the witnesses against him were liars. Wagstaff failed to object to 

these comments and we review for plain error. NRS 178.602; Green, 119 

Nev. at 545, 80 P.3d at 95. In Nevada, prosecutors are prohibited from 

"asking a defendant whether other witnesses have lied or from goading a 

defendant to accuse other witnesses of lying, except where the defendant 

during direct examination has directly challenged the truthfulness of 

those witnesses." Daniel v. State, 119 Nev. 498, 519, 78 P.3d 890, 904 

(2003). Here, the prosecutor directly asked the defendant at least seven 

times whether three of the four witnesses against him were liars. 

Wagstaff did not directly challenge the truthfulness of these witnesses 

during direct examination. We conclude that prosecutorial misconduct is 

clear from the record. See id. However, Wagstaff has not shown that this 

error, standing alone, "(1) had a prejudicial impact on the verdict when 

viewed in context of the trial as a whole, or (2) seriously affects the 

integrity or public reputation of the judicial proceedings." Libby v. State, 

109 Nev. 905, 911, 859 P.2d 1050, 1054 (1993), vacated on other grounds, 

516 U.S. 1037 (1996). Accordingly, we conclude that Wagstaff has not 

established plain error. 

Eighth, Wagstaff contends that the district court erred by 

instructing the jury that they could consider uncharged acts of sexual 

touching for the "purpose of showing the defendant's motive; opportunity; 

intent; preparation; plan; knowledge; identity; or absence of mistake or 

accident." Wagstaff argues that the district court erred by instructing the 

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jury that they could consider the uncharged acts for all of these purposes 

because the district court only determined that this evidence was relevant 

to prove motive. Wagstaff failed to object to this instruction, and we 

review for plain error. NRS 178.602; Green, 119 Nev. at 545, 80 P.3d at 

95. 

This court recently reaffirmed the requirements for the State 

to overcome the presumption of inadmissibility that attaches to all prior 

bad acts evidence. See Bigpond, 128 Nev. at , 270 P.3d at 1249. As we 

explained, "bad acts are often irrelevant" and the district court must hold 

a hearing and determine whether the acts are relevant for a 

nonpropensity purpose. Id. (internal quotation marks omitted). This 

inquiry includes uncharged acts of sexual misconduct, which may only be 

relevant for certain purposes. See Ledbetter, 122 Nev. at 260-61, 129 P.3d 

at 677-78 (explaining that uncharged acts of sexual misconduct were 

relevant to prove motive but irrelevant to prove common scheme or plan, 

identity, intent or absence of mistake or accident); Braunstein v. State, 118 

Nev. 68, 73, 75, 40 P.3d 413, 417-18 (2002) (explaining that uncharged 

acts of sexual misconduct were relevant to prove a common scheme or plan 

but irrelevant to prove the accused's intent). 

Here, the district court held the appropriate hearing and 

determined that the uncharged bad acts were relevant to prove motive. It 

did not decide whether these acts were relevant for any other purpose, 

including those listed in NRS 48.045(2). Therefore, the presumption of 

inadmissibility was only overcome with respect to the permissible purpose 

of motive, and we conclude that the district court erred by failing to limit 

the jury instruction to this purpose alone. Although we conclude that the 

district court erred by issuing this instruction, Wagstaff has not met his 

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burden of establishing that this error, standing alone, affected his 

substantial rights. Green, 119 Nev. at 545, 80 P.3d at 95. Accordingly, we 

conclude that Wagstaff has not established plain error. 

Ninth, Wagstaff contends that the district court erred by 

giving the jury a general intent instruction. Wagstaff failed to object to 

this instruction, and we review for plain error. NRS 178.602; Green, 119 

Nev. at 545, 80 P.3d at 95. The jury was instructed that: 

The word "willfully," when applied to intent with 

which an act is done or omitted, as used in the 

instruction, implies simply a purpose or 

willingness to commit the act or to make the 

omission in question. The word does not require 

in its meaning any intent to violate the law, or to 

injure another, or to acquire any advantage. 

This is a general intent instruction. See Childers v. State, 100 Nev. 280, 

282-83, 680 P.2d 598, 599 (1984). The crime of lewdness with a child is a 

specific intent crime. See Catanio, 120 Nev. at 1036, 102 P.3d at 592. It is 

error to instruct the jury on general intent in a case where the crime 

charged requires specific intent. People v. Hill, 429 P.2d 586, 595 (Cal. 

1967); People v. Geibel, 208 P.2d 743, 761 (Cal. Ct. App. 1949). This is 

because such an instruction "tends to create confusion." People v. Booth, 

243 P.2d 872, 873-74 (Cal. Ct. App. 1952); accord Geibel, 208 P.2d at 761 

(explaining that such an instruction "normally would serve only to confuse 

or mislead the jurors and make it impossible to determine whether, in 

their deliberations, they followed the law as correctly or incorrectly given 

to them"). 

Because the district court clearly erred, we must determine 

whether this error affected Wagstaffs substantial rights. Green, 119 Nev. 

at 545, 80 P.3d at 95; see also Hill, 429 P.2d at 595 (examining 

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instructions to determine whether the general intent "is clearly qualified 

by a specific intent instruction which leaves no doubt in the jury's mind 

that specific intent is not to be automatically inferred from the doing of the 

physical acts involved in the crime"); Booth, 243 P.2d at 874 (concluding 

that there was no prejudicial error where the nature of the lewd act "was 

such as to preclude the belief they were committed without criminal 

intent"). Here, the jury was also instructed that the State must prove 

beyond a reasonable doubt that Wagstaff had "the intent of arousing, or 

appealing to, or gratifying the lust or passions or sexual desires of the 

defendant or of that child." In addition, defense counsel argued to the jury 

that the State must prove specific intent and, on rebuttal, the State 

emphasized the specific intent required by the statute. Therefore, we 

cannot say that this error, standing alone, "had a prejudicial impact on the 

verdict when viewed in context of the trial as a whole." Libby, 109 Nev. at 

911, 859 P.2d at 1054. Accordingly, we conclude that Wagstaff has not 

established plain error. See Green, 119 Nev. at 545, 80 P.3d at 95. 

Tenth, Wagstaff contends that there was cumulative error. 

"When evaluating a claim of cumulative error, we consider the following 

factors: (1) whether the issue of guilt is close, (2) the quantity and 

character of the error, and (3) the gravity of the crime charged." Valdez v. 

State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008) (internal quotation 

marks omitted). We conclude that the issue of innocence or guilt was close 

enough that, although the evidence was sufficient to support the jury's 

verdict, it was not overwhelming, and therefore cannot overcome the 

prejudice caused by the accumulated errors. 

The six-year-old victim testified that she was watching the 

2008 Nevada Day parade in Carson City and sitting on the left leg of her 

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grandfather, Wagstaff, with a blanket covering both of them, when she felt 

Wagstaff rubbing her "parts." The victim's 23-year-old cousin testified 

that she was sitting next to Wagstaff in a low beach chair and she was 

able to look through the blanket and see his left hand rotating in a circular 

motion on the victim's vagina. Wagstaff testified that he did not rub the 

victim's vagina but he often rubbed his arthritic knee to help alleviate 

pain. Wagstaff testified that he believed the cousin, who had been a 

victim of sexual assault at age 14, misinterpreted what she saw and 

influenced the victim's testimony during the two years that elapsed 

between the parade and the involvement of law enforcement. Wagstaff 

also testified that his daughter and grandchildren never mentioned the 

allegations until two years after the parade and he continued to watch the 

victim and pick her up from school during that time. 

Three witnesses testified that the victim told them that her 

grandfather rubbed her vagina during the parade. Although they differed 

as to the number of occasions, these witnesses also testified that the 

victim told them that Wagstaff had rubbed her vagina on at least one 

previous occasion while she sat on his lap at his home. Two witnesses 

testified that the victim told them that Wagstaff also tried to pull her 

hand toward his penis. Although the victim did not testify to this incident 

during trial or at the pretrial hearing, the district court permitted the 

witnesses to testify to the victim's statement pursuant to NRS 51.385. 

During closing arguments the State explicitly instructed the jury that they 

could consider these prior incidents to prove that Wagstaff had the intent 

to arouse, appeal to, or gratify the lust or passions or sexual desires of 

himself, to prove that the sexual touching was not the result of an accident 

or mistake, and to establish Wagstaffs motive to engage in such touching. 

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_ . 
rel 

As for the second factor of our cumulative error analysis, we 

conclude that the quantity and character of the errors were substantial. 

The State capitalized on its prosecutorial misconduct by arguing to the 

jury that the victim had essentially been called a liar and will have to 

worry about being punished for being called a liar because Wagstaff had 

been a disciplinarian in the household. In addition, the district court 

issued an erroneous instruction on general intent in a case where 

Wagstaffs intent was a central issue, risking confusion of the jury during 

its deliberations. Finally, the State referenced the erroneous jury 

instruction and emphasized to the jury that the prior acts of sexual 

misconduct were admissible to prove intent and absence of mistake or 

accident, knowing that the district court did not admit them for this 

purpose. 

The effect of this last error may have been particularly 

prejudicial. In order to be relevant, and thus admissible under this court's 

prior bad acts jurisprudence, the testimony about the prior bad acts must 

make it more probable that Wagstaff had criminal intent and did not act 

by accident or mistake during the parade. See Bigpond, 128 Nev. at , 

270 P.3d at 1250 (evaluating prior bad act to determine whether it is 

relevant to the stated nonpropensity purpose); see also NRS 48.015 

(defining relevant evidence). While the prior rubbing at Wagstaffs home 

would make it more probable that the parade rubbing was not accidental, 

the other incident involving Wagstaff trying to pull the victim's hand does 

not make it more probable that Wagstaff did not accidentally touch the 

victim's vagina during the parade. Furthermore, we have previously held 

that evidence that an accused possesses a propensity for sexual aberration 

is not relevant to the accused's intent. Braunstein, 118 Nev. at 73, 40 P.3d 

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at 417. Assuming Wagstaffs prior act of pulling the victim's hand toward 

his penis shows his intent to arouse his sexual desire, this prior act would 

not make it more probable that he had the same intent on the day of the 

parade because there was no evidence presented that Wagstaff tried to 

pull the victim's hand toward his penis during the parade. Thus, it 

appears that the State was referring to Wagstaffs propensity for sexual 

aberration when it argued to the jury that it could consider the testimony 

about this prior incident to show that Wagstaff had the required sexual 

intent on the day of the parade. This is an improper basis for admitting 

this evidence and may have affected the outcome of the proceedings. See 

id. 

As for the third cumulative error factor, we conclude that the 

crime charged is very grave. But the evidence was not overwhelming and 

"[w] e cannot say without reservation that the verdict would have been the 

same in the absence of error." Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 

1288, 1289 (1985). 

Having considered all three factors, we conclude that the 

cumulative effect of the errors denied Wagstaff a fair trial and requires 

reversal of his conviction, and we 

ORDER the judgment of conviction REVERSED AND 

REMAND this matter to the district court for proceedings consistent with 

this order. 

/14.A. eigt.4.1Z\ 

Hardesty 

J. 

J. 

10 
PARRAGUIRRE, J., dissenting: 

I would affirm the judgment of conviction because I disagree 

with the majority's conclusion that Wagstaff has met his burden of 

showing that the cumulative effect of the nonconstitutional errors resulted 

in actual prejudice or a miscarriage of justice. See Green, 119 Nev. at 545, 

80 P.3d at 95. The victim testified that Wagstaff rubbed her vagina 

during the parade. The victim's 23-year-old cousin testified that she 

personally observed Wagstaff rubbing the victim's vagina. The victim's 

mother testified that the victim told her about the incident on the day of 

the parade shortly after it occurred. Based on this strong evidence, I am 

not convinced that the errors affected Wagstaff s substantial rights, even 

when they are considered cumulatively. See Gaxiola v. State, 121 Nev. 

638, 649, 119 P.3d 1225, 1233 (2005) (explaining that the victim's 

testimony alone is sufficient to uphold a conviction for lewdness with a 

child). I respectfully dissent. 

pc 11*,4.01t 

Parraguirre 

cc: Hon. James Todd Russell, District Judge 

Richard F. Cornell 

Attorney General/Carson City 

Carson City District Attorney 

Carson City Clerk 

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