SHAWN TIMOTHY NEWMAN, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 56151 

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129 Nev., Advance Opinion 2.4 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

Appeal from a judgment of conviction, purs`tiant to a jury 

verdict, of battery by strangulation and willfully endangering a child as a 

result of child abuse. Second Judicial District Court, Washoe County; 

Patrick Flanagan, Judge. 

Affirmed. 

Jeremy T. Bosler, Public Defender, and Cheryl Bond, Appellate Deputy 

Public Defender, Washoe County, 

for Appellant. 

Catherine Cortez Masto, Attorney General, Carson City; Richard A. 

Gammick, District Attorney, and Gary H. Hatlestad, Chief Appellate 

Deputy District Attorney, Washoe County, 

for Respondent. 

BEFORE PICKERING, C.J., HARDESTY and CHERRY, JJ. 

OPINION 

By the Court, PICKERING, C.J.: 

Appellant Shawn Newman appeals his conviction, on jury 

verdict, of one count of willfully endangering a child as a result of child 
abuse, a gross misdemeanor, and one count of battery by strangulation, a 

felony. The charges grew out of an incident in which Newman yelled at 

his son, Darian, in public; when Newman took off his belt to strike the boy, 

a witness, Thomas Carmona, tried but failed to stop him. Newman and 

Carrnona fought until Newman grabbed Carmona's neck to choke him into 

submission. At trial, Newman admitted these facts and that he acted 

intentionally. His defense was justification: parental discipline privilege 

as to the child abuse charge; and, to some extent, self-defense as to the 

battery charge. 

Newman raises two issues on appeal, both rooted in NRS 

48.045's prohibition against using character or prior-bad-act evidence to 

prove criminal propensity. First, the prosecution introduced evidence that 

Newman had struck his other son, Jacob, in public and that Newman got 

into a heated argument with nursing staff about Jacob while Darian was 

hospitalized for an appendectomy. The district court deemed this evidence 

admissible under NRS 48.045(2) to show absence of mistake or accident as 

to the child abuse charge. Second, the prosecution presented a surprise 

rebuttal witness, Connie Ewing, who reported that she, too, had a heated 

but nonphysical exchange with Newman over his disciplining a young boy 

outside a local Walmart. The district court allowed this testimony as 

rebuttal under NRS 48.045(1)(a) and NRS 48.055, to rebut Newman's 

testimony that he strangled Carmona in self-defense. 1 

1Newman also argues ineffective assistance of trial counsel based on 

his lawyer's statement to the district court, arguing against the admission 

of Ewing's testimony, that she would have urged Newman not to testify if 

she had known about Ewing. We normally do not "consider ineffectiveassistance-of-counsel claims on direct appeal unless the district court has 

held an evidentiary hearing on the matter or an evidentiary hearing would 

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2 
Evidence of one of the episodes involving Jacob was properly 

admitted to refute Newman's claim of parental privilege. The other 

episodes involving Jacob were not proven by clear and convincing 

evidence, as required by our case law, and it was an abuse of discretion to 

admit the Ewing testimony. Nonetheless, Newman's guilt was established 

by his own admissions and overwhelming evidence. We therefore conclude 

that the errors were harmless and affirm. 

I. 

A. 

The incident underlying this appeal occurred on September 

14, 2009. At the time, Newman was a single father raising two sons: 

twelve-year-old Darian and six-year-old Jacob. Darian had started middle 

school the previous week. Jacob's day care opened at 7 a.m. and Darian 

needed to be to middle school by 7:30 a.m. The family's apartment was 

close to both. Darian had recently gotten a bike with gear-speeds. The 

plan was for Darian, who felt uncomfortable riding double with Jacob, to 

walk Jacob and the bicycle to Jacob's day care and to ride from there to 

middle school. The timing was tight and the first week this plan did not 

work out. One day, Newman went looking for Darian along what he 

thought was his route but could not find him. Another day, Darian got 

lost and was tardy. 

...continued 

be needless." Archanian v. State, 122 Nev. 1019, 1036, 145 P.3d 1008, 

1020-21 (2006). The district court did not hold an evidentiary hearing and 

one would be needed to determine whether Newman would have testified 

no matter what his lawyer said. Therefore, we do not reach his ineffectiveassistance-of-counsel claim. 

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Six weeks earlier, in late July, Darian had been hospitalized 

for appendicitis. A secondary infection developed that extended his 

hospital stay to 19 days. The wound was dressed, not sutured closed, 

meaning it had to be cleaned and the dressing changed daily while the 

open incision healed. On September 14, the wound had mostly closed but 

still required daily dressing, which Newman attended to. 

On the day of the incident, Newman followed Darian in his 

truck to see his son's exact route. All went well until Darian, who had his 

new bike in third gear, could not make it up a hill. Newman got out of his 

truck, put and rode the bike in lower gear to show Darian how the gearing 

worked, and then held the bike for Darian to try. For whatever reason—

Newman testified he saw Darian deliberately slip his foot off the pedal, 

while Darian told a responding officer he was tired and his stomach hurtDarian did not succeed, even in the lower gear. Admittedly angry, 

Newman started yelling at Darian. He gave Darian an ultimatum: ride 

the bike up the hill or be spanked. Darian let go of his bike, went to a low 

wall nearby, and bent over to be spanked. 

From his home across the street, Thomas Carmona heard the 

commotion and saw Newman take off his belt. Carmona ran over to stop 

him from striking the boy. They argued over Newman's right to physically 

discipline his child and then fought. The fight did not end until Newman 

pinned Carmona to the ground in a stranglehold. Carmona and Newman 

accused each other of throwing the first blow. Newman is bigger than 

Carmona and, unlike Carmona, looked none the worse for wear after their 

fight. Carmona and another eyewitness described Newman as in a rage 

and Darian as crying uncontrollably. One witness testified that Darian 

said his father terrified him. 

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When the police arrived, they found a red welt on Darian's 

buttocks, which they photographed. They also photographed Darian's 

abdominal bandage and healing incision. Paramedics examined Darian 

and Carmona but did not take either to the hospital. Carmona's Adam's 

apple was sore and it hurt to swallow for some days afterward. 

B. 

Trial took four days. The prosecution presented its case-inchief through eyewitness, responding officer, and expert medical testimony 

without using any prior-bad-act evidence. After the prosecution rested, 

the district court advised Newman of his right to testify in his own 

defense. The prosecution warned that it would explore prior bad acts if 

Newman testified that parental privilege justified his discipline of Darian. 

The district court then heard from the lawyers on the priorbad-act issue. No testimony was presented; the lawyers argued from a 

child protective services (CPS) report that the appellate record does not 

include. The transcript reveals that the CPS report lists two of the three 

incidents involving Jacob as "information only" under a heading, 

"unsubstantiated reports," and that the police investigated one of the 

incidents but could not verify it. Despite this, the district court 

determined that the following incidents were established by clear and 

convincing evidence and could be used by the prosecution if Newman 

testified: (1) Newman hit Jacob in November 2006, February 2009, and 

late July or early August 2009 when Darian was in the hospital; and (2) 

Newman had an ugly verbal run-in with hospital staff during Darian's 

stay. Although the court deemed this evidence more probative than 

prejudicial, it did not identify a permissible nonpropensity purpose for 

admitting it until later in the trial, when it held that the evidence tended 

to show absence of mistake or accident as to the child abuse charge. 

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Newman elected to testify. His direct-examination testimony 

hewed close to the events of September 14. He gave background 

concerning Darian's appendectomy and recuperation and explained why 

he followed Darian by truck instead of just driving him to school that day. 

He admitted that he gave Darian the choice of riding up the hill or being 

spanked; that he struck Darian on the buttocks with his belt, raising a 

welt; and that he fought with Carmona and put him in a stranglehold 

when Carmona would not back off. Finally, Newman testified that 

Carmona attacked him, not the reverse. He conceded being angry and 

loud but denied being out of control. 

On cross-examination, the prosecution asked Newman about 

the hospital incidents in late July/early August 2009. Newman admitted 

that he "smacked" Jacob on the back of the head for bouncing on Darian's 

bed and that he eventually got into such a heated argument with hospital 

staff over Darian's care and his and Jacob's use of a break room that he 

was told to leave and not come back. The prosecution had Newman 

acknowledge that he "grew up on the streets," is "on the hard side," and 

can be perceived as "an aggressive, loud, obnoxious kind of person." He 

said, "I don't hide anything I do. I will spank my children in public as I 

will in private." Newman described his progressive discipline of his sons, 

ranging from raised voice, to corner time, to spanking. He also described 

the special tutoring he had arranged for Darian and later Jacob at the 

University of Nevada Reno and expressed pride in Darian's reading level. 

When the prosecution asked Newman about the November 2006 and 

February 2009 incidents with Jacob mentioned (but not substantiated) in 

the CPS report, Newman said he did not recall either. 

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The defense then called the psychologist who counseled 

Darian after the charges in this case led to Darian and Jacob being 

removed from Newman's care. The psychologist characterized Newman's 

parenting style as between "authoritarian" and "autocratic" but also 

opined that Darian and Newman had "a fairly normal parent/child 

relationship." He testified that he had no qualms when Darian and Jacob 

were returned to Newman's care shortly before trial. 

After the defense rested, the prosecution alerted the court and 

the defense counsel to Connie Ewing, who came forward after reading 

about the case in the newspaper. She related an incident involving a 

stranger she now recognized as Newman yelling and hitting a boy outside 

Walmart in early September 2009. When she demanded that he stop, 

Newman told her to "mind [her] own f#$%ing business." Ewing went 

inside to complain to the Walmart greeter and then security and Newman 

followed. Two security guards flanked Ewing while she and Newman 

argued about single parenting and appropriate discipline. No physical 

contact occurred and eventually Newman left. Over defense objection, the 

district court admitted this evidence to rebut Newman's testimony that 

Carmona attacked him first. The prosecution did nothing to prove the 

November 2006 and February 2009 incidents involving Jacob that 

Newman testified he did not know about or recall. 

In closing, neither side argued the prior-bad-act evidence 

involving Jacob. The Ewing testimony was alluded to but briefly. During 

deliberation, the jury sent out two questions, both concerning the child 

abuse count. Ultimately, it returned a verdict of guilty and the district 

court sentenced Newman to a maximum term of 60 months incarceration 

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for the battery with a consecutive term of 12 months for child 

endangerment. 

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NRS 48.045(2) prohibits the use of evidence of "other crimes, 

wrongs or acts. . . to prove the character of a person in order to show that 

the person acted in conformity therewith." Such evidence "may, however, 

be admissible for other purposes, such as proof of motive, opportunity, 

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

accident." Id. NRS 48.045(2)'s list of permissible nonpropensity uses for 

prior-bad-act evidence is not exhaustive. Bigpond v. State, 128 Nev. , 

, 270 P.3d 1244, 1249 (2012). Nonetheless, while "evidence of 'other 

crimes, wrongs or acts' may be admitted. . . for a relevant nonpropensity 

purpose," id. (quoting NRS 48.045(2)), "[t]he use of uncharged bad act 

evidence to convict a defendant [remains] heavily disfavored in our 

criminal justice system because bad acts are often irrelevant and 

prejudicial and force the accused to defend against vague and 

unsubstantiated charges." Id. (quoting Tavares v. State, 117 Nev. 725, 

730, 30 P.3d 1128, 1131 (2001)). Thus, "[a] presumption of inadmissibility 

attaches to all prior bad act evidence." Id. (quoting Rosky v. State, 121 

Nev. 184, 195, 111 P.3d 690, 697 (2005)). 

"[T]o overcome the presumption of inadmissibility, the 

prosecutor must request a hearing and establish that: (1) the prior bad act 

is relevant to the crime charged and for a purpose other than proving the 

defendant's propensity, (2) the act is proven by clear and convincing 

evidence, and (3) the probative value of the evidence is not substantially 

outweighed by the danger of unfair prejudice." Bigpond, 128 Nev. at , 

270 P.3d at 1250. In addition, the district court "should give the jury a 

specific instruction explaining the purposes for which the evidence is 

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admitted immediately prior to its admission and should give a general 

instruction at the end of the trial reminding the jurors that certain 

evidence may be used only for limited purposes." Tavares, 117 Nev. at 

733, 30 P.3d at 1133. 

This court reviews a district court's decision to admit or 

exclude prior-bad-act evidence under an abuse of discretion standard. 

Fields v. State, 125 Nev. 785, 789, 220 P.3d 709, 712 (2009). 

A. 

Identification of an at-issue, nonpropensity purpose for 

admitting prior-bad-act evidence is a necessary first step of any NRS 

48.045(2) analysis. See United States v. Miller, 673 F.3d 688, 697 (7th Cir. 

2012) (addressing Fed. R. Evid. 404(b), the cognate to NRS 48.045(2)). 

Here, the district court ultimately declared that it was admitting the 

prior-bad-act evidence involving Jacob to show absence of mistake or 

accident. "The admissibility of evidence of other crimes, wrongs, or acts to 

establish. . . absence of mistake or accident is well established, 

particularly in child abuse cases." United States v. Harris, 661 F.2d 138, 

142 (10th Cir. 1981). This is because "[Woof that a child has experienced 

injuries in many purported accidents is evidence that the most recent 

injury may not have resulted from yet another accident." Bludsworth v. 

State, 98 Nev. 289, 292, 646 P.2d 558, 559 (1982). 

But Newman did not mount a conventional accidental injury 

defense to the child abuse charge. He admitted striking Darian and doing 

so deliberately. Thus, proof that Newman previously struck Darian's 

brother Jacob does not tend to disprove accidental injury, a common 

defense to a child abuse charge. Neither mistake nor accident was at 

issue, and the prior incidents involving Jacob should not have been 

admitted for these irrelevant purposes. See Honkanen v. State, 105 Nev. 

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901, 902, 784 P.2d 981, 982 (1989) (reversing a child abuse conviction 

based on an error in admitting evidence of prior abuse to show absence of 

mistake where, as here, the parent did not claim accident or mistake 

explained the injuries). 

The prosecution argues that, even if not properly admitted to 

show absence of mistake or accident, the prior-bad-act evidence involving 

Jacob was admissible to refute Newman's parental privilege defense by 

demonstrating that Newman did not have the intent to correct that forms 

the heart of that defense. 

A number of states have codified the parental privilege 

defense. See Willis v. State, 888 N.E.2d 177, 181 n.5 (Ind. 2008) 

(identifying jurisdictions with parental privilege statutes). Nevada has 

not, so in Nevada the privilege exists by virtue of common law, see NRS 

1.030; 3 William Blackstone Commentaries 120 (1862) ("battery is, in 

some cases, justifiable or lawful; as where one who hath authority, a 

parent or master, gives moderate correction to his child, his scholar, or his 

apprentice," quoted in Willis, 888 N.E.2d at 180-81), and by virtue of the 

"fundamental liberty interest [a parent has] in maintaining a familial 

relationship with his or her child [which includes] the right. . . 'to direct 

the upbringing and education of children." Willis, 888 N.E.2d at 180 

(quoting Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925)) (citing 

Quilloin v. Walcott, 434 U.S. 246, 255 (1978)). 

This appeal does not require us to decide the exact boundaries 

of the common law parental privilege defense in Nevada, because neither 

side contests the instruction the district court gave on it. See Willis, 888 

N.E.2d at 181-82 (comparing the different parental privilege formulations 

offered by Model Penal Code § 3.08(1) (1985) and Restatement (Second) of 

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Torts § 147(1) (1965)). At minimum, as both sides concede, the defense 

required the prosecution to establish that Newman did not "intend [] to 

merely discipline [Darian but] . . . to injure' or endanger him. State v. 

Hassett, 859 P.2d 955, 960 (Idaho Ct. App. 1993) (quoting Edward J. 

Imwinkelried, Uncharged Misconduct Evidence § 5:10 (1993)); see State v. 

Thorpe, 429 A.2d 785, 788 (RI. 1981) (the privilege is lost "at the point at 

which a parent ceases to act in good faith and with parental affection and 

acts immoderately, cruelly, or mercilessly with a malicious desire to inflict 

pain." 

The intent underlying parental discipline and battery are not 

the same. "A parent who disciplines a child in a physical manner intends 

to correct or alter their child's behavior. That corrective intent is lacking 

in a battery." Ceaser v. State, 964 N.E.2d 911, 917 (Ind. Ct. App. 2012), 

transfer denied, 969 N.E.2d 86 (Ind. 2012). "[O]ften the only way to 

determine whether the punishment is a non-criminal act of discipline that 

was unintentionally harsh or whether it constitutes the [crime] of child 

abuse is to look at the parent's history of disciplining the child." State v. 

Taylor, 701 A.2d 389, 396 (Md. 1997). In such cases, "[a] parent's other 

disciplinary acts can be the most probative evidence of whether his or her 

disciplinary corporal punishment is imposed maliciously, with an intent to 

injure, or with a sincere desire to use appropriate corrective measures." 

Id.; see People v. Taggart, 621 P.2d 1375, 1384-85 (Colo. 1981) (recognizing 

that prior acts of excessive discipline may be admissible to "negat[e] any 

claim of accident or justification"), abrogated on other grounds by James v. 

People, 727 P.2d 850, 855 (Colo. 1986), overruled by People v. Dunaway, 88 

P.3d 619, 624 (Colo. 2004); Ceaser, 964 N.E.2d at 917 ("By arguing that 

she exercised her parental privilege in disciplining M.R., Ceaser 

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necessarily represents that her intent was to correct M.R.'s behavior 

through corporal punishment, rather than to simply batter her daughter," 

making admissible the defendant's prior conviction for battering her 

child); State v. Morosin, 262 N.W.2d 194, 197 (Neb. 1978) (recognizing as 

"peculiarly applicable to child abuse cases" the principle that, "[w]here an 

act is equivocal in its nature, and may be criminal or honest according to 

the intent with which it is done, then other acts of the defendant, and his 

conduct on other occasions, may be shown in order to disclose the 

mastering purpose of the alleged criminal ace" (quoting 1 Wharton's 

Criminal Evidence § 350, at 520 (11th ed.))). 

The parental privilege defense comes down to "punishment—

was it cruel or abusive"—or did it amount to a parent's "use [of] reasonable 

and moderate force to correct [his] child[ ]"? State v. Wright, 593 N.W.2d 

792, 801 (S.D. 1999) (applying South Dakota's statutory parental 

privilege, S.D. Codified Laws § 22-18-5). Here, the district court should 

have identified the relevant nonpropensity purpose for admitting evidence 

of the prior incidents involving Jacob before weighing its probative value 

against its potential for unfair prejudice. It also incorrectly held that the 

prior incidents involving Jacob tended to show absence of mistake or 

accident, neither of which was at issue. Nevertheless, the evidence did 

have probative value in assessing Newman's intent in inflicting corporal 

punishment on Darian, which Newman's assertion of the parental 

privilege defense placed squarely in issue. 2 

2We recognize that Honkanen v. State, 105 Nev. 901, 784 P.2d 981 

(1989) (3-2), suggests a contrary rule. Thus, after rejecting absence of 

mistake as a basis for admitting prior instances of abuse in a child abuse 

prosecution because the parental privilege defense asserted did not raise 

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B. 

Identification of an at-issue, nonpropensity purpose for 

admitting this evidence is only the first step of a proper NRS 48.405(2) 

analysis. United States v. Miller, 673 F.3d at 697. In addition, the 

prosecution must establish the prior bad act by clear and convincing 

evidence and demonstrate that its probative value "is not substantially 

outweighed by the danger of unfair prejudice." Bigpond, 128 Nev. at , 

270 P.3d at 1249. 

Judged by these standards, the district court did not abuse its 

discretion in admitting evidence that Newman cuffed Jacob on the back of 

his head at the hospital in late July or early August 2009. Newman 

admitted the incident, and it had enough probative value to justify the 

...continued 

an issue of mistake, Honkanen also notes that, "Furthermore, contrary to 

the district attorney's suggestion on appeal, neither was appellant's intent 

[in issue]." Honkanen, 105 Nev. at 902, 784 P.2d at 982. This passing 

reference in a 3-2 decision does not settle the intent issue, because 

Honkanen did not consider the difference between intent to injure or 

inflict pain and intent to correct. Additionally, Honkanen's rationale may 

be outdated in light of the 2001 amendments to NRS 48.061, which 

expand the use of bad-act evidence in domestic violence cases, 2001 Nev. 

Stat., ch. 360, § 1, at 169; see NRS 233.018(1)(a) (defining "domestic 

violence" to include battery on an accused's minor child), and Bigpond, 

which recognizes that character evidence can be admissible so long as it 

has a credible, nonpropensity purpose, such as explaining the relationship 

dynamics between a domestic-violence victim and the accused. 128 Nev. 

at , 270 P.3d at 1246; see also Harris v. State, 195 P.3d 161, 182 

(Alaska Ct. App. 2008) (recognizing that the holding in Harvey v. State, 

604 P.2d 586, 590 (Alaska 1979), a case similar to Honkanen, had been 

abrogated by the amendment of Alaska's Rule 404(b) to allow admission of 

prior incidents of domestic violence as an exception to the general rule 

against admitting such evidence). 

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district court's determination that its worth outweighed the risk of unfair 

prejudice. But the same cannot be said of the November 2006 and 

February 2009 incidents involving Jacob. These incidents were merely 

mentioned in a CPS report as "information only" and "unsubstantiated." 

As such, they were not established by the clear and convincing evidence 

required to sustain their admission. 

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C. 

It was also error for the district court to admit the evidence 

that Newman was aggressive to hospital staff and Ewing under NRS 

48.045(2). Although the district court suggested that this evidence went 

toward absence of mistake or accident, it had no logical relevance to 

Newman's parental privilege defense. It also appears too factually 

dissimilar to the battery-by-strangulation charge to have been admissible 

to refute Newman's claim that he acted in self-defense in strangling 

Carmona. Specifically, neither the hospital nor the Walmart incidents 

went beyond an exchange of angry words. In neither instance did 

Newman physically attack a stranger based on a mistaken belief that his 

life was in danger. Although Newman claimed he was fighting for his life, 

he never argued that he did not intend to hurt Carmona, accidentally 

grabbed his throat, or was otherwise not at fault for Carmona's injuries. 

NRS 48.045(1)(a) permits the prosecution to offer "similar 

evidence" to rebut evidence offered by an accused "of a person's character 

or a trait of his or her character." Normally, such proof is by "testimony as 

to reputation or in the form of an opinion," NRS 48.055; "when a 

defendant chooses to introduce character evidence in the form of 

reputation or opinion evidence, the prosecution is similarly limited in its 

rebuttal evidence and can only inquire into specific acts of conduct on 

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cross-examination." Jezdik v. State, 121 Nev. 129, 136, 110 P.3d 1058, 

1063 (2005); see NRS 48.055(1). And, under the collateral-fact rule, 

extrinsic evidence, other than a conviction, may not be offered to impeach 

a defendant's character evidence, NRS 50.085(3), except "when the State 

'seeks to introduce evidence on rebuttal to contradict specific factual 

assertions raised during the accused's direct examination." Jezdik, 121 

Nev. at 138, 110 P.3d at 1064 (quoting 1 Kenneth S. Broun et al., 

McCormick on Evidence § 49, at 202 (5th ed. 1999)). But the exception is 

limited. It applies when the defendant "introduce [s] evidence giving the 

jury a false impression through an absolute denial of misconduct" and 

then relies on the collateral-fact rule to "frustrate the State's attempt to 

contradict this evidence through proof of specific acts." Id. at 139, 110 

P.3d at 1065. 

Here, the district court admitted Ewing's testimony to rebut 

character evidence from Newman. It also held that the collateral-fact rule 

did not apply because the Ewing incident resembled Newman's 

confrontation with Carmona and occurred less than two weeks earlier. We 

disagree for three reasons. 

First, Ewing's testimony about an extrinsic event did not rebut 

character evidence from Newman. The crux of Ewing's testimony was 

that Newman is a violent, aggressive man. This was not appropriate 

rebuttal because Newman never claimed to be a peace-loving or nonviolent 

man. Jezdik opened the door to a specific rebuttal by swearing on direct 

examination to having never committed a crime. Jezdik, 121 Nev. at 134, 

110 P.3d at 1062. On direct examination, Newman stuck close to the facts 

and made no affirmative claim to good character. And under crossexamination, he openly admitted to being aggressive and churlish, 

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especially when criticized for disciplining his children. Nor did Ewing's 

testimony negate self-defense. Whereas Newman testified that he is 

capable of violence when faced with a life-threatening situation, Ewing's 

testimony only showed that Newman is confrontational and given to swear 

words. Although Ewing's testimony may have been relevant if Newman 

had physically attacked her and then claimed self-defense, the evidence 

showed that the altercation at the Walmart store only involved words, not 

blows, and thus differed fundamentally from the incident with Carmona. 

Second, evidence of Newman's character was collateral. As we 

noted in Lobato v. State, the use of specific acts of conduct raises issues 

under the collateral-fact rule when coupled with a specific contradiction. 

120 Nev. 512, 519, 96 P.3d 765, 770 (2004). Here, although enough 

evidence supported a self-defense instruction as to the battery-bystrangulation charge, this did not make Newman's penchant for verbal 

combativeness an issue. By allowing Ewing's testimony, the district court 

improperly allowed evidence of one of Newman's prior bad acts—his 

confrontation with Ewing—for the sole, irrelevant purpose of showing he 

is not a peace-loving man. 

Finally, Ewing's testimony did not comply with the 

requirements of NRS 48.055. She did not give an opinion or discuss 

Newman's reputation, but rather testified about a specific event. The 

testimony was not proper because Ewing discussed a specific instance of 

conduct that was not, and could not have been, previously raised by 

Newman or explored by the prosecution in its cross-examination of him. 

And as we held in Roever v. State, it is improper to use evidence of specific 

acts that the accused has not previously been confronted with. 114 Nev. 

867, 871, 963 P.2d 503, 505 (1998). 

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Therefore, we conclude that the district court abused its 

discretion in admitting Ewing's rebuttal testimony. We now consider 

whether the district court's errors were harmless or warrant reversal. 

IV. 

"The harmless-error doctrine recognizes the principle that the 

central purpose of a criminal trial is to decide the factual question of the 

defendant's guilt or innocence." Delaware v. Van Arsdall, 475 U.S. 673, 

681 (1986). It also "promotes public respect for the criminal process by 

focusing on the underlying fairness of the trial rather than on the virtually 

inevitable presence of immaterial error." Id. A nonconstitutional error, 

such as the erroneous admission of evidence at issue here, is deemed 

harmless unless it had a "substantial and injurious effect or influence in 

determining the jury's verdict." Tavares v. State, 117 Nev. 725, 732, 30 

P.3d 1128, 1132 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 

776 (1946)); see also Fields v. State, 125 Nev. 776, 784-85, 220 P.3d 724, 

729-30 (2009) (reviewing erroneous admission of evidence, pursuant to 

NRS 48.045, as nonconstitutional error); Richmond v. State, 118 Nev. 924, 

934, 59 P.3d 1249, 1255-56 (2002) (reviewing the failure to exclude 

evidence in a Petrocelli hearing for harmless error); Rosky v. State, 121 

Nev. 184, 198, 111 P.3d 690, 699 (2005) ("Errors in the admission of 

evidence under NRS 48.045(2) are subject to a harmless error review."). 

We have carefully reviewed the record in this case and 

conclude that the error in allowing the prosecution to ask Newman about 

the November 2006 and February 2009 incidents involving Jacob was 

harmless. The jury heard nothing with respect to those incidents beyond 

the prosecution asking Newman if he recalled either; the prosecution 

accepted Newman's answer that he did not. The jury was instructed that 

it "must not speculate to be true any insinuations suggested by a question 

17 
asked a witness" and that "[a] question is not evidence." We must 

presume that the jury followed those instructions. Allred v. State, 120 

Nev. 410, 415, 92 P.3d 1246, 1250 (2004). Under those circumstances, and 

given Newman's frank admissions and overwhelming evidence on the 

child abuse charge, the error in allowing the prosecution to ask about the 

November 2006 and February 2009 incidents cannot be said to have had a 

substantial and injurious effect on the verdict. 

In the unique circumstances of this case, we also find the error 

in admitting the Ewing testimony and allowing Newman to be questioned 

about his trespass from the hospital to have been harmless. Newman's 

battery-by-strangulation conviction rested on his testimony admitting that 

he put Carmona in a stranglehold and held his hands around his throat 

for 30 seconds or more—testimony that numerous eyewitnesses 

corroborated. Newman's defense focused on the absence of substantial 

bodily harm to Carmona, and only minimally on self-defense. And the 

prosecution made almost no use of the Ewing testimony. For these 

reasons, we are convinced that the error in admitting the Ewing testimony 

and allowing the prosecution to question Newman about his trespass from 

the hospital did not have a substantial and injurious effect on the verdict. 

The erroneously admitted evidence was a miniscule and 

unnecessary part of the prosecution's case and merely repeated what 

jurors already knew based on admissible evidence—that Newman is an 

admittedly aggressive, obnoxious man who hits his children and bullies 

anyone who criticizes his parenting. As the district court observed, this 

case was only conceptually challenging, as the facts were remarkably 

clear. While we will not hesitate to reverse a judgment of conviction when 

18 
, C.J. 

evidentiary error taints an accused's right to a fair trial, such did not occur 

here. 

We therefore affirm. 

Pickering 

I concur: 

Hardesty 

19 
CHERRY, J., concurring in part and dissenting in part: 

The majority correctly holds that some of the episodes 

involving Newman's son, Jacob, were not proven by clear and convincing 

evidence as required by our caselaw, and that it was an abuse of discretion 

to admit the testimony of surprise rebuttal witness Connie Ewing. The 

analysis of these errors by the majority is outstanding and can be 

considered a landmark holding in the often contested area of NRS 48.045's 

prohibition against using character or prior-bad-act testimony to prove 

criminal responsibility. 

My problem with the majority is the holding that these errors 

were harmless and that said errors did not taint Newman's right to a fair 

trial. 

I would hold that these substantial errors rooted in NRS 

48.045 and the prohibition against using character or bad-act-testimony to 

prove criminal responsibility are structural and require reversal of 

appellant's convictions and the granting of a new trial without the 

prosecution using these structural errors of inadmissible and highly 

prejudicial evidence. 

It is also important to note that after appellant testified in his 

own behalf and the defense rested, the trial court permitted Connie Ewing 

to testify after she came forward after reading about the case in the 

newspaper. This was not only "trial by ambush," but also was clearly 

inadmissible testimony. How can the majority justify this testimony as 

harmless error? 

The majority further states that "in closing neither side 

argued the prior-bad-act evidence involving Jacob" and that "the Ewing 

testimony was alluded to but briefly." To me this justification for 

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concluding that the errors were harmless is not supported in the law or 

the facts of this case and is not relevant to the issue of harmless error.' 

One last thought: 

in any test of harmless error, and in any case, an 

appellate court has only probabilities to go on, not 

certainties. Nonetheless, when it undertakes to 

evaluate the probabilities in terms of an error's 

effect on the judgment, instead of merely looking 

at the result as the test of harmlessness, the 

judicial process at the trial level as well as in 

appellate review stands to make a long-term gain 

in fairness without any long-term loss in 

efficiency. In the long run there would be closer 

guard against error at the trial, if appellate courts 

were alert to reverse, in case of doubt, for error 

that could have contaminated the judgment. 2 

In light of the burden of proof beyond a reasonable doubt on a 

prosecutor in a criminal case and the nature of the errors confirmed by the 

1-See Randolph v. State, 117 Nev. 970, 984, 36 P.3d 424, 433 (2001) 

(noting that the jury was instructed that "[s]tatements, arguments and 

opinions of counsel are not evidence in the case'"(alteration in original)); 

Greene v. State, 113 Nev. 157, 169, 931 P.2d 54, 61 (1997) (reiterating the 

district court's admonishment that "arguments of counsel are not 

evidence, as I've told you earlier, and neither are the personal beliefs of 

counsel as to—as to the implications of that evidence"), overruled on other 

grounds by Byford v. State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000); 

Flanagan v. State, 112 Nev. 1409, 1420, 930 P.2d 691, 698 (1996) 

(highlighting the jury instruction that "[s]tatements, arguments and 

opinions of counsel are not evidence in the case" (alteration in original)); 

Bonacci v. State, 96 Nev. 894, 896-97, 620 P.2d 1244, 1246 (1980) 

(reiterating the district court's admonishment that "arguments of counsel 

are not evidence"). 

2Roger J. Traynor, The Riddle of Harmless Error 22-23 (1970). 

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majority, I would reverse appellant's convictions and grant him a new 

trial. 

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