Express recognition of witness's expert status 

Villegas argues that the district court erred by permitting his 

expert witness to give expert opinion testimony but refusing to expressly 

acknowledge the witness as an expert in front of the jury. 

We review the qualification of experts and the admission of 

expert testimony for an abuse of discretion. See Perez v. State, 129 Nev. 

, , 313 P.3d 862, 866 (2013). We have previously recognized in dicta 

that "court[s] must take care not to use terms such as 'qualified as an 

expert' or 'certified as an expert' when referring to the witness in the 

presence of the jury" in order to "prevent potential prejudice by either 

demeaning or promoting the credibility of the witness." Mulder v. State, 

116 Nev. 1, 13 n.2, 992 P.2d 845, 852 n.2 (2000). 

In this case, the district court appears to have simply followed 

our admonition that it not demean or promote the witness. The court 

permitted the expert witness to give expert testimony. Villegas presents 

no legal authority requiring the district court to announce to the jury that 

his expert was an expert. Thus, we conclude that the district court did not 

abuse its discretion. 

Jury instruction on particularity of testimony 

Villegas argues that the district court abused its discretion by 

not giving the following jury instruction: "[T]he alleged victim must testify 

with some particularity regarding the incident in order to uphold the 

charge." 

"The district court has broad discretion to settle jury 

instructions, and this court reviews the district court's decision for an 

abuse of that discretion or judicial error." Rose v. State, 123 Nev. 194, 

204-05, 163 P.3d 408, 415 (2007) (quoting Crawford v. State, 121 Nev. 744, 

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748, 121 P.3d 582, 585 (2005)). A district court abuses its discretion if its 

decision regarding a jury instruction is arbitrary or capricious or exceeds 

the bounds of law or reason. Crawford, 121 Nev. at 748, 121 P.3d at 585. 

In Rose, 123 Nev. at 205, 163 P.3d at 415-16, we held that the 

district court did not abuse its discretion by refusing to give an instruction 

on the particularity of a victim's testimony because the particularity of 

testimony "was sufficiently covered by other jury instructions regarding 

the State's burden of proof and the reasonable doubt standard." Here, 

Villegas does not challenge the burden of proof or reasonable doubt 

instructions. Nor does Villegas cite any authority requiring a jury 

instruction on the particularity of testimony. Therefore, we conclude that 

the district court did not abuse its discretion in denying the proposed 

particularity instruction. 1 

Willegas also argues that the instruction on witness 

credibility given by the district court was improper and prejudicial. And, 

in a footnote, he argues that the no-corroboration-necessary instruction 

was also erroneous. We decline to review the witness credibility 

instruction because Villegas fails to cite legal authority or present cogent 

argument. See, e.g., State v. Eighth Judicial Dist. Court, 129 Nev. , 

n.9, 306 P.3d 369, 385 n.9 (2013) (citing Maresca v. State, 103 Nev. 669, 

673, 748 P.2d 3, 6 (1987)). We further decline to review the nocorroboration-necessary instruction because the instruction's language 

was proposed to the district court by Villegas. See Van Valkenberg v. 

State, 95 Nev. 317, 318, 594 P.2d 707, 708 (1979) ("[W]e decline to review 

the propriety of the instruction . . . because the record indicates 

appellant's trial counsel not only failed to object to the instruction, but 

agreed to it."). 

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A. V. 's competence 

Villegas argues that A.V. was not competent to testify. 

However, because Villegas made no objection regarding A.V.'s competency 

at the competency hearing, we review the issue for plain error. Truesdell 

v. State, 129 Nev. „ 304 P.3d 396, 403 (2013). For an error to be 

plain, it must be apparent from a casual inspection of the record. Holmes 

v. State, 129 Nev. „ 306 P.3d 415, 422 (2013). 

A child is competent to testify if "the child [has] the capacity to 

receive just impressions and possess[es] the ability to relate them 

truthfully." Wilson v. State, 96 Nev. 422, 423, 610 P.2d 184, 185 (1980). 

In this case, although some of A.V.'s retellings appear 

inconsistent, consistency is not a factor for competency. We have held that 

"[i]nconsistencies in the testimony go to the weight of the evidence." 

Evans v. State, 117 Nev. 609, 624, 28 P.3d 498, 509 (2001). Weight, or 

credibility, is different than competence. See 98 C.J.S. Witnesses § 87 

(2013) ("The competency of a witness to testify is to be distinguished from 

a witness's credibility. Testimonial competency relates to the capacity of a 

witness to recollect and communicate facts and appreciate the obligation 

to tell the truth, and it is a test of intellectual capacity, not veracity."). 

After questioning A.V. on the difference between truth and 

lies, basic facts about her family, and her recollection of school activities, 

the district court declared A.V. competent. Our review of the record does 

not contradict the district court's determination that A.V. possessed "the 

capacity to receive just impressions and . . . the ability to relate them 

truthfully." Wilson, 96 Nev. at 423, 610 P.2d at 185. Thus, we conclude 

that the district court did not plainly err by determining that A.V. was 

competent to testify. 

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Admissibility of A. V. hearsay statements 

The district court admitted testimony regarding A.V.'s out-ofcourt statements to others about her sexual abuse. NRS 51.385 permits a 

court to admit such statements provided that the district court finds "that 

the time, content and circumstances" of the statements are sufficiently 

trustworthy. Villegas argues that A.V's statements were not reliable 

because they occurred during a bitter custody dispute, because A.V. 

participated in victim's therapy operating under the assumption she had 

been abused, and because there was evidence of spousal alienation and 

coaching by Villegas's ex-wife. He also notes the many inconsistencies in 

A.V.'s several recountings of the alleged abuse. 

We will not question a district court's reliability determination 

unless the factual determination is obvious, one way or the other." Felix 

v. State, 109 Nev. 151, 197, 849 P.2d 220, 251 (1993), superseded on other 

grounds by statute as stated in Evans, 117 Nev. at 625, 28 P.3d at 509. In 

Felix, we held that the reliability of a child's hearsay statements, wherein 

fantastical and incredible statements were interspersed with some more 

realistic statements, was a "reasonably close" determination that we left 

up to the district court and declined to upset on appeal. 109 Nev. at 197- 

99, 849 P.2d at 251-52. 

Here, the district court heard the proffered testimony, 

considered the factors listed in NRS 51.385(2), and found that the 

statements met the criteria. The facts do not show the district court's 

interpretation to be manifestly erroneous. Granted, some of A.V.'s 

hearsay statements were clearly incredible. For example, she told one 

interviewer that Villegas touched her while she was in bed and he was on 

the other side of the room on the floor, but she was unable to explain how 

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this was possible. A.V. also testified that Villegas called her ugly when 

she was in her mother's womb. However, as in Felix, these incredible 

statements were accompanied by somewhat more likely statements, such 

as consistent testimony that Villegas always touched her vagina at night 

while in she was in bed. In this kind of close case, we will not upset the 

district court's reliability determination. Felix, 109 Nev. at 197, 849 P.2d 

at 251. And although it is true that the hearsay statements of A.V. were 

sometimes inconsistent, consistency is not a factor for admissibility under 

NRS 51.385(2). Accordingly, we conclude that that the district court did 

not abuse its discretion in admitting A.V.'s out-of-court statements. 

Issue preclusion 

Villegas argues that, under double jeopardy principles, a 

juvenile court's dismissal of a child abuse-neglect petition, regarding 

Villegas's alleged touching of A.V., precludes relitigation of the same 

events in criminal proceedings. 

Issue preclusion, commonly known as collateral estoppel, is 

embodied in the Fifth Amendment's guarantee against double jeopardy. 

Ashe v. Swenson, 397 U.S. 436, 444-45 (1970). "A claim that a conviction 

violates the Double Jeopardy Clause generally is subject to de novo review 

on appeal." Davidson v. State, 124 Nev. 892, 896, 192 P.3d 1185, 1189 

(2008). 

Many jurisdictions have held, and we agree, that civil family 

court or juvenile court proceedings that do not adequately represent the 

State's interest in punishment cannot preclude later criminal prosecution. 

See Dranow v. United States, 307 F.2d 545, 556 (8th Cir. 1962) ("There can 

be no doubt. . . that res judicata and collateral estoppel are applicable in a 

criminal action although a prior proceeding was civil in character. But 

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that proposition has this qualification: that both actions are based upon 

the same facts and both have as their object, 'punishment.' Where the 

object of the prior civil action and subsequent criminal action is not 

'punishment,' res judicata is inapplicable"); People v. Wouk, 739 N.E.2d 

64, 70 (Ill. App. Ct. 2000); State v. Matson, No. A09-555, 2010 WL 606775, 

at *2 (Minn. Ct. App. Feb. 23, 2010); People v. Roselle, 602 N.Y.S.2d 50, 57 

(App. Div. 1993), affd, 643 N.E.2d 72 (N.Y. 1994). But see Lockwood v. 

Superior Court, 206 Cal. Rptr. 785, 788 (Ct. App. 1984). The State's 

interest in punishment is a distinct one that is not adequately represented 

in juvenile proceedings. See Wouk, 739 N.E.2d at 70. Without adequate 

representation of the State's interest, the traditional issue preclusion 

element of privity cannot be satisfied. Cf. Bower v. Harrah's Laughlin, 

Inc., 125 Nev. 470, 480, 215 P.3d 709, 717 (2009) (stating that, to establish 

privity, federal issue preclusion requires that a "party's interests were 

adequately represented in the prior litigation"). Therefore issue 

preclusion and its constitutional dimension do not apply to this case. 

Sufficiency of the information 

Villegas argues that the four lewdness counts were generically 

and repetitively worded in the State's information and therefore violated 

his due process rights. We review constitutional issues de novo. Jackson 

v. State, 128 Nev. „ 291 P.3d 1274, 1277 (2012). 

Indictments serve to provide both notice to the accused of the 

offense to be charged and protection against possible double jeopardy. See 

Russell v. United States, 369 U.S. 749, 763-64 (1962); United States v. 

Debrow, 346 U.S. 374, 377-78 (1953). In Valentine v. Konteh, 395 F.3d 

626, 632 (6th Cir. 2005), the Sixth Circuit held that an indictment did not 

provide notice or protect against double jeopardy where it included two 

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different sets of 20 indistinguishable counts of sexual abuse. The court 

reasoned that the jury would not be able to decide each count individually 

because there were "absolutely no distinctions made": Acquitting on some 

counts but not others would have been "unintelligible, because the 

criminal counts were not connected to distinguishable incidents." Id. at 

632-33. The Sixth Circuit panel wrote that "[s]tates have the authority to 

enact criminal statutes regarding a 'pattern' or a 'continuing course' of 

abuse. They do not have the power to prosecute one for a pattern of abuse 

through simply charging a defendant with the same basic offense many 

times over." 2 Id. at 634. 

The Valentine court also held that the statute did not 

adequately protect against double jeopardy because the several charges 

were not linked to separate incidents. Id. at 635. It pointed out that it 

CC cannot be sure what double jeopardy would prohibit because [it] cannot 

be sure what factual incidents were presented and decided by this jury." 

Id. 

We find Valentine persuasive and join those jurisdictions 

adopting its reasoning. See Goforth v. State, 70 So. 3d 174, 189 (Miss. 

2011); State v. Dominguez, 178 P.3d 834, 838 (N.M. Ct. App. 2008). 

In this case, Villegas was charged with three identical counts 

of lewdness with a child under the age of 14 (counts one, two, and four). 

A.V.'s testimony did not differentiate between the counts, stating only that 

2California and Texas have enacted such "continuing course" 

statutes applicable to cases analogous to this one. See, e.g., People v. 

Cissna, 106 Cal. Rptr. 3d 54, 68 (Ct. App. 2010); Jacobsen v. State, 325 

S.W.3d 733, 739 (Tex. Ct. App. 2010). 

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Villegas touched her vagina "[m]ostly every time I kind of went there" over 

a 17-month period. At most, the evidence can be interpreted to support 

two specific recollections of abuse. A.V. indicated that the abuse occurred 

both when Villegas lived with a friend as well as when he lived with his 

parents. And A.V.'s sister, S.V., testified that she witnessed a single 

occurrence of sexual abuse sometime after A.V. revealed that an initial 

incident of abuse had occurred. 

Thus, we conclude that one of the three identical counts 

violates Villegas's right to due process. The "carbon-copy," Valentine, 395 

F.3d at 635, counts in the information did not provide Villegas with notice 

to adequately distinguish between the counts. And the evidence presented 

at trial only factually distinguished two incidents. Accordingly, we reverse 

Villegas's conviction on count 4 of the information. 

Redundancy of attempt conviction 

Villegas argues that the alleged attempt occurred in the same 

continuous act as the alleged lewdness. He asserts that the attempt 

merged with the completed act and that the evidence cannot support a 

separate attempt conviction. 

When testimony or other evidence does not reveal the specific 

sequence of events, there is insufficient evidence to support a conviction of 

both attempt and completed lewdness arising out of the same acts. Cf. 

Gaxiola v. State, 121 Nev. 638, 652-53, 119 P.3d 1225, 1234-36 (2005) 

(vacating a lewdness conviction on redundancy grounds where "it is 

impossible to determine whether the lewdness was incidental to the sexual 

assault because the child did not testify regarding the sequence of 

events"). However, if there is evidence showing an attempt followed by 

completion, but interrupted by some (however small) period of time, then 

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an attempt conviction may stand. Cf. Wright v. State, 106 Nev. 647, 650, 

799 P.2d 548, 549-50 (1990) ("The testimony of the victim established that 

between the attempted and completed assaults, Wright stopped and 

waited while a car passed. These facts support separate convictions for 

separate acts, even though the acts were the result of a single encounter 

and all occurred within a relatively short time."). 

Here, A.V. testified that one time that Villegas touched her 

she "tried to push his hand away, but it just didn't work." She explained 

that by "didn't work" she meant "he just kept doing it, I guess." The State, 

in closing arguments, based its attempt argument on this event. 

A.V.'s testimony does not provide an exact timeline. She said 

that her attempt to push his hand away didn't work because he kept 

touching her. This testimony does not temporally distinguish between two 

separate acts. As in Gaxiola, the testimony is simply insufficient to 

establish the exact sequence of events. Therefore, we hold that the 

attempt conviction is redundant and we reverse Villegas's conviction on 

count 3. 

Conclusion 

In sum, we reverse on count 4 because the information was 

insufficient and thereby violated Villegas's due process rights. We further 

reverse on count 3 because the evidence did not sufficiently distinguish 

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between the acts constituting the attempt and those constituting the 

completed act. We affirm the judgment of conviction as to all other 

counts. 3Accordingly, we 

ORDER the judgment of the district court AFFIRMED IN 

PART AND REVERSED IN PART. 

J. 

Hardesty 

Douglas 

cc: Hon. Valerie Adair, District Judge 

Sterling Law, LLC 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

3We have reviewed Villegas's arguments that the district court 

abused its discretion by prohibiting Villegas from impeaching A.V.'s 

mother using a prior conviction, that the evidence was insufficient to 

support conviction, and that cumulative error warrants reversal. We 

conclude that all three arguments lack merit. 

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