involuntary. He argues that, without evidence in addition to A.R.'s 

inconsistent testimony, there was insufficient evidence to convict. 

"When reviewing a criminal conviction for sufficiency of the 

evidence, this court determines whether any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt 

when viewing the evidence in the light most favorable to the prosecution." 

Brass v. State, 128 Nev., Adv. Op. 68, 291 P.3d 145, 149-50 (2012). "This 

court will not reweigh the evidence or evaluate the credibility of witnesses 

because that is the responsibility of the trier of fact." Clancy v. State, 129 

Nev., Adv. Op 89, 313 P.3d 226, 231 (2013) (quoting Mitchell v. State, 124 

Nev. 807, 816, 192 P.3d 721, 727 (2008)). 

This court has "repeatedly held that the testimony of a sexual 

assault victim alone is sufficient to uphold a conviction." LaPierre v. State, 

108 Nev. 528, 531, 836 P.2d 56, 58 (1992). Therefore, in this case, the 

evidence was sufficient so long as A.R. testified to each count. 

Nevertheless, there must be separate, particularized 

testimony supporting each count. See id. ("[T]he victim must testify with 

some particularity regarding the incident in order to uphold the charge."). 

Convictions for sexual abuse and lewdness arising out of the same set of 

acts are impermissibly redundant when there is no testimony as to the 

specific sequence of events. See Gaxiola v. State, 121 Nev. 638, 652, 119 

P.3d 1225, 1235 (2005) (reversing lewdness conviction 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 the testimony shows the completion of an act and 

the beginning of a different act, interrupted by some (however small) 

period of time, then the conviction may stand. Cf. Wright v. State, 106 

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Nev. 647, 650, 799 P.2d 548, 549 (1990) ("The testimony of the victim 

established that between the attempted and completed assaults, Wright 

stopped and waited while a car passed."). In Crowley v. State, this court 

held that the defendant's "actions were not separate and distinct" where 

the defendant's "touching the victim's penis on the outside of his pants 

was a prelude to touching the victim's penis inside his underwear." 120 

Nev. 30, 34, 83 P.3d 282, 285 (2004). The court reasoned that the 

defendant "sought to arouse the victim and create willingness to engage in 

sexual conduct." Id. 

Here, A.R. testified to at least five distinct incidents of fellatio: 

• In her garage; 

• In her kitchen; 

• In Van Horn's car, while he was driving; 

• In Van Horn's car while parked at Durango Hills Park; 

• In Van Horn's car while parked at another, unspecified location. 

In contrast, the four lewdness counts are not clearly distinguished. A.R.'s 

testimony regarding Van Horn's fondling of her breasts and genitals is 

vague. Her testimony only distinguishes between touching of the breasts 

and genitals. Hence, her testimony justifies two counts, not four. A.R.'s 

statement that the acts occurred multiple times per month is insufficient 

to justify more convictions. See LaPierre, 108 Nev. at 531, 836 P.2d at 58 

(stating that something more than a child's speculation is needed to 

establish the number of incidents that occurred). 

Because Alt's testimony only reveals two distinct acts of 

lewdness, a rational trier of fact could only convict Van Horn of two 

lewdness counts. We therefore reverse two of the four lewdness 

convictions. 

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Van Horn's statements to police 

The district court did not err by admitting Van Horn's 

statements to police. First, Van Horn argues that his waiver of his 

Miranda rights was not valid because he was hungry and tired, the 

officers were coercive, and he suffered from an anxiety disorder. See 

Miranda v. Arizona, 384 U.S. 436 (1966). Yet Van Horn's three 

affirmative responses after being Mirandized show that he intelligently, 

knowingly, and voluntarily waived his Miranda rights. 

Second, Van Horn argues that police detectives violated his 

right to remain silent by questioning him after he said that he did not 

want to talk anymore. But he never unambiguously stated that he did not 

wish to speak any more. Therefore, the district court had substantial 

evidence to conclude that Van Horn did not invoke his right counsel. See 

Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) (requiring simple, 

unambiguous statement). Likewise, nothing in the record contradicts the 

district court's determination that Van Horn's statements were voluntarily 

made. 

Third, Van Horn argues that the many omissions in the 

interrogation transcript made the entire statement unreliable and 

inadmissible. Whether a recording is admissible is reviewed for abuse of 

discretion. United States v. Lane, 514 F.2d 22, 27 (9th Cir. 1975). "A 

recorded conversation is generally admitted unless the unintelligible 

portions are so substantial that the recording as a whole is 

untrustworthy." Id. Courts have held that "a partially unintelligible tape 

is admissible unless the audible portions of the tape are so incomplete the 

tape's relevance is destroyed." People v. Polk, 54 Cal. Rptr. 2d 921, 926 

(Ct. App. 1996). Even if some portions of a recording are inaudible, the 

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audible portions may still be admissible as probative evidence, provided 

that enough of the recording is audible to show that it is on the whole 

trustworthy. See Lane, 514 F.2d at 27. Furthermore, both sides may 

argue to the judge or jury what the inaudible portions might have 

contained. United States v. Nicholson, 815 F.2d 61, 63 (8th Cir. 1987). 

Here, parts of the recording are audible, such as Van Horn's 

clear responses when he is asked if he understands his Miranda rights. It 

is true, as Van Horn argues that there are significant omissions. But 

omissions alone do not cast doubt on the overall trustworthiness of a 

transcript or recording. See Lane, 514 F.2d at 27. And the parties were 

free to argue the content of the omissions to the judge and jury. See 

Nicholson, 815 F.2d at 63. Therefore, the district court did not abuse its 

discretion by admitting statements made during the custodial 

interrogation. 

Prosecutorial misconduct 

Van Horn argues that prosecutors committed misconduct by 

(1) mentioning that A.R.'s mother paid some of his legal expenses, (2) 

disparaging him in arguments, and (3) violating Brady obligations and 

Nevada law by not informing him of some of A.R.'s contradictory 

testimony. 

First, Van Horn is incorrect that references to the retention of 

counsel are categorically improper. See Bruno v. Rushen, 721 F.2d 1193, 

1194 (9th Cir. 1983). 

Second, the State did not disparage Van Horn by referencing 

his age. The prosecutor was appealing to common experience by arguing 

that an 11-year-old girl would probably not consent to a sexual 

relationship with a 50-year-old man. Jurors may consider life experience 

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and general knowledge in forming their opinions. Maestas v. State, 128 

Nev., Adv. Op. 12, 275 P.3d 74, 84 (2012). 

Finally, the State did not violate Brady v. Maryland, 373 U.S. 

83, 87 (1963), or Nevada law. Federal courts have held that there is no 

Brady violation as long as the evidence is disclosed before the defense can 

no longer use it. See, e.g., Madsen v. Dormire, 137 F.3d 602, 605 (8th Cir. 

1998). Here, the defense discovered A.R.'s new disclosure during opening 

arguments and was able to cross-examine A.R. regarding it. 

NRS 171.1965(1)(a) requires disclosure, at least five days 

before a preliminary examination, of "written or recorded statements 

made by a witness or witnesses, or any reports of statements or 

confessions, or copies thereof, within the possession or custody of the 

prosecuting attorney." And NRS 174.235(1)(a) requires disclosure, at the 

request of the defendant, of "written or recorded statements made by a 

witness the prosecuting attorney intends to call during the case in chief of 

the State, or copies thereof." 

In this case, the record does not show a written or recorded 

statement taken by the prosecution before trial that included A.R.'s 

expected testimony. If a simple conversation with A.R. revealed more 

information, the defense could have also interviewed her. But a simple 

conversation is not a "written or recorded statement[ ]." NRS 

174.235(1)(a). Therefore, the State did not violate NRS 174.235(1)(a) or 

NRS 171.1965(1)(a). 

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Van Horn's other arguments 

We conclude that Van Horn's other arguments lack merit. 

Van Horn argues that the justice court should have continued the 

preliminary hearing for further competency proceedings because defense 

counsel was unable to communicate with Van Horn. The court did not 

abuse its discretion in denying Van Horn's request. He did not show 

changed circumstances or new evidence, and the justice court applied the 

correct legal standard when it noted that the circumstances of Van Horn's 

competency had not changed. See People v. Huggins, 131 P.3d 995, 1028 

(Cal. 2006). 

We reject Van Horn's argument that the district court abused 

its discretion by giving improper jury instructions. Sexual seduction is not 

a lesser-included offense of sexual assault because the elements of each 

crime are different. See Smith v. State, 120 Nev. 944, 946, 102 P.3d 569, 

571 (2004). Thus, Van Horn was not entitled to a jury instruction on 

sexual seduction. In addition, the court correctly instructed the jury that 

consent is not a defense to lewdness. See State v. Koseck, 113 Nev. 477, 

479, 936 P.2d 836, 838 (1997) (stating that lewdness "is a felony even if 

the sex was consensual"). Finally, the district court did not err by refusing 

to give Van Horn's proposed instruction on two reasonable interpretations 

of the evidence because the court had properly instructed the jury on 

reasonable doubt. See Hooper v. State, 95 Nev. 924, 927, 604 P.2d 115, 117 

(1979). 

The district court also did not err when it refused Van Horn's 

motion to ban the use of the term "victim" during trial. Just as when the 

term is used in Nevada statutes, see NRS 50.090, the term "victim" simply 

helped define sexual assault and lewdness in general terms. See Server v. 

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Mizell, 902 F.2d 611, 615 (7th Cir. 1990) ("The wording of the instructions 

merely posits that if an act of sexual conduct or sexual penetration 

occurred, it must have been perpetrated on a victim."). 

Van Horn argues that the district court erred by preventing 

him from asking the interrogating officer whether Van Horn had told the 

officer that he had been held in a police car, with the windows up, before 

questioning. The question asked for hearsay because defense sought to 

prove that Van Horn was actually held in a police car. And the statement 

does not qualify for the mental state exception because whether Van Horn 

told the interrogating officer that he had been in a police car is a 

recollection explaining a mental state (i.e., why he felt tired or hungry), 

not a statement of his current mental state. See Wagner v. Cnty. of 

Maricopa, 747 F.3d 1048, 1052-53 (9th Cir. 2013). Therefore, the district 

court did not abuse its discretion by excluding the hearsay statement. 

The district court did not commit plain error by admitting 

photographs of A.R. and Van Horn. It is not plain from the record, and 

Van Horn does not explain, how the photographs were inflammatory, 

especially considering that the jury observed A.R. and Van Horn during 

trial. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) ("It is 

appellant's responsibility to present relevant authority and cogent 

argument; issues not so presented need not be addressed by this court."). 

Van Horn argues that the district court abused its discretion 

by overruling the defense objections to (1) A.R.'s testimony that she 

performed fellatio on Van Horn to prevent him from leaving her mother 

and (2) the prosecution mentioning A.R.'s statement that she comforted 

her mother when her mother was upset with Van Horn. But this evidence 

and argument was introduced to show Alt's motive to perform fellatio, 

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Douglas 

C11ry 

not to show that Van Horn was guilty of sexual assault. Further, Van 

Horn does not explain the connection between one who would leave a 

relationship and the character of one who sexually assaults children. We 

conclude that the district court did not abuse its discretion by admitting 

the evidence. See Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 

(2008) (stating that a district court's decision to admit or exclude evidence 

is reviewed for an abuse of discretion). 

As for cumulative error, we have concluded that there was 

insufficient evidence to support two of the four lewdness convictions. Van 

Horn did not show that any other errors affected trial so as to cast doubt 

on his other convictions. Thus, there is no cumulative error affecting his 

remaining convictions. Accordingly, we 

ORDER the judgment of the district court REVERSED IN 

PART as to two lewdness counts AND AFFIRMED in all other respects 

AND REMAND this matter for the entry of an amended judgment of 

conviction consistent with this order. 

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cc: Hon. Douglas W. Herndon, District Judge 

Clark County Public Defender 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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