                                                     131 Nev., Advance Opinion     27
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   MIGUEL JOSE GUITRON,                               No. 64215
                   Appellant,
                   vs.
                   THE STATE OF NEVADA,
                                                                             FILED
                   Respondent.                                               MAY 2 1 2015
                                                                           T C E K. Lit .•EMAN
                                                                        CLE         '
                                                                        BY
                                                                             HIE DEH        H




                              Appeal from a conviction by a jury of incest, four counts of
                   sexual assault with a minor under the age of 14, and two counts of
                   lewdness with a minor under the age of 14. Eighth Judicial District
                   Court, Clark County; Kathleen E. Delaney, Judge.
                              Affirmed.


                   Phillip J Kohn, Public Defender, and Amy A. Feliciano and Kedric A.
                   Bassett, Deputy Public Defenders, Clark County,
                   for Appellant.

                   Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                   District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
                   Elissa Luzaich, Deputy District Attorney, Clark County,
                   for Respondent.




                   BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

                                                  OPINION
                   By the Court, SILVER, J.:
                              In this appeal, we consider whether evidence presented at
                   trial was sufficient to support a jury verdict finding appellant Miguel
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                   Guitron guilty of incest and sexual assault with a minor under the age of
                   14. Additionally, we must determine whether the district court erred by
                   denying Guitron's motion to admit evidence of the victim's prior sexual
                   knowledge, and clarify the procedure for the admission of such evidence.
                   We also consider whether the district court erred by refusing to give
                   Guitron's proposed inverse instruction and denying Guitron's Batson
                   challenges. Although we conclude the district court erred in denying the
                   motion to admit evidence and in failing to give the proposed instruction,
                   these errors were harmless. Accordingly, we affirm
                                                      FACTS
                               Guitron met the victim's mother, Anita, in Las Vegas in 1997
                   or 1998. The couple dated for some time, after which Anita moved to
                   Michigan. When she left Las Vegas, Anita was approximately two to three
                   months pregnant with the victim, who she asserts is Guitron's child.
                   However, Anita did not tell Guitron she was pregnant and she had no
                   contact with Guitron for some years after leaving Las Vegas. When the
                   victim was five years old, Anita applied for child support from Guitron,
                   which the court awarded following a positive paternity test.
                               In October 2010, Guitron called Anita while she was living in
                   Ohio with the victim and her two other children fathered by another man.
                   The victim, who was then 11 years old, overheard the conversation,
                   realized it was her father on the phone, and asked to speak with him. The
                   victim testified that during this first telephone conversation, Guitron told
                   her he was her father. Anita described the victim as "a kid in a candy
                   store" upon speaking with her father for the first time.
                               Following this phone call, Anita moved back to Las Vegas in
                   late 2010 and resumed her relationship with Guitron. The victim, who
                   was in elementary school and enrolled in an Individualized Education
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                   Plan because she was a slow learner, was thrilled to finally meet her
                   father. Guitron began living with the family shortly after the move.
                   During this time, the victim discussed sex with Anita and had at least
                   some knowledge and understanding of sex.
                               When the victim was 12 years old, Anita realized the victim
                   was pregnant. Initially, the victim told Anita a neighbor boy was the
                   father. The next day, Anita took the victim to a pregnancy center where
                   medical personnel confirmed she was eight months pregnant. Based on
                   the victim's statements during the examination, the medical staff called
                   the police and alleged Guitron had sexually assaulted the victim. The
                   victim then admitted to both Anita and the police that Guitron was the
                   baby's father. She explained she initially lied because Guitron told her to
                   say the neighbor boy was the father. DNA testing by the Las Vegas
                   Metropolitan Police Department conclusively proved Guitron was the
                   father of the victim's baby. Additionally, Guitron sent letters to the victim
                   during the pendency of the case, openly admitting he was the baby's
                   father.
                               At trial, based on his statement during an interview to
                   detectives prior to his arrest, Guitron asserted he and the victim only
                   engaged in sex on one occasion. Further, he alleged the victim initiated
                   that single sexual encounter, which occurred while Guitron was
                   intoxicated and partially unconscious. Guitron argued the victim was
                   sexually curious and wanted to have sex with him, and she was capable of
                   understanding the consequences of her actions despite her age. He also
                   asserted the State did not meet its burden of proof on the incest charge
                   because the State did not present DNA evidence proving he was the
                   victim's father. The State countered with evidence Guitron had groomed

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                   the victim and engaged in sexual conduct with her on multiple occasions,
                   even when the victim resisted his advances. The State also presented
                   witness testimony that Guitron was the victim's father.
                                The jury convicted Guitron of incest, four counts of sexual
                   assault with a minor under the age of 14, and two counts of lewdness with
                   a child under the age of 14. Guitron appeals.
                                                  DISCUSSION
                                On appeal, Guitron contends (1) the State presented
                   insufficient evidence for the jury to convict him of incest and sexual
                   assault with a minor under the age of 14; (2) the district court erred by
                   denying Guitron's motion to admit evidence of the victim's prior sexual
                   knowledge; (3) the district court erred by refusing to give Guitron's
                   proposed inverse instruction; and (4) the district court erred by denying
                   Guitron's Batson challenges.
                   Sufficiency of evidence
                                Guitron contends the State presented insufficient evidence for
                   the jury to convict him of incest and sexual assault with a minor under the
                   age of 14. We disagree.
                                In reviewing a challenge to the sufficiency of the evidence, we
                   view the evidence in the light most favorable to the prosecution and
                   determine whether "any rational trier of fact could have found the
                   essential elements of the crime beyond a reasonable doubt."       Jackson v.
                   Virginia, 443 U.S. 307, 319 (1979) (emphasis omitted); Mitchell v. State,
                   124 Nev. 807, 816, 192 P.3d 721, 727 (2008). As "it is the function of the
                   jury, not the appellate court, to weigh the evidence and pass upon the
                   credibility of the witness," Walker v. State, 91 Nev. 724, 726, 542 P.2d 438,
                   439 (1975), we do not determine the defendant's guilt, but rather consider
                   "whether the jury, acting reasonably, could have been convinced [beyond a
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                   reasonable doubt] by the evidence it had a right to consider," Wilkins v.
                   State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). The jury deter mines the
                   weight and credibility of conflicting testimony, and we will not disturb the
                   jury's verdict where substantial evidence supports the jury's findings.   See
                   Shannon v. State, 105 Nev. 782, 791, 783 P.2d 942, 947 (1989); Bolden v.
                   State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair v. State, 108
                   Nev. 53, 56, 825 P.2d 571, 573 (1992).
                         Incest
                                  NRS 201.180 defines incest as occurring when "[IA ersons being
                   within the degree of consanguinity within which marriages are declared
                   by law to be incestuous and void [either] intermarry with each other
                   or. . . commit fornication or adultery with each other." A parent and
                   natural child are within the degree of consanguinity wherein a marriage
                   between the two would be declared by law incestuous and void. See NRS
                   122.020(1), held unconstitutional on other grounds by Latta v. Otter, 771
                   F.3d 456, 476-77 (9th Cir. 2014). Further, fornication is defined as sexual
                   intercourse between two unmarried people.        Douglas v. State, 130 Nev.
                               327 P.3d 492, 494 (2014).
                                  On appeal, Guitron argues his conviction for incest is not
                   supported by the evidence, solely because the State failed to present DNA
                   evidence conclusively proving he is the father of the victim.
                                  Although neither party raises NRS 51.265, that statute
                   provides:
                                  Reputation among members of a person's family
                                  by blood or marriage, or among his or her
                                  associates, or in the community, is not
                                  inadmissible under the hearsay rule if it concerns
                                  his or her birth, marriage, divorce, death,
                                  legitimacy, relationship by blood or marriage,
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                               ancestry or other similar fact of his or her personal
                               or family history.
                               Here, both the victim and her mother, Anita, testified Guitron
                   was the victim's father. The victim testified that the first time she spoke
                   with Guitron by telephone he identified himself as her father. Anita
                   testified she was pregnant by Guitron when she broke up with him and
                   moved from Las Vegas. Further, Guitron paid child support for the victim
                   after paternity tests concluded he was the father of the victim. Thus, the
                   jury heard testimony from both the victim and Anita that Guitron was the
                   victim's father. Therefore, under NRS 51.265, the jury could reasonably
                   conclude from the evidence presented, Guitron was the victim's father.
                               Additionally, evidence presented at trial demonstrates that
                   Guitron himself admitted numerous times he was the biological father of
                   the victim. NRS 51.035(3)(a) provides a party's own statement offered
                   against him is not hearsay and is admissible against him. Here, Guitron
                   admitted to detectives that DNA testing confirmed his paternity in prior
                   child support proceedings and he repeatedly told detectives the victim was
                   his biological child. Thus, Guitron's numerous admissions to detectives
                   are admissible evidence sufficient to prove paternity beyond a reasonable
                   doubt, despite the State's lack of DNA evidence of paternity to the jury.
                               Furthermore, although not addressed by either party, NRS
                   51.345(1) excepts from the hearsay rule statements that, at the time they
                   are made, would subject the declarant to criminal liability or social
                   disapproval, and that a reasonable person in the position of the declarant
                   would not have made unless he believed it to be true. At trial, the State
                   presented letters written by Guitron to the victim. In those letters,
                   Guitron told the victim "you are my beautiful daughter" and "I love you,"
                   and instructed the victim to remember "we had [a] talk in the backyard
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                   about the fact about [C.G.] being your sister and your daughter and my
                   daughter, too. Remember me and you said that's going to be weird like on
                   Jerry Springer show. But me and you got a daughter together." This final
                   line was followed by a drawing of three pink hearts. Guitron further told
                   the victim he was "sorry," stating "I will be back. I can't wait till I can see
                   you and the baby. . . . [C.Gs] is my daughter and I need to see her."
                               Thus, in addition to the DNA evidence showing conclusively
                   Guitron was the baby's father, Guitron wrote several letters to the victim
                   asserting she was his daughter and the victim's baby was also his child.
                   As this open admission of incest would (and did) subject Guitron to both
                   criminal liability and social disapproval, and because Guitron did not
                   argue he did not believe the statements to be true, these letters were
                   likewise admissible evidence upon which the jury may have based its
                   verdict. Thus, based on Guitron's own statements, the jury could
                   reasonably infer he was the biological father of the victim.
                               Accordingly, because ample evidence reflects Guitron is the
                   father of both the victim and her baby, we affirm the incest conviction.
                         Sexual assault with a minor under the age of 14
                               We next turn to the question of whether the evidence
                   supported the jury's verdict finding Guitron guilty of sexual assault with a
                   minor under the age of 14. As relevant to this appeal, MRS 200.366
                   defines sexual assault as occurring where a person "subjects another
                   person to sexual penetration. . . against the will of the victim or under
                   conditions in which the perpetrator knows or should know that the victim
                   is mentally or physically incapable of resisting or understanding the
                   nature of his or her conduct." Guitron argues he should not have been
                   convicted on this charge because the evidence showed the victim consented
                   to having sex, and did not support the jury's finding Guitron knew or
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                   should have known the victim did not understand the consequences of her
                   conduct.
                               At trial, Guitron did not dispute he and the victim had sexual
                   intercourse or the victim's baby was his child Instead, Guitron asserted
                   he had committed a lesser crime of statutory sexual seduction. The victim
                   testified at trial that she was in love with Guitron and Guitron was in love
                   with her. Guitron's counsel argued to the jury the victim initiated sex by
                   climbing on top of him while he was intoxicated because she was curious
                   about sex and wanted to know what a penis felt like inside of her vagina.
                               The State, however, countered that this victim was vulnerable
                   and unable to understand the consequences of her actions. Further,
                   because of the victim's age and vulnerability, Guitron intentionally
                   manipulated the victim into having sex with him. The State presented
                   evidence the victim was "like a kid in a candy store" the first time she
                   spoke with Guitron on the telephone, as she was excited to meet the father
                   she had never known. Anita, her mother, testified the victim was a slow
                   learner and was in a special program at school, which required the victim
                   to have an Individualized Education Plan. During the time Guitron lived
                   with the victim and her family, he groomed the victim by telling her he
                   loved her, he wanted to marry her, and he wanted to spend the rest of his
                   life with her. The victim testified at one point Guitron gave her a diamond
                   ring and told her he wanted to marry her. When the victim gave the ring
                   back, Guitron swallowed the ring. Thereafter, Guitron left her a teddy
                   bear with his ring around the bear's neck. The victim took the necklace
                   from the bear's neck and began to wear his ring on a necklace. Ultimately,
                   the 12-year-old victim fell in love with Guitron, a man in his mid-40s.



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                               The State also presented evidence the victim was initially
                   reluctant to have sex with Guitron for fear of getting pregnant. The victim
                   testified Guitron began having sexual intercourse with her around
                   November or December 2011, when she was 12 years old. She testified
                   she did not initiate sex with Guitron. Instead, she testified to several
                   specific instances where Guitron had pressured her into having sex with
                   him, and at least one occasion where she voiced her concern to Guitron
                   about becoming pregnant. The victim also told the jury they had engaged
                   in sex more than ten times.
                               The State argued the victim was not capable of understanding
                   her actions due to her age and immaturity, and thus she was incapable of
                   giving consent. She did not know how to prevent pregnancy: she took
                   One-A-Day vitamins because she believed they would prevent pregnancy
                   and did not use condoms A caseworker testified the victim did not know
                   how to adequately care for a newborn, and the victim was initially more
                   concerned about continuing her relationship with Guitron than about
                   trying to understand her situation as a parent. These facts support the
                   State's position that this victim was not prepared for pregnancy, did not
                   understand how to prevent it, and did not understand the stigma
                   associated with having her father's baby.
                               Therefore, the record reflects sufficient evidence supporting
                   the verdict Guitron was guilty of sexual assault with a minor under the
                   age of 14. The State presented sufficient evidence for a rational trier of
                   fact to conclude the victim did not understand the consequences of her
                   actions, she was incapable of giving her consent, and Guitron knew or
                   should have known the victim was mentally or physically incapable of
                   resisting his conduct when he engaged in sex with her.    See Jackson, 443

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                   U.S. at 319; Shannon, 105 Nev. at 790-91, 783 P.2d at 947 (citing NRS
                   200.366).
                   Motions to admit evidence of a victim's prior sexual knowledge
                                We next consider Guitron's argument the district court erred
                   by denying his motion to admit evidence of the victim's prior knowledge of
                   sexual conduct. Prior to trial, Guitron filed a motion in limine requesting
                   the district court grant his motion to introduce evidence the 12-year-old
                   victim had gleaned "vast sexual knowledge" from viewing Internet
                   pornography with her friend from middle school. He argued this evidence
                   was relevant to his defense the victim was actually the one who initiated
                   sex with him because she was curious from viewing pornography and
                   wanted to know what a penis felt like in her vagina. He also argued this
                   evidence contradicted the State's theory this victim was slow or immature,
                   as it showed she actually understood the consequences of her actions and
                   consented to sexual intercourse with Guitron while he lay intoxicated on
                   his couch.
                                "We review a district court's decision to admit or exclude
                   evidence for an abuse of discretion." Mclellan v. State, 124 Nev. 263, 267,
                   182 P.3d 106, 109 (2008). A court's error will not be grounds for reversal
                   where it does not affect the defendant's substantial rights, NRS 178.598,
                   and even if the error is a constitutional violation, the guilty conviction may
                   still stand if the error was harmless beyond a reasonable doubt.
                   Obermeyer v. State, 97 Nev. 158, 162, 625 P.2d 95, 97 (1981). To be
                   harmless beyond a reasonable doubt, an error of constitutional dimension
                   cannot have contributed to the verdict. See Valdez v. State, 124 Nev. 1172,
                   1189, 196 P.3d 465, 476 (2008).
                                Nevada's rape shield law limits the degree to which a
                   defendant may inquire into the victim's past sexual history. NRS 50.090;
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                      Summitt v. State, 101 Nev. 159, 161, 697 P.2d 1374, 1375 (1985). But, due
                      process affords defendants the right to present evidence in support of their
                      arguments, Vipperman v. State, 96 Nev. 592, 596, 614 P.2d 532, 534
                      (1980), and the rape-shield law does not bar such evidence where its
                      admission is necessary to protect the defendant's fundamental rights
                      under the Sixth and Fourteenth Amendments, including where the
                      evidence is used to show the victim's prior independent knowledge.
                      Summitt, 101 Nev. at 162-64, 697 P.2d at 1376-77. Thus, where the
                      defense uses such evidence not to advance a theory of the victim's general
                      lack of chastity, but to show knowledge or motive, it may be admissible.
                      Id. at 163-64, 697 P.2d at 1377.
                                  In Summitt,    the Nevada Supreme Court addressed this
                      exception, holding a district court committed reversible error by denying a
                      defendant's motion to admit evidence of the six-year-old victim's prior
                      sexual knowledge. 101 Nev. at 160, 697 P.2d at 1375. The supreme court
                      held the district court should admit evidence offered by the defendant that
                      the victim had been sexually assaulted when she was four in order to
                      dispel the inference—which the jury would otherwise likely draw—that a
                      six-year-old victim would be incapable of describing a sexual assault
                      unless it had actually occurred.' Id. at 162, 697 P.2d at 1376. The Nevada


                           "The supreme court in Summitt quoted favorably the New
                      Hampshire Supreme Court in State v. Howard, 426 A.2d 457, 462 (N.H.
                      1981), wherein it stated:

                                        "We believe that the average juror would
                                  perceive the average twelve-year-old girl as a
                                  sexual innocent. Therefore, it is probable that
                                  jurors would believe that the sexual experience
                                  she describes must have occurred in connection
                                                                      continued on next page...
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                   Supreme Court approved New Hampshire's approach to determining
                   whether to admit such evidence, adopting the rule that once the defendant
                   seeks to admit evidence that may be precluded by the rape shield law, the
                   district court must provide an opportunity whereby the defendant may
                   show the evidence should be admitted because its probative value
                   outweighs its prejudicial effect. Id. at 163, 697 P.2d at 1377. In making
                   this determination,
                                  the trial court must undertake to balance the
                                  probative value of the evidence against its
                                  prejudicial effect, see NRS 48.035(1), and. . . the
                                  inquiry should particularly focus upon "potential
                                  prejudice to the truthfinding process itself," i.e.,
                                  "whether the introduction of the victim's past
                                  sexual conduct may confuse the issues, mislead
                                  the jury, or cause the jury to decide the case on an
                                  improper or emotional basis."




                   ...continued
                                  with the incident being prosecuted; otherwise, she
                                  could not have described it. However, if statutory
                                  rape victims have had other sexual experiences, it
                                  would be possible for them to provide detailed,
                                  realistic testimony concerning an incident that
                                  may never have happened. To preclude a
                                  defendant from presenting such evidence to the
                                  jury, if it is otherwise admissible, would be
                                  obvious error. Accordingly, a defendant must be
                                  afforded the opportunity to show, by specific
                                  incidents of sexual conduct, that the prosecutrix
                                  has the experience and ability to contrive a
                                  statutory rape charge against him."
                   Summitt, 101 Nev. at 164, 697 P.2d at 1377 (emphasis added) (quoting
                   Howard, 426 A.2d at 462).


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                   Id. (footnote omitted) (quoting State v. Hudlow, 659 P.2d 514, 521 (Wash.
                   1983)).
                                  Here, the district court held a hearing prior to trial regarding
                   the defendant's motion in limine. Guitron made an offer of proof the
                   victim had obtained prior sexual knowledge by watching Internet
                   pornography with one of her friends and her knowledge was relevant to
                   rebut the State's theories the victim did not consent and Guitron knew the
                   victim was mentally incapable of consenting to having sexual intercourse.
                   Further, Guitron argued this evidence was relevant to support his
                   statement to the police that this victim was curious about sex and had
                   actually initiated sex with him. If admitted, Guitron argued, this evidence
                   would be probative to his defense of statutory sexual seduction and would
                   rebut the State's theory this case involved sexual assault. In response, the
                   State presented almost no argumentS except to assert evidence that the
                   victim's prior sexual knowledge was irrelevant because the victim had the
                   defendant's baby and the pair clearly engaged in sex. The State never
                   expressly addressed Guitron's defense.
                                  The district court's subsequent ruling denying the defendant's
                   motion was flawed under Summitt. The district court failed to explain its
                   findings in light of the defense theory in this case and made no findings
                   regarding the probative value of the evidence. Instead, the court
                   summarily denied Guitron's motion, finding this evidence was too
                   prejudicial.
                                  As relevant here, statutory sexual seduction occurs when any
                   sexual penetration or ordinary sexual intercourse transpires between a
                   person older than 18 and a person younger than 16, where either of the



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                   parties act "with the intent of arousing, appealing to, or gratifying the lust
                   or passions or sexual desires of either of the persons." NRS 200.364(6)(b).
                                   Here, Guitron was an adult over the age of 18 and the victim
                   was under the age of 16. The victim had known Guitron for only a short
                   time, not her entire life. The victim told the police, and later the jury, she
                   and Guitron had fallen in love with one another. 2 Testimony suggested
                   the victim was sexually curious and willing to engage in sex with Guitron. 3
                   Because the baby's DNA conclusively showed Guitron and the victim had
                   sexual contact, the only issue for the jury to determine was whether this
                   victim was incapable of understanding the consequences of her actions
                   (the State's theory) or whether the victim consented to having sex with
                   Guitron (the defendant's theory).
                                   Significantly, Guitron did not seek to admit evidence that the
                   victim had watched Internet pornography to muddy the victim's
                   reputation or to attack her credibility; rather, he sought to bolster his
                   defense through the statement he made to police that this victim had prior
                   knowledge of sex, wanted to experience sex as a result of her curiosity, and
                   consented to have sex with him. Thus, under the analysis set forth in
                   Summitt, this evidence was relevant to his defense of statutory sexual
                   seduction, and was more probative than prejudicial considering the facts
                   of this case.




                         2 Guitron
                                 gave the victim presents, including rings and teddy bears,
                   and promised to marry her. She gave her baby Guitron's name.

                         3 Anfta  told the police the victim said she wanted to know what a
                   penis felt like inside of her.

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                               Accordingly, the district court abused its discretion and erred
                   by denying the defendant's motion to admit evidence of the victim's past
                   sexual knowledge. Furthermore, the district court made inadequate
                   findings regarding the admission of this evidence.
                               We take this opportunity to clarify the procedure for
                   submitting and admitting or denying evidence of a victim's prior sexual
                   knowledge. We hold that if a defendant in a criminal case makes a motion
                   in limine pursuant to Summitt prior to trial, the defendant must make a
                   detailed offer of proof as to what evidence the defendant seeks to admit at
                   trial. The district court must conduct a hearing and the defendant must
                   present justification for admission of the evidence, detailing how the
                   evidence is relevant to the defense under the facts in the case. The district
                   court must, thereafter, weigh the probative value of the proffered evidence
                   against its prejudicial effect. In weighing the offer of proof, the district
                   court must consider the prejudicial effect to the truthfinding process, as
                   well as whether this evidence may confuse the issues, mislead the jury, or
                   cause the jury to decide the case based on an improper or emotional basis.
                   See Summitt, 101 Nev. at 163, 697 P.2d at 1377.
                               The district court must conduct this hearing on the record so
                   as to provide the appellate court with a meaningful opportunity to review
                   the district court's decision for abuse of discretion. We also hold, following
                   this hearing, the district court must state on the record its findings of fact
                   and conclusions of law, detailing what evidence shall be admissible and
                   what evidence will not be admissible according to its ruling.
                               Despite the lack of findings by the district court in this case,
                   we nevertheless affirm Guitron's conviction because the district court's
                   error was harmless. Unlike the facts in Summitt, where a six-year-old

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                   alleged sexual assault and no admitted facts provided an alternate basis
                   for the child's knowledge of sexual conduct, the facts in this case are
                   notably distinguishable. Specifically, although Guitron was precluded
                   from presenting evidence regarding the victim's conduct of viewing
                   Internet pornography, the district court allowed Guitron to present
                   evidence and argue the victim was knowledgeable about sex prior to
                   having sexual intercourse with Guitron.
                               Here, the 12-year-old victim admitted at trial she had
                   knowledge about sexual conduct prior to having sex with Guitron. In fact,
                   she explained to the jury she had conversations with her mother about
                   sex, she knew about the birds and the bees, and she knew where babies
                   came from. She even elaborated she told Guitron not to ejaculate inside of
                   her vagina because she did not want to get pregnant Anita confirmed this
                   testimony and even told the jury the victim stated she was the one who
                   initiated sex with Guitron.
                               During closing arguments, defense counsel analogized the
                   victim to other teenage girls starring in the MTV reality show 16 and
                   Pregnant. Defense counsel argued the victim was knowledgeable about
                   sex, understood the consequences of her actions, consented to and initiated
                   sex, was in love with Guitron, and wanted to continue the romantic
                   relationship. The defense urged the jury to disregard the State's theory
                   that this crime was a sexual assault under conditions in which Guitron
                   knew or should have known the victim was mentally or physically
                   incapable of resisting his conduct. Finally, the district court specifically
                   instructed the jury on statutory sexual seduction, and provided this charge
                   as an alternative option for the jury's consideration on the verdict farm.
                   Therefore, the record overwhelmingly reflects Guitron was not precluded

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                       from advancing the defense theory that Guitron committed the lesser
                       offense of statutory sexual seduction as opposed to sexual assault of a
                       minor.
                                    Given the overwhelming evidence supporting the verdict in
                       this case, and the fact that Guitron was not precluded from advancing his
                       defense to the jury, we conclude the district court's error did not contribute
                       to the jury's verdict and was therefore harmless. Accordingly, we will not
                       overturn the jury's verdict despite the district court's error.
                       The inverse elements instruction
                                    Guitron further claims the district court erred by rejecting his
                       proposed inverse elements instruction as to the crime of sexual assault
                       with a minor under the age of 14. He asserts under Crawford v. State, 121
                       Nev. 744, 753, 121 P.3d 582, 588 (2005), the district court was required to
                       give the jury his inverse elements instruction. We agree.
                                   "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."    Id. at 748, 121 P.3d at 585.
                       However, the district court may not refuse to give a proposed defense
                       instruction simply because it is substantially covered by the other
                       instructions given. Id. at 750-54, 121 P.3d at 586-89. In Crawford, the
                       Nevada Supreme Court stated:
                                   Wins court has consistently recognized that
                                   specific jury instructions that remind jurors that
                                   they may not convict the defendant if proof of a
                                   particular element is lacking should be given upon
                                   request. This court has also recognized that a
                                   positive instruction as to the elements of the crime
                                   does not justify refusing a properly worded
                                   negatively phrased position or theory instruction.


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                   Id. at 753, 121 P.3d at 588 (footnote omitted) (internal quotations
                   omitted).
                                  Notwithstanding, if a proposed inverse or negatively phrased
                   element instruction is misleading or would confuse the issues, the district
                   court will not err by refusing to give it to the jury.      Carter v. State, 121
                   Nev. 759, 765, 121 P.3d 592, 596 (2005). In Carter, the Nevada Supreme
                   Court clarified a defendant is not entitled to instructions that are
                   "misleading, inaccurate or duplicitous."        Id.   Even if a court errs by
                   refusing to give an instruction, the error will be harmless if the reviewing
                   court is "convinced beyond a reasonable doubt that the jury's verdict was
                   not attributable to [that] error."    Crawford, 121 Nev. at 756, 121 P.3d at
                   590.
                                  At trial, the court's elements instruction read:
                                  A person who subjects a minor under fourteen to
                                  sexual penetration, against the minor's will or
                                  under conditions in which the perpetrator knows
                                  or should know that the minor is mentally or
                                  physically incapable of resisting or understanding
                                  the nature of his/her conduct, is guilty of sexual
                                  assault with a minor under fourteen.
                                  Guitron proposed a negatively phrased elements instruction
                   that stated:
                                  If the State fails to prove beyond a reasonable
                                  doubt that any sexual penetration of a minor
                                  under fourteen was against the minor's will or
                                  under conditions in which the perpetrator knows
                                  or should know that the minor is mentally or
                                  physically incapable of resisting or understanding
                                  the nature of his/her conduct, then you must find
                                  the Defendant not guilty of the offense of Sexual
                                  Assault with a Minor Under Fourteen.


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                               The district court rejected Guitron's proposed instruction after
                   considering Crawford. It reasoned inverse instructions generally create
                   confusion and lack clarity for jurors, as inverse instructions add
                   unnecessary extra explanations.
                               Here, the record shows Guitron proposed a negatively phrased
                   elements instruction pursuant to Crawford.        Contrary to the district
                   court's conclusion, the proposed inverse instruction was not misleading
                   and would not have created confusion. Thus, the district court abused its
                   discretion and erred when it denied the defendant's proposed inverse
                   elements instruction.
                               Nevertheless, we conclude this error was harmless under the
                   circumstances presented here. The jury was accurately instructed
                   regarding the elements of sexual assault. As discussed above, substantial
                   evidence supported the jury's verdict Guitron committed sexual assault
                   with a minor under the age of 14. The State presented considerable
                   evidence the 12-year-old victim was unable to understand the
                   consequences of her actions or consent to having sexual relations with
                   Guitron. The State's evidence showed Guitron groomed the victim and
                   pressured her into having sexual relations against her will. Given the
                   overwhelming evidence supporting the verdict, we are convinced beyond a
                   reasonable doubt the verdict was not attributable to the court's refusal to
                   give the inverse instruction. See Crawford, 121 Nev. at 756, 121 P.3d at
                   590. Accordingly, we do not reverse the verdict on this ground.
                   Batson challenges
                               Finally, Guitron contends that under Batson v. Kentucky, 476
                   U.S. 79 (1986), and its progeny, the State improperly used its peremptory
                   challenges to remove non-white venire persons from the jury pool in

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                   violation of Guitron's Fourteenth Amendment right to equal protection.
                   We disagree.
                               The United States Supreme Court has consistently held "that
                   prosecutorial discretion cannot be exercised on the basis of race, Wayte v.
                   United States, 470 U.S. 598, 608 (1985), and that, where racial bias is
                   likely to influence a jury, an inquiry must be made into such bias." Powers
                   v. Ohio, 499 U.S. 400, 415 (1991) (emphasis added) (citing Ristaino v.
                   Ross, 424 U.S. 589, 596 (1976), and Turner v. Murray, 476 U.S. 28 (1986));
                   Batson, 476 U.S. at 95.
                               The three-pronged Batson test for determining whether illegal
                   discrimination has occurred requires: (1) the opponent of the peremptory
                   strike to show a prima facie case of discrimination, (2) the proponent of the
                   strike to provide a race-neutral explanation, and (3) the district court to
                   determine whether the proponent has "in fact demonstrated purposeful
                   discrimination." Diomampo v. State, 124 Nev. 414, 422, 185 P.3d 1031,
                   1036 (2008) (citing Batson, 476 U.S. at 96-98). The reason for excluding a
                   juror under the second prong need not be either persuasive or plausible so
                   long as it does not deny equal protection.     Id. At the third prong, the
                   district court must determine whether the opponent of the strike has met
                   his burden of demonstrating the proponent's explanation is a pretext for
                   discrimination. See Conner v. State, 130 Nev. „ 327 P.3d 503, 508-
                   09 (2014), petition for cert. filed, 83 U.S.L.W. 3767 (U.S. Mar. 18, 2015)
                   (No. 14-1130). This burden is a heavy one.       See Hawkins v. State, 127
                   Nev. „ 256 P.3d 965, 967 (2011) (discussing the Seventh Circuit's
                   upholding of a preemptory strike despite the prosecution's "lame" race-
                   neutral reason). The district court's factual findings regarding whether
                   the proponent of a strike has acted with discriminatory intent is given

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                   great deference, Diamampo, 124 Nev. at 422-23, 185 P.3d at 1036-37, and
                   we will not reverse the district court's decision "unless clearly erroneous,"
                   Kaczmarek v. State, 120 Nev. 314, 334, 91 P.3d 16, 30 (2004).
                               Here, the record indicates Guitron initially objected to the
                   State's preemptory strike of Prospective Juror 31, an Asian male, and the
                   district court initially determined Guitron had failed to make a prima
                   facia case as to that juror. After the State exercised a preemptory
                   challenge to excuse Prospective Juror 52, an African-American female,
                   Guitron renewed his objection, arguing the State had exercised more than
                   half of its preemptory challenges on minorities. The district court did not
                   specifically find Guitron had established a prima facie case; instead, the
                   court turned to the State for the race-neutral explanations. Under these
                   circumstances we conclude the district court mooted the first step of the
                   Batson analysis. See Ford v. State, 122 Nev. 398, 403, 132 P.3d 574, 577
                   (2006). CI Watson v. State, 130 Nev. „ 335 P.3d 157, 169 (2014)
                   (discussing situations where the first Batson step is not mooted). It
                   therefore fell to the State to provide a race-neutral explanation.   Burkett v.
                   Elem, 514 U.S. 765, 768 (1995).
                               The State indicated it had struck Juror 31 because he was a
                   single father who automatically believes children. 4 As to Juror 52, the
                   State indicated it was currently prosecuting Juror 52 for a sex offense.
                   The State further noted Juror 52 claimed she was molested when she was
                   young and her daughters were also molested, but she did not think it
                   appropriate to move forward with charges. Further, Juror 52 appeared

                         The record reflects that Juror 31 automatically believes children
                         4

                   merely because they are children, and he articulated no reason for his
                   tendency to believe children.

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                   more upset over being the victim of identity theft than over being
                   molested. Following these explanations, Guitron acknowledged he had the
                   burden to demonstrate these reasons were a pretext for discrimination.
                   See Conner, 130 Nev. at 327 P.3d at 508-09. To meet this burden,
                   Guitron argued the State's failure to strike similarly situated jurors
                   evinced pretext. The district court found the State's reasons to be race-
                   neutral and rejected the Batson challenge.
                               The State's reasons were clear, reasonably specific, facially
                   legitimate, and did not communicate any inherent discriminatory intent.
                   See id. at , 327 P.3d at 508. The record reflects key differences between
                   Jurors 31 and 52 and the jurors who were not struck by the State. 5 As
                   Guitron was required to sufficiently demonstrate it was more likely than
                   not the State acted with racially discriminatory intent or purpose, id. at
                      , 327 P.3d at 509; Kaczmarek, 120 Nev. at 334, 91 P.3d at 30, Guitron
                   failed to meet his burden and these differences undermine Guitron's
                   argument and support the district court's finding. Under these facts the
                   district court did not err in denying the Batson challenges.
                                                 CONCLUSION
                               Guitron's convictions of incest and sexual assault with a minor
                   under the age of 14 are supported by substantial evidence. To the extent
                   the district court erred in failing to allow evidence of the victim's prior
                   sexual knowledge and failing to give Guitron's inverse elements

                         5Guitron argued Proposed Jurors 24 and 47 were similarly situated
                   to Proposed Jurors 52 and 31. Juror 24, however, was not being
                   prosecuted for a crime, and Juror 47 stated she would consider all of the
                   evidence and try to be fair in weighing a child's testimony. We further
                   note Guitron used a preemptory challenge to strike Proposed Juror 47
                   from the jury.

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                   instruction, those errors were harmless and do not warrant reversal.
                   Finally, Guitron failed to show the district court erred by denying his
                   Batson challenges. Accordingly, we affirm the jury's verdict.


                                                                                   J.
                                                       Silver

                   We concur:
                                    S.


                                                  C.J.
                   Gibbons


                         erasesc                  J.
                   Tao




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