                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                SHAFIQ AHMED AFZALI,
                Appellant,
                                                                       No. 54019
                                                                                      FILE
                  vs.
                                                                                       JUL 2 2 20 6
                THE STATE OF NEVADA,
                                                                                      TRACE K. LINDEM kN
                Respondent.                                                        CLE% OF SUPREME COURT

                                                                                   By-.--d
                                                                                       DEPUTY CLERk
                       ORDER AFFIRMING IN PART AND REVERSING IN PART

                              This is an appeal from a judgment of conviction, pursuant to a
                jury verdict, of 11 counts of lewdness with a child, 15 counts of sexual
                assault of a child under 14 years of age, 2 counts of first-degree
                kidnapping, 1 count of second-degree kidnapping, 3 counts of battery with
                intent to commit a crime, 3 counts of using a minor in the production of
                pornography, and 22 counts of possession of child pornography. Eighth
                Judicial District Court, Clark County; James M. Bixler, Judge.
                              Appellant Shafiq Ahmed Afzali allegedly sexually abused
                three children: DB, BM, and TM. The primary victim, DB, was abused
                over the course of approximately three years. Afzali was arrested after his
                conduct was reported to police and thousands of child pornography images
                were discovered in his apartment, including pornographic material
                depicting DB. Afzali was charged with 63 felony counts related to child
                pornography and sexual conduct towards the three children.' At trial,
                Afzali denied any guilt and claimed that DB was sexually aggressive and
                consented to his inappropriate conduct. He was acquitted on the counts


                      1 The facts of this case are only recounted to the extent necessary to
                explain this court's legal reasoning.


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                related to TM and on three of the child pornography possession charges.
                However, a jury convicted Afzali on the other 57 counts.
                            Afzali raises a number of issues on appeal: (1) whether the
                district court's policies regarding the grand jury-selection process violated
                Afzali's due process and equal protection rights; (2) whether the district
                court erred by admitting certain rebuttal evidence and by denying Afzah's
                related motion for mistrial; (3) whether the possession of child
                pornography convictions and the sexual assault and lewdness convictions
                violate the Double Jeopardy Clause or the proscription against
                redundancy; and (4) whether the State presented sufficient evidence to
                support the counts for sexual assault and lewdness. 2


                      2 Afzalimakes a number of additional arguments: (1) the district
                court erred by denying Afzali's motion to sever the possession of child
                pornography charges from the sexual assault and lewdness charges; (2)
                the district court erred by denying Afzali's motion for independent
                psychological evaluations of DB and BM; (3) the district court erred by not
                conducting a proper inquiry into whether he needed a new attorney, and
                in creating a conflict between him and his attorney by addressing the
                issue in open court before the State; (4) the district court erred by refusing
                to provide Afzali's particularity instruction and providing the State's no
                corroboration instruction; (5) the district court's interpretation of NRS
                200.730 leads to absurd results, and the statute is unconstitutionally
                vague; (6) Afzali's sentence constitutes cruel and unusual punishment;
                and (7) cumulative error warrants reversal.

                      We conclude that these arguments are without merit for the
                following reasons:  a) the possession charges are connected to the sexual
                assault and lewdness charges because the police's possession of 25
                pornographic images cannot be explained without presenting evidence
                related to the sexual assault and lewdness charges, so the district court
                did not err; (2) Afzali failed to meet his burden of demonstrating a
                compelling need for the examinations pursiiant to Abbott v. State, 122
                Nev. 715, 723-25, 138 P.3d 462, 467-69 (2006); (3) Afzali voluntarily
                withdrew his motion to substitute counsel prior to trial and never re-filed
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                 Afzali does not demonstrate a prima fade fair cross-section violation
                             This court published Afzali v. State,   130 Nev., Adv. Op. 34,
                 326 P.3d 1 (2014), instructing the district court to provide Afzali with
                 demographic information regarding the grand juries that indicted him.
                 After the case was remanded and the demographic information discovered,
                 the parties provided supplemental briefing on appeal in which Afzali
                 argues that the racial groups were underrepresented on the grand jury
                 venires
                             "[A] prima facie violation of the fair-cross-section
                 requirement[ ]" is demonstrated by showing
                             (1) that the group alleged to be excluded is a
                             distinctive group in the community; (2) that the
                             representation of this group in venires from which
                             juries are selected is not fair and reasonable in
                             relation to the number of such persons in the
                             community; and (3) that this underrepresentation
                             is due to systematic exclusion of the group in the
                             jury-selection process."




                 ...continued
                 it prior to trial, thus, the issue was not preserved for appeal; (4) defense
                 counsel tacitly acknowledged that Afzali's theory of defense was embodied
                 in the consensual intercourse instruction, and thus, Afzali's reliance on
                 Crawford v. State, 121 Nev. 744, 121 P.3d 582 (2005), is misplaced as the
                 district court had no obligation to give the proposed particularity
                 instruction; (5) NRS 200.730 does not lead to absurd results and is not
                 unconstitutionally vague, as the statute was interpreted in Castaneda v.
                 State, 132 Nev., Adv. Op. 44, P.3d (2016); (6) the sentence imposed
                 was not cruel and unusual because district courts are afforded wide
                 discretion in sentencing, and the sentence imposed was not outside of the
                 statutory limits for the 57 felony counts Afzali was convicted of; and (7)
                 there were no errors justifying reversal.


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                 Williams v. State, 121 Nev. 934, 940, 125 P.3d 627, 631 (2005) (internal
                 quotation marks omitted) (emphasis omitted). After reviewing the
                 supplemental record, it is clear that the grand jury selection process in no
                 way accounted for race. NRS 6.110 sets forth the requirements for grand
                 jury selection. First, the clerk of the court must select at least 500
                 qualified persons at random to whom a questionnaire is mailed. NRS
                 6.110(1). In Clark County, it appears that 5000 qualified people are
                 mailed questionnaires. The questionnaires do not inquire into race, and
                 the 5000 names are randomly drawn from department of motor vehicle
                 and Nevada power records. The initial venire consists of the first 100
                 qualified people who return their questionnaires to the clerk. NRS
                 6.110(1). Second, the district court judges in Clark County select 50
                 potential grand jurors from the 100-person list. NRS 6.110(2) Third, the
                 presiding district court judge uses a lottery system to select 17 grand
                 jurors and 14 alternates from the 50-person group. NRS 6.110(3).
                 Because each of the three Williams factors must be shown, and Afzali
                 failed to demonstrate that racial minorities were systematically excluded
                 from the grand jury-selection process, we conclude that there has not been
                 a fair cross-section violation.   Williams, 121 Nev. at 940, 125 P.3d at 631
                 (noting that so long as the process is designed to pick jurors from a fair
                 cross section of the community, variations that lead to the exclusion of a
                 certain class of persons within the venire do not offend the law.)
                 The district court did not err by admitting certain rebuttal evidence and by
                 denying Afzali's related motion for a mistrial
                             Afzali makes two arguments: (1) the district court erred by
                 admitting the State's rebuttal evidence of Afzali's prior bad acts because
                 Afzali never "opened the door" to these bad acts, and (2) the district court


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                  erred in denying Afzali's motion for a mistrial on the grounds that such
                  evidence was admitted.
                              Afzali did not object to the rebuttal evidence either before or at
                  the time it was presented to the jury. Rather, he later moved for a
                  mistrial on the grounds that such rebuttal evidence was admitted. We
                  conclude that Afzali waived his right to appellate consideration by failing
                  to object to the rebuttal evidence prior to it being heard by the jury.   Moore
                  v. State, 122 Nev. 27, 36, 126 P.3d 508, 514 (2006). Furthermore, his
                  failure to object precluded him from moving for a mistrial on the same
                  grounds.
                  Afzali's double jeopardy and redundancy claims
                              Afzali raises a redundancy argument as to the possession
                  convictions and double jeopardy and redundancy arguments as to the
                  sexual assault and lewdness convictions.
                        The possession of child pornography convictions were redundant
                              Afzali argues that he can only be charged with one count of
                  possession of child pornography under NRS 200.730 because the core
                  element of the statute is "possession" and he possessed "all [22]
                  items . on the same day at the same time."         "[Al claim that convictions
                  are redundant stems from the legislation itself and the conclusion that it
                  was not the legislative intent to separately punish multiple acts that occur
                  close in time and make up one course of criminal conduct."           Wilson v.
                  State, 121 Nev. 345, 355, 114 P.3d 285, 292 (2005).
                              Nevada law sets forth the following prohibition on the
                  possession of child pornography:
                              A person who knowingly and willfully has in his or
                              her possession for any purpose any film,
                              photograph or other visual presentation depicting
                              a person under the age of 16 years as the subject
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                               of a sexual portrayal or engaging in or simulating,
                               or assisting others to engage in or simulate, sexual
                               conduct [is guilty of a felony.]
                   NRS 200.730.
                               In Castaneda v. State, this court reviewed whether possession
                   of numerous images of child pornography results in one or multiple
                   charges under NRS 200.730. 132 Nev., Adv. Op. 44, P.3d (2016).
                   We determined that the statutory text is ambiguous and applied the rule
                   of lenity to conclude that only one charge can be sustained when the
                   images are presented as a group and "individual distinct crimes of
                   possession" are not established. Id. at 5-7, 15. Castaneda downloaded 15
                   images onto his laptop, which he copied onto his flash drive and desktop.
                   Id. at 14-15. However, no evidence was presented that he had downloaded
                   the images at different times or locations. Id. at 15. Thus, we overturned
                   all but one of his possession convictions. Id.
                               Here, the jury was presented with 25 images of child
                   pornography on a CD and convicted Afzali on 22 of the possession counts.
                   However, while testifying, the LVNIPD detective who created the 25-image
                   CD did not discuss whether any of the 25 images were downloaded or
                   possessed at different times or locations. Accordingly, because the State
                   did not present sufficient evidence to overcome the redundancy issue, we
                   overturn 21 of Afzali's 22 convictions for possession of child pornography
                   under NRS 200.730.
                         The sexual assault and lewdness convictions do not violate the
                         Double Jeopardy Clause but the redundancy issue depends upon the
                         sufficiency of the evidence presented at trial
                               Afzali argues that many of the sexual assault and lewdness
                   convictions violate the Double Jeopardy Clause and are redundant.
                   Afzali's contends that "the State presented no evidence that the lewd acts
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                were 'separate and distinct' or that a significant amount of time
                interrupted the lewdness and sexual assaults."
                            "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). "[U]nder Article 1, Section 8(1)
                of the Nevada Constitution, 'kilo person shall be subject to be twice put in
                jeopardy for the same offense."     Id. at 897, 192 P.3d at 1189 (second
                alteration in original). "The Double Jeopardy Clause has been interpreted
                to encompass three distinct functions." Garcia v. State, 121 Nev. 327, 342,
                113 P.3d 836, 845 (2005). "[It] protects a criminal defendant (1) from a
                subsequent prosecution following a conviction on the charges, (2) from a
                subsequent prosecution following an acquittal, and (3) from multiple
                punishments for the same offense in a single trial"     Id. As to the third
                protection, this court
                            utilizes the test set forth in Blockburger v. United
                            States[, 284 U.S. 299, 304 (1932),] to determine
                            whether multiple convictions for the same act or
                            transaction are permissible. Under this test, if the
                            elements of one offense are entirely included
                            within the elements of a second offense, the first
                            offense is a lesser included offense and the Double
                            Jeopardy Clause prohibits a conviction for both
                            offenses.
                Salazar v. State, 119 Nev. 224, 227, 70 P.3d 749, 751 (2003), disapproved
                of on other grounds by Jackson v. State, 128 Nev. 598, 609-13, 291 P.3d
                1274, 1281-83 (2012) (footnotes omitted) (internal quotation marks
                omitted).
                            Lewdness requires the following elements:
                            A person who willfully and lewdly commits any
                            lewd or lascivious act, other than acts constituting
                            the crime of sexual assault, upon or with the body,
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                                     or any part or member thereof, of a child under
                                     the age of 14 years, with the intent of arousing,
                                     appealing to, or gratifying the lust or passions or
                                     sexual desires of that person or of that child . . . .
                      NRS 201.230(1). Sexual assault requires the following elements:
                                     A person who subjects another person to sexual
                                     penetration, or who forces another person to make
                                     a sexual penetration on himself or herself or
                                     another, or on a beast, 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

                      NRS 200.366(1). 3
                                     Sexual assault and lewdness each have a separate element.
                      Sexual assault includes the element of "sexual penetration," NRS
                      200.366(a), whereas the offense of lewdness includes the element of a lewd
                      act "other than acts constituting the crime of sexual assault." NRS
                      201.230(1). Thus, double jeopardy concerns are not implicated.
                                     However, in Crowley v. State, this court discussed whether
                      convictions for lewdness and sexual assault stemming from the same
                      underlying incident were redundant. 120 Nev. 30, 33-34, 83 P.3d 282, 285
                      (2004). We noted that "a case may support convictions on separate
                      charges 'even though the acts were the result of a single encounter and all
                      occurred within a relatively short time." Id. at 33, 83 P.3d at 285 (quoting
                      Wright v. State,      106 Nev. 647, 650, 799 P.2d 548, 549-50 (1990)).



                            3 BothNRS 200.366 and NRS 201.230 were amended in 2015. See
                      2015 Nev. Stat., ch. 399, §§ 8, 15, at 2235-36, 2241. This disposition only
                      discusses the statutes prior to the amendments.


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                However, we concluded that the defendant "never interrupted his actions"
                between his lewd act and his sexual assault, so the counts were
                redundant. Id. at 33-34, 83 P.3d at 285.
                            Afzali argues that the lewd acts were not separate from the
                sexual assaults. Specifically, he argues the following regarding DB:
                lewdness counts 7 and 8 are redundant to sexual assault counts 9 and 10;
                lewdness counts 20, 21, and 22 are redundant to sexual assault counts 12,
                13, and 14; and lewdness counts 28 and 29 are redundant to sexual
                assault counts 31 and 32. Thus, the question becomes whether the State
                presented sufficient evidence in support of the sexual assault counts, and
                separately, in support of the lewdness counts, to justify all of the
                convictions without redundancy.
                The State presented sufficient evidence to support the counts for sexual
                assault and lewdness
                            Afzali challenges the sufficiency of the evidence, which is
                commingled with the redundancy issue, 4 towards the 15 sexual assault
                convictions and the 8 lewdness convictions concerning DB.
                            "The Due Process Clause of the United States Constitution
                requires that an accused may not be convicted unless each fact necessary
                to constitute the crime with which he is charged has been proven beyond a


                      4Afzali  also argues that count 4, 5, and 6, are redundant, regarding
                lewd acts towards BM. However, BM's testimony establishes at least
                three separate instances where Afzali touched her breasts, buttocks, and
                genitals; sometimes separately, sometimes together. Specifically, she
                testified that Afzali touched her chest, buttocks, and genitals two or three
                different times in Afzali's bedroom prior to June 8, 2007. She also testified
                that on the evening of June 8, 2007, Afzali touched her inappropriately in
                his bathroom. Thus, count 4, 5, and 6 are not redundant because there
                was sufficiently particular evidence towards each count.


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                  reasonable doubt."    Rose v. State, 123 Nev. 194, 202, 163 P.3d 408, 414
                  (2007). "A jury verdict will not be overturned if there is sufficient evidence
                  in the record to substantiate the jury's finding."     King v. State, 87 Nev.
                  537, 538, 490 P.2d 1054, 1054 (1971). "The jury is the sole and exclusive
                  judge of the credibility of the witnesses and the weight to be given the
                  evidence." Id. "We review a claim of sufficiency of evidence by looking at
                  the facts in the light most favorable to the State." Grant u. State, 117 Nev.
                  427, 435, 24 P.3d 761, 766 (2001). "Our inquiry focuses on whether there
                  is substantial evidence in the record to support the jury's verdict, and
                  whether any rational trier of fact could have found the essential elements
                  of the crime beyond a reasonable doubt." Id.
                              As previously stated, Afzali argues that the lewdness counts
                  are redundant to the sexual assault counts. Afzali also asserts that DB
                  only testified with the requisite particularity to 6 separate incidents of
                  sexually assault, thereby reducing the 15 counts of sexual assault to 6.
                              "We have 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). "However, the victim must
                  testify with some particularity regarding the incident in order to uphold
                  the charge. We are cognizant that child victims are often unable to
                  articulate specific times of events . ."     Id. Thus, "[v]e do not require
                  that the victim specify exact numbers of incidents, but there must be some
                  reliable indicia that the number of acts charged actually occurred." Id.
                              DB testified that Afzali touched her chest, buttocks, and
                  genitals with his hands, mouth, and genitals approximately 20 separate
                  times before moving into the Ivy Apartment Complex. After moving into
                  separate units at the Ivy Apartment Complex, DB testified that Afzali

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                      continued to inappropriately touch her. She testified that these incidents
                      happened both in his apartment and in her apartment, and she could not
                      estimate the number of separate times Afzali committed these acts while
                      in the Ivy Apartment Complex because there were "[s]o many." Further,
                      she stated that sometimes he touched or rubbed her private areas and on
                      other occasions he penetrated her private areas.
                                  Afzali was convicted of 15 counts of sexual assault and 8
                      counts of lewdness towards DB. We conclude that DB's testimony
                      sufficiently demonstrates at least 15 instances of sexual assault and at
                      least 8 separate instances of lewdness. The charges are not redundant to
                      each other because, according to the testimony presented, there were well
                      over 23 separate instances of lewdness leading to sexual assault.
                      Furthermore, lewdness is only redundant to sexual assault when both
                      convictions arise out of a single encounter."   Crowley, 120 Nev. at 33, 83
                      P.3d at 285 (internal quotation marks omitted). Therefore, redundancy is
                      not implicated because there is sufficient evidence to demonstrate that the
                      lewdness and sexual assault convictions arose out of separate incidents.
                                  We also conclude that DB testified with sufficient particularity
                      to support each of the 15 convictions of sexual assault and 8 convictions of
                      lewdness. In testifying that Afzali acted inappropriately well over 20
                      separate times, DB described incidents both before and during the time
                      she lived in the Ivy Apartment Complex. She provided details about
                      where many of the assaults occurred, including testimony about incidents
                      that occurred on couches, on his bed, on her bed, and in his bathroom. She
                      described all of the private areas that Afzali touched and penetrated, on
                      multiple occasions. Some of her testimony was corroborated by the
                      videotape evidence and Afzali's own admissions. It would be unreasonable

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                '17
                 to expect DB to remember anything more than she provided, such as
                 specific dates, because the abuse occurred over the course of more than
                 three years in many different locations. Accordingly, we conclude that the
                 15 convictions of sexual assault and 8 convictions of lewdness shall not be
                 overturned.
                               Accordingly we
                               ORDER the judgment of the district court AFFIRMED IN
                 PART AND REVERSED IN PART.


                                                     -19CIAit
                                                    Parraguirre
                                                                    CC.J.



                                                                                   J.
                                                    Hardesty




                                                                                   J.



                                                                                   J.




                                                    Gibbons


                                                                                   J.
                                                    Pickering


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                cc: Hon. James M. Bixler, District Judge
                     Attorney General/Carson City
                     Clark County District Attorney
                     Clark County Public Defender
                     Eighth District Court Clerk




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