                                                   130 Nev., Advance Opinion   1&
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                RAYSHAUN COLEMAN,                                    No. 60181
                Appellant,
                vs.
                                                                               FILED
                THE STATE OF NEVADA,                                           APR 0 3 2014
                Respondent.
                                                                             TRA IE K. LINDEMAN
                                                                          CLE                   RT.
                                                                         BY
                                                                                  DEUY CLERK


                           Appeal from a judgment of conviction, pursuant to a jury
                verdict, of first-degree murder. Eighth Judicial District Court, Clark
                County; Michael Villani, Judge.
                           Reversed and remanded.


                David M. Schieck, Special Public Defender, and JoNell Thomas, Deputy
                Special Public Defender, Clark County,
                for Appellant

                Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
                Attorney, and Giancarlo Pesci, Deputy District Attorney, Clark County,
                for Respondent.




                BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.


                                                  OPINION


                By the Court, CHERRY, J.:
                           Appellant Rayshaun Coleman was convicted of first-degree
                murder by child abuse following the death of an infant, Tristen Hilburn.

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                 Tristen was the victim of multiple injuries, many of which occurred days
                 and weeks prior to the day of his death. Coleman insists that he is
                 innocent and that the injuries were inflicted by his girlfriend, Tristen's
                 mother Crystal Hilburn Gaynor, or others associated with her, including
                 her methamphetamine-addicted brother. In this appeal, Coleman
                 challenges the constitutionality of NRS 51.345, the statement-against-
                 interest exception to the hearsay bar, the district court's exclusion of
                 defense witnesses, and jury instructions on the felony-murder rule and
                 child abuse.
                                In resolving Coleman's appeal, we conclude that NRS 51.345
                 is constitutional but clarify that the standard for admissibility of a
                 statement against penal interest offered to exculpate an accused—
                 "corroborating circumstances [that] clearly indicate the trustworthiness of
                 the statement"—must not be so rigorously applied that it ignores the
                 purpose for the rule and instead infringes the defendant's constitutional
                 right to a meaningful opportunity to present a complete defense. We
                 conclude that the district court, in applying this provision, abused its
                 discretion by refusing to permit two defense witnesses to testify about
                 admissions made by Gaynor concerning a methamphetamine explosion
                 and resulting burns to Tristen's body. In reversing this portion of the
                 decision, we take the opportunity to clarify the relevant considerations for
                 identifying the corroboration necessary to support the admission of a
                 hearsay statement under NRS 51.345. We also conclude that the
                 instructions were not in error.
                                                     FACTS
                                This case stems from the death of Tristen on Sunday, March 8,
                 2009, when he was just six weeks old. While Tristen was healthy and
                 alert at birth, Gaynor indicated that Tristen had breathing issues to the
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                point where he had stopped breathing and turned blue. Despite this and
                the fact that he was small and had a weak cry, he was never taken to a
                doctor because of a lack of health insurance. At the time of Tristen's
                death, Gaynor lived in a house with her brother Brian Harris, her five-
                year-old son Devin, and her then-boyfriend Coleman. During this time
                period, Brian was using methamphetamine on a daily basis. To support
                his addiction, Brian would often act as a middleman, procuring drugs for
                acquaintances and receiving either money or drugs in return. It was not
                uncommon for these acquaintances to stop by the house to either purchase
                drugs from, or do drugs with, Brian. Brian sometimes took care of Devin,
                but he was not entrusted with the care of Tristen. On the day of Tristen's
                death, Brian spent much of the day in and out of the house with friends,
                pursuing and using methamphetamine.
                            In Tristen's six weeks of life, Gaynor left him with Coleman on
                three weekends, including the final weekend of Tristen's life. Tristen was
                in Coleman's care that weekend because Gaynor was incarcerated for an
                unrelated misdemeanor domestic violence conviction. Gaynor was home
                that Friday and early Saturday morning, but turned herself in at the jail
                around 8 a.m. on Saturday, March 7, 2009. When Coleman watched
                Tristen, he would keep Tristen in the master bedroom with the door closed
                and locked. Although a crib was available, Tristen slept between the
                couch cushions.
                            Coleman called 911 on the night of Tristen's death. He met
                the responding officers at the door and directed them to the back bedroom.
                Besides the emergency personnel, the only individuals in the house were
                Tristen, Coleman, and Devin. Upon entering the master bedroom, the
                responding officers found Tristen lying on the floor, unconscious, and not

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                    breathing. Tristen was cold to the touch but was not stiff. A number of
                    responders testified to observing red blotches or burns on Tristen's face
                    and body. Many also noted that the burns appeared to be recent.
                    Responders performed CPR, but it was unsuccessful and Tristen was
                    pronounced dead. Officers on the scene found Tristen's blood and pieces of
                    sloughed skin around the house.
                                Examination of Tristen's body revealed that he suffered from
                    many health issues and injuries at the time of his death that indicated
                    that he had been abused and neglected. He was extremely small and
                    malnourished, weighing only five and a half pounds (less than he weighed
                    at birth). His brain was small and swollen and some of the brain tissue
                    was dead. Due to the damage to his brain, Tristen may have had
                    problems crying and feeding. Although no tests were conducted to
                    determine bone density, the medical examiner indicated that Tristen
                    likely did not get enough calcium in his diet, which would have affected
                    the density of his bones. Tristan also suffered numerous physical injuries.
                    There were debrided first- to second-degree burns across approximately 36
                    percent of his body, two skull fractures as the result of blunt force trauma,
                    fresh bleeding in the muscles of his back, and multiple fractured ribs
                    consistent with blunt force trauma. The cause of death was determined to
                    be inflicted head injuries and burns with starvation contributing to the
                    death, and the manner of death to be homicide.
                                The investigation focused on Coleman. According to the
                    medical examiner, it was not possible for the lethal burns or skull
                    fractures to have been inflicted before 10:00 a.m. on Saturday, March 7,
                    2009, because there was no evidence of healing This evidence suggested
                    that the injuries were inflicted while Tristen was in Coleman's care;

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                       however, the healing process used to determine the time of injury can be
                       affected by a person's strength and the injuries, and in this case, Tristen's
                       immune system appeared to be inactive at the time of his death due to
                       stress and inadequate nutrition. When he was questioned on the day that
                       Tristen died, Coleman initially gave officers a false name. When asked
                       what had happened, Coleman said that he had bathed Tristen and put
                       him down to sleep. He indicated that he then also fell asleep and when he
                       woke he found Tristen unresponsive and with skin peeling from his burns.
                       There was some evidence that the burns could have happened when
                       Coleman bathed Tristen: the temperature of the hot water in the house
                       reached 131 degrees and a crime scene analyst observed that the hot and
                       cold faucets in the bathtub were reversed.
                                   The State charged Coleman with one count of murder by child
                       abuse and two counts of child abuse and neglect with substantial bodily
                       harm. It also charged Gaynor with one count of child neglect with
                       substantial bodily harm. Both pleaded not guilty. The trials were
                       severed, and the State filed a notice of intent to seek the death penalty
                       against Coleman. The State subsequently filed an amended information
                       in which it solely charged Coleman with murder by child abuse.
                                   Before trial, Coleman's counsel informed the court that he
                       intended to call three female witnesses who had been incarcerated with
                       Gaynor. These witnesses would testify about statements allegedly made
                       by Gaynor about burns that both she and Tristen suffered after being
                       splashed by cooking methamphetamine. The State objected to the
                       testimony on hearsay grounds, and Coleman argued that the statements
                       were admissible as statements against interest and pointed out that the
                       statements were exculpatory and relevant as to bias and a lack of

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                    investigation. The district court held an evidentiary hearing and
                    ultimately found that the statements were exculpatory as to both Gaynor
                    and Coleman, but were so lacking in any indicia of trustworthiness that
                    they could not be admitted as statements against penal interest under
                    NRS 51.345. Coleman's attorney later lodged a complaint on the record
                    alleging potential due process issues with NRS 51.345.
                                  After Coleman's trial began, instructions were proposed on the
                    felony-murder rule and child abuse. Coleman's counsel objected to the use
                    of the term "accidental" as being confusing given the nonaccidental
                    statutory definition of child abuse under the felony-murder rule in NRS
                    200.030. The State argued that the instruction was accurate given that
                    the killing can be accidental while the physical injury must be
                    nonaccidental. The district court allowed the instruction unaltered.
                                  During the culpability phase of the trial, the jury ultimately
                    found Coleman guilty of first-degree murder by child abuse. In the
                    penalty phase of the trial, one or more of the jurors found several
                    mitigating circumstances, including an lalbsence of intent to cause death"
                    and "[iinvolvement of others in injuries to Tristen." The jury did not find
                    the aggravating circumstance of mutilation of the victim. It found that the
                    mitigating circumstances outweighed the single aggravating circumstance
                    (the victim's age), and imposed a sentence of life with the possibility of
                    parole after 20 years. Coleman now appeals from the judgment of
                    conviction.
                                                    DISCUSSION
                    Sufficiency of the evidence
                                  Coleman argues that there is insufficient evidence to support
                    the conviction of first-degree murder by child abuse. Coleman argues that
                    his constitutional rights to due process of law, equal protection, a fair trial,
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                   and conviction based upon only evidence establishing guilt beyond a
                   reasonable doubt were violated. Coleman points out that the State failed
                   to prove that he inflicted the fatal injuries and that the death was not
                   accidental. In response, the State argues that the evidence presented,
                   viewed in a light most favorable to it, clearly established each element of
                   first-degree murder by child abuse beyond a reasonable doubt.
                               Because "after viewing the evidence in the light most
                   favorable to the prosecution, any rational trier of fact could have found the
                   essential elements of the crime beyond a reasonable doubt," Rose v. State,
                   123 Nev. 194, 202, 163 P.3d 408, 414 (2007) (internal quotations omitted),
                   we conclude that sufficient evidence supported the verdict. While others
                   were in the house the weekend of Tristen's death, Coleman was the only
                   adult present when Tristen died. Additionally, while testimony provided
                   that Coleman did a good job of caring for Tristen, Tristen was seriously
                   abused from the time of his birth. The abuse was so severe that Tristen's
                   brain was not developing normally, parts of it were dead, and it had
                   shrunk since his birth. Tristen was malnourished, suffered from head and
                   rib fractures, had been burned, and his immune system• was not
                   functioning. While the cause of the burns was unknown, Coleman
                   indicated that he had bathed Tristen and put him to bed before he stopped
                   breathing. The medical examiner acknowledged that the burns could have
                   been caused by abnormally hot water found in the house and evidence
                   established that the faucets on the tub were reversed. There was no
                   testimony establishing how the fractures were inflicted, but Coleman was
                   alone with Tristen all weekend. The medical testimony, while
                   inconsistent, supported that the burns and fractures occurred while
                   Coleman was alone with Tristen. And the medical examiner concluded

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                    that Tristen died of the burns and fractures. Viewing the evidence in the
                    light most favorable to the prosecution, we conclude that the evidence
                    presented could lead a rational trier of fact to conclude that Coleman
                    abused Tristen and that abuse led to his death. See Deveroux v. State, 96
                    Nev. 388, 391, 610 P.2d 722, 724 (1980) (noting that "circumstantial
                    evidence alone may sustain a conviction").
                    The exclusion of testimony from three defense witnesses
                                  Coleman next attacks the constitutionality of NRS 51.345 and
                    argues that even if the statute is constitutional, reversal is still warranted
                    because the exclusion of the defense witnesses' testimony about Gaynor's
                    statements was an abuse of discretion. Coleman contends that Gaynor's
                    statements would subject her to criminal liability for child neglect and
                    were trustworthy based on corroborating circumstances, and that their
                    exclusion was highly prejudicial.
                          Constitutionality of NRS 51.345
                                  Coleman argues that NRS 51.345 is unconstitutional because
                    it subjects certain exculpatory hearsay statements to a trustworthiness
                    determination based on corroborating circumstances that does not apply to
                    similar inculpating statements offered by the State.' Coleman also avers
                    that the statute arbitrarily allows the district court to preclude defense




                          1-The federal counterpart to NRS 51.345, Federal Rule of Evidence
                    804(b)(3), was amended in 2010 to make the requirement of corroborating
                    circumstances apply to all declarations against penal interest in criminal
                    cases.


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                  evidence based upon a trustworthiness determination that should be
                  decided by a jury rather than a judge. 2
                                  We review a challenge to the constitutionality of a statute de
                  novo.     Aguilar-Raygoza v. State,      127 Nev. „ 255 P.3d 262,
                  264 (2011). "Because statutes are presumed to be valid, [the challenger]
                  bears the heavy burden of demonstrating that [the statute] is
                  unconstitutional." Id. at , 255 P.3d at 264.
                                  Hearsay is an out-of-court statement "offered in evidence to
                  prove the truth of the matter asserted," NRS 51.035, and is inadmissible
                  unless within an exemption or exception. NRS 51.065. Hearsay evidence
                  has traditionally been excluded because it is not subject to the usual
                  method to test the declarant's credibility, since cross-examination to
                  ascertain a declarant's perception, memory, and truthfulness is not
                  available. Deutscher v. State, 95 Nev. 669, 684, 601 P.2d 407, 417 (1979).
                  Based on these concerns, additional requirements have been placed on
                  hearsay statements before they may be admitted.                  Chambers v.
                  Mississippi, 410 U.S. 284, 298-99 (1973) ("The hearsay rule, which has
                  long been recognized and respected by virtually every State, is based on
                  experience and grounded in the notion that untrustworthy evidence
                  should not be presented to the triers of fact. . . . A number of exceptions
                  have developed over the years to allow admission of hearsay statements
                  made under circumstances that tend to assure reliability and thereby


                          2 The
                              State argues that this issue was not preserved for appeal. We
                  disagree and conclude that the issue was preserved by the argument below
                  that the statute is unconstitutional and fundamentally unfair in violation
                  of due process because the defendant is held to a different standard for the
                  admission of hearsay evidence.


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                compensate for the absence of the oath and opportunity for cross-
                examination."). A statement against interest is excepted from the hearsay
                bar and is admissible, provided that the statement, at the time it is made:
                                  (a) Was so far contrary to the pecuniary or
                            proprietary interest of the declarant;
                                   (b) So far tended to subject the declarant to
                            civil or criminal liability;
                                  (c) So far tended to render invalid a claim by
                            the declarant against another; or
                                  (d) So far tended to make the declarant an
                            object of hatred, ridicule or social disapproval,
                            that a reasonable person in the position of the
                            declarant would not have made the statement
                            unless the declarant believed it to be true.
                NRS 51.345(1). An additional requirement is imposed when a statement
                "tending to expose the declarant to criminal liability [is] offered to
                exculpate the accused in a criminal case." Id. Such a statement "is not
                admissible unless corroborating circumstances clearly indicate the
                trustworthiness of the statement." Id.
                            Coleman asserts that Holmes v. South Carolina, 547 U.S. 319
                (2006), controls the constitutionality assessment of NRS 51.345. In
                Holmes, the United States Supreme Court addressed the constitutionality
                of "an evidence rule under which the defendant may not introduce proof of
                third-party guilt if the prosecution has introduced forensic evidence that,
                if believed, strongly supports a guilty verdict." 547 U.S. at 321. The
                United States Supreme Court began by noting that while the Constitution
                provides state and federal rulemakers with broad latitude to establish
                exclusionary rules for evidence in criminal trials, that latitude is limited
                by the Constitution's guarantee that a criminal defendant must have "a
                meaningful opportunity to present a complete defense."             Id. at 324
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                (internal quotations omitted). The Court stated that "ft] his right is
                abridged by evidence rules that infringe upon a weighty interest of the
                accused and are arbitrary or disproportionate to the purposes they are
                designed to serve." Id. (internal quotations omitted).
                            However, the Court clarified that "well-established rules of
                evidence permit trial judges to exclude evidence if its probative value is
                outweighed by certain other factors such as unfair prejudice, confusion of
                the issues, or potential to mislead the jury." Id. at 326. The Court then
                critiqued the evidentiary rule at issue based on its focus on the strength of
                the prosecution's case regardless of the credibility of the prosecution's
                witnesses or the reliability of its evidence and without considering the
                probative value of the proffered defense evidence.         Id. at 329. The
                Supreme Court concluded that the evidentiary rule did not "rationally
                serve the end that. . . [it was] designed to promote, i.e., to focus the trial
                on the central issues by excluding evidence that has only a very weak
                logical connection to the central issues." Id. at 330. As a result, the Court
                held that the rule was arbitrary and violated the defendant's right to a
                meaningful opportunity to present a complete defense. Id. at 331.
                            We conclude that Holmes is not dispositive, as the exclusion of
                the hearsay statements was not predicated on evidence of Coleman's guilt
                but was based on NRS 51.345(1)'s requirement that la hearsay]
                statement tending to expose the declarant to criminal liability and offered
                to exculpate the accused in a criminal case is not admissible unless
                corroborating circumstances clearly indicate the trustworthiness of the
                statement." Moreover, in critiquing the evidentiary rule at issue in
                Holmes, the Court indicated that rules based on the credibility of the
                witnesses or the reliability of the evidence would be proper.    Cf. 547 U.S.

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                    at 329. Thus, Holmes actually supports the constitutionality of NRS
                    51.345(1).
                                 Another court has addressed a similar challenge to an
                    evidentiary rule that is identical to NRS 51.345(1). In Summers v. State,
                    231 P.3d 125, 141 (Okla. Crim. App. 2010), the defendant argued that his
                    right to a fair trial was violated when the trial court refused to let him
                    present a witness's testimony that the witness ordered a third party to kill
                    the victims and that the third party made incriminating statements to the
                    witness that exculpated the defendant. The trial court determined that
                    the testimony could not be admitted as it was hearsay and the defense
                    failed to provide clear, corroborating circumstances that would indicate
                    the trustworthiness of the statement. Id. at 144-45. The appellate court
                    expressed concern that the evidentiary rule, which required corroborating
                    circumstances establishing the trustworthiness of a statement against
                    penal interest offered to exculpate a defendant, could violate a defendant's
                    constitutional rights. Id. at 148. In particular, if a court holds the defense
                    evidence to too high of a standard under the rule, "application of this
                    seemingly reasonable standard could, in fact, violate the defendant's right
                    to a meaningful opportunity to present his defense."          Id.   The court
                    explained that while courts have traditionally treated out-of-court
                    statements that tend to exonerate the defendant and implicate the
                    declarant with great suspicion, that concern does not "fully comport with
                    the later-developed, but now well-established doctrine regarding the
                    defendant's right to a meaningful opportunity to present his defense." Id.
                    "Such a rule, at least when too rigorously applied, would appear to be
                    'disproportionate' to the (reliability) end that it is intended to promote,
                    since it subjects the defendant's evidence to a more demanding

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                    admissibility evaluation than it does the State's." Id. at 148-49. Despite
                    its concerns, the court did not "question the validity, in general, of this
                    well-established evidentiary rule." Id. at 148.
                                We find the observations in Summers to be persuasive and
                    agree with the Oklahoma court's concerns about the constitutional
                    implications of the standard for admissibility of statements against penal
                    interest that are offered to exculpate a defendant. In applying the
                    evidentiary rule, the court must balance fabrication concerns with the
                    constitutional right to have a meaningful opportunity to present a
                    complete defense. See Holmes, 547 U.S. at 324 (stating that a defendant is
                    constitutionally guaranteed "a meaningful opportunity to present a
                    complete defense" (internal quotations omitted)); Woods v. State, 101 Nev.
                    128, 132, 696 P.2d 464, 467 (1985) (explaining that the drafters of the
                    federal rule analogous to NRS 51.345 expressed concern about
                    fabrication). Our prior decisions applying NRS 51.345 reflect that careful
                    balance. We have explained that "the statutory test for determining the
                    admissibility of statements against penal interest under NRS 51.345 is
                    whether the totality of the circumstances indicates the trustworthiness of
                    the statement or corroborates the notion that the statement was not
                    fabricated to exculpate the defendant." Walker v. State, 116 Nev. 670, 676,
                    6 P.3d 477, 480 (2000). Our caselaw does not apply NRS 51.345 so
                    rigorously as to hold the defendant to a standard that is disproportionate
                    to the statute's intended goal of providing reliability or unfairly burdens
                    the defendant's constitutional rights. It also balances the principle that
                    the reliability of relevant testimony typically falls within the province of
                    the jury, Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009), with the need to
                    "compensate for the absence of the oath and opportunity for cross-

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                    examination," Chambers, 410 U.S. at 299, that is at the heart of
                    exceptions to the hearsay rule such as NRS 51.345(1). Accordingly, based
                    on the balanced approach required to assess whether the statements
                    against penal interest should be admitted, NRS 51.345 is not
                    unconstitutional.
                         Application of NRS 51.345 to this case
                                Coleman contends that reversal is warranted because the
                    prohibition of the witnesses' testimony was an abuse of discretion as
                    Gaynor's statements would subject her to child neglect charges, were
                    corroborated and trustworthy, and the exclusion of the evidence was not
                    harmless. We agree. The district court abused its discretion in failing to
                    allow the testimony from two of the three witnesses.
                                While the application of NRS 51.345 is within the district
                    court's discretion, we will reverse the decision if it is an abuse of
                    discretion, meaning that the "decision is arbitrary or capricious or if it
                    exceeds the bounds of law or reason." Jackson v. State, 117 Nev. 116, 120,
                    17 P.3d 998, 1000 (2001); Sparks v. State, 104 Nev. 316, 320-21, 759 P.2d
                    180, 183 (1988).
                                The statements
                                The content of the proffered testimony is critical to our review
                    of the district court's evidentiary decision. Two of the proposed defense
                    witnesses (Erica Antolick and Dawn Makaroplos) testified in an offer of
                    proof outside the presence of the jury. Erica Antolick testified regarding
                    two statements made by Gaynor that the defense offered to exculpate
                    Coleman with respect to the burns suffered by Tristen. First, sometime in
                    2009, she overheard Gaynor say that while cooking methamphetamine
                    with her brother the mixture exploded and Tristen was splashed. Erica
                    asked what happened when the mixture exploded and Gaynor became
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                defensive, yelled, and very quickly lifted up her shirt to the extent that she
                could with her shackles. Erica stated that Gaynor's skin appeared red.
                Erica never heard Gaynor say that the baby suffered any burns, nor did
                she hear Gaynor discuss how or why Tristen died. Erica also admitted
                that she had no idea when the burning incident supposedly took place.
                Second, during a transport ride to court, Erica overheard Gaynor talking
                with Coleman and indicating that she knew that Coleman did not murder
                Tristen and that her brother did it. Erica also mentioned the fact that
                Tristen slept between the couch cushions. Erica admitted that she
                disliked Gaynor and had even requested a transfer to a separate unit
                because they did not get along. At the time of the hearing, Erica was on
                probation after having been convicted of felony forgery.
                            Dawn Makaroplos, who was Gaynor's friend, also testified
                about similar statements made by Gaynor that the defense offered to
                exculpate Coleman with respect to the burns. Dawn indicated that she
                saw scabs on Gaynor's chest in jail. When she asked Gaynor what
                happened, Gaynor stated that she and her infant were burned and that
                her infant had died as a result. Eventually, Gaynor opened up to Dawn
                and, while crying, said that "her brother was batching meth and she was
                feeding the baby and the pot exploded over the stove." After Gaynor
                admitted to having burn marks, Dawn said, "[w] ell, if you're feeding, then
                the baby got burn marks. . . . So how bad was the baby?" Gaynor would
                not acknowledge the question. Dawn admitted that Gaynor started crying
                every time she asked if the baby got burned, so she never obtained a direct
                answer from Gaynor. She nevertheless maintained that Gaynor stated
                that she had been holding the baby. Dawn stated that Gaynor told her
                that the burn happened the Friday before thefl baby's death and that

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                 Coleman was wrongly in jail for killing Tristen. According to Dawn,
                 Gaynor indicated that it was her brother's fault. Dawn testified that
                 Gaynor talked to and confided in her because everyone else in jail called
                 Gaynor a baby killer Dawn expressed some resentment toward Gaynor,
                 as Dawn was fighting for custody of her daughter at the time and Gaynor
                 was crying about her five-year-old when she had "killed a newborn." Upon
                 learning that Coleman had been living in Gaynor's house, Dawn admitted
                 that those were not the facts Gaynor told her. Gaynor had told her that
                 Coleman came from California to watch Tristen. Dawn also referenced the
                 fact that Gaynor said Tristen slept on the couch.
                             The district court excluded this testimony after concluding
                 that Gaynor's statements were not against penal interest and were so
                 lacking in any indicia of trustworthiness that they could not be admitted
                 under the NRS 51.345 hearsay exception. We address each of these
                 determinations in turn.
                             Potential for criminal liability
                             The district court emphasized that Gaynor's statements were
                 not self-incriminating. We disagree. Gaynor's alleged statements that she
                 was holding her baby next to where her brother was cooking
                 methamphetamine, resulting in splatter burns, tended to subject her to
                 additional criminal liability for child abuse or child neglect as she
                 admitted to holding a newborn next to highly explosive toxic substances.
                 See NRS 200.508(1) (a person is guilty of child abuse if he or she "willfully
                 causes a child who is less than 18 years of age to suffer unjustifiable
                 physical pain or mental suffering as a result of abuse or neglect or to be
                 placed in a situation where the child may suffer physical pain or mental
                 suffering as the result of abuse or neglect"); NRS 200.508(2) (a person is
                 guilty of child neglect if he or she "permits or allows that child to suffer
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                  unjustifiable physical pain or mental suffering as a result of abuse or
                  neglect or to be placed in a situation where the child may suffer physical
                  pain or mental suffering as the result of abuse or neglect"); NRS
                  200.508(4)(a) ("Abuse or neglect' means physical or mental injury of a
                  nonaceidental nature, sexual abuse, sexual exploitation, negligent
                  treatment or maltreatment of a child under the age of 18 years, ... under
                  circumstances which indicate that the child's health or welfare is harmed
                  or threatened with harm."); see also In re A.K., 696 N.W.2d 160, 161 (N.D.
                  Ct. App. 2005) (noting the mother's conviction for methamphetamine-
                  related offenses and child abuse and neglect, following a fire that resulted
                  in severe burning of the child). Accordingly, the district court erred in
                  determining that the statement did not tend to subject Gaynor to criminal
                  liability.
                               Corroborating circumstances and trustworthiness
                               In determining that there were not sufficient corroborating
                  circumstances to indicate the trustworthiness of Gaynor's statements, the
                  district court noted that the statements were not made to a friend in the
                  comfort of a private residence, but were made in jail and in a
                  transportation van. Also, Gaynor was already implicated in the
                  underlying crime at the time the statements were made, rendering them
                  less trustworthy. Although these are relevant considerations, Coleman
                  presented evidence sufficient to warrant a finding of trustworthiness
                  regarding Gaynor's statements presented by Erica and Dawn.
                               Discussing the difficulties in precisely identifying the
                  corroboration necessary to support the admission of a hearsay statement,
                  the Fourth Circuit Court of Appeals has recognized several factors that
                  are relevant to the inquiry. Specifically,

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                            (1) whether the declarant had at the time of
                            making the statement pled guilty or was still
                            exposed to prosecution for making the statement,
                            (2) the declarant's motive in making the statement
                            and whether there was a reason for the declarant
                            to lie, (3) whether the declarant repeated the
                            statement and did so consistently, (4) the party or
                            parties to whom the statement was made, (5) the
                            relationship of the declarant with the accused, and
                            (6) the nature and strength of independent
                            evidence relevant to the conduct in question.
                United States v. Kivanc, 714 F.3d 782, 792 (4th Cir. 2013) (quoting United
                States v. Bumpass, 60 F.3d 1099, 1102 (4th Cir. 1995)). Other courts have
                included for consideration     (7)   whether the statement was made
                voluntarily after Miranda warnings, United States v. Nagib, 56 F.3d 798,
                805 (7th Cir. 1995); United States v. Price, 134 F.3d 340, 348 (6th Cir.
                1998), (8) "whether there is any evidence that the statement was made in
                order to curry favor with authorities," Nagib, 56 F.3d at 805, and (9) the
                spontaneity of the statement, United States v. Thomas, 571 F.2d 285, 290
                (5th Cir. 1978).
                            At the time that the statements were made by Gaynor to Erica
                and Dawn, Gaynor was exposed to prosecution for child abuse and
                presumably had been given her Miranda warnings. She became very
                upset after mentioning the splashing methamphetamine and reacted
                emotionally by starting to cry or becoming angry. Gaynor also
                spontaneously made, and repeated, these statements to both witnesses.
                            Gaynor was in a relationship with Coleman, giving her a
                reason to lie to protect him. However, due to the emotionally charged
                nature of her utterances and their inculpatory nature, the motive behind
                making the statements is unclear.


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                            Taking into consideration the parties to whom the statement
                was made, it is apparent that neither Erica nor Dawn had a clear motive
                to fabricate the statements.   See Woods v. State, 101 Nev. 128, 133, 696
                P.2d 464, 467 (1985) ("In determining whether the declarant in fact made
                the proffered statement, the trial court may consider the credibility of the
                witness."). They were not promised any deals or benefits for their
                testimony such as a plea bargain or reduction in sentence.      See Walker,
                116 Nev. at 676, 6 P.3d at 481 (pointing out that the lack of an advantage
                accrued in exchange for the testimony supported a trustworthiness
                finding); Woods, 101 Nev. at 135, 696 P.2d at 469 (same). Although Dawn
                harbored some resentment toward Gaynor concerning child custody issues,
                she considered Gaynor a friend, providing an indicia of trustworthiness.
                See Walker, 116 Nev. at 676, 6 P.3d at 481 ("[fit is well-settled that a
                statement against interest made to a close friend or relative is considered
                to be more reliable than a statement made to a stranger."). We
                acknowledge, however, that Erica admitted to not liking Gaynor, which
                may have given her some incentive to fabricate the statements. But
                considering the other corroborating circumstances that indicate the
                trustworthiness of the statements, we are not convinced that this
                possibility warrants excluding the testimony.
                            We conclude that the nature and strength of independent
                evidence relevant to the conduct in question support the admission of
                Gaynor's statements. The statements were focused on Brian's undisputed
                involvement with methamphetamine. Although the statements were
                contradicted by Coleman's statements that Tristen was fine before his
                death, Coleman's statements were less than trustworthy as, at the time,
                he was attempting to protect himself, as evidenced by the use of a false

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                 name. Erica and Dawn both saw burns on Gaynor's torso, corroborating
                 Gaynor's statements. 3 Erica and Dawn also both knew of the obscure fact
                 that Tristen slept on the couch, indicating that Gaynor must have told
                 them of this detail, corroborating the fact that conversations occurred
                 between them about Tristen. These circumstances corroborate the
                 hearsay statements and were not sufficiently considered by the district
                 court.
                               In evaluating the corroborating circumstances, the district
                 court also observed that the medical evidence showed that Tristen's burns
                 could not have occurred before Gaynor reported to jail on the morning of
                 Saturday, March 7, 2009. But the evidence concerning Tristen's burns
                 conflicted with the evidence of his lack of a functioning immune system
                 and inability to heal. The inconsistency of these findings would allow for a
                 jury to determine that the burns could have taken place on the Friday
                 before Tristen's death.
                               Considering the corroborating circumstances, we conclude that
                 the district court abused its discretion in excluding the testimony• from
                 Erica and Dawn concerning Gaynor's statements about the burns. Any
                 discrepancies with other evidence should be left to the jury to assess.
                 Woods, 101 Nev. at 136, 696 P.2d at 469-70 (stating that it is "for the jury
                 to evaluate [the] story and to decide how much credence it should be




                          3 Whileno other testimony directly corroborated the burns, the
                 detective did not see Gaynor's chest and did not make any attempt to see
                 the area even after having discussed the burns with Dawn. The detective
                 also failed to report his conversation with Dawn and failed to follow up on
                 Dawn's statements to the police.


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                  given"). Accordingly, the district court abused its discretion in excluding
                  the testimony of Dawn and Erica on this ground.
                              However, we conclude that the district court did not abuse its
                  discretion in refusing to admit the testimony of the third defense witness.
                  Coleman's counsel proffered that the third witness's testimony would be
                  similar to Erica's testimony concerning the batching of methamphetamine
                  and the explosion. However, the third witness was unable to attend the
                  evidentiary hearing. Thus, the record is insufficient to assess the
                  trustworthiness of the statements Gaynor made to her as she did not
                  testify at the hearing. The district court therefore did not abuse its
                  discretion in excluding the third witness's testimony.
                              The error was not harmless
                              Any hearsay errors are evaluated for harmless error.    Walker,
                  116 Nev. at 677, 6 P.3d at 481. Coleman contends that the exclusion of
                  this evidence was not harmless. We agree. Because the exclusion of the
                  defense evidence affected Coleman's constitutional right to a meaningful
                  opportunity to present a complete defense, the error is only considered
                  harmless if the court can determine "beyond a reasonable doubt that the
                  error complained of did not contribute to the verdict obtained."   Chapman
                  v. California, 386 U.S. 18, 24 (1967). We cannot make this determination.
                  This evidence was very important to Coleman's defense as it showed that
                  he may not have been responsible for Tristen's burns, which were one of
                  the two potential causes of Tristen's death. Considering the mitigating
                  circumstance found by the jury of "ifinvolvement of others in injuries to
                  Tristen," we cannot conclude beyond a reasonable doubt that the jury
                  would have found Coleman guilty of murder had they heard this
                  testimony. Accordingly, this error was not harmless and warrants a new
                  trial.
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                 Instructions on the felony-murder rule and child abuse
                             Coleman argues that two instructions misled and confused the
                 jury as they represented that a killing committed in the perpetration of
                 child abuse is deemed to be murder of the first degree, even if the killing
                 was accidental. The State asserts, and we agree, that the instructions
                 accurately informed the jury that, while the killing can be accidental, the
                 physical injury to the child (the child abuse) must be nonaccidental. Here,
                 the jury was instructed that:
                                    There are certain kinds of murder which
                             carry with them conclusive evidence of malice
                             aforethought. One of these classes of murder is
                             murder committed in the perpetration or
                             attempted perpetration of child abuse. Therefore,
                             a killing which is committed in the perpetration of
                             child abuse is deemed to be murder of the first
                             degree, whether the killing was intentional or
                             unintentional or accidental. This is called the
                             Felony-Murder Rule.
                                   The intent to perpetrate or attempt to
                             perpetrate child abuse must be proven beyond a
                             reasonable doubt.
                 Moreover, the jury was instructed that "[al person commits child abuse if
                 he willfully causes physical injury of a nonaccidental nature to a child
                 under the age of 18 years."
                             These instructions comply with our statutory scheme
                 concerning first-degree murder and child abuse. The instructions properly
                 indicate that the child abuse must be nonaccidental and, to find murder in
                 the first degree, the State must prove beyond a reasonable doubt that the
                 murder was committed in the perpetration of child abuse. The death could
                 have been intentional, unintentional, or accidental, but the child abuse
                 must have been nonaccidental. As the State pointed out, the rationale

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                 behind the felony-murder rule is "to deter felons from killing negligently
                 or accidentally by holding them strictly responsible for the killings that
                 are the result of a felony or an attempted one."     Payne v. State, 81 Nev.
                 503, 506, 406 P.2d 922, 924 (1965). The instructions comport with our
                 statutory scheme and the purpose behind the felony-murder rule. 'I
                                                 CONCLUSION
                               We conclude that the district court's decision not to allow the
                 testimony from two defense witnesses was an abuse of discretion and
                 prejudiced Coleman. Accordingly, we reverse the judgment of conviction
                 and remand for a new trial.




                 We concur:


                                                  J.
                 Hardesty


                 TcuiN ck.se                      J.
                 Parraguirre




                       4 Becauseof our resolution of this appeal, we decline to reach
                 Coleman's remaining contentions concerning the jury instructions.


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