LANCE DREUX AUSTIN v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Lance Dreux Austin appeals from a judgment of conviction, pursuant to a jury verdict, of first-degree kidnapping and five counts of sexual assault. Eighth Judicial District Court, Clark County; Bita Yeager, Judge.

On April 21, 2017, a Las Vegas Metropolitan Police Department officer stopped B.W., the victim in this case, for jaywalking.¹ B.W. consented to a search, and the officer located what he believed to be heroin in his pants pocket. B.W. claimed that the pants did not belong to him but was nevertheless arrested for possession of a controlled substance. Apparently, B.W. expressed interest in working as a confidential informant during this stop. Although B.W. did not work as a confidential informant, he was ultimately never prosecuted for an offense related to this arrest.

The following day, B.W. was attending a music festival when he separated from the crowd to find beers. B.W. could not recall if he used heroin that day, but he had consumed alcohol and was extremely inebriated.² At some point, he ended up in front of the Four Queens Hotel and Casino with a group of security guards. According to those guards’ testimonies at trial, B.W. was visibly intoxicated, had difficulty standing, and was loudly crying.

Austin, who was staying at the hotel, approached while B.W. was on the ground “wailing” in front of the security guards. Austin had not known or met B.W. prior to this interaction. According to security guard Brian Tou, Austin told the guards that he was B.W.’s “friend” and that B.W. needed to get some sleep because he had too much to drink. In his drunken state, B.W. believed that Austin was an employee of the hotel offering him a free room to sleep off his intoxication. Tou placed B.W.’s belongings in a black, latex glove and handed them to Austin. Austin helped B.W. to his feet, placed his arm around him, and guided him through the hotel to his room. The two entered Austin's hotel room around midnight.

At trial, B.W. testified in detail about how Austin threatened and then sexually assaulted him once they were in the hotel room. B.W. testified that Austin stopped sexually assaulting him once Austin ejaculated, after which B.W. passed out.

B.W. testified that he regained consciousness completely naked in the bed while Austin smoked a cigar. B.W. got dressed and left the room around 4:00 a.m., taking note of the room number as he left. B.W. immediately went down to the hotel security and advised that he had been raped by the guest in the room he had just left. The security called the police, and LVMPD Officer Dartagnan Deeds responded to the scene. Officer Deeds called for an ambulance to take B.W. to the hospital, where he underwent a Sexual Assault Nurse Examiner examination and gave a detailed account of the crime to Detective Joshua Stark.

Officer Deeds unsuccessfully attempted to contact Austin in his hotel room. Thereafter, Officer Deeds ran surveillance video backwards until he saw B.W. with a man matching B.W.’s description of his assailant. Officer Deeds searched the hotel and found Austin standing just outside the casino. Officer Deeds approached Austin, asked him to identify himself, and confiscated his California driver's license. Officer Deeds told Austin that he needed to speak with him, so the two reentered the hotel. They then went up the elevator with a hotel security guard to an empty banquet hall. Austin was not handcuffed and sat at one of the tables while the security guard stood in one of two adjacent doorways.

Officer Deeds asked Austin two questions.³ First, Officer Deeds advised Austin that there was an accusation against him made by someone who was in his room and asked if anyone else was in Austin's room with him. Austin answered no. Second, Officer Deeds asked Austin what he had been doing from about 10:00 p.m. the previous night until the present morning. Austin told Officer Deeds that he went to a comedy show, got dinner, gambled, and went to bed. Austin made no mention of encountering B.W. Austin also asked about some bruising on Officer Deeds’ hands. Officer Deeds informed Austin that he had gotten in a fight earlier with a guy who did not want to go in handcuffs. Throughout the entire interrogation, Officer Deeds maintained possession of Austin's driver's license. Austin was subsequently arrested and charged by way of indictment with first-degree kidnapping and seven counts of sexual assault.

Austin moved to suppress his statements to Officer Deeds because he was not advised of his Miranda ⁴ rights before he was questioned. The State responded that Officer Deeds did not need to inform Austin of his Miranda rights because he was not in custody at the time of questioning. After a hearing, the district court issued a minute order denying the motion, finding that the totality of the circumstances “did not rise to the level by which a reasonable person would consider the fact-finding questions posed to [Austin] prior to his formal arrest as custodial.”

The State filed a motion in limine to prevent Austin from cross-examining B.W. about his arrest the day before the sexual assault occurred. After a hearing, the district court granted the motion, finding that Austin planned on using the arrest as improper character evidence and that Austin's theory that the arrest and subsequent discussions about being a confidential informant motivated B.W. to fabricate a sexual assault was speculative and would be confusing to a jury.

The case proceeded to a seven-day jury trial. In his opening statement, Austin claimed that he invited B.W. to his room “to be a Good Samaritan.” Austin urged the jury to pay attention to B.W.’s inconsistent account of events. B.W. testified and acknowledged that he was a heroin addict and that he was very drunk at the time of the incident, even noting that his memory of some details was “fuzzy.” Nevertheless, he gave a detailed account of the sexual assault including specific acts and statements made by Austin. While cross-examining B.W., Austin impeached B.W.’s credibility numerous times using his prior statements to Detective Stark at the hospital. Thereafter, Officer Deeds testified about his investigation, during which the State played for the jury the body-worn camera footage showing his interrogation with Austin in the banquet hall.

The SANE nurse, Jeri Dermanelian, testified that B.W.’s penis was bruised and had a small puncture wound and that his urethra was irritated. She also determined that, at the time of the exam,⁵ B.W. had a BAC of 0.16 percent and that he had opiates and benzodiazepines in his system. She explained that B.W. told her that he recently watched a pornographic video depicting a rape fantasy and indicated that what occurred in the video happened to him. On cross-examination, Nurse Dermanelian testified that, while possible, the injuries to B.W.’s penis were unlikely to have occurred from consensual sex.

The State also presented DNA evidence showing Austin's DNA on B.W.’s penis and chest. The State's expert explained that B.W.’s scrotum had the DNA of two individuals, at least one being male, but it was inconclusive who the DNA belonged to. Similarly, she testified that there was a presence of possible semen on B.W.’s anus, but she could not visualize any sperm cells or identify the contributor.

Austin testified in his own defense. He denied telling the security guards that he was B.W.’s friend and instead asserted that a security guard handed him B.W.’s belongings and passed B.W. off to him. Austin took B.W. to a hotel bar for a beverage. However, immediately after entering the bar,⁶ B.W. asked Austin if he “wanted to get high,” and Austin agreed. Austin testified that after they were in his hotel room, Austin sat on the bed and fell asleep while B.W. was standing at the dresser. He testified that no sexual contact happened and that he was surprised to find a naked man in his bed the next morning.

On cross-examination, the State asked Austin several times whether his trial testimony differed from what he told Officer Deeds. At one point, Austin acknowledged, “There is an addendum, yes.” The State again played the video where Officer Deeds interrogated Austin and asked Austin whether he told Officer Deeds about meeting B.W. Austin again denied telling Officer Deeds that he encountered B.W.

During closing arguments, the State played Officer Deeds’ interrogation a third time and noted that Austin's statements to Officer Deeds were inconsistent with his trial testimony. In his own closing, Austin argued that B.W. confabulated the story of the sexual assault: “[W]hat [B.W] was remembering was this rape porn video that he had been watching and not an incident that occurred to him.” During its rebuttal, the State argued that Austin was no longer entitled to the presumption of innocence. Following an objection, the State clarified upon direction from the district court that they were arguing that the evidence had shown that the defendant was guilty.

The jury found Austin guilty of first-degree kidnapping and five counts of sexual assault. The district court sentenced Austin to prison for an aggregate term of 20 years to life, and Austin timely appealed. On appeal, Austin raises four arguments. First, Austin alleges that the district court abused its discretion in granting the State's motion in limine. Second, Austin argues that the district court erred in denying his motion to suppress his statements to Officer Deeds. Third, Austin argues that the State committed various acts of prosecutorial misconduct that require reversal. Fourth, Austin argues that cumulative error mandates reversal. After review, we conclude that Austin has failed to demonstrate he is entitled to relief, and we affirm the judgment of conviction.

Any error in granting the State's motion in limine was harmless

Austin argues that the district court abused its discretion in granting the State's motion in limine, which precluded inquiry into the circumstances of B.W.’s arrest for possession of a controlled substance. Austin argues that B.W.’s desire to be a confidential informant proved his bias and motivation to fabricate the sexual assault, and that he should have been permitted to introduce specific instances of “bad character evidence for truth and veracity,” including B.W.’s “misrepresentations” to police within 24 hours of the sexual assault.⁷ The State responds that the district court correctly found that the arrest was irrelevant and that any potential error was harmless.

A defendant may inquire into “[s]pecific instances of the conduct of a witness” on cross-examination “for the purpose of attacking the witness's credibility.” NRS 50.085(3). However, the district court has “wide discretion to control cross-examination that attacks a witness's general credibility” and may preclude “inquiries which are repetitive, irrelevant, vague, speculative, or designed merely to harass, annoy or humiliate the witness.” Lobato v. State, 120 Nev. 512, 520, 96 P.3d 765, 771 (2004) (internal quotation marks omitted). Moreover, the district court has discretion “to exclude evidence which is otherwise admissible if its probative value is substantially outweighed by the danger of confusing the issues,” Sherman v. State, 114 Nev. 998, 1006, 965 P.2d 903, 909 (1998), and we review a district court's ruling on a motion in limine for an abuse of discretion, Whisler v. State, 121 Nev. 401, 406, 116 P.3d 59, 62 (2005).

Even assuming the district court abused its discretion by precluding Austin from inquiring into the circumstances surrounding B.W.’s arrest, including B.W.’s purported misrepresentations to the police, we conclude that any error was harmless. See NRS 178.598 (“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”). Notwithstanding the court's order in limine, Austin had ample opportunity to impeach B.W.’s testimony during trial. Austin cross-examined B.W. about his heroin addiction, his alcohol use and spotty memory on the night of the incident, his prior felony convictions, and his statement to security guards that he was afraid of going to jail. Further, Austin impeached B.W. with several contradictory statements that B.W. made to Detective Stark, and he argued in closing that B.W. was not credible and fabricated the sexual assault allegations.

The State also presented independent overwhelming evidence of Austin's guilt. The State admitted video surveillance footage showing Austin approaching B.W. and leading him away from the security guards to his hotel room. Moreover, B.W.’s account of the sexual assault was corroborated by physical evidence, such as pictures of the injuries to his penis and the presence of Austin's DNA on B.W.’s penis and chest. An expert testified that B.W.’s injuries were unlikely to have been the result of consensual sex.⁸ The State also presented evidence of the possible semen on B.W.’s anus, although the DNA expert was unable to visualize sperm cells or confirm the contributor. Therefore, we conclude that any error in precluding an inquiry into B.W.’s prior arrest did not affect Austin's substantial rights. See McMichael v. State, 98 Nev. 1, 4, 638 P.2d 402, 403-04 (1982) (holding the district court erred by admitting the testimony of a woman who had allegedly been previously raped by the defendant but that the error was harmless because “the victim's testimony, the medical evidence of her sexual assault, and the physical evidence, created an overwhelming inference of guilt”).

Any error in denying Austin's motion to suppress was harmless beyond a reasonable doubt

Austin argues that the district court erred in denying his motion to suppress his statements to Officer Deeds. The State concedes that this was an interrogation but argues that Austin was not in custody.

A criminal defendant may not be compelled to be a witness against him or herself. U.S. Const, amend. V; Nev. Const. art. 1, § 8(1). To protect this privilege, “Miranda warnings are required when a suspect is subjected to a custodial interrogation.” Carroll v. State, 132 Nev. 269, 281-82, 371 P.3d 1023, 1032 (2016) (internal quotation marks omitted). “A defendant is in custody under Miranda if ․ his or her freedom has been restrained to the degree associated with a formal arrest so that a reasonable person would not feel free to leave.” Id. at 282, 371 P.3d at 1032 (internal quotation marks omitted). “Custody is determined by the totality of the circumstances, including the site of the interrogation, whether the objective indicia of an arrest are present, and the length and form of questioning.” Id. (internal quotation marks omitted).

“A motion to suppress presents mixed questions of law and fact.” State v. Lloyd, 129 Nev. 739, 743, 312 P.3d 467, 469 (2013). We review the district court's “findings of fact for clear error, but the legal consequences of those facts involve questions of law that we review de novo.” Id. (internal quotation marks omitted); see also Casteel v. State, 122 Nev. 356, 361, 131 P.3d 1, 4 (2006).

Here, the district court found that Officer Deeds confiscated Austin's driver's license during the interrogation, and this finding was not clearly erroneous. The record also indicates that Officer Deeds led Austin from outside to a private room inside the Four Queens Hotel and Casino and commented on how he was previously in a fight with someone who did not want to go in handcuffs. These facts support a determination that the interrogation was custodial. However, the district court also found that the banquet hall was not an intimidating room, and this finding was not clearly erroneous. The record further indicates that Austin was never handcuffed at any time during the interaction and the interrogation lasted only a matter of seconds. These facts support the district court's determination that the interrogation was noncustodial.

Assuming, without deciding, that Austin was in custody when he was questioned by Officer Deeds, and that the district court erred by denying Austin's motion to suppress, we nonetheless conclude that the error was harmless beyond a reasonable doubt. See Belcher v. State, 136 Nev. 261, 267, 464 P.3d 1013, 1023 (2020). Notably, the statements that Austin sought to suppress were not directly incriminating as Austin did not confess to any crimes. Moreover, as previously discussed, the State also presented overwhelming evidence of Austin's guilt, including surveillance video showing Austin leading a visibly intoxicated B.W. to his hotel room, B.W.’s testimony describing the sexual assault, and physical evidence indicating B.W. was in fact sexually assaulted by Austin. Considering this evidence against Austin's brief statements to the police, we conclude that any error was harmless beyond a reasonable doubt and that a rational jury would have convicted Austin of first-degree kidnapping and the five counts of sexual assault with or without his statements to the police.

Austin has not shown any prosecutorial misconduct that requires reversal

Austin argues that the State committed various acts of prosecutorial misconduct. In reviewing claims of prosecutorial misconduct, we first “determine whether the prosecutor's conduct was improper.” Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). If so, we then “determine whether the improper conduct warrants reversal.” Id. “With respect to the second step of this analysis, this court will not reverse a conviction based on prosecutorial misconduct if it was harmless error.” Id.

First, Austin argues that the State improperly commented on his Fifth Amendment right to remain silent by questioning him about his statement to Officer Deeds where he failed to mention B.W. being in his hotel room. The State argues that the prosecutors never referenced Austin's right to remain silent because he voluntarily gave a statement to Officer Deeds and did not, in fact, remain silent. We agree with the State.

Although the Fifth Amendment prevents the prosecution from commenting at trial upon a defendant's silence following their arrest, Morris v. State, 112 Nev. 260, 263, 913 P.2d 1264, 1267 (1996), a defendant's pre-arrest silence may be used to impeach their credibility if they choose to testify at trial, see Jenkins v. Anderson, 447 U.S. 231, 235 (1980); see also Dettloff v. State, 120 Nev. 588, 599, 97 P.3d 586, 593 (2004).

Here, the State did not comment upon Austin's silence; rather, Austin answered Officer Deeds’ questions, and the prosecutor questioned Austin about the statements he provided. Austin's mere failure to include certain details in his statement to the police did not constitute an invocation of his right to remain silent such that the State was prohibited from commenting about that statement. Further, even assuming the prosecutor's questioning constituted commentary upon Austin's pre-arrest silence, the State was permitted to use Austin's pre-arrest silence to impeach his credibility after he elected to testify at trial. See Dettloff, 120 Nev. at 599, 97 P.3d at 593; see also Harris v. New York, 401 U.S. 222, 225-26 (1971) (holding that a statement taken in violation of Miranda may be used to impeach a defendant's credibility). Therefore, Austin fails to demonstrate that the prosecutor's questioning was improper, and we conclude he is not entitled to relief on this claim.⁹

Austin further argues that the prosecutor impermissibly commented about Austin's post-arrest silence in response to questioning by another officer. Specifically, Austin takes issue with the prosecutor's question on cross-examination that, “[Y]ou never told that [other] Metro PD officer anything about [B.W.] being in your room?” Austin answered, “They never read me my rights. I didn't want to tell him anything.” Austin did not contemporaneously object to this question, which on its face, did not reference Austin's post-arrest silence. Nevertheless, when the State subsequently questioned Austin about his post-arrest refusal to speak with Detective Stark, Austin objected and the district court ruled that the State could not comment upon or question Austin about his post-arrest silence. The State complied with the court's order and did not, at any point thereafter, reference Austin's post-arrest silence. Thus, any improper conduct was corrected by the district court following Austin's objection, and does not warrant reversal, particularly in light of the overwhelming evidence of Austin's guilt. See Valdez, 124 Nev. at 1193-94, 196 P.3d at 479 (considering the fact that “the district court sustained the defense's objection and instructed the prosecutor to move on” in determining whether alleged prosecutorial misconduct was prejudicial).

Second, Austin argues that the prosecutor misstated the law by arguing that he was no longer entitled to the presumption of innocence. During the State's rebuttal closing argument, the prosecutor stated that “[t]he defendant is presumed innocent until the contrary is proven, and that is true, but we are at the close of the evidence, and he is no longer entitled to that presumption.” Although “[a] prosecutor may suggest that the presumption of innocence has been overcome,” they cannot “suggest that the presumption no longer applies to the defendant.” Morales v. State, 122 Nev. 966, 972, 143 P.3d 463, 467 (2006); see also NRS 175.191 (“A defendant in a criminal action is presumed to be innocent until the contrary is proved ․”). Therefore, the prosecutor's argument was improper.

Nonetheless, we conclude that this misconduct does not compel reversal. The district court sustained Austin's objection and directed the State to rephrase its argument. Thereafter, the prosecutor clarified that “[t]he evidence has shown that the defendant is guilty as charged.” Moreover, the jury was properly instructed that “[t]he Defendant is presumed innocent until the contrary is proved.” Therefore, we conclude Austin is not entitled to relief on this claim.¹⁰ See Morales, 122 Nev. at 972, 143 P.3d at 467 (holding a prosecutor's statement that “there [was] no presumption of innocence anymore” was improper but did not compel reversal (alteration in original)); see also Valdez, 124 Nev. at 1193-94, 196 P.3d at 479.

Cumulative error does not mandate reversal

Finally, Austin argues that the cumulative effect of the above errors mandates reversal because the issue of guilt was close and the prosecutorial misconduct was great in quantity and character. The State responds that Austin has not made any meritorious claims of error.

“The cumulative effect of errors may violate a defendant's constitutional right to a fair trial even though errors are harmless individually.” Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002). When evaluating a claim of cumulative error, this court must consider “(1) whether the issue of guilt is close, (2) the quantity and character of the error, and (3) the gravity of the crime charged.” Valdez, 124 Nev. at 1195, 196 P,3d at 481 (internal quotation marks omitted).

As to the first factor, as discussed above, the issue of Austin's guilt was not close. The State presented overwhelming evidence that Austin led B.W. to his hotel room while B.W. was heavily intoxicated and sexually assaulted him. As to the second factor, the quantity and character of the errors were not significant. As previously discussed, Austin has identified no more than two instances of prosecutorial misconduct that were immediately corrected upon objection from defense counsel. Moreover, any error in denying Austin's motion to suppress or in granting the State's motion in limine did not significantly affect the outcome of the trial: Austin's statements to the police did not directly incriminate him and were not critical to the State's case, and Austin thoroughly challenged B.W.’s credibility despite being unable to inquire into B.W.’s prior arrest. As to the third factor, the crimes charged—first-degree kidnapping and sexual assault—were grave. However, his aggregate sentence of 20 years to life is not the maximum penalty permitted under the statutes.

Having considered all three factors, we conclude that the cumulative effect of the aforementioned errors did not deny Austin a fair trial and do not warrant reversal. See Dickey v. State, 140 Nev., Adv. Op. 2, 540 P.3d 442, 454 (2024) (holding cumulative error did not warrant reversal “despite the grave nature of the crime” because the evidence of guilt was overwhelming). Therefore, we conclude Austin is not entitled to relief on this claim.¹¹

Accordingly, we

ORDER the judgment of conviction AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   We recount the facts only as necessary for our disposition.

2.   At trial, the State's forensic toxicologist opined that given B.W.’s blood-alcohol content (BAC) of 0.16 percent approximately 8 hours after being sexually assaulted, his BAC at the time of the incident was likely between 0.213 and 0.385 percent.

3.   The record reflects that this interrogation was captured on Officer Deeds’ body-worn camera; however, neither party provided this court with that footage to review on appeal.

4.   Miranda v. Arizona, 384 U.S. 436 (1966).

5.   The examination took place approximately eight hours after Austin encountered B.W.

6.   Surveillance video showed Austin and B.W. were at the bar for approximately 26 seconds.

7.   Austin also argues that the State should not have been allowed to file this motion in limine given that a different district court judge had previously denied a similar motion in this case. Austin argues that there had been no new developments between the State's first and second motions in limine that served as “the impetus [for] a renewed motion on an issue already adjudicated.” However, this court previously rejected this argument when it denied Austin's pretrial petition for a writ of mandamus on the merits; thus, this claim is barred by the law of the case doctrine. See Austin v. Eighth Jud. Dist. Ct., No. 79573-COA, 2019 WL 6895759, at *1 (Nev. Ct. App. Dec. 17, 2019) (Order Denying Petition); cf. Clem v. State, 119 Nev. 615, 620, 81 P.3d 521, 525 (2003) (“The law of the case doctrine holds that the law of a first appeal is the law of the case on all subsequent appeals in which the facts are substantially the same.”).

8.   We also note that Austin did not contend that the injuries were the result of consensual sex between Austin and B.W. but rather denied that any sexual contact occurred.

9.   Austin also argues that the district court erred by reading a juror's question that improperly questioned his right to remain silent. The district court asked Austin the following question, which was submitted by a juror: “[w]hy didn't you tell the officer you were with the accuser when stopped for questioning?” Austin responded that he “didn't want to admit to the drugs,” and that Officer Deeds did not tell him anything “other than it's a serious thing.” Having concluded that the use of Austin's pre-arrest statements did not implicate Austin's Fifth Amendment rights, we further conclude that the district court did not err when it read the juror's question. See Jenkins, 447 U.S. at 235.

10.   To the extent Austin argues the State committed other incidences of prosecutorial misconduct, he did not object to the alleged misconduct below, and he does not argue plain error on appeal. Specifically, he does not argue that any alleged errors are “clear under current law from a casual inspection of the record,” nor does he argue that those errors affected his substantial rights. Jeremias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48 (2018). We thus conclude he has forfeited these claims, and we decline to review them on appeal. See Martinorellan v. State, 131 Nev. 43, 48, 343 P.3d 590, 593 (2015) (stating “all unpreserved errors are to be reviewed for plain error without regard as to whether they are of constitutional dimension”); see also Miller v. State, 121 Nev. 92, 99, 110 P.3d 53, 58 (2005) (stating it is the appellant's burden to demonstrate plain error); State v. Eighth Jud. Dist. Ct. (Doane), 138 Nev., Adv. Op. 90, 521 P.3d 1215, 1221 (2022) (recognizing the Nevada appellate courts “follow the principle of party presentation” and thus “rely on the parties to frame the issues for decisions and assign to courts the role of neutral arbiter of matters the parties present” (quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008))); Senjab v. Alhulaibi, 137 Nev. 632, 633-34, 497 P.3d 618, 619 (2021) (“We will not supply an argument on a party's behalf but review only the issues the parties present.”).

11.   Insofar as Austin has raised other arguments not specifically addressed in this order, we have considered the same and conclude that they do not present a basis for relief.