IRVING MALAGON v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Irving Malagon appeals from a judgment of conviction, entered pursuant to a jury verdict, of luring children or mentally ill persons with the intent to engage in sexual conduct, open or gross lewdness in the presence of a child or vulnerable person, and attempted lewdness by a person more than 18 in the presence of a child under 18 or vulnerable person. Eighth Judicial District Court, Clark County; Monica Trujillo, Judge.

In February 2024, 15-year-old C.H. was on a walk with her dog when a man parked his car near her. The man exited the vehicle and said something to get C.H.’s attention. C.H. turned to look at the man and saw that his pants were undone, his hands were “down there,” and some of the skin below his belt was showing. C.H. quickly looked away and continued her walk.

Three days later, 11-year-old S.T. was walking to her grandmother's house after being released from the nearby middle school when a man parked his car near her. The man exited and used two fingers to indicate that S.T. should come closer to him. S.T. walked closer but saw that he was “going up and down” on his “private part,” which caused her to freeze and then run away.

Police later arrested Malagon, and the State charged him with three felonies related to those events: luring children or mentally ill persons with the intent to engage in sexual conduct (as to S.T.), open or gross lewdness in the presence of a child or vulnerable person (as to S.T.), and attempted lewdness by a person more than 18 in the presence of a child under 18 or vulnerable person (as to C.H). In August, the matter proceeded to a five-day trial.

At trial, S.T. and C.H. testified about their respective encounters with Malagon. Several other witnesses also testified on behalf of the State, including, but not limited to: C.H.’s aunt, who testified that C.H. was “frantic” and “crying” in a phone call with her after the incident; S.T.’s father, who testified that he discovered video of the incident and posted it to social media; a person who identified Malagon's vehicle based upon the video that was circulating on social media: the two police officers who arrested and spoke with Malagon; and a police detective who testified that he interviewed C.H. and who discovered video of that incident. The State introduced the videos of the incidents, which included a visual of each girl. Malagon did not testify, put on witnesses, or introduce any other evidence. During closing arguments, the State twice commented on C.H.’s truthfulness to which Malagon did not object. The jury then found Malagon guilty on all counts.

At sentencing, the State requested that the district court impose an aggregate sentence of 67 to 168 months in prison. In support of its request, the State argued that the offenses were “egregious” in nature. that Malagon was dishonest during the proceedings for those offenses, that Malagon was a “nine-time felon,” and that Malagon's psychosexual evaluation indicated he was a high risk to reoffend. The State also argued that Malagon had refused to accept responsibility for his actions or show any remorse. Malagon did not object to the State's arguments and requested an aggregate sentence with a minimum term of imprisonment of three years but made no recommendation as to the maximum term of imprisonment. The court then sentenced Malagon to 42 to 105 months’ imprisonment. Thereafter, Malagon filed this timely appeal.

On appeal, Malagon argues that the State failed to present sufficient evidence that he either knew or believed S.T. was less than 16 years old, which he asserts is a required element of the luring charge. Malagon also argues that the State plainly erred by improperly vouching for C.H. during its closing argument. Lastly, Malagon argues that the district court abused its discretion at sentencing by relying on his refusal to admit guilt or show remorse. Upon review, we disagree and thus affirm.

Malagon has not established there was insufficient evidence to support the luring conviction

Malagon argues that the statute criminalizing the luring of a child, NRS 201.560(1), required the State to prove beyond a reasonable doubt that he either knew or believed S.T. to have been less than 16 years of age. He asserts that the evidence at trial demonstrated that S.T. never told him her age and that he never testified to what age he believed her to be; therefore, the State presented insufficient evidence to support his conviction for luring. In contrast, the State contends that the statute required it to prove either that S.T. was under 16 or that Malagon believed her to be under 16, and that sufficient evidence existed to support the luring conviction because it irrefutably proved S.T. was under 16. We will address the proper construction of the statute and the sufficiency of the evidence in turn.

NRS 201.560(1) requires proof of actual or constructive knowledge that the victim was under 16 years of age or the belief that the victim was under 16 years of age

NRS 201.560(1) criminalizes the luring of a child with the intent to engage in sexual conduct. The statute reads, in relevant part, as follows:

[A] person commits the crime of luring a child if the person knowingly contacts or communicates with or attempts to contact or communicate with:

(a) A child who is less than 16 years of age ․ [or]

(b) Another person whom he or she believes to be a child who is less than 16 years of age ․

To determine what NRS 201.560(1) requires, the court begins by considering legislative intent. See State v. Lucero, 127 Nev. 92, 95, 249 P.3d 1226, 1228 (2011). “The starting point for determining legislative intent is the statute's plain meaning; when a statute ‘is clear on its face, a court cannot go beyond the statute ․’ ” Id. (quoting Robert E. v. Just. Ct., 99 Nev. 443, 445, 664 P.2d 957, 959 (1983)).

Considering the language of NRS 201.560(1)(a), the adverb “knowingly” precedes the transitive verbs that it modifies (“contacts or communicates with or attempts to contact or communicate with”) as well as the object of the action (“[a] child who is less than 16 years of age”). This court has recognized that, “whe[n] a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.” Morrison v. State, 140 Nev., Adv. Op. 24, 548 P.3d 431, 437 (Ct. App. 2024) (quoting Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009)). And “[b]ecause courts interpret criminal statutes in accordance with this ordinary English usage, courts ‘ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word “knowingly” as applying that word to each element.’ ” Id. (quoting Flores-Figueroa, 556 U.S. at 652).

Applying this reasoning to the plain language of NRS 201.560(1)(a), we conclude that the word “knowingly” applies to each element of the crime of luring a child, such that the State must prove the defendant had actual or constructive knowledge that the victim was less than 16 years old. See NRS 193.017 (defining “knowingly” and stating “[k]nowledge of any particular fact may be inferred from the knowledge of such other facts as should put an ordinarily prudent person upon inquiry”); see also Morrison, 140 Nev., Adv. Op. 24, 548 P.3d at 437 (holding “the State must prove, beyond a reasonable doubt, that the defendant knew or had reason to know that the victim was a minor—under the age of 18—at the time of the crime” to obtain a conviction under NRS 200.710(1)); Garcia v. Sixth Jud. Dist. Ct., 117 Nev. 697, 701-02, 30 P.3d 1110, 1113 (2001) (explaining that “[u]nlike other age-specific statutes․ a defendant's state of mind (‘knowingly’) has expressly been included in NRS 202.055, thus requiring a defendant's knowledge of each element to be proven” and noting that “constructive knowledge fulfills a statutory requirement that an act be done ‘knowingly’ ”). Therefore, to obtain a conviction under NRS 201.560(1), the State had to prove either that Malagon knew or should have known that S.T. was less than 16 years old under subsection (a), or that he believed S.T. was less than 16 years old under subsection (b).

Malagon has not established there was insufficient evidence he knew or should have known that S.T. was less than 16 years old

When analyzing the sufficiency of the evidence, this court examines “whether, 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.” McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “[I]ntent need not be proved by positive or direct evidence, but may be inferred from the conduct of the parties and the other facts and circumstances disclosed by the evidence.” Moore v. State, 122 Nev. 27, 36, 126 P.3d 508, 513 (2006) (quoting Larsen v. State, 86 Nev. 451, 453, 470 P.2d 417, 418 (1970)).

In Garcia, the Nevada Supreme Court recognized that a minor's physical appearance is relevant to establishing a defendant's actual or constructive knowledge of the minor's age. 117 Nev. at 702, 30 P.3d at 1113 (noting that “[t]he jury is then free to consider its own perception as to the minor's appearance or to believe the defendant's testimony as to why defendant thought the purchaser was not a minor” (quoting State v. Lelchook, 186 N.W.2d 655, 657 (Iowa 1971))). There, several petitioners were charged with violating NRS 202.055, which prohibited the knowing sale of alcohol to a minor under the age of 21. Id. at 698-99, 30 P.3d at 1111. The petitioners had all unwittingly sold alcohol to a 20-year-old decoy without first checking his identification as part of a sting operation. Id. In reviewing the sufficiency of the evidence, the supreme court noted that the decoy “looked substantially older than twenty-one years of age. had a full beard, [and] wore a hat and perhaps even sunglasses when he bought the alcohol.” Id. at 703, 30 P.3d at 1113. The supreme court further noted that “all of the petitioners testified that he looked twenty-four to twenty-seven years old” and that the decoy had been “selected because he appeared older than twenty-one.” Id. Under those circumstances, the supreme court concluded that there was insufficient evidence that the petitioners knew or had reason to know they were selling alcohol to a minor under the age of 21. Id. at 703, 30 P.3d at 1113-14.

Unlike the petitioners in Garcia, Malagon did not testify that he believed 11-year-old S.T. was age 16 or older at the time of their encounter. And while the State did not present any direct evidence of Malagon's actual knowledge or belief regarding S.T.’s age at the time of the crime, circumstantial evidence bearing on the question of actual or constructive knowledge was introduced at trial. S.T. testified that she was 11 years old at the time of the crime and that she was walking home from a nearby middle school at approximately 2:00 p.m. when Malagon approached her. The State also admitted a video of the incident, which showed S.T., and S.T. testified at trial. The jury could have determined from S.T.’s appearance in the video and at trial that an ordinarily prudent person would have suspected S.T. was less than 16 years old. See NRS 193.017; see also United States v. Brooks, 610 F.3d 1186, 1196-97 (9th Cir. 2010) (rejecting the defendants’ claims that there was insufficient evidence that they knew the victims were minors in part because the jury had the opportunity to consider the victims’ appearances during their testimonies). Because Malagon failed to present this court with a copy of this video for review on appeal, we presume this video supports the jury's verdict. See Morrison, 140 Nev., Adv. Op. 24, 548 P.3d at 441 n.10 (“And because it is the appellant's burden to ensure that a proper appellate record is prepared we necessarily presume that the missing documents support the challenged decisions, including the jury's verdict.”).

Considering the foregoing, we conclude a rational jury could have determined beyond a reasonable doubt that Malagon knew or should have known S.T. was less than 16 years old at the time of the crime. Therefore, Malagon is not entitled to relief on this claim.

Malagon fails to show that any vouching caused actual prejudice or a miscarriage of justice

Malagon argues that the State improperly vouched for C.H.’s truthfulness during its closing argument. He asserts that the State presented little evidence of the C.H. incident, so, without the vouching, he would have been acquitted on that count. The State disagrees that it vouched for C.H. but argues that even if it did, its vouching did not prejudice Malagon considering the overwhelming evidence of his guilt.

Malagon did not object to the State's argument below; therefore, we review this claim for plain error. See Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008). “ ‘When considering claims of prosecutorial misconduct, this court engages in a two-step analysis.” Id. at 1188, 196 P.3d at 476. “First, we must determine whether the prosecutor's conduct was improper.’’ Id. “Second, if the conduct was improper, we must determine whether the improper conduct warrants reversal.” Id. Under plain-error review, reversal is warranted if the defendant demonstrates “the error affected his or her substantial rights, by causing ‘actual prejudice or a miscarriage of justice.’ ” Id. (quoting Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)).

During its closing argument, the State attempted to reference the testimony of the detective who interviewed C.H., stating the detective “[s]aid she was very truthful when she told him what happened.” Near the end of its argument, the State again referenced C.H.’s truthfulness, stating, “You saw C.H. She was up here. She told you what she saw. She was truthful. She was nervous, but she still told you the details she remembers.”

Even assuming the State improperly vouched for C.H., see Anderson v. State, 121 Nev. 511, 517, 118 P.3d 184, 187 (2005) (concluding the State improperly “offer[ed] personal opinions as to the verity of its own witnesses”); but see Rowland v. State, 118 Nev. 31, 40, 39 P.3d 114, 119 (2002) (“A prosecutor's use of the words ‘lying’ or ‘truth’ should not automatically mean that prosecutorial misconduct has occurred.”), Malagon must still demonstrate that such vouching resulted in actual prejudice or a miscarriage of justice. In making this determination, we consider both the context and nature of the challenged remarks as well as the strength of the evidence presented of Malagon's guilt. See Anderson, 121 Nev. at 517, 118 P.3d at 187-88; Rowland, 118 Nev. at 40, 39 P.3d at 120; King v. State, 116 Nev. 349, 356, 998 P.2d 1172, 1176 (2000).

The State presented substantial evidence to support the charge of attempted lewdness, the only charge made with respect to C.H. Apart from C.H.’s own testimony,¹ C.H.’s aunt testified that C.H.’s mother called her, that she knew it was an emergency “because they don't call me unless there's an emergency,” and that when she called back, C.H. was ‘‘frantic,” “upset,” and “crying.” Moreover, the district court admitted video of the incident. Other witnesses also corroborated parts of C.H.’s testimony. including her testimony regarding what Malagon was driving and wearing. The State also presented evidence that Malagon had masturbated in front of S.T. only three days later. See NRS 48.045(3) (‘‘Nothing in this section shall be construed to prohibit the admission of evidence in a criminal prosecution for a sexual offense that a person committed another crime, wrong or act that constitutes a separate sexual offense.”); see also NRS 179D.097 (defining “sexual offense” to include both luring a child pursuant to NRS 201.560 and open or gross lewdness pursuant to NRS 201.210).

Moreover, the context and nature of the challenged remarks do not indicate the remarks influenced the jury's verdict. The State's initial reference to C.H.’s truthfulness was a brief, passing remark. And although the State referenced C.H.’s truthfulness a second time near the end of its argument, the State did not divert the jury's consideration of the case away from the facts in evidence but rather concluded by referencing the C.H. video and the evidence indicating Malagon had engaged in similar conduct with S.T. Therefore, Malagon fails to demonstrate any vouching resulted in actual prejudice or a miscarriage of justice. See King, 116 Nev. at 356, 998 P.2d at 1176 (stating that “[a] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial” (quoting United States v. Young, 470 U.S. 1, 11 (1985))). Accordingly, we conclude he is not entitled to relief on this claim.

The district court did not abuse its discretion in sentencing Malagon

Malagon argues the district court abused its discretion at sentencing by relying on his refusal to admit guilt or show remorse. Malagon asserts that the State repeatedly referenced his refusal to accept responsibility during its sentencing argument and that the district court must have considered those arguments because it failed to explicitly disclaim them. The State contends that its sentencing argument was based on a variety of grounds and not solely on Malagon's refusal to accept responsibility and that even if part of its argument was improper, the court is presumed to know and follow the law.

Generally, a district court ‘‘is accorded wide discretion in imposing a sentence,” which allows it “to consider a wide, largely unlimited variety of information to insure that the punishment fits not only the crime, but also the individual defendant.” Martinez v. State, 114 Nev. 735, 737-38, 961 P.2d 143, 145 (1998). However, the district court may not impose a harsher sentence because a defendant who was convicted after a jury trial refused to accept responsibility for their actions or show remorse. See Brake v. State, 113 Nev. 579, 585, 939 P.2d 1029, 1033 (1997) (holding ‘‘the district court's consideration of [the defendant's] ‘lack of remorse’ after he had maintained his innocence violated [the defendant's] Fifth Amendment rights and constituted an abuse of discretion”); see also Bushnell v. State, 97 Nev. 591, 593, 637 P.2d 529, 531 (1981) (stating that “[i]mposition of a harsher sentence based on the defendant's exercise of his constitutional rights is an abuse of discretion”).

Although the State referenced Malagon's refusal to accept responsibility or show remorse several times during its sentencing argument, Malagon fails to demonstrate the district court imposed a harsher sentence because he exercised his constitutional rights. Unlike Brake and Bushnell, where the district court's statements indicated its sentencing decision was based upon the defendant's refusal to admit guilt or show remorse, see Brake, 113 Nev. at 584, 939 P.2d at 1033; Bushnell, 97 Nev. at 593, 637 P.2d at 531, here, the district court did not indicate that its sentencing decision was based upon Malagon's refusal to accept responsibility or show remorse.

To the extent Malagon contends the distinct court had an obligation to expressly disclaim any reliance upon the State's argument, he cites no authority holding such a requirement exists, and we presume that the sentencing judge understood and followed the law. See Colwell v. State, 118 Nev. 807, 814, 59 P.3d 463, 468 (2002). Moreover, the district court was not required to articulate its reasons for imposing the sentence, see Campbell v. Eighth Jud. Dist. Ct., 114 Nev. 410, 414, 957 P.2d 1141, 1143 (1998), and the aggregate sentence the court imposed was substantially lower than that requested by the State. Therefore, Malagon fails to demonstrate the district court relied upon the challenged arguments in determining his sentence, and we conclude the district court did not abuse its discretion by imposing Malagon's sentence.

Accordingly,² we

ORDER the judgment of conviction AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   C.H. testified that she was walking her dog down the street around 4:30 or 5:00 p.m. when Malagon pulled up in a black car with a donut tire on it and stopped in her path. She testified Malagon was wearing an orange shirt, jeans, and belt. She also testified that Malagon got out of the vehicle, he said something, and when she turned and looked, he “had his hands down there and he had his pants undone.” She further testified that when she looked down, she saw “his skin was out down there and 1 just kind of did not want to see that, and I walked away.’’

2.   Insofar as Malagon raises arguments not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.