CLIFTON DWAYNE DAWSON v. THE STATE OF NEVADA (2024)

ORDER AFFIRMING IN PART

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of sexual assault. Eighth Judicial District Court, Clark County; Jacqueline M. Bluth, Judge.

On January 18, 1997, C.V. was sexually assaulted. She was 53 years old and was approached by a man holding a knife while she was waiting at a bus stop. The man held the knife to her throat and walked her to a vacant lot where he sexually assaulted her. C.V. underwent a sexual assault examination, but no suspect was identified and no charges were filed.

More than 20 years later, appellant Clifton Dawson's DNA was matched to DNA in C.V.’s sexual assault examination kit. The DNA profile was consistent with Dawson. Dawson was charged with sexual assault, and C.V. testified at trial but did not identify Dawson as the perpetrator in court. The State presented testimony from detectives and DNA analysts involved in C.V.’s case. The State also presented evidence that deceased victim, L.E., in an unrelated and uncharged case, was sexually assaulted by Dawson. The jury found Dawson guilty of sexual assault.¹

The district court made deficient findings under Petrocelli, but the evidence was permissibly admitted as evidence of an uncharged sexual act

Dawson argues that the district court erred by admitting uncharged bad act evidence. “We [generally] review a district court's decision to admit or exclude evidence for an abuse of discretion ․” Franks v. State, 135 Nev. 1, 3, 432 P.3d 752, 754-55 (2019) (internal quotation marks omitted). “We will affirm the otherwise erroneous admission of evidence if it could have been admitted another way ․” Alfaro v. State, 139 Nev., Adv. Op. 24, 534 P.3d 138, 150 (2023).

Uncharged sexual act

Dawson argues that the district court should not have admitted uncharged sexual act evidence without conducting an appropriate analysis and making a clear record of its findings. We have “conclude[d] that the plain language of NRS 48.045(3) permits the district court to admit evidence of a separate sexual offense for purposes of proving propensity in a sexual offense prosecution.” Franks, 135 Nev. at 2, 432 P.3d at 754. To admit such evidence, the State must explain its relevance, the district court must find that the prior offense is relevant for propensity purposes and that a jury could reasonably find that it occurred by a preponderance of the evidence, and the district court should evaluate whether the evidence is unfairly prejudicial under the LeMay factors. Id. at 5-6, 432 P.3d at 756-57. The LeMay factors are the following:

(1) the similarity of the prior acts to the acts charged, (2) the closeness in time of the prior acts to the acts charged, (3) the frequency of the prior acts, (4) the presence or lack of intervening circumstances, and (5) the necessity of the evidence beyond the testimonies already offered at trial.

United States v. LeMay, 260 F.3d 1018, 1028 (9th Cir. 2001) (internal quotation marks omitted).

Here, the State proffered that a 2006 sexual assault of an older stranger using a knife was relevant because it made it more probable that Dawson committed the instant sexual assault. The district court did not explicitly find that the uncharged offense was relevant for propensity purposes or that a jury could find that the incident occurred by a preponderance of the evidence. Similarly, the district court did not explicitly analyze unfair prejudice by evaluating each LeMay factor. We conclude, however, that the district court impliedly made these findings because the State argued that the evidence was relevant, that it could prove the offense by a preponderance of the evidence, and that the LeMay factors supported admission. Therefore, when the district court found it was proper propensity evidence—based on the State's offer of proof—its finding impliedly incorporated the required considerations. Accordingly, we conclude that the district court did not abuse its discretion by admitting evidence of the uncharged sexual offense.

Petrocelli findings

Dawson argues that the district court erred by finding that this bad act evidence was admissible under Petrocelli without conducting a Petrocelli hearing. See Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), superseded in part by statute as stated in Thomas v. State, 120 Nev. 37, 44-45, 83 P.3d 818, 823 (2004). We conclude the district court abused its discretion by admitting the bad act evidence without delineating its findings of fact and conclusions of law. See Walker v. State, 116 Nev. 442, 446, 997 P.2d 803, 806 (2000) (providing that a hearing must be conducted “outside the presence of the jury and on the record,” during which “the court must determine whether (1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice” (internal quotation marks omitted)). Nevertheless, because the evidence was permissibly admitted under NRS 48.045(3), we conclude that the district court's error was harmless.

The admission of the 911 operator's testimony violated Dawson's Confrontation Clause rights but the error was harmless

Dawson argues that the district court erred by admitting statements from a detective, sexual assault nurse examiner (SANE), and 911 operator because they were testimonial and thus violated his Confrontation Clause rights under the United States and Nevada Constitutions. U.S. Const. amend. VI; Nev. Const. art. 1, § 8(1). We review a Confrontation Clause claim de novo. Chavez v. State, 125 Nev. 328, 339, 213 P.3d 476, 484 (2009). Confrontation Clause errors are reviewed for harmless error. Medina v. State, 122 Nev. 346, 355, 143 P.3d 471, 476-77 (2006). To determine harmlessness, we look to factors including “the importance of the witness’ testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, ․ and, of course, the overall strength of the prosecution's case.” Id. at 355, 143 P.3d at 477 (omission in original) (internal quotation marks omitted). “Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 59 (2004). Our general rule for whether a statement is testimonial is “whether the statement would, under the circumstances of its making, lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Harkins v. State, 122 Nev. 974, 987, 143 P.3d 706, 714 (2006) (emphasis and internal quotation marks omitted).

The detective, SANE, and 911 operator testified regarding a sexual assault reported by the now-deceased victim, L.E. Specifically, the detective testified about interviewing L.E. after he was attacked; the SANE testified that she observed the deceased SANE, who conducted the exam on L.E., conduct sexual assault exams in the past; and the 911 operator testified about L.E.’s call reporting the sexual assault. Dawson objected to these witnesses’ testimonies. L.E. was unavailable at trial and was not previously cross-examined. Regarding the detective and the SANE, L.E. was not the declarant in either's testimony, and we therefore conclude that their testimonies did not violate the Confrontation Clause because neither witness testified regarding statements by L.E. The 911 operator, however, testified about statements that L.E. made to her, including L.E.’s description of the suspect and the events. L.E. made the call from a nearby convenience store after the assault had ended. Further, the 911 operator was a government agent, and L.E.’s 911 call was a statement reporting a serious crime that was made in a format that is generally known to be recorded. Therefore, when L.E.’s statement was made to the operator, an objective witness could reasonably believe the statement would be available for use at a later trial. Accordingly, we conclude that it violated Dawson's Confrontation Clause rights to admit the 911 operator's testimony regarding L.E.’s statements.

We conclude, however, that the testimony was not particularly important to the State's case because it was cumulative of the testimony from the detective and the SANE that L.E. was sexually assaulted. Their testimony, as well as evidence of Dawson's DNA in L.E.’s sexual assault kit, supported the conclusion that Dawson committed an uncharged sexual offense against another victim. Moreover, the prosecution's case was comprised of considerable evidence that inculpated Dawson. Accordingly, we conclude that the admission of the operator's testimony regarding L.E.’s statements was harmless.²

The prosecutor's comments were not misconduct

Dawson argues that the State committed prosecutorial misconduct by shifting the burden of proof, disparaging the defense, and inflaming the jury. For prosecutorial misconduct claims, we first “determine whether the prosecutor's conduct was improper.” Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). If it was, we next determine whether the improper conduct requires reversal. Id.

Burden-shifting

Dawson argues that the State impermissibly shifted the burden of proof during its closing argument. We conclude that, across the four challenged comments, the prosecution did not shift the burden to Dawson. Specifically, the prosecutor's comments about not knowing where the evidence was relating to C.V.’s mental health conditions in 1997 and that no evidence showed that Dawson reasonably and in good faith believed that C.V. consented permissibly argued inferences from the evidence. See Truesdell v. State, 129 Nev. 194, 203, 304 P.3d 396, 402 (2013) (concluding a prosecutor may “assert inferences from the evidence and argue conclusions on disputed issues”). The remaining comments about witnesses that the State did not call pertained to the prosecutor arguing that the defense would emphasize evidence that the State failed to present. Accordingly, we conclude the challenged comments did not amount to misconduct.

Disparaging the defense

Dawson contends the State disparaged the defense by implying that he would engage in speculative, mere possible doubt scenarios. We conclude that the comment about reasonable doubt and possible doubt was not clearly made to belittle the defense. Rather, the comment focused on the doubt that the State argued was present given the evidence. See Burns v. State, 137 Nev. 494, 502, 495 P.3d 1091, 1101 (2021) (concluding it was not misconduct to refer to the defense closing argument by stating that jurors must assess the defendant's version of events). Accordingly, we conclude the comment did not disparage the defense and amount to misconduct.

Inflaming the passions of the jury

Dawson argues that the State's reliance on the L.E. incident in closing argument was designed to anger and inflame the jury. We conclude that the State's comment that the jury could not convict Dawson based on the L.E. allegations but that it could consider the allegations for propensity or for a nonpropensity reason was not misconduct. The prosecutor's comment straightforwardly referred to the uncharged sexual offense that the district court had already determined was admissible. Thus, we conclude that the prosecutor's argument was not made in an inflammatory fashion and was a permissible inference from the evidence. See Truesdell, 129 Nev. at 203, 304 P.3d at 402. Accordingly, we conclude that the comment did not amount to misconduct.

The district court did not misinterpret a statutory requirement pertaining to the statute of limitations

Dawson argues that the district court interpreted NRS 171.083 too broadly when it concluded that the police report satisfied the written statement requirement in the statute that pertains to the statute of limitations in sexual assault cases. “The district court's application of NRS 171.083(1) presents an issue of statutory interpretation that we review de novo.” Ramos v. State, 137 Nev. 721, 722, 499 P.3d 1178, 1180 (2021). In relevant part, the statute provided that the statute of limitations is removed if “a victim of a sexual assault or a person authorized to act on behalf of a victim of a sexual assault file[d] with a law enforcement officer a written report concerning the sexual assault” within the required time period. 1997 Nev. Stat., ch. 248, § 1(1), at 890; NRS 171.083(1) (1997). We conclude the officer conducting an interview with C.V. the night of the incident and using his notes to create a written report of the sexual assault satisfies the statute. See Ramos, 137 Nev. at 724, 499 P.3d at 1181 (interpreting the statute's legislative history as indicating “that the statute was intended to encourage the memorialization of sexual assault allegations as soon after the offense as practical so that an efficient and timely prosecution could occur and frivolous, vindictive, or false allegations could be avoided or deterred”). Accordingly, we conclude the district court did not err by finding the limitations period was removed.

The district court did not abuse its discretion by refusing Dawson's proposed statute of limitations jury instructions

Dawson argues that the district court should have given his proposed statute of limitations jury instructions because they accurately stated the law and were a viable affirmative defense to the charged crime. We “review a district court's decision to give a particular instruction for an abuse of discretion or judicial error.” Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001). We conclude that the district court did not abuse its discretion by refusing to direct the jury to find what was required for a written report under NRS 171.083(1) (1997) because that is a question of law that involved no material questions of fact. Thus, Dawson's proposed jury instructions rested on an incorrect legal premise. Cf. Wyeth v. Rowatt, 126 Nev. 446, 463 n.7, 244 P.3d 765, 777 n.7 (2010) (concluding “district court did not abuse its discretion in submitting the statute of limitations questions to the jury” because “material questions of fact existed”). The district court did not abuse its discretion by denying Dawson's motion seeking to admit evidence of a prior sexual assault allegation

Dawson contends that the district court should have allowed him to confront C.V. regarding an allegedly false previous allegation of a sexual assault. “We review a district court's decision to admit or exclude evidence for an abuse of discretion.” Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). To cross-examine a complaining witness about false allegations of sexual assault, “the defendant must establish, by a preponderance of the evidence, that (1) the accusation or accusations were in fact made; (2) that the accusation or accusations were in fact false; and (3) that the evidence is more probative than prejudicial.” Miller v. State, 105 Nev. 497, 502, 779 P.2d 87, 90 (1989).

Dawson moved to admit evidence of C.V.’s prior sexual assault allegation against her son-in-law. The district court denied the motion, finding that Dawson failed to show by a preponderance of the evidence that the allegation was false. We observe that the district court assessed the police report indicating the case was not prosecuted. C.V.’s credibility, and the son-in-law's credibility, and found that Dawson had not shown the allegation was false. Accordingly, we conclude the district court did not abuse its discretion by barring cross-examination about the prior allegation.

The district court did not err in its handling of C.V.’s trial testimony about another sexual assault allegation

Dawson argues that the State withheld favorable evidence. He argues the district court erred by refusing to grant a mistrial on this ground. “Determining whether the state adequately disclosed information under Brady v. Maryland, 373 U.S. 83 (1963), requires consideration of both factual circumstances and legal issues; thus, this court reviews de novo the district court's decision.” Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000) (citations omitted). A district court decision regarding whether to grant a mistrial is reviewed for an abuse of discretion. Rudin v. State, 120 Nev. 121, 142, 86 P.3d 572, 586 (2004). “A prosecutor must disclose evidence favorable to an accused when that evidence is material either to guilt or to punishment.” Jimenez v. State, 112 Nev. 610, 619, 918 P.2d 687, 692 (1996) (internal quotation marks omitted). “[W]here the defense makes no request or a general request for evidence, if the omitted evidence creates a reasonable doubt which did not otherwise exist, constitutional error has been committed.” Id. (emphasis and internal quotation marks omitted). “[E]vidence is material if there is a reasonable probability that the result would have been different if the evidence had been disclosed.” Id.

During her testimony, C.V. implied that she had been sexually assaulted before being sexually assaulted by Dawson. The district court's questions outside the presence of the jury revealed that the alleged sexual assault occurred with C.V.’s then-fiancé 60 years ago and that only the now-deceased perpetrator and C.V.’s now-deceased mother knew about the alleged assault. The State represented that it discovered the allegation two to three days earlier when preparing C.V. for trial and that it did not try to elicit the comment from her at trial. Dawson did not make a specific request to the State for discovery about this allegation. Although the defense may have been able to use this information to attack C.V.’s credibility, little to no evidence supported that Dawson and C.V. had consensual sex. Given the strength of the evidence overall, we conclude that there is not a reasonable probability that the outcome would have been different if C.V.’s previous allegation of sexual assault had been disclosed and, accordingly, that the previous allegation was not material. Therefore, there was no Brady violation based on the State's failure to disclose C.V.’s additional allegation to Dawson. Further, finding no Brady error that merits relief, we conclude the district court did not abuse its discretion by denying a mistrial on this ground.

The district court did not err by refusing to suppress Dawson's DNA

Dawson argues that his DNA was improperly collected through a buccal swab without a warrant. “Suppression issues present mixed questions of law and fact.” State v. Beckman, 129 Nev. 481, 485-86, 305 P.3d 912, 916 (2013) (internal quotation marks omitted). We “review[ ] findings of fact for clear error, but the legal consequences of those facts involve questions of law that we review de novo.” Id. at 486, 305 P.3d at 916. Consent is an established exception to a warrantless search. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Consent must be voluntary and not due to duress or coercion, and “[v]oluntariness is a question of fact.” Id. at 248-49.

We conclude that Dawson's consent was freely and voluntarily given under the circumstances. Dawson orally consented to the buccal swab and signed a consent form. As the district court's findings reflect, the facts do not indicate that Dawson acquiesced to the swab because he needed to complete his felon registration immediately or would otherwise risk a felony charge. The detectives told Dawson that he could return to the service window to register after the swab, and the facts overall indicate that Dawson was free to leave. Thus, Dawson's consent to the DNA search was voluntary. Accordingly, we conclude that the district court did not err by denying the motion to suppress.

The district court did not err by denying Dawson's challenge to the venire

Dawson contends that the venire violated the fair-cross-section requirement regarding Native American representation. We review de novo such a challenge to the venire. See Williams v. State, 121 Nev. 934, 942-43, 125 P.3d 627, 633 (2005). Before voir dire, Dawson requested a new panel because the panel had 0% Native Americans. The census at the time of trial indicated that Native Americans made up 1.3% of Clark County. To argue there was systematic exclusion, Dawson emphasized that the jury commissioner stated that summonses are mailed to all zip codes in Clark County but that she did not know if Native Americans who live on reservations have Clark County zip codes. We conclude that Dawson did not show the underrepresentation of Native Americans was due to systematic exclusion. See id. at 940, 125 P.3d at 631 (“[A]s long as the jury selection process is designed to select jurors from a fair cross section of the community, then random variations that produce venires without a specific class of persons ․ are permissible.”). Accordingly, we conclude that Dawson did not show that the district court erred in denying this challenge.

The State did not violate Dawson's rights by destroying evidence

Dawson argues that he could not effectively cross-examine C.V. or the responding officer because the officer's notes memorializing C.V.’s initial statement were destroyed. He also contends their destruction was in bad faith. We review motions to dismiss for the destruction of evidence in bad faith de novo, see Leonard v. State, 117 Nev. 53, 68, 17 P.3d 397, 407 (2001), but we review the district court's findings of fact for clear error, see Beckman, 129 Nev. at 486, 305 P.3d at 916. We conclude that Dawson did not show that the officer acted in bad faith by destroying his initial notes from his interview with C.V., which he had memorialized in his police report. Further, in light of their memorialization, Dawson failed to show that the physical notes had exculpatory value. See Leonard, 117 Nev. at 68, 17 P.3d at 407 (concluding that destroying evidence only violates a defendant's rights “if the defendant shows either that the State acted in bad faith or that the defendant suffered undue prejudice and the exculpatory value of the evidence was apparent before it was lost or destroyed”). Accordingly, we conclude the district court did not err in denying the motion to dismiss on this basis.

The State did not violate Dawson’s rights by failing to collect evidence

Dawson argues that the district court should have dismissed the case due to the failure of the police to record C.V.’s initial interview, to collect the audiotape of C.V.’s 911 call, to collect a coat C.V. supposedly had lain on during the sexual assault, and to process the dirt lot where the sexual assault occurred. We review motions to dismiss for failure to collect evidence de novo, see Belcher v. State, 136 Nev. 261, 273, 464 P.3d 1013, 1027 (2020), but we review the district court's findings of fact for clear error, see Beckman, 129 Nev. at 486, 305 P.3d at 916. Regarding the failure to collect the coat and to process the crime scene, we conclude that Dawson merely speculates that the jacket that C.V. supposedly had lain on during the sexual assault or the dirt lot where the sexual assault occurred could have revealed the DNA of someone else. Dawson offered no evidence of a different perpetrator or that the coat or dirt lot would have contained DNA of a different perpetrator. Thus, the coat and a processed crime scene were not material because there is not a reasonable probability that their production would have led to a different result. See Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998) (providing the defense must “show that the evidence was ‘material,’ meaning that there is a reasonable probability that, had the evidence been available to the defense, the result of the proceedings would have been different”); Randolph v. State, 117 Nev. 970, 987, 36 P.3d 424, 435 (2001) (rejecting as speculation the possibility that testing uncollected clothing of a third party would have been favorable because the defendant did not corroborate that the third party was the shooter or show that testing the clothing would have revealed blood).

Regarding the failure to record C.V.’s police interview and to collect the audiotape of C.V.’s 911 call, the police report that was generated was detailed and reflected C.V.’s initial account. Moreover, in light of the considerable evidence of guilt, this evidence would not have changed the result. Therefore, we conclude neither the failure to record the interview nor to collect the audiotape of the call was material. Accordingly, we conclude that the district court did not err by denying the motion to dismiss based on the failure to collect evidence.

The district court did not err by declining to substitute counsel

Dawson argues that the district court should have appointed substitute counsel because of a significant and irreconcilable conflict. Dawson claims that the judge did not adequately inquire into the conflict, and that all motions to substitute were timely. “We review the denial of a motion for substitution of counsel for abuse of discretion.” Young v. State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004).

Relevant here is the extent of the conflict and adequacy of the inquiries. We conclude the conflicts alleged did not present irreconcilable conflict. Dawson's first and second motions included disagreements over trial strategy, which is not good cause to substitute counsel. Gallego v. State, 117 Nev. 348, 363, 23 P.3d 227, 238 (2001), abrogated on other grounds by Nunnery v. State, 127 Nev. 749, 263 P.3d 235 (2011). Further, although Dawson indicated that he lacked trust and confidence in his counsel, the conflict did not indicate a complete breakdown in the relationship given counsel's extensive pretrial motion work and ongoing phone conversations between Dawson and counsel. See id. at 363, 23 P.3d at 238 (concluding a conflict did not amount to a breakdown in the relationship when the defendant was able to meet with counsel). As to Dawson's third motion, the district court explained that Dawson's civil complaint against counsel and the public defender's office likely did not state a claim and did not support substitution. The civil complaint was not included in the appellate record; thus, we presume it supports the district court's ruling. See Riggins v. State, 107 Nev. 178, 182, 808 P.2d 535, 538 (1991) (presuming that missing portions of the record “support the district court's decision”), rev'd on other grounds, 504 U.S. 127 (1992). Moreover, Dawson's civil complaint, his earlier threats, and his refusing to communicate with counsel in an attempt to disqualify counsel do not show an extensive conflict because Dawson created these conflicts. See Young, 120 Nev. at 971, 102 P.3d at 578 (“[T]he defendant in a criminal case may not, as a matter of law, create a conflict requiring substitution of appointed counsel ․”) (emphasis added)). As to the inquiries, we conclude they were adequate because hearings were held on all motions in which the district court evaluated whether to grant the motion to substitute. Accordingly, we conclude that the district court did not abuse its discretion by denying Dawson's requests to substitute counsel.

Cumulative error does not warrant reversal

Lastly, Dawson argues that cumulative error warrants reversal. Relevant factors to assess cumulative error include “(1) whether the issue of guilt is close, (2) the quantity and character of the error, and (3) the gravity of the crime charged.” Mulder v. State, 116 Nev. 1, 17, 992 P.2d 845, 854-55 (2000). Here, the issue of guilt is not close. The State presented DNA evidence that connected Dawson to C.V.’s sexual assault kit, C.V.’s testimony that she was sexually assaulted, and evidence that Dawson sexually assaulted another victim. Further, although the deficient Petrocelli findings and the 911 operator's testimony that violated Dawson's Confrontation Clause rights were error, the quantity and character of the error was relatively minor in the broader context of the trial. Based on the strength of the evidence and nature of the errors, we conclude cumulative error does not warrant reversal.

It is so ORDERED.

Stiglich, J.

Pickering, J.

Parraguirre, J.

FOOTNOTES

1.   In an opinion filed contemporaneously with this order, we vacated Dawson's sentence and remanded for a new sentencing hearing. Dawson v. State, 140 Nev., Adv. Op. _________ , ___ P.3d _____ (2024).

2.   While this appeal was pending, the United States Supreme Court decided Smith v. Arizona, 602 U.S. 779 (2024), which considered a Confrontation Clause challenge to expert testimony. We invited supplemental briefs, which Dawson and the State filed. Dawson neglected to address whether Smith affected the claims as to the detective, 911 operator, or SANE, and we take Dawson's silence as waiving any position that Smith affects those claims. See Sonner v. State, 112 Nev. 1328, 1332 n.1, 930 P.2d 707, 710 n.1 (1996) (deeming abandoned claims not addressed in briefs or argument on appeal).Dawson, however, raised new Confrontation Clause challenges involving three forensic scientists who testified regarding DNA evidence. We need not address these claims and admonish Dawson's counsel not to raise new claims in supplemental briefing. See Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 125 Nev. 818, 829 n.7, 221 P.3d 1276, 1284 n.7 (2009) (refusing to consider a new argument that was raised in a supplemental brief); Fuson v. State, 383 S.W.3d 848, 854 (Ark. 2011) (“[P]ermission to file a supplemental brief does not give an appellant leave to raise points on appeal that were not originally submitted to the court of appeals for review.”). Dawson cannot maintain that these claims were unavailable until Smith, given that timely objections were made at trial on precisely the reasoning Dawson now puts forward in the supplemental brief.