JOSE DE JESUS RUELAS v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of four counts of lewdness with a child under the age of 14 and one count of sexual assault of a minor under fourteen years of age. Eighth Judicial District Court, Clark County; Tara D. Clark Newberry, Judge.

Appellant Jose Ruelas was convicted by a jury of four counts of lewdness with a child under the age of 14 and one count of sexual assault of a minor under fourteen years of age for the sexual abuse of his stepdaughter, J.H., when she was between the ages of six and twelve years old. On appeal, Ruelas argues he was deprived of a fair trial based on judicial errors and prosecutorial misconduct. He asks this court to reverse his judgment of conviction and remand the matter back to district court for a new trial. For the following reasons, we affirm the judgment of conviction. The State's second amended information was proper

Ruelas challenges the second amended information, arguing that the district court abused its discretion in allowing the State to amend its information mid-trial and in not granting a mistrial following the amendment. This court reviews a district court's decision to allow amendments to an information for an abuse of discretion. Viray v. State, 121 Nev. 159, 162, 111 P.3d 1079, 1081 (2005).

Here, the State amended its information on the fifth day of the seven-day jury trial. Ruelas takes issue with the amendment that removed a specific time frame from each charge while leaving intact a broad six-year time frame for the 12 counts originally charged. Ruelas argues this amendment prejudiced his substantial rights because it affected his ability to adequately prepare a defense. He also takes issue with the district court's reliance on Viray and Shannon v. State, 105 Nev. 782, 783 P.2d 942 (1989), because the cases are distinguishable from the instant case. Finally, Ruelas posits that the amendment does not comport with Cunningham v. State, 100 Nev. 396, 683 P.2d 500 (1984), because the State's time frame was not as close as possible to the approximate date each alleged act occurred.

The plain language of NRS 173.095(1) makes clear that the State may amend its information at “any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” To this point, we have previously approved mid-trial amendments to a criminal complaint to conform to a victim's testimony. See Viray, 121 Nev. at 163, 111 P.3d at 1082 (allowing an amendment to conform to the victim's testimony because it did not change any facts or bring additional charges against the defendant). Additionally, we have made clear that the State is not required to provide an exact date a crime occurred when time is not “an essential element of the offense charged,” but is only required to furnish a date or date range as close as possible to the alleged crime. See Cunningham, 100 Nev. at 400, 683 P.2d at 502. We remain cognizant that when the victim is a child, the child may be “unable to indicate to the state with any precision the exact time of the commission of the offense.” Id. With these considerations in mind, our main concern is that the defendant has notice of the State's prosecution theory and has adequate time to prepare a defense. See Jennings v. State, 116 Nev. 488, 491-92, 998 P.2d 557, 560 (2000).

In this case, the State's requested amendment was appropriate. The amendment did not add any new offenses or conflict with the demands of Cunningham. Significantly here, while the date ranges of specific acts were changed, the overall date range for the offenses remained the same. Moreover, the State's prosecution theory remained consistent since the original information was furnished, thus, no facts were changed that would have prevented Ruelas from forming an adequate defense. While Viray and Shannon are factually distinguishable, the essence of those holdings are consistent with our conclusion here. Accordingly, it cannot be said the district court abused its discretion in allowing the State to amend the information because Ruelas had sufficient notice of the prosecution's theory to adequately prepare a defense.

We reject Ruelas’ contention that the district court abused its discretion in not granting a mistrial on this issue, for the same reasons mentioned above.

The State did not vouch for the victim's truthfulness

Ruelas argues the State improperly vouched for the truthfulness of J.H.’s testimony on two occasions, first through its witness, and second, during rebuttal argument. Because neither instance drew an objection, we review Ruelas’ contentions under a plain error standard. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 94-95 (2003). To warrant reversal, we must determine that an error occurred, that the error was plain or clear, and that the error prejudiced the defendant's substantial rights. Id.

Alleged vouching through witness testimony

“A witness may not vouch for the testimony of another or testify as to the truthfulness of another witness.” Perez v. State, 129 Nev. 850, 861, 313 P.3d 862, 870 (2013).

During its case-in-chief, the State called Elizabeth Espinoza, a forensic interview specialist, to testify about her interview with J.H. On cross-examination, Ruelas’ attorney questioned whether Espinoza discerns the truthfulness of an interviewee's testimony—to which she responded that she is not qualified to make such an assessment. Espinoza then disclosed that she typically attempts to discern whether there was an ulterior motive for the interviewee disclosing the information. On redirect, the State attempted to alleviate this ulterior motive concern by inquiring whether Espinoza uncovered that J.H. had an ulterior motive for disclosing the abuse she suffered.

Ruelas takes issue with the State's line of questioning, characterizing it as improperly eliciting its witness to opine about the truthfulness of J.H.’s testimony. Ruelas argues that generally, inquiring about a motive to he is tantamount to inquiring about the truthfulness of testimony. We disagree. Inquiring about an ulterior motive for volunteering information is not the same as questioning the truthfulness of another person's statement. Therefore, the State did not vouch for J.H.’s truthfulness through Espinoza's testimony.

Alleged vouching during rebuttal argument

“To determine if prejudicial prosecutorial misconduct occurred, the relevant inquiry is whether a prosecutor's statements so infected the proceedings with unfairness as to result in a denial of due process.” Anderson v. State, 121 Nev. 511, 516, 118 P.3d 184, 187 (2005). “This court must consider the context of such statements, and a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone.” Id. (internal quotation marks omitted).

During its rebuttal argument, the State asked the following rhetorical questions:

[Espinoza] told you that that [sic] CAC, that Child Advocacy Center is specifically designed to make a child feel comfortable to tell the truth․ So why does she lie to Elizabeth [Espinoza] if this is all made up? And then why does she come back five years after the fact to testify if she made this all up?

There is no motive for her to lie about this. Ruelas argues that by making these statements the State improperly vouched for the truthfulness of J.H.’s testimony. Again, we disagree. The State was rebutting Ruelas’ closing argument that J.H. was lying during her testimony. These statements taken in context make clear that no misconduct occurred.

The State did not vouch for the truthfulness of J.H.’s testimony, neither through Espinoza's testimony nor during the State's rebuttal argument. Thus, no plain error occurred to warrant reversal.

The State's indirect reference to Ruelas’ failure to testify was harmless

The United States and Nevada Constitutions protect defendants from being compelled to be a witness against themselves in a criminal proceeding. U.S. Const. amend. V; see also Nev. Const. art. 1, § 8. As such, the prosecution is forbidden from both directly and indirectly commenting on a defendant's silence. Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761 (1991). A comment indirectly references a defendant's silence when “the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be comment on the defendant's failure to testify.” Id. (quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968)).

Ruelas contends the State violated his Fifth Amendment right against self-incrimination when it improperly implied Ruelas should have taken the stand during his own trial, thereby improperly shifting the burden of proof to him. Ruelas did not object to the statement during trial, thus, we review the alleged misconduct for plain error. Barlow v. State, 138 Nev. 207, 220, 507 P.3d 1185, 1198 (2022). Under this standard, Ruelas must show any error: “(1) had a prejudicial impact on the verdict when viewed in context of the trial as a whole, or (2) seriously affects the integrity of public reputation of the judicial proceedings.” Rose v. State, 123 Nev. 194, 208-09, 163 P.3d 408, 418 (2007) (quoting Gaxiola v. State, 121 Nev. 638, 654, 119 P.3d 1225, 1236 (2005).

During its rebuttal argument, the State argued: “These are crimes that happen in secret, where only two people are present. And one of those people has told you the details of what happened to her. So I'm asking that you find this defendant guilty of all counts.” Ruelas contends this sort of statement was found to be an indirect reference to a defendant's failure to testify in Gunera-Pastrana v. State, 137 Nev. 295, 490 P.3d 1262 (2021), and thus, it is particularly instructive in the instant case. We agree.

The defendant in Gunera-Pastrana was tried on multiple counts of sexual assault of a minor under fourteen years of age and lewdness with a child under the age of 14. 137 Nev. at 296, 490 P.3d at 1266. We held that the prosecutor's statement, “[t]here's two people that know what happened, and [the victim] told you what happened,” was an indirect reference to the defendant's failure to testify. Id. at 301, 490 P.3d at 1268-69. We reasoned that the statement was “of such a character that the jury may have naturally and necessarily taken” the comment to highlight the defendant's failure to testify, and that it was impermissible because it suggested the defendant had the burden of disproving the crimes charged. Id. at 302, 490 P.3d at 1270.

Here, Ruelas faced similar charges as the defendant in Gunera-Pastrana and had the same substantive statement made against him. The State provides context for its statement, arguing that Ruelas called into question J.H.’s credibility, thus compelling the State to argue that J.H. should be found credible because she testified. This is exactly what the right against self-incrimination aims to protect—being held blameworthy for failing to testify. We therefore conclude the State improperly referenced Ruelas’ failure to testify.

We next consider whether Ruelas suffered actual prejudice as a result of the State's indirect reference to his failure to testify. Barlow, 138 Nev. at 220, 507 P.3d at 1198.

We first note that we take constitutional violations committed by the State particularly seriously. However, in reviewing the record, the violation in this case did not prejudice Ruelas. Our conclusion is supported by a combination of factors that point to the logical conclusion that the jury's verdict would not have changed even without the State's comments.

We first highlight that the comment was only made once, thus diminishing any prejudicial effect Ruelas may have suffered. See Coleman v. State, 111 Nev. 657, 665, 895 P.2d 653, 658 (1995) (recognizing the frequency and intensity of improper statements when assessing its prejudicial effect). We next note that two jury instructions ensured the comment was not given any weight. The first jury instruction related to Ruelas’ decision not to testify—the jury was informed that inferences of guilt could not be drawn based on Ruelas’ silence. The second jury instruction informed the jury that the State bore the burden of proving Ruelas was guilty beyond a reasonable doubt, and the State reiterated its burden of proof to the jury on multiple occasions throughout trial. See Barlow, 138 Nev. at 212, 507 P.3d at 1193 (finding no prejudice where a jury instruction clarified the law and the prosecution told the jury it was not compelled to make findings consistent with its position); Leonard v. State, 117 Nev. 53, 81, 17 P.3d 397, 414-15 (2001) (finding no prejudice when the State provided a subsequent comment that functioned as an adequate curative instruction). Finally, the State presented substantial evidence of Ruelas’ guilt leading us to conclude that the prosecutor's comment alone would not have impacted the jury's verdict. While J.H., who was 17 by the time of trial, struggled with memory of some incidents during trial, her testimony was corroborated by two different witnesses. Her mother, Gomez, testified that J.H. reported a touching incident when she was six that Ruelas denied, and also when J.H. was 12 she discovered text messages on J.H.’s phone detailing the abuse. The discovery prompted Gomez to confront Ruelas, send J.H. to therapy, and make a report to the police. Espinoza, a forensic interview specialist, testified to J.H.’s disclosure of multiple incidents of abuse. Based on the isolated nature of the comment, the curative jury instructions, the State reiterating its burden of proof, and the facts presented at trial, it cannot be said that the State's comment would have changed the jury's verdict. Therefore, we determine Ruelas was not prejudiced.

Accordingly, while we conclude the State improperly referenced Ruelas’ failure to testify, we hold that it does not warrant reversal.

The State did not bolster its own prosecutorial authority

A prosecuting attorney's role is to be “unprejudiced, impartial, and nonpartisan” in its pursuit of justice. State v. Rodriquez, 31 Nev. 342, 346, 102 P. 863, 864 (1909). Therefore, a prosecutor cannot inject their personal beliefs into arguments made, nor can they “invok[e] the authority of his or her own supposedly greater experience and knowledge, [because] a prosecutor [then] invites undue jury reliance on the conclusions personally endorsed by the prosecuting attorney.” Collier v. State, 101 Nev. 473, 480, 705 P.2d 1126, 1130 (1985), modified by Howard v. State, 106 Nev. 713, 800 P.2d 175 (1990).

In this case, Ruelas takes issue with the following statement made during the State's rebuttal:

Reasonable doubt is a high standard and it's one that myself and Ms. Jefferson take very seriously. There are charges that we did not submit to you the reason that went from 12 counts to 10 counts, because we did not feel that we had proven that was beyond a reasonable doubt. So we removed them. It is something we take very seriously.

As Ruelas did not object to these statements during trial, we review for plain error. Barlow, 138 Nev. at 220, 507 P.3d at 1198.

Ruelas argues the statements implied that the State only brought charges that were proven beyond a reasonable doubt, inviting the jury to rely on the prosecutor's experience and knowledge to render a guilty verdict. Ruelas contends he was prejudiced by this statement because the jury was hung on five of the ten counts, indicating reliance on the State's prosecutorial authority instead of the vague and minimal evidence before it.

Reviewing the context in which the State's argument was made, the State did not bolster its own prosecutorial authority. The State was attempting to rebut Ruelas’ theory that J.H.’s testimony was not trustworthy. It discussed the difference between credibility and memory, the reasonable doubt standard, and why it believed it met that standard based on the evidence presented. None of the comments purport to inject a personal belief or opinion that is not supported by the record. Thus, no plain error occurred.

The no-corroboration jury instruction was proper

During trial, the following jury instruction was provided: “There is no requirement that the testimony of a victim of Sexual Assault be corroborated, and his/her testimony standing alone, if believed beyond a reasonable doubt, is sufficient to sustain a verdict of guilty.” Because Ruelas did not object to this jury instruction, we review for plain error. Martinez v. State, 140 Nev., Adv. Op. 70, 558 P.3d 346, 352 (2024).

The no-corroboration jury instruction provided in this case mirrors a jury instruction we previously approved in Gaxiola v. State, 121 Nev. 638, 119 P.3d 1225 (2005). The crux of Ruelas’ challenge is that we should overturn Gaxiola or at the very least modify the jury instruction to apply to all witnesses instead of victims only. But we see no reason to revisit Gaxiola. As we previously observed, the no-corroboration jury instruction is a correct and accurate statement of Nevada law. Gaxiola, 121 Nev. at 649-50, 119 P.3d at 1233. Therefore, the district court did not commit plain error when it provided the no-corroboration jury instruction from Gaxiola.

The State presented sufficient evidence of guilt

We will reject a sufficiency of evidence challenge when, “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) (internal quotation marks omitted). It is the jury's function to weigh the evidence and credibility of the witnesses, not this court. Id. Specific to sexual assault cases, we have recognized a victim's testimony alone can uphold a conviction, however, “the victim must testify with some particularity regarding the incident in order to uphold the charge.” LaPierre v. State, 108 Nev. 528, 531, 836 P.2d 56, 58 (1992). When the victim is a child, this court remains “cognizant that child victims are often unable to articulate specific times of events” and thus only requires a “reliable indicia that the number of acts charged actually occurred.” Id.

Here, Ruelas argues the State presented insufficient evidence of guilt because J.H. was unable to independently recall much of her previous statements and her testimony was inconsistent with other witnesses’ testimony. At this juncture, our role is to ensure J.H. provided sufficient testimony as to each element of each crime charged—not to assess the credibility of each witness and weigh the evidence. Given the complexities of prosecuting a case where the victim is a child, J.H.’s testimony provided reliable indicia that the counts on which Ruelas was convicted actually occurred. The jury properly deciphered which accounts were factual beyond a reasonable doubt and which accounts appeared more speculative. Viewing the evidence presented in the light most favorable to the prosecution, it is clear any rational trier of fact could have found Ruelas guilty. The State therefore presented sufficient evidence of guilt.

Cumulative error does not warrant reversal

Ruelas argues that to the extent the alleged errors are not individually reversible, the cumulative effect of the aforementioned errors denied him a fair trial. But the only error that occurred in this case was the State's indirect reference to Ruelas’ failure to testify, which we conclude was harmless. Because none of Ruelas’ other challenges were successful, there are no errors to accumulate. Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Parraguirre, J.

Bell, J.

Stiglich, J.