BRIAN KEITH DE WITT v. THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a no contest plea, of sexual assault and lewdness by a person over 18 with a child less than 14. First Judicial District Court, Carson City; Kristin Luis, Judge.

Appellant Brian De Witt's daughter B.D. was placed in the custody of the Division of Child and Family Services (DCFS) in an unrelated matter. Once in DCFS custody, B.D. accused De Witt of multiple instances of sexual abuse. De Witt was charged with the offenses and ultimately pleaded no contest to two felony counts. The district court sentenced De Witt to an aggregate term of life with the possibility of parole after twenty years. On appeal, De Witt challenges the sentence.

De Witt argues the district court abused its discretion in admitting a victim impact statement from DCFS. See Ruvalcaba v. State, 122 Nev. 961, 963, 143 P.3d 468, 469-70 (2006) (“This court will not disturb a district court judge's sentencing determination absent an abuse of discretion.”). De Witt argues only persons are permitted to make victim impact statements under Article I, Section 8A of the Nevada Constitution (“Marsy's Law”), and DCFS is not a person. According to De Witt, the erroneous admission resulted in prejudice because his sentencing recommendation was nonbinding and the court may have imposed a shorter sentence had it not considered the statement. We disagree because any error in the admission of the statement was harmless and because De Witt waived the right to challenge the sentence he agreed to in his plea.

We conclude that any error in admitting DCFS's victim impact statement was harmless. See Aparicio v. State, 137 Nev. 616, 620, 496 P.3d 592, 596 (2021) (“This court will not vacate a judgment of conviction or sentencing decision unless the error affected the defendant's substantial rights.”). When defendants object to victim impact statements, “district courts must determine on the record whether” each statement “is from an individual who is a ‘victim’ under either Marsy's Law or NRS 176.015(5)(d).” Id. 137 Nev. at 619-20, 496 P.3d at 595-96. A district court may still examine nonvictim statements, “but only after a finding that they are relevant and reliable.” Id. at 620, 496 P.3d at 596. Here, the district court failed to determine whether DCFS was a victim or whether its statement was relevant and reliable. We conclude that this was an abuse of discretion.

To determine whether an error affected a defendant's substantial rights or was harmless, we “look to the record to determine whether the district court would have imposed the same sentence absent the erroneous factor.” Id. (citation modified). Here, the district court stated on the record that De Witt's sentence was based on the plea negotiations. Although it is important for judges to follow the mandates in Aparicio and determine whether a victim impact statement is from a person who is a “victim” or, if not by a victim, whether the statement is relevant and reliable, the record here shows the challenged statement did not affect the sentence imposed. Thus, any error in failing to adhere to Aparicio was harmless.

Additionally, De Witt waived any challenge to the sentence he agreed to. See Burns v. State, 137 Nev. 494, 504, 495 P.3d 1091, 1102 (2021) (explaining that when a defendant “agrees to a specific sentence, he waives his right to challenge the propriety of his sentence”). Pursuant to plea negotiations, De Witt agreed to a sentence of life with the possibility of parole after twenty years, which the district court imposed. Because De Witt received what he bargained for, and the district court expressly based the sentence on the plea agreement, we conclude no relief is warranted. Id. at 504, 495 P.3d 1103. Accordingly, we

ORDER the judgment of conviction AFFIRMED.

Pickering, J.

Parraguirre, J.

Bell, J.