A unanimous ruling Tuesday by the Nevada Supreme Court limits the number of charges that can be leveled against some child molesters, leading prosecutors to say that a change in the law is needed.
The court ruled that Greg E. Ebeling, a man convicted in Reno of two counts of indecently exposing himself to two boys in a hotel room, should have only been charged with one count of indecent exposure.
The court said that regardless of the number of children who saw, there was a single event of indecent exposure. Ebeling had been sentenced to 12 months in jail on each count, but the court voided one of those convictions.
The court quoted a prior ruling that said: "A court should normally presume that a Legislature did not intend multiple punishments for the same offense absent a clear expression of legislative intent to the contrary."
The decision also noted, "Criminal statutes must be strictly construed and resolved in favor of the defendant." The law on indecent exposure "does not require that the indecent exposure be witnessed." That is, exposing oneself in public is a crime, no matter who sees it. The law, said the court, "only provides for one charge of indecent exposure, regardless of the number of witnesses."
Ebeling also had been convicted of sexual assault and lewdness with a minor under 14 for a single act of sex with a boy in a shower. The Nevada Supreme Court ruled that also involved a single incident, so it voided one of the life terms that was imposed on Ebeling for the shower incident.
The public defender's office and the American Civil Liberties Union welcomed the verdict as protecting defendants from overzealous prosecutors. "This is a very well-reasoned and prudent decision," Allen Lichtenstein, general counsel for the Nevada ACLU, said on Wednesday. "Sometimes prosecutors look at a situation and throw everything but the kitchen sink into the charges. (The decision) reiterates the fact that unless the statute specifically calls for multiple counts for a single act, the rule is, one act, one count."
Assistant Public Defender Daren Richards said the constitutional protection against double jeopardy was at stake.
"When you expose yourself, that's the act," he said. "If two people are watching or 100 people are watching, it's just one crime.
"Our judicial system, our constitution, everything we stand for is against being punished more than once for the same crime," he added.
But Clark County District Attorney David Roger said the ruling could be problematic because police and prosecutors routinely seek to charge defendants with all of the crimes they believe were committed in a single incident.
Roger said Wednesday that in crimes against persons it has long been the practice to charge defendants with multiple crimes for a single event in which there were multiple victims -- exactly what the Nevada Supreme Court said couldn't be done to Ebeling in the indecent exposure case.
Roger also said the ruling could open the floodgates for appeals from prisoners who had been convicted of multiple counts.
"You can bet every defendant who is in prison will read about this and try to use it to get some of their convictions set aside," Roger said.
Roger said the ruling appears to present the same problem posed by a February Supreme Court ruling. The court ruled 5-1 that Ronald Firestone could only be charged with one count of leaving the scene of an accident, not three, for a 1996 traffic crash that injured three people.
Based on the Firestone ruling, "we were already going to be offering a bill in the Nevada Legislature to address that," Roger said. "It sounds like we'll have to look very closely at this latest ruling as well."
The Nevada District Attorneys' Association is already working on a bill draft to change the statute for leaving the scene of an accident. Roger said a provision about indecent exposure could be added to the bill as a result of Tuesday's Supreme Court verdict.
"From my perspective, if a person commits a criminal act that affects more than one victim, each victim has been harmed by that person's conduct, therefore there should be separate counts," Roger said.
However, Metro Undersheriff Doug Gillespie said the court's ruling was in line with the police department's previous understanding of the law. The district attorney, not the police, decides what a defendant is ultimately charged with, he said.
But Gillespie said prosecutors shouldn't be accused of overcharging across the board; rather, each case should be considered based on the facts.
"There are a lot of factors that come into play when charging individuals," he said.
Another Supreme Court ruling on Tuesday addressed the statute of limitation for cases of child molesting, ruling that a child who is the victim of abuse may file a criminal charge anytime until he or she reaches the age of 21.
Daniel Bailey of Reno committed a lewd act with a 6-year-old girl between January 1995 and January 1996. In June 1996 the child told her mother but she never informed anybody else. The child in 2001 told a school counselor, who notified authorities.
Bailey argued that the criminal charges should have been filed within three years of the date the child reported the incident to her mother.
The court said the "plain language of the statute indicates, that, regardless of when the crime was discovered, the state may file a charging document up to the time the child victim reaches age 21."
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