Three Advance Opinions for 4-4-24

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3 months 2 weeks ago #245 by Joseph Allan Tommasino
(1)



Posner v. U.S. Bank Nat'l Ass'n,



140 Nev. Adv. Op. No. 22



April 4, 2024



nvcourts.gov/supreme/decisions/advance_opinions



Appeal from a district court order denying a motion for a preliminary injunction in an action to quiet title. Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Senior Judge.



Affirmed.



BEFORE THE SUPREME COURT, STIGLICH, LEE, and BELL, JJ.



By the Court, LEE, J.:



Issue:



“NRS 106.240 provides that certain liens on real property are automatically cleared from the public records after a specified period of time.



More precisely, the statute provides that a lien that is created by a mortgage or deed of trust on real property is conclusively presumed to be discharged ‘10 years after the debt secured by the mortgage or deed of trust according to the terms thereof or any recorded written extension thereof become wholly due.’



We recently held in LV Debt Collect, LLC v. Bank of New York Mellon, 139 Nev., Adv. Op. 25, 534 P.3d 693 (2023), that recording a notice of default to institute nonjudicial foreclosure proceedings does not trigger NRS 106.240's 10-year time frame.”



Does this rationale also apply to judicial foreclosure proceedings?



Brief Answer:



Yes.



“In this opinion, and for reasons similar to those in LV Debt Collect,



we clarify that instituting judicial foreclosure proceedings likewise does not trigger the 10-year time frame. 



We therefore affirm the district court's order denying appellants' motion for a preliminary injunction.”




(2)


Ortiz v. State,



140 Nev. Adv. Op. No. 23



April 4, 2024



nvcourts.gov/supreme/decisions/advance_opinions



Appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.



Affirmed in part, reversed in part, and remanded with instructions.



BEFORE THE SUPREME COURT, STIGLICH, LEE, and BELL, JJ.



By the Court, BELL, J.:



Issue:



“Appellant Ramel Ortiz was convicted of six counts of sexual assault and other felonies after he broke into victim M.P.'s house and forced M.P. to engage in multiple sexual acts. Four of the sexual assault counts arose from an incident during which Ortiz subjected M.P. to intercourse in different sexual positions.




In this opinion, we consider whether appellate counsel provided ineffective assistance by failing to challenge the sufficiency of the evidence to support multiple sexual assault convictions.”



Brief Answer:



“Nevada precedent provides that a change in sexual position alone is insufficient to show that the resulting sexual acts constitute more than one sexual assault offense.



Appellate counsel applied that precedent to unsuccessfully challenge jury instructions but failed to challenge the multiple convictions for the same incident.



We conclude that appellate counsel's omission of a sufficiency challenge to the multiple convictions fell below an objective standard of reasonableness.



Because the sufficiency challenge stood a reasonable probability of success had it been raised on appeal from the judgment of conviction, we further conclude that Ortiz was prejudiced by appellate counsel's omission of that challenge.  



The district court erred in denying Ortiz's postconviction petition for a writ of habeas corpus with respect to this ineffective-assistance claim. 



We reverse in part and remand for the district court to vacate three of Ortiz's sexual assault convictions. 



Because Ortiz's remaining claims lack merit, we affirm the district court's decision as to those claims.”



(3)



Morrison v. State,



140 Nev. Adv. Op. No. 24



April 4, 2024



nvcourts.gov/supreme/decisions/advance_opinions



Appeal from a judgment of conviction, pursuant to a jury verdict, of three counts of sexual assault upon a minor under 14 years of age and one count of use of a minor under the age of 14 in producing pornography. Eighth Judicial District Court, Clark County; Mary Kay Holthus, Judge.



Affirmed.



BEFORE THE COURT OF APPEALS, GIBBONS, C.J., AND BULLA and WESTBROOK, JJ.



By the Court, WESTBROOK, J.:



Issue:



“A jury convicted appellant Kwame De-Markquise Morrison of three counts of sexual assault upon a minor under 14 years of age and one count of use of a minor under the age of 14 in producing pornography.



Morrison contends that the district court committed reversible error by instructing the jury that a lack of knowledge or a mistake as to the victim's age is not a defense to a charge of using a minor in producing pornography.”



Brief Answer:



“We agree that the instruction was inaccurate because the State is required to prove that the defendant ‘knowingly’ used ‘a minor’ in producing pornography. See NRS 200.710(1).



Nevertheless, for purposes of determining the appropriate penalty for the offense, the State is not required to prove that the defendant knew or should have known that the victim was under the age of 14. See NRS 200.750(2).



Here, because Morrison admitted that he believed A.M. was 16 years old—and therefore a minor—during their sexual relationship, the district court's instructional error was harmless beyond a reasonable doubt.



We also reject Morrison's remaining claims on appeal, and accordingly, we affirm Morrison's judgment of conviction.”




Joe T.

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