REPORTS OF CASES DETERMINED BY THE SUPREME COURT OF THE STATE OF NEVADA 1985 VOLUME 101 COMPILED BY InfoSoft, Inc. 765 Lido Dr. Livermore, Ca. 94550 (415) 455-5038 (c) Copyright 1987 All Rights Reserved |vRNSC_Vol_101:1985 Reports of the Nevada Supreme Court, Volume 101 (1985): |c14576 Big Pond v. the State of Nevada |p0 KEVIN ALLEN BIG POND, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT. No. 14576 January 3, 1985 692 P.2d 1288 |p1 Appeal from judgment of conviction of sexual assault; First Judicial District Court, Carson City; Michael R. Griffin, Judge. |p2 Defendant was convicted in the district court of sexual assault, and he appealed. The Supreme Court held that in view of fact that evidence against defendant was not overwhelming, cumulative effect of errors relative to admission of statement taken in violation of Miranda and to misconduct during trial by both a juror and the court bailiff, though the errors were not in themselves particularly egregious, was to unfairly undermine defendant's credibility and defense in rather close case, thus denying him his right to a fair trial, warranting reversal of conviction. |p3 Reversed. |p4 Aebi, FitzSimmons & Lambrose, Carson City, and Michael Pescetta, San Francisco, California, for Appellant. |p5 Brian McKay, Attorney General; William A. Maddox, District Attorney and Noel S. Waters, Deputy District Attorney, Carson City, for Respondent. |p6 1. CRIMINAL LAW. |p7 Considerations relevant to decision whether error is harmless or prejudicial include whether the issue of innocence or guilt is close, quantity and character of the error, and gravity of crime charged. |p8 2. CRIMINAL LAW. |p9 In view of fact that evidence against defendant was not overwhelming, cumulative effect of errors relative to improper admission of statement taken in violation of Miranda and to misconduct during trial by both a juror and the court bailiff, though the errors were not in themselves particularly egregious, was to unfairly undermine defendant's credibility and defense in rather close case, and thus deny him his right to a fair trial, warranting reversal of conviction of sexual assault. |p10 OPINION |p11 Per Curiam: |p12 Appellant Kevin Allen Big Pond was convicted by a jury of sexual assault. He appeals, citing numerous assignments of error including the trial court's admission of a statement taken in violation of his Miranda rights, and the court's failure to grant a new trial after discovering that instances of bailiff misconduct and juror misconduct occurred during trial. Because we determine that an accumulation of error prevented appellant from receiving a fair trial, we reverse. . |p13 At trial, appellant admitted giving the victim a ride and drinking beer with her in his car, but denied any sexual contact. The prosecution offered evidence of a statement which appellant had earlier made to police in which he denied giving the victim a ride on the night in question. Our review of the record indicates that this statement was taken in violation of appellant's right to remain silent. See Miranda v. Arizona, 384 U. S. 436 (1966). Moreover, it was revealed after trial that there had been misconduct during trial by both a juror and the court bailiff. Two jurors recalled that a male juror made a statement during deliberations to the effect that the absence of semen on the body of a rape victim, as occurred in this case, was not uncommon and happened in over half of the cases. It was also discovered that the bailiff had engaged in a conversation with a juror about the Miranda decision during a trial lunch recess. |p14 [Headnote 1] |p15 We have established certain considerations which are relevant to the decision of whether error is harmless or prejudicial. These include whether the issue of innocence or guilt is close, the quantity and character of the error, and the gravity of the crime charged. See Weakland v. State, 96 Nev. 699, 701, 615 P.2d 252, 254 (1980); Garner v. State, 78 Nev. 366, 375, 374 P.2d 525, 530 (1962). |p16 [Headnote 2] |p17 In this case, appellant was charged with a serious felony. The evidence against him, although substantial enough to convict him in an otherwise fair trial, was not overwhelming. We cannot say without reservation that the verdict would have been the same in the absence of error. The nature of the errors, while not in themselves particularly egregious, together had the effect of unfairly undermining appellant's credibility and defense in a rather close case. The cumulative effect of the errors was to deny appellant his right to a fair trial. Accordingly, we conclude that the judgment of conviction must be reversed. |p18 1 Miranda v. Arizona, 384 U.S. 436 (1966). |c14756 Brundy v. Bramlet |p0 DAVID BRUNDY AND SALLY BRUNDY, CHARLES BODOR AND PAUL BODOR, APPELLANTS, v. CHRISTY LYNN BRAMLET, RESPONDENT. No. 14756 January 3, 1985 692 P.2d 493 |p1 Appeal from summary judgment, Eighth Judicial District Court, Clark County; J. Charles Thompson, Judge. |p2 Adverse possession claimants appealed from order of the district court granting summary judgment quieting title to parcel of real estate. The Supreme Court held that since water assessments are taxes which must be paid by claimants in order to perfect title by adverse possession, party who had originally acquired the lot in question from her mother and who had thereafter paid the water assessments upon that property was entitled to have title thereto quieted in her, though claimants had paid the real estate taxes. |p3 Affirmed. |p4 Lea & Beecroft, Las Vegas, for Appellants. |p5 Lionel Sawyer & Collins, and Mark A. Solomon, Las Vegas, for Respondent. |p6 1. ADVERSE Possession. |p7 Statutory provisions governing acquisition of title by adverse possession must be strictly construed and strictly followed. NRS 11.150 , 40.090 . |p8 2. ADVERSE Possession. |p9 Water assessments are 'taxes" Which must be paid by claimant in order to perfect title by adverse possession, and thus party who had originally acquired lot in question from her mother and who had thereafter paid the Water assessments upon that property was entitled to have title quieted in her even though subject claimants had paid the real estate taxes. NRS 11.150 , 40.090 . |p10 3. ADVERSE Possession. |p11 To prove title, an adverse claimant must show that he has, in all respects, acted consistently as the true owner of the property. NRS 11.150 , 40.090 . |p12 4. APPEAL AND ERROR. |p13 Motion to strike portion of reply brief, filed shortly before oral argument and several months after the brief had been filed, was untimely and would not be considered; nonetheless, arguments in reply brief not properly preserved for review would also not be considered. |p14 OPINION |p15 Per Curiam: |p16 This appeal is from an order granting summary judgment quieting title to a parcel of real estate located in Clark County. The primary issue in this case is whether an adverse claimant to real property must pay a water assessment levied upon the subject property in order to perfect title through adverse possession. For the following reasons, we affirm. |p17 Lots 22 and 23 are adjoining parcels of real property located in' Clark County. Respondent Christy Bramlet acquired lot 22 in 1961 from her mother. Elmer Bramlet acquired lot 23 in 1963 in the same manner, but he subsequently sold both lots. After several transactions, on November 20, 1972, the lots were purchased by appellants David and Silly Brundy. The Brundys constructed a dwelling on lot 23 and fenced both lots. On June 4, 1976, the Brundys entered into a contract for the sale of the lots to Charles and Paul Bodor, who have occupied the property for a period in excess of six years. Appellants have paid the real estate taxes levied against the property since 1972. Respondent, on the other hand, has paid the water assessments upon the subject property between July 15, 1975, and July 15, 1981. |p18 Respondent brought an action to quiet title to lot 22 and moved for summary judgment. Respondent contends that, by failing to pay the water assessments for the years 1975-1981, appellants could not demonstrate that the adverse possession requirements had been met. |p19 The lower court found that water assessments are "taxes assessed" against the subject property, which an adverse possessor must pay in order to satisfy the requirements of NRS 40.090 or NRS 11.150 .1 The court concluded that, because respondent had paid the water assessments upon the subject property between 1975 and 1981, appellants did not satisfy the statutory requirements. Accordingly, the court found that appellants could not prevail on their claim of adverse possession, and respondent's motion for summary judgment was granted. |p20 [Headnotes 1, 2] |p21 The parties dispute whether NRS 11.150 or NRS 40.090 is applicable to the instant case. The outcome of this case does not depend on which of the statutes is applied. Statutory provisions governing the acquisition of title by adverse possession must be strictly construed and strictly followed. See Wood v. Henley, 263 P. 870 (Cal.Cr.App. 1928). For purposes of both of the above adverse possession statutes, we conclude that water assessments are taxes which must be paid by the claimant in order to perfect title by adverse possession. |p22 [Headnote 3] |p23 The policy consideration underlying the law of adverse possession is served by requiring such assessments to be paid by the adverse claimant. Adverse possession allows peaceful resolution of disputes over the ownership of real property and frees the alienation of that property by removing uncertainties regarding title. To prove title, an adverse claimant must show that he has, in all respects, acted consistently as the true owner of the property. |p24 See NRS 318.201 . Since appellants did not pay the water assessments, their claim to legal title is defective. |p25 [Headnote 4] |p26 Accordingly, we affirm the district court's order. 2 |p27 1 NRS 11.150 provides: |p28 In no case shall adverse possession be considered established unless it be shown, in addition to the requirements of NRS 11.120 or 11.140 , that the land has been occupied and claimed for the period of 5 years, continuously, and that the party or persons, their predecessors and grantors have paid all taxes, state, county and municipal, which may have been levied and assessed against the land for the period mentioned, or have tendered payment thereof. |p29 NRS 40.090 provides in pertinent part: |p30 1. An action may be brought to determine the adverse claims to and clouds upon title to real property by a person who, by himself, or by himself and his predecessors in interest, has been in the actual, exclusive and adverse possession of such property continuously for more than 15 years prior to the filing of the complaint, claiming to own the same in fee, or by any other freehold estate, against the whole world, and who has by himself or his predecessors in interest, paid all taxes of every kind levied or assessed and due against the property during the period of 5 years next preceding the filing of the complaint.... See NRS 11.110 et seq., NRS 40.090 et seq. True owners pay special assessments against their property or face enforcement of a lien against such property to satisfy the obligation. |p31 2 Respondent moved to strike a portion of appellants' reply brief, contending that the brief raised an argument Which was not properly preserved for appeal. This motion Was filed shortly before oral argument of the instant case, several months after the brief had been filed. Respondent offered no excuse why the motion to strike was not filed earlier. We refuse to consider the motion on the ground that it was untimely. In any event, we have not considered arguments which were not properly preserved for our review. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 623 P.2d 981 (1981).