Jail guard’s conviction in sex case is overturned

Wednesday, April 20, 2005 | 9:28 a.m.

CARSON CITY -- The Nevada Supreme Court ruled Tuesday that a Clark County District Court jury that convicted a correctional officer of sexual conduct with an inmate should not have been allowed to hear evidence that the officer tried to flirt with his three female public defenders.

The court overturned the conviction of Mark Bennish who was sentenced to 12 to 30 months in prison after being found guilty of sexual conduct at the Clark County Detention Center in May 2003.

Bennish was accused of taking a female inmate into a dark visitor's room and having her fondle him.

The Supreme Court agreed with lawyers for Bennish that former District Judge Mark Gibbons, who is now on the Supreme Court, should not have permitted testimony by three different female deputy public defenders.

The court said Bennish passed them flirtatious notes during court proceedings and he kissed one of them outside a doorway to the courtroom.

The record in the Supreme Court said Bennish passed one public defender a note saying that she was beautiful and he could not concentrate when she was present in the courtroom.

Defense lawyers called that a "schoolyard compliment" and should not have been introduced at the trial. Bennish passed another note to a second female deputy public defender saying she was beautiful.

In the third instance, Bennish gave a hug and a kiss to another deputy public defender. The woman said she felt uncomfortable but she did not report the incident.

In overturning the conviction and ordering a new trial, the court said the law "provides that evidence of other wrongs cannot be admitted at trial solely for the purpose of proving that the defendant acted in a similar manner on a particular occasion."

The district attorney's office argued the evidence was admissible to show a pattern of unacceptable conduct. But the court said the admission of the evidence is prohibited.