and (7) whether the State engaged in prosecutorial misconduct.' For the
reasons set forth below, we affirm the judgment of conviction. As the
parties are familiar with the facts of this case, we do not recount them
further except as necessary for our disposition.
DISCUSSION
Substantial evidence supporting the verdict
Nelson argues that there was insufficient evidence to sustain
the jury's verdict. We disagree.
In reviewing the sufficiency of the evidence, we ask "whether,
after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt." Nolan v. State, 122 Nev. 363, 377, 132
P.3d 564, 573 (2006) (alteration in original) (internal quotations omitted).
The jury, and not this court, has the job of weighing the evidence and
determining the credibility of witnesses. Id. "Circumstantial evidence
alone may sustain a conviction." McNair v. State, 108 Nev. 53, 61, 825
P.2d 571, 576 (1992). We do not disturb a jury's verdict if substantial
'Nelson also argues that (1) the district court abused its discretion
in giving various jury instructions and in denying Nelson's motion for a
mistrial based on the spectators' conduct, (2) NRS 51.345 violates the
United States Constitution, and (3) cumulative errors warrant a new trial.
We determine that these contentions lack merit. Nelson also argues that
the district court abused its discretion in denying his for-cause challenges
to prospective jurors who made statements that raised some doubt as to
their objectivity. Nelson's argument does not warrant reversal; he fails to
show that the empaneled jury included these challenged jurors or that it
was biased, as is required for reversal. See Blake v. State, 121 Nev. 779,
796, 121 P.3d 567, 578 (2005).
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evidence supports it. Tellis v. State, 85 Nev. 679, 679-80, 462 P.2d 526,
527 (1969).
NRS 175.291(1) and Frenchwood's testimony
NRS 175.291(1) provides that a defendant cannot be convicted
based on accomplice testimony if it is not "corroborated by other evidence
which in itself. . . tends to connect the defendant with the commission of
the offense." An accomplice is "one who is liable to prosecution, for the
identical offense charged against the defendant on trial in the cause in
which the testimony of the accomplice is given." NRS 175.291(2).
Nelson argues that Frenchwood, a witness who testified at
trial, was an accomplice. But, the evidence presented did not establish
Frenchwood as an accomplice. Her testimony indicated that she was not
included in the conversations between Nelson and his codefendant that
preceded their crimes, such that she lacked a chance to learn of their
criminal intentions. Frenchwood knew that the codefendant tried to
engage in a drug deal, but Nelson and the codefendant were not
prosecuted for drug-related crimes, so Frenchwood's knowledge of this fact
did not make her an accomplice.
In asserting that Frenchwood was an accomplice, Nelson relies
on a detective's testimony, wherein the detective stated that during his
investigation he told Frenchwood that "it's better to be a witness th[a]n a
suspect." But Nelson overlooks the remainder of the detective's testimony.
When asked about this statement, the detective testified that although he
did not develop information to suggest that Frenchwood engaged in the
crimes, "she could have been an accessory to the incident." The detective's
testimony revealed that he implied an ultimatum to Frenchwood to be
cooperative but failed to find evidence to make Frenchwood an accomplice.
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Accordingly, we conclude that NRS 175.291(1) did not apply to
Frenchwood and that her testimony could be a basis for Nelson's
conviction.
Robbery
"Robbery is the unlawful taking of personal property from the
person of another, or in the person's presence, against his or her will, by
means of force or violence or fear of injury. . . to his or her person or
property." NRS 200.380(1).
An autopsy showed that Heckard was beaten, which, in light
of the other evidence, indicated that someone used force to subdue
Heckard and take his property. Two witnesses placed Nelson at and near
Heckard's home during the crimes and shortly thereafter. Alonzo Woods
testified that Nelson was the person who pointed a gun at him inside
Heckard's home. Frenchwood testified that, after the events at Heckard's
home, the codefendant drove her vehicle, picked up Nelson, and drove
toward Heckard's home; the route that Frenchwood described was in the
vicinity of where the police recovered Heckard's wallet. Frenchwood also
testified that while she was in the vehicle, she saw Nelson holding gold
jewelry and drugs. She further testified that, at some point, she
overheard Nelson make an incriminating statement during a phone
conversation in which he stated, "[I]t wasn't supposed to go like
that. . . . [I] was only supposed to rob him." This evidence, in conjunction
with the evidence below, was sufficient to establish Nelson's guilt for
robbery.
Conspiracy to commit robbery
"Conspiracy is an agreement between two or more persons for
an unlawful purpose." Thomas v. State, 114 Nev. 1127, 1143, 967 P.2d
1111, 1122 (1998). Conspiracy is proven if a series of acts that further the
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crime provide enough information to infer the existence of the agreement.
Id.
Frenchwood testified that before the crimes the codefendant
and Nelson carried on a conversation in which they excluded Frenchwood,
after which the codefendant drove them to Heckard's home. The
codefendant went inside the home and returned to her vehicle. Nelson
then got out of the vehicle and entered the home. As the codefendant
drove away, she made a statement to Frenchwood that expressed her
regret for bringing Frenchwood along, providing some indicia that the
codefendant knew that Nelson intended to engage in a crime inside the
home. The intended crime was a robbery, as was shown by the testimony
about Nelson's phone conversation during which he expressed that he was
" supposed to rob him." Thus, Frenchwood's testimony was sufficient to
support Nelson's conviction of conspiracy to commit robbery.
First-degree kidnapping
NRS 200.310 defines first-degree kidnapping as
"willfully . . . hold[ing] or detain[ing][ ] the person . . . for the purpose of
committing . . . robbery upon or from the person, or for the purpose of
killing the person or inflicting substantial bodily harm upon the person."
In this case, Frenchwood's and Woods' testimony placed Nelson at the
scene of the crimes, wherein Heckard was found dead with his hands tied.
This evidence, in conjunction with the evidence above and the testimony
regarding the police investigation, was sufficient for one to reasonably
infer that Nelson and the other man in the home detained Heckard for the
purpose of beating, killing, or robbing him. Thus, the evidence was
sufficient for Nelson's conviction of first-degree kidnapping.
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Robbery with the use of a deadly weapon
A defendant is guilty of robbery with the use of a deadly
weapon where he or she uses a deadly weapon to unlawfully take another
person's property against the other person's will by force, violence, or fear
of injury. NRS 200.380(1); NRS 193.165(1). Here, Woods testified that
Nelson pointed a gun at him and that Nelson and another man took his
money and jewelry. This testimony was sufficient evidence for Nelson's
conviction of robbery with the use of a deadly weapon.
Burglary while possessing a deadly weapon
Burglary while in the possession of a deadly weapon is the act
of "enter[ing] any house . . . with the intent to commit. . . any felony,"
NRS 205.060(1), while also possessing a deadly weapon. NRS 205.060(4).
Frenchwood's and Woods' testimony revealed that Nelson entered
Heckard's home with the intent to commit a felony and that Nelson had a
gun, which was sufficient evidence for Nelson's conviction of burglary
while in possession of a deadly weapon.
First-degree arson
NRS 205.010 defines first-degree arson as "willfully and
maliciously set[ting] fire . . . or. . . aid[ing], counselling] or procur[ing] the
burning of any . . . house." In this case, a fire investigator testified that a
fire started in Heckard's bedroom and that he believed the fire to be the
result of "an act of a person trying to put an open flame to ordinary
combustibles." This testimony, in conjunction with the other evidence that
placed Nelson at Heckard's home and established Nelson's criminal
activity, was sufficient evidence for the verdict that Nelson committed
first-degree arson. See NRS 205.010.
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Grand larceny of a motor vehicle
Grand larceny of a motor vehicle is the act of "intentionally
steal[ing]" another person's "motor vehicle." NRS 205.228(1). Frenchwood
testified that she saw a man who resembled Nelson in Heckard's car, at
which time she overheard the codefendant say on her cell phone,
"[W]hat . . are you doing in his car?" Frenchwood further testified that
the codefendant picked Nelson up at a location where Heckard's car was
abandoned and asked him, "[W]hy were you in the car[?]" This testimony
was sufficient to support the verdict that Nelson committed grand larceny
of a motor vehicle.
First-degree murder
"The felony-murder rule makes a killing committed in the
course of certain felonies murder, without requiring the State to present
additional evidence as to the defendant's mental state." Rose v. State, 127
Nev. , 255 P.3d 291, 295 (2011). Under NRS 200.030(1)(b), one is
guilty of first-degree murder if the killing is "[c]ommitted in the
perpetration or attempted perpetration of. . . kidnapping, . . . robbery, [or]
burglary." Here, the evidence established that Heckard was beaten and
killed at the time that Nelson committed first-degree kidnapping and
robbery. Hence, there was sufficient evidence to conclude that Nelson
killed Heckard in the commission of these other felonies, thereby
supporting a conviction of first-degree murder.
In light of the above, we conclude that sufficient evidence
supports Nelson's convictions. Thus, we will not disturb the verdict. 2
2 To
the extent that Woods contests the verdict because of a lack of
DNA evidence and witness credibility, his arguments do not warrant
continued on next page . . .
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. . „
Woods' in-court identification of Nelson
Nelson contends that the State repeatedly showed Woods
photographs of Nelson before trial, which enabled Woods to identify
Nelson at trial. Nelson argues that the repeated exposure to his image
was a suggestive pretrial identification procedure that tainted Woods' in-
court identification of Nelson and violated Nelson's constitutional rights.
Based on our de novo review of this evidentiary issue that implicated
Nelson's due process rights, we disagree. See Hernandez v. State, 124 Nev.
639, 646, 188 P.3d 1126, 1131 (2008) (providing that the admission of
evidence that involves constitutional rights is reviewed de novo).
This court employs a two-step test for determining whether an
identification of the defendant as a result of pretrial identification
procedures violated his or her due process rights. Banks v. State, 94 Nev.
90, 94, 575 P.2d 592, 595 (1978). First, we assess whether the
identification procedures were "so unnecessarily suggestive and conducive
to irreparable mistaken identification that [appellant] was denied due
process of law." Id. (alteration in original) (quoting Stovall v. Denno, 388
U.S. 293, 301-02 (1967), disapproved on other grounds by Griffith v.
Kentucky, 479 U.S. 314, 326 (1987)). A photographic lineup is suggestive
where it was "so unduly prejudicial as [fatally to] taint [the defendant's]
. . . continued
reversal. Although DNA may be sufficient for guilt, it is not necessary.
See McNair v. State, 108 Nev. 53, 61, 825 P.2d 571, 576 (1992). Also, the
weight given to a witness's testimony in light of his or her credibility rests
with the jury—not this court. See Nolan v. State, 122 Nev. 363, 377, 132
P.3d 564, 573 (2006).
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conviction." Cunningham v. State, 113 Nev. 897, 904, 944 P.2d 261, 265
(1997) (quoting Simmons v. United States, 390 U.S. 377, 383 (1968)).
Second, this court asks whether the identification of the defendant is
reliable despite the suggestive pretrial identification procedures. Banks,
94 Nev. at 94, 575 P.2d at 595.
The arguments on appeal and the record fail to give a clear
depiction of how many of the pretrial photographic lineups included
Nelson's photograph and if Woods told the State that he would identify
Nelson. Nonetheless, Woods' in-court identification of Nelson was reliable.
He testified that Nelson pointed a gun at him and that he gave the police a
description of the gunman, which resembled Nelson. Woods explained
that he did not identify Nelson in the past because he did not want to be a
snitch but identified Nelson at trial so as to give closure to Heckard's
family. We conclude that the reliability of Woods' in-court identification
overcame any alleged improprieties in the identification procedures.
Thus, there was no denial of due process.
Evidence of the gun that was seized from a vehicle driven by Nelson
Nelson argues that the district court abused its discretion in
admitting a gun into evidence that was seized from a vehicle that he had
driven, contending that it lacked relevance and was evidence of a prior bad
act. Based on our review of the district court's discretion in admitting this
evidence, we disagree. See Mclellan v. State, 124 Nev. 263, 267, 182 P.3d
106, 109 (2008) (providing that we review a district court's admission of
evidence for abuse of discretion).
The State made a pretrial motion to admit the gun into
evidence because it matched Woods' description of the gun. Nelson
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objected, arguing that the gun must be excluded as evidence of a prior bad
act. The gun was admitted into evidence.
Relevant evidence is generally admissible, NRS 48.025, and is
"evidence having any tendency to make the existence of any fact. . . of
consequence . . . more or less probable." NRS 48.015. But, relevant
evidence must be excluded if its prejudicial value substantially outweighs
its probative value. NRS 48.035(1). Often, "[e]vidence of other crimes,
wrongs or acts is not admissible to prove the character of a person in order
to show that the person acted in conformity therewith." NRS 48.045(2).
The gun was admissible evidence. It resembled the gun that
Woods described; hence, it was relevant to the crimes. Also, Nelson
rejected the district court's invitation to give a limiting instruction that
would prohibit the jury from considering Nelson's gun possession as
evidence of a prior bad act. Accordingly, we conclude that the district
court did not abuse its discretion in admitting the gun into evidence.
Frenchwood's prior dishonest acts that were in a PSI
Nelson argues that the district court abused its discretion in
precluding him from impeaching Frenchwood by inquiring about prior
dishonest acts that appeared in her PSI. Given our review of the district
court's discretion to exclude this evidence, we find that any abuse of
discretion was harmless error. See Mclellan, 124 Nev. at 267, 182 P.3d at
109; see also Knipes v. State, 124 Nev. 927, 933-34, 192 P.3d 1178, 1182-83
(2008) (providing that we do not reverse on an abuse of discretion when it
was harmless error); Tavares v. State, 117 Nev. 725, 732, 30 P.3d 1128,
1132 (2001) (providing that an error is not harmless when it has a
substantial and injurious effect on the verdict).
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NRS 50.085(3) governs this issue and provides that
[s]pecific instances of the conduct of a witness, for
the purpose of attacking. . . the witness's
credibility, other than conviction of crime, may not
be proved by extrinsic evidence. They may,
however, if relevant to truthfulness, be inquired
into on cross-examination of the witness or on
cross-examination of a witness who testifies to an
opinion of his or her character for truthfulness or
untruthfulness . . . .
In this case, the information in the PSI pertained to
Frenchwood misrepresenting herself on multiple occasions, which related
to her honesty. Thus, this evidence was admissible. See NRS 50.085(3).
Although Nelson was precluded from exposing the information within
Frenchwood's PSI, Nelson elicited other testimony that called into doubt
Frenchwood's honesty, including her prior conviction of attempted
burglary, her use of drugs before her testimony, her dislike for Nelson, and
her failure to tell the truth to a detective until he implied an ultimatum to
her. Accordingly, the preclusion of testimony about the PSI information
was harmless error and does not require reversal.
Nelson's right to confrontation
Nelson argues that the district court violated his right to
confrontation in reading a letter by the non-testifying codefendant that
included references to a male that the jury could equate to Nelson.
Because Nelson did not object, but only requested a limiting instruction,
we review this issue for plain error. See Green v. State, 119 Nev. 542, 545,
80 P.3d 93, 95 (2003). Plain error is one that is "clear" and "affect[s] the
defendant's substantial rights." Id.
The letter contained the following: "They only have
[Frenchwood] placing me there.. . . He needed me to go handle business
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for him. . . . [It] was bad, and he did not want to face the N[ ] that he had
f[ ] with." A limiting instruction stated that this letter could only be
considered for the codefendant's guilt. Here, the word "he," while not
expressly naming Nelson, could lead the jury to infer that "he" referred to
Nelson.
In Bruton v. United States, 391 U.S. 123, 135-36 (1968), the
United States Supreme Court held that a non-testifying codefendant's
confession cannot be introduced into evidence at a joint trial if the
confession implicates another codefendant, 'even if the jury is instructed to
consider the confession only as evidence of the confessing codefendant's
guilt. Later, in Gray v. Maryland, 523 U.S. 185, 192 (1998), the Court
considered the effect of a confession that simply replaced the non-
confessing codefendant's name with a blank space. The Gray Court
concluded that this was the functional equivalent of an express
implication of the non-confessing codefendant and, as a result, his
Confrontation Clause rights were violated. Id. at 192-95.
In this matter, "he" is much like the blank space in Gray that
compromised the codefendant's Confrontation Clause rights. Yet, the
reading of the letter was not plain error. During cross-examination, the
codefendant's attorney elicited from the detective an interpretation of the
letter, and the detective interpreted "he" as referring to Heckard. Hence,
given this evidence and the other evidence of Nelson's guilt, the letter
that, in context, referred to Heckard did not affect Nelson's substantial
rights.
Evidence of an unrelated murder charge
The State moved to preclude Nelson from asking the detective
about his knowledge of Joseph Fleming and an unrelated murder charge
against Fleming. The district court granted the motion. Nelson argues
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that the district court deprived him of his constitutional right to present
his theory of the case by barring the evidence regarding Fleming's murder
charge. As this evidentiary issue implicates Nelson's constitutional rights,
we review the issue de novo. Hernandez v. State, 124 Nev. 639, 646, 188
P.3d 1126, 1131 (2008).
The constitutional right to present one's defense is subject "to
the rules of evidence, including the rules that evidence must be relevant,
and that even relevant evidence is inadmissible if its probative value 'is
substantially outweighed by the danger of unfair prejudice . . . or of
misleading the jury." Rose v. State, 123 Nev. 194, 205 n.18, 163 P.3d 408,
416 n.18 (2007) (quoting NRS 48.035(1)). The testimony that Nelson
sought pertained to an unrelated murder for which Fleming had not yet
been tried. The testimony could serve few purposes other than to suggest
that Fleming likely murdered Heckard because he possibly committed an
unrelated murder, thereby presenting the risk of misleading the jury.
Accordingly, we conclude that the district court did not deprive Nelson of
his right to present a defense by precluding him from presenting evidence
of an unrelated murder charge against Fleming.
Prosecutorial misconduct
Nelson asserts that the State engaged in prosecutorial
misconduct by making statements that shifted the burden of proof,
intimated that Nelson was just trying to avoid jail, and referenced facts
not in evidence. "[We] will not reverse a conviction based on prosecutorial
misconduct if it was harmless error. . . . If the error is not of constitutional
dimension, we will reverse only if the error substantially affects the jury's
verdict." Valdez v. State, 124 Nev. 1172, 1188-89, 196 P.3d 465, 476
(2008). But if the error is of a constitutional dimension, we will reverse
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unless it is shown, "beyond a reasonable doubt, that the error did not
contribute to the verdict." Id. at 1189, 196 P.3d at 476. The prosecutor's
"statements should be considered in context." Thomas v. State, 120 Nev.
37, 47, 83 P.3d 818, 825 (2004).
The State did not shift the burden of proof
In the State's rebuttal closing argument, the prosecutor stated
the following: "[A]lthough they said it over and over again[,] the State
didn't prove beyond a reasonable doubt. It's their burden. They didn't
prove it. Neither of them took the time to tell you what that burden is."
Nelson objected, and the district court sustained the objection.
The prosecutor made this statement while paraphrasing
Nelson's closing argument. When reading the statement in its context, it
conveys that Nelson told the jury that the State had the burden of proof
but did not define that burden. After paraphrasing the argument, the
prosecutor advised the jury to rely on the jury instructions in determining
whether the State met its burden. The jury instructions stated that the
State had the burden of proof. Thus, we conclude that the paraphrasing of
Nelson's argument was not prosecutorial misconduct.
The `get out of jail fee card" statement
During closing arguments, the prosecutor also stated that
Nelson attempted to convince the prosecution to give Nelson a "get out of
jail free card." Nelson objected to this statement, and the district court
sustained the objection while ordering that it be stricken from the record.
Given the district court's response, we conclude that the statement was
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harmless because the jury was instructed to disregard it. 3 See McConnell
v. State, 120 Nev. 1043, 1062, 102 P.3d 606, 619 (2004) (providing that we
presume that juries follow the district court's instructions).
For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED.
Gibbons
/6-- J.
Douglas
Saitta
cc: Hon. Douglas W. Herndon, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3 In closing arguments, the prosecutor stated that "[i]n 2001 [and]
2002, . . . [Frenchwood] attempted to go in a store and steal something."
Nelson objected that these facts were not in evidence. The district court
sustained the objection. Arguing facts not within the evidence was
prosecutorial misconduct, but we conclude that the misconduct was
harmless error as the district court sustained the objection. See Truesdell
v. State, 129 Nev. „ 304 P.3d 396, 402 (2013).
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