130 Nev., Advance Opinion 10
IN THE SUPREME COURT OF THE STATE OF NEVADA
DAVID SANCHEZ-DOMINGUEZ, No, 58345
Appellant,
vs. FILED
THE STATE OF NEVADA,
FEB 2 7 2014
Respondent.
TRAACIEN LINDEMA
CLEPOWSCIEIRgMe:q
BY
C1-1(EF DEPUTY CLERK
Appeal from a judgment of conviction, pursu t to a jury
verdict, of first-degree murder with the use of a deadly weapon,
aggravated stalking, and burglary. Second Judicial District Court,
Washoe County; Steven R. Kosach, Judge.
Affirmed.
Richard F. Cornell, Reno,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Richard A.
Gammick, District Attorney, and Terrence P. McCarthy, Deputy District
Attorney, Washoe County,
for Respondent.
BEFORE THE COURT EN BANC.'
OPINION
By the Court, PICKERING, J.:
First-degree felony murder occurs when a murder is
"EcIommitted in the perpetration or attempted perpetration of' certain
'Following oral argument, this matter was transferred from a panel
to the en banc court pursuant to TOP Rule 13(b).
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felonies, including burglary. NRS 200.030(1)(b). In this appeal, we
address the meaning of "in the perpetration or attempted perpetration of'
a burglary, specifically, whether a killing must be caused by, and occur at
the exact moment of, a burglar's entry into a protected structure. Because
NRS 200.030(1)(b) holds felons strictly responsible for killings that result
from their felonious actions, we affirm the judgment of conviction, even
though the killing here occurred after the offense of burglary was
complete.
I.
David Sanchez-Dominguez married Maria Angustias Corona
in 2002. Over the course of their seven-year marriage, Sanchez-
Dominguez subjected Maria to physical and mental abuse. Maria
attempted to leave Sanchez-Dominguez several times, but always
returned. In September 2009, Maria again left Sanchez-Dominguez and
moved into her mother's home. She also obtained a temporary protective
order that forbade Sanchez-Dominguez from coming within 100 yards of
Maria, her mother's home, or her place of work. Despite the protective
order, Sanchez-Dominguez continued to pursue Maria.
On November 13, 2009, Sanchez-Dominguez drove to Maria's
mother's home. He entered the home, uninvited, through the unlocked
front door. Inside, he encountered several of Maria's relatives, including
her mother, two cousins, and two brothers. Repeatedly, Sanchez-
Dominguez asked for Maria and was told that she was not home. Maria's
relatives told Sanchez-Dominguez to leave, but he refused. When Maria's
cousin Jose moved toward the phone to call 911, Sanchez-Dominguez
pulled a gun from the waist of his pants and told Jose not to move. He
then pointed the gun at Maria's mother. Hearing the commotion, Roberto
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Corona, Maria's brother, came downstairs. Upon realizing what was
happening and seeing that Sanchez-Dominguez had the gun drawn,
Roberto stepped between his mother and Sanchez-Dominguez and said, "if
you're going to shoot, shoot." Immediately, Sanchez-Dominguez held the
gun to Roberto's chest and fired a single shot, killing him
The State charged Sanchez-Dominguez with burglary,
aggravated stalking, and murder. The murder count was charged as
willful, deliberate, and premeditated murder and, alternatively, as felony
murder in the perpetration of burglary. After a seven-day trial, the jury
found Sanchez-Dominguez guilty on all three counts. The jury then chose
a sentence of life imprisonment without parole for the murder, and the
district court sentenced Sanchez-Dominguez on the remaining counts.
Sanchez-Dominguez raises two issues on appeal, only one of
which warrants extended discussion: Did the district court err by issuing
an incomplete jury instruction regarding felony murder and rejecting the
alternative instructions Sanchez-Dominguez proffered, thereby allowing
the jury to base a first-degree murder conviction on the felony-murder
theory predicated on a completed felony? 2
2Sanchez-Dominguez also argues that the aggravated stalking
charge should have been severed and tried separately because it was
unrelated to the other offenses and highly prejudicial. The district court
did not abuse its discretion in refusing severance. The record shows that
Sanchez-Dominguez had an overarching plan to terrorize and control
Maria that ultimately resulted in the burglary and murder. See NRS
173.115(2). Also, the evidence that Sanchez-Dominguez burglarized the
home and killed Roberto was overwhelming, leaving little reason to
believe the jurors convicted him of murder based on emotional outrage
over the stalking, rather than admissible evidence regarding the murder.
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In the district court, Sanchez-Dominguez's theory of defense
was that the felony-murder rule did not apply because the underlying
felony, burglary, was complete before the killing happened, and thus, the
death did not occur "during the perpetration or attempted perpetration" of
a felony. He offered three jury instructions consistent with his theory of
the case:
(1) Burglary is confined to a fixed locus in time.
The crime of Burglary is complete at entry into a
house where the necessary specific intent is also
determined to exist at that same fixed locus in
time. All matters following the burglary are not a
part of the Burglary. Thus, any act of violence
following the actual entry into a house cannot be
an act done during the perpetration or attempted
perpetration of a Burglary.
Because the evidence in this case
demonstrates that ROBERTO CORONA was
killed after the defendant's entry into the
house . . . , you may not consider the alternative
theory of felony murder as a basis for conviction of
First Degree Murder. That theory is therefore
removed from your consideration.
The only theory of First Degree Murder that
you may consider is premeditated and deliberate
murder as defined in these instructions.
(2) In order to find that the defendant willfully
and unlawfully killed ROBERTO CORONA in the
perpetration or attempted perpetration of a
Burglary . . . , you must find beyond a reasonable
doubt that the killing occurred while the
defendant was entering the house.
(3) The offense of Burglary is complete upon entry
of a house only when at the time the house
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is entered, the defendant has the specific intent to
commit assault or battery or coercion or
kidnapping therein.
The district court rejected the proffered instructions on the grounds they
did not accurately state the law.
Citing Carter v. State, 121 Nev. 759, 765, 121 P.3d 592, 596
(2005), Sanchez-Dominguez argues that defendants are entitled to have
the jury instructed on their theory of the case. He urges that even if his
proposed instructions were poorly worded, the district court had an
obligation to provide the substance of the requested instructions to the
jury. And because the district court refused to instruct the jury on the
substance of his theory that the burglary ended before the murder,
Sanchez-Dominguez maintains that the court violated his constitutional
rights.
We review the district court's rejection of the proposed
instructions for an abuse of discretion, keeping in mind that a defendant is
not entitled to misleading, inaccurate, or duplicative jury instructions.
Crawford v. State, 121 Nev. 744, 748, 754, 121 P.3d 582, 585, 589 (2005).
The first and second proposed instructions misstate the law
regarding felony murder because the duration of felony-murder liability
can extend beyond the termination of the felony. See infra § III(B). Thus,
the district court had no obligation to give either instruction. See Barron
v. State, 105 Nev. 767, 773, 783 P.2d 444, 448 (1989) ("if a proffered
instruction misstates the law or is adequately covered by other
instructions, it need not be given"); see also Eddy v. State, 496 N.E.2d 24,
27-28 (Ind. 1986) (affirming district court's rejection of defendant's
completed-felony instruction). The third instruction is an accurate
statement of the law of burglary enumerated in NRS 205.060.
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Nonetheless, the court did not err by omitting this instruction because the
instruction duplicates, and is less accurate than, the burglary instruction
the court gave as instruction 31. 3 See Crawford, 121 Nev. at 754, 121 P.3d
at 589. Thus, the district court did not abuse its discretion by rejecting
the three instructions that Sanchez-Dominguez proffered.
Sanchez-Dominguez also argues that jury instruction number
24 did not include all the elements of felony murder. The instruction read:
The elements of the second category of First
Degree Murder are:
1. During the defendant's perpetration or
attempted perpetration of a Burglary;
2. a killing resulted.
Whenever death occurs during the
perpetration or attempt to perpetrate certain
felonies, including Burglary, the killing
constitutes First Degree Murder. This second
category of First Degree Murder is the "Felony
Murder" rule.
While the district court was settling jury instructions, Sanchez-Dominguez
objected that the phrase "a killing resulted" did not have the same
meaning as "a murder committed in the perpetration." He did not tender
an alternative instruction to capture this concept or expand on this
objection.
3 Instruction
31 read: "The elements of the crime of Burglary are: (1)
the defendant willfully and unlawfully; (2) entered any house, room
apartment, tenement, shop or other building; (3) with the intent to
commit. (a) assault, or (b) battery, or (c) any felony crime; including
coercion and/or kidnapping."
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Now, for the first time on appeal, Sanchez-Dominguez argues
that instruction 24 erroneously omitted the principle of causation from its
definition of felony murder, thereby relieving the State of its burden of
proving "that the killing [was] linked to or part of the series of incidents so
as to be one continuous transaction," as required by Payne v. State, 81
Nev. 503, 506-07, 406 P.2d 922, 924-25 (1965). At oral argument,
Sanchez-Dominguez admitted that he did not request a causation
instruction or use causation as a theory of his defense. And so, Sanchez-
Dominguez essentially argues that the district court had a sua sponte
obligation to instruct the jury on the required connection between the
burglary and the killing.
Generally, a party's failure to object to or request an
instruction precludes appellate review. Flanagan v. State, 112 Nev. 1409,
1423, 930 P.2d 691, 700 (1996); Green v. State, 119 Nev. 542, 545, 80 P.3d
93, 95 (2003) (failure to clearly object to a jury instruction generally
precludes review). There is an exception to this rule, however, if a plain
and obvious error occurred that is so serious, it affected the defendant's
substantial rights. Green, 119 Nev. at 545, 80 P.3d at 95. "In conducting
plain error review, we must examine whether there was 'error,' whether
the error was 'plain' or clear, and whether the error affected the
defendant's substantial rights." Id. To demonstrate plain error, the
appellant has the burden of demonstrating actual prejudice. Id.
A.
"A necessary antecedent to invoking the plain-error doctrine is
to determine whether error occurred at all." People v. Walker, 982 N.E.2d
269, 273 (Ill. App. Ct. 2012); see also Archanian v. State, 122 Nev. 1019,
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1031, 145 P.3d 1008, 1017 (2006) (the first step in conducting plain-error
analysis is to consider whether an error exists).
NRS 200.030(1)(b) defines first-degree felony murder as a
killing that is "[c]ommitted in the perpetration or attempted perpetration
of' certain felonies, including burglary. The phrase "[c]ommitted in the
perpetration or attempted perpetration" of a felony does not give clear
answers as to the time, place, and causal connection required. 2 Wayne R.
LaFaye, Substantive Criminal Law § 14.5(f) (2d ed. 2003). And, as noted
in Payne, 81 Nev. at 506, 406 P.2d at 924, "Mhe point at which the crime
was 'perpetrated' ... has been subject to varying degrees and wide
latitude."
Sanchez-Dominguez construes the phrase "committed in the
perpetration of' temporally—as requiring that the killing occur before all
the statutory elements of burglary have been completed. Citing Carr v.
Sheriff, 95 Nev. 688, 689-70, 601 P.2d 422, 423-24 (1979), he maintains
that he was no longer engaged "in the perpetration" of a burglary when he
shot Roberto; the burglary, he argues, was complete once he had entered
the family home with the specific intent to commit a felony against Maria.
Because the burglary was completed before Roberto was killed, Sanchez-
Dominguez maintains that the felony-murder rule does not apply.
B.
1.
The phrase "in the perpetration of' has common-law roots. In
most states, "felony murder statutes are premised upon the 1794 felony-
murder statute of Pennsylvania." People v. Gillis, 712 N.W.2d 419, 427
(Mich. 2006) (comparing the Pennsylvania statute with Michigan's
identical felony-murder statute); see also 2 Wharton's Criminal Law § 147
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(15th ed. 1994) ("In most states, the felony-murder statutory pattern
continues to this day to be grounded conceptually on the 1794 felony-
murder statute of Pennsylvania"). Pennsylvania defined felony murder as
"[a]ll murder. . . which shall be committed in the perpetration or attempt
to perpetrate any arson, rape, robbery or burglary . ." Rodriguez v.
State, 953 S.W.2d 342, 346 (Tex. App. 1997) (citing Edwin Keedy, History
of the Pennsylvania Statute Creating Degrees of Murder, 97 U. Pa. L. Rev.
759 (1949)).
Nevada's original first-degree murder statute dates back to
territorial days and used the same "in the perpetration of' language to
describe a killing committed during the course of an enumerated felony.
See 1861 Laws of the Territory of Nevada, ch. 28, § 17, at 58 (murder
includes a killing "which shall be committed in the perpetration, or
attempt to perpetrate any arson, rape, robbery, or burglary. . ."); see also
State v. Millain, 3 Nev. 409, 440 (1867) ("Let us here, however, repeat the
parent statute, being the Pennsylvania one of 1791."). 4 The Nevada
Legislature has continued to use this language, with small changes, for
over 153 years. Much like the current statute, the original version did not
define "in the perpetration of." But because this language was widely
used, the contemporaneous understanding of "in the perpetration of'
among the states in the mid-to-late 1800s is useful in understanding what
Nevada's statute meant in 1861 and still means today.
4 The 1791 statute that Nevada adopted is identical to the 1794
version that most states followed.
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Indiana was one of the first states to address the meaning of
"perpetration." In an 1876 decision, the Indiana Supreme Court upheld a
felony-murder conviction where the defendant killed a marshal who
confronted him after he broke into a drug store. Bissot v. State, 53 Ind.
408, 411-12 (1876); see also State v. Pratt, 873 P.2d 800, 811-12 (Idaho
1993). Rejecting the suggestion the burglary was already "complete"
before the killing occurred, the court explained that "where the homicide is
committed within the res gestae of the felony charged, it is committed in
the perpetration of, or attempt to perpetrate, the felony within the true
intent and fair meaning of the statute," and affirmed the conviction.
Bissot, 53 Ind. at 413-14.
In another early case, Ohio similarly rejected a defendant's
argument that a killing was not "in the perpetration of" a burglary
because the burglary was complete before he killed the victim. Conrad v.
State, 78 N.E. 957, 958-59 (Ohio 1906). Citing the well-established rule
that statutory construction must not defeat the purpose of a statute, the
court explained that a killing within the res gestae of burglary is
committed in the "perpetration of" the burglary, as the term is used in the
felony-murder statute. Id. at 959; see also Dolan v. People, 64 N.Y. 485,
497 (1876) (even if the offense of burglary is "doubtless complete," an
accused "may be said to be engaged in the commission of the crime until
he leaves the building").
And in 1905, this court used a similar analysis when it
interpreted the time requirement of the felony-murder rule. See State v.
Williams, 28 Nev. 395, 82 P. 353 (1905). There, the defendant claimed he
finished robbing a victim two minutes before shooting the victim and he
therefore could not be found guilty of first-degree murder. Id. at 407, 82 P.
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at 353. This court disagreed and affirmed Williams's conviction because
the shooting was part of a continuous assault that began with the robbery
and did not end until after the shooting. Id.
2.
The felony-murder rule has not substantially changed over
time. Its "purpose [is] to deter felons from killing negligently or
accidentally by holding them strictly responsible for the killings that are
the result of a felony or an attempted one." Payne, 81 Nev. at 506, 406
P.2d at 924. See also People v. Wilkens, 295 P.3d 903, 911 (Cal. 2013)
("Once a person perpetrates . . . one of the enumerated felonies [in the
felony-murder statute], then in the judgment of the Legislature, he is no
longer entitled to such fine judicial calibration, but will be deemed guilty
of first degree murder. . ."). Because the felony-murder rule seeks to
make punishment more certain, "[it was not intended to relieve the
wrong-doer from any. . . consequences of his act." People v. Boss, 290 P.
881, 884 (Cal. 1930). Consistent with this purpose, under NRS
200.030(1)(b), the perpetration of a felony does not end the moment all of
the statutory elements of the felony are complete Instead, the duration of
felony-murder liability can extend beyond the termination of the felony
itself if the killing and the felony are part of one continuous transaction.
See, e.g., State v. Hardy, 283 P.3d 12, 18-19 (Ariz. 2012) (en banc)
(upholding felony-murder conviction where a felony occurred before a fatal
shooting); Yates v. State, 55 A.3d 25, 34 (Md. 2012) (holding that "the
felony murder doctrine applies when the felony and the homicide are parts
of one continuous transaction").
While the phrase "in the perpetration of' suggests a temporal
component, it is not absolute; "the crimes of arson, burglary and rape may
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be considered to continue while the building burns, while the burglars
search the building and while the sexual connection is maintained."
LaFaye, supra, § 14.5(0; see also 2 Charles E. Torcia, Wharton's Criminal
Law § 150 (15th ed. 1994 & Supp. 2012) ("the period during which a
burglary is deemed to be in progress has ordinarily been extended"). If the
opposite were true and a technical construction was given to the statute,
as advanced by Sanchez-Dominguez, it would make it "quite impracticable
to ever convict for a murder committed in the perpetration of any of the
felonies mentioned" in the felony-murder statute. Bissot, 53 Ind. at 412;
see also Pratt, 873 P.2d at 811-12 (to say felony murder predicated upon
burglary cannot obtain once the burglary is complete would restrict the
felony-murder rule to cases where "the burglar had one leg over the
windowsill or one foot across the threshold" and defeat the purpose of the
felony-murder statute (internal quotations omitted)).
3.
Thus, both historical and modern interpretations of the phrase
"in the perpetration of" as used in the felony-murder rule lead to the same
conclusion: the phrase encompasses acts beyond the predicate felony's
statutory elements to include all acts connected to the predicate felony.
So, even granting that Sanchez-Dominguez had completed the statutory
elements of burglary by the time he killed Roberto, the felony-murder rule
still applies because the killing occurred moments later while Sanchez-
Dominguez remained in the family home uninvited.
C.
But Sanchez-Dominguez argues that NRS 200.030
additionally requires, as a separate element, direct and immediate
causation between the underlying felony and the victim's death. He
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asserts that if a felony is already complete, there can be no direct causal
connection between the felony and the killing, such that the district court's
failure to instruct on causation beyond the reference to "a killing resulted"
in instruction number 24 constitutes plain error. We disagree.
A cause is "something that precedes an effect or result,"
whereas perpetration is a specific type of causation where an actor
"commit[s] or cardies] out" a• crime. Black's Law Dictionary 250, 1256 (9th
ed. 2009). So, if a person commits a homicide "in the perpetration" of a
felony, he commits the homicide while "causing" a felonious event. In
other words, "Mlle only nexus required is that the felony and the killing be
part of a continuous transaction." People v. Thompson, 785 P.2d 857, 877
(Cal. 1990). And with regard to Sanchez-Dominguez's actions, that nexus
is established.
After all, the felony-murder rule holds felons strictly
accountable for the consequences of perpetrating a felony, and it is
immaterial whether a killing is intentional or accidental. State v.
Fouquette, 67 Nev. 505, 529-30, 221 P.2d 404, 417 (1950); Walker, 982
N.E.2d at 275) (discussing pattern jury instructions); People v. Huynh, 151
Cal. Rptr. 3d 170, 191 (Ct. App. 2012) ("the felony-murder rule imposes a
type of strict liability on the perpetrator .. ."). So, even if a perpetrator
did not intend to cause a death, causation is assumed where a killing
would not have occurred but for the perpetrator's purposeful decision to
cause a felony. See, e.g., Walker, 982 N.E.2d at 270 (upholding a felony-
murder conviction where a Jehovah's Witness's decision to refuse a blood
transfusion actually caused death because the victim would not have
needed a life-saving transfusion but for perpetrator's actions); Gillis, 712
N.W.2d at 422-23 (holding felony-murder rule applied where a burglar
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killed two people during a high-speed police chase). Accordingly, "in the
perpetration of' captures the nominal causation that felony murder
requires.
This is not• to say that a felon is responsible for "mere
coincidence [s] of time and place." 2 LaFave, supra, § 14.5(0. For example,
the felony-murder rule would not apply where a bank customer unaware
that a robbery is taking place suffers a fatal heart attack from natural
causes. Id. See also, e.g., Huynh, 151 Cal. Rptr. 3d at 190-91 (explaining
that "causation principles" are only pertinent where other acts allegedly
caused the death). But in these situations what has absolved the
defendant of felony-murder liability is not a lack of causation, but rather
that the death did not occur "in the perpetration of' the felony.
Here, Roberto's death would not have occurred but for
Sanchez-Dominguez's burglary of the home, and there is no doubt that
Sanchez-Dominguez shot Roberto at point-blank range as Roberto stood
between Sanchez-Dominquez and Roberto's and Maria's mother, the
matriarch of their family. Even though Sanchez-Dominguez completed
the statutory elements of burglary once he crossed the threshold of the
house, Roberto's efforts to defend his family and home were natural
consequences of Sanchez-Doming-uez's unlawful entry. See State v.
Contreras, 118 Nev. 332, 336, 46 P.3d 661, 663 (2002) ("It should be
apparent that the Legislature, in including burglary as one of the
enumerated felonies as a basis for felony murder, recognized that persons
within domiciles are in greater peril from those entering the domicile with
criminal intent. ." (quoting People v. Miller, 297 N.E.2d 85, 87 (N.Y.
1973))). Accordingly, as we have indicated above, the killing that resulted
falls within the purview of the first-degree felony-murder statute. See,
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e.g., Contreras, 118 Nev. 337, 46 P.3d at 664 (reversing a district court's
dismissal of a felony-murder charge predicated upon burglary because the
legislative language in NRS 200.030(1)(b) is clear); State v. Burzette, 222
N.W. 394, 399 (Iowa 1928) (upholding felony murder predicated upon
burglary even though the killing happened after the perpetrator's illegal
entry); Dolan, 64 N.Y. at 498-99 (same); Conrad, 78 N.E. at 958 (same);
Hardy, 283 P.3d at 18-19 (same)
In light of this analysis, we conclude that the district court did
not commit plain error in instructing the jury on the felony-murder rule.
Its instruction informed jurors that felony murder requires a finding that,
during the perpetration or attempted perpetration of a burglary, a killing
resulted. This language closely mirrors NRS 200.030(1)(b), as interpreted
in Payne, 81 Nev. at 506-07, 406 P.2d at 924-25. The district court did not
err by not sua sponte including more in the instruction than it did.
Thus, we conclude that the assignments of error are without
merit and affirm the judgment of conviction.
Pitiebt 7
Pickering
, J.
Parraguirre
Douglas
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CHERRY and SAITTA, JJ., dissenting:
We respectfully dissent. We would reverse thefl judgment of
conviction on the grounds that the district court plainly erred in failing to
instruct the jury that it could not convict appellant of felony murder if it
concluded that the crime of burglary was completed at the time of the
killing.
The felony-murder rule exists "to deter dangerous conduct by
punishing as a first degree murder a homicide resulting from dangerous
conduct in the perpetration of a felony, even if the defendant did not
intend to kill." Nay v. State, 123 Nev. 326, 332, 167 P.3d 430, 434 (2007)
(quoting State v. Allen, 875 A.2d 724, 729 (Md. 2005)). It aims to deter a
person from committing the felony itself, or, at the very least, to avoid
committing it in a violent manner. Id. It cannot apply where the
perpetrator does not have the "'intent to commit the underlying felony at
the time of the killing," id. (quoting State v. Buggs, 995 S.W.2d 102, 107
(Tenn. 1999)), because "the intent to commit the felony supplies the
malice" which elevates the killing to a murder, id. This rule alleviates the
State's burden of proving the malice required for murder if it shows that
the murder occurred during the course of certain felonies. See Rose v.
State, 127 Nev. , 255 P.3d 291, 295 (2011) ("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."). Accordingly, this court should be cautious
with any ruling that could expand this doctrine.
In holding that the district court did not err in denying the
requested instructions that burglary could not support felony murder if it
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ended prior to the killing, the majority adopts the premise that the killing
occurred within the res gestae of the burglary and, therefore, "in the
perpetration of' the burglary. It relies on State v. Pratt, 873 P.2d 800,
811-12 (Idaho 1993); Bissot v. State, 53 Ind. 408, 411-12 (1876); Dolan v.
People, 64 N.Y. 485, 497 (1876); and Conrad v. State, 78 N.E. 957, 958-59
(Ohio 1906). These cases, while similar to each other, are too dissimilar to
the facts before us. In each of the cited cases, the defendants entered a
structure with the intent to steal property. See Pratt, 873 P.2d at 811-12
(entering home with intent to steal); Bissot, 53 Ind. at 408 (entering drug
store for purpose of robbing it); Dolan, 64 N.Y. at 487 (entering dwelling
with intent to steal); Conrad, 78 N.E. at 958 (entering home with intent to
remove property). During the burglary, or their escape from the premises,
a killing occurs. The cases concluded that the burglary continued until the
defendants left the building with the property they intended to steal. See
Pratt, 873 P.2d at 811-12 (holding that killing occurring after entry but
before belongings were removed occurred in the perpetration of the
burglary); Bissot, 53 Ind. at 408 (holding that killing occurring during
burglary at drug store was committed in the perpetration of the burglary);
Dolan, 64 N.Y. at 497 (holding that a burglar "may be said to be engaged
in the commission of the crime until he leaves the building with his
plunder"); Conrad, 78 N.E. at 959 (holding that killing occurring during
escape from burglary of dwelling occurred in the res gestae of the
burglary). Inherent in the intent to steal is the desire to carry that
property from the structure in order to enjoy the possession of it. See
State v. Fouquette, 67 Nev. 505, 528, 221 P.2d 404, 416 (1950) ("The escape
of the robber with his ill-gotten gains by means of arms is as important to
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the execution of the robbery as gaining possession of the property.").
Therefore, the felonious intent with which these defendants crossed the
threshold informed their actions during the crime and accompanied them
in their flight. See id. at 527, 221 P.2d at 416 ("Robbery, unlike burglary,
is not confined to a fixed locus, but is frequently spread over considerable
distance and varying periods of time."). This case, conversely, lacks such
unifying intent.
The evidence produced at trial showed that Sanchez-
Dominguez entered the home of his estranged wife's family with the intent
to commit assault, battery, coercion, or kidnapping against his estranged
wife. The charged burglary was complete when he entered the home. See
Carr v. Sheriff Clark Cnty., 95 Nev. 688, 689-90, 601 P.2d 422, 423 (1979)
("The offenseS of burglary is complete when the house or other building is
entered with the specific intent designated in the statute."). Upon
learning that his wife was not at home and, therefore, the crimes he
intended to inflict upon her became impossible to complete, the intent that
accompanied Sanchez-Dominguez across the threshold of the residence
waned. He did not attempt to escape, which may have demonstrated the
logical continuation of the intent, but instead abandoned it. Thereafter,
Sanchez-Dominguez's actions became informed by an intent that arose
after entry into the home and could not support a burglary conviction, see
State v. Adams, 94 Nev. 503, 505, 581 P.2d 868, 869 (1978) ("A criminal
intent formulated after a lawful entry will not satisfy the statute."), and
was separate and distinct from the earlier intent which accompanied him
into the home.
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This discontinuity in the intent distinguishes the instant case
from those relied upon by the majority. Unlike the defendants in those
cases, Sanchez-Dominguez's actions after the completion of the burglary
were not the logical continuation of the intent that accompanied him
through the door. See Payne v. State, 81 Nev. 503, 507, 406 P.2d 922, 924
(1965) ("The res gestae of the crime begins at the point where an
indictable attempt is reached and ends were the chain of events between
the attempted crime or completed felony is broken, with that question
usually being a fact determination for the jury."). Therefore, there was a
factual issue as to whether the killing occurred in the course of the
burglary that turned on an obscure legal theory and the district court
plainly erred in failing to provide sufficient instruction for the jury to
evaluate the facts before it. See Crawford v. State, 121 Nev. 744, 754, 121
P.3d 582, 588 (2005) ("Jurors should neither be expected to be legal
experts nor make legal inferences with respect to the meaning of the law;
rather, they should be provided with applicable legal principles by
accurate, clear, and complete instructions specifically tailored to the fact
and circumstances of the case.").
We further conclude that the failure to give the instruction
affected Sanchez-Dominguez's substantial rights. See NRS 178.602; Green
v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). Although the evidence
unquestionably shows that Sanchez-Dominguez killed the victim, it is a
close question regarding whether that killing occurred in the perpetration
of the earlier burglary. Further, as there was evidence that Sanchez-
Dominguez was extremely intoxicated, the evidence supporting the
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premeditation theory of liability was not so convincing that the failure to
give the instruction did not have a prejudicial impact on the verdict.
Accordingly, we would reverse the judgment of conviction and
remand for a new trial.
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