Gaston (Gary) v. State

                 through the back door unannounced and walked into Moffett's bedroom.
                 Gaston told Moffett that he needed to talk to her, but she slammed the
                 door in his face and locked it. Gaston used a hammer to break down the
                 door and, once inside, stabbed Moffett in the chest with an army knife he
                 had concealed beneath his clothing. Moffett died from the wound. When
                 law enforcement arrived, Gaston told them that he entered Moffett's home
                 "with intent" because she had stolen from him and cheated on him When
                 asked what he meant by "intent," Gaston said "well, I had a knife on me."
                             We conclude that the jury could have reasonably inferred from
                 the evidence presented that Gaston committed burglary.'           See NRS
                 205.060(1); Valdez v. State, 124 Nev. 1172, 1197, 196 P.3d 465, 481 (2008)
                 ("Mntent can rarely be proven by direct evidence of a defendant's state of
                 mind, but instead is inferred by the jury from the individualized, external
                 circumstances of the crime." (internal quotation marks omitted)); see also
                 United States v. Powell, 469 U.S. 57, 67 (1984) (a sufficiency of the
                 evidence review should be conducted independently of any assertion of
                 inconsistent verdicts). A jury's verdict will not be disturbed on appeal
                 where, as here, it is supported by sufficient evidence. See Bolden v. State,
                 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).
                             Second, Gaston contends that his right to due process was
                 violated because his convictions for burglary and voluntary manslaughter
                 are "mutually exclusive." We disagree. Although the verdicts may be

                       'We reject the State's assertion that Gaston committed burglary by
                 entering Moffett's bedroom with the intent to commit murder because this
                 theory was not alleged in the charging document or argued at trial. See
                 Alford v. State, 111 Nev. 1409, 1415, 906 P.2d 714, 717-18 (1995);
                 Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 584-85 (2005).


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                inconsistent, they are not mutually exclusive under the circumstances
                presented, 2 see generally W.E. Shipley, Annotation,   Inconsistency of the
                Criminal Verdict as Between Different Counts of an Indictment or
                Information, 18 A.L.R.3d 259, 287 (1968), and inconsistent verdicts are
                permitted where supported by sufficient evidence, see Greene v. State, 113
                Nev. 157, 173-74, 931 P.2d 54, 64 (1997), receded from on other grounds by
                Byford v. State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000). Under the
                facts of this case in particular, we are convinced that the jury's verdict
                should not be disturbed.   See Powell, 469 U.S. at 65 (recognizing that
                inconsistent verdicts "should not necessarily be interpreted as a windfall
                to the Government at the defendant's expense," because it is "equally
                possible" that the jury was convinced of the defendant's guilt but reached
                its verdict "through mistake, compromise, or lenity"). We conclude that no
                relief is warranted.
                            Third, Gaston contends that the district court abused its
                discretion at sentencing by failing to state on the record that it had
                considered the factors required by NRS 193.165(1) before imposing the
                sentence for the deadly weapon enhancement. We disagree because
                Gaston did not object and fails to demonstrate plain error which affected
                his substantial rights. See Mendoza-Lobos v. State, 125 Nev. 634, 644, 218
                P.3d 501, 507-08 (2009).




                      'Gaston notes that the charging document and jury instructions
                improperly stated that he was guilty of burglary if he entered Moffett's
                home with the "intent to commit substantial bodily harm." This deficiency
                does not compel the conclusion that the verdicts are mutually exclusive.


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                             Having considered Gaston's contentions and concluded that no
                 relief is warranted, we
                             ORDER the judgment conviction AFFIRMED.


                                                           Pideutty
                                                                                 J.
                                                  Pickering


                                                                                 J.
                                                  Parrag-uirre


                                                                                 J.
                                                  Saitta


                 cc: Hon. Jerome T. Tao, District Judge
                      Clark County Public Defender
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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