Byars v. State

130 Nev., Advance Opinion en
IN THE SUPREME COURT OF THE STATE OF NEVADA

MICHAEL DWAYNE BYARS, A/K/A No. 61348
MARCUS JONES, A/K/A JEFFERY
ROSHAWE BYARS,
Appellant,
FILED
vs. OCT 1 6 2014
THE STATE OF NEVADA, IRATE': I INREMAN
Respondent. CE

Appeal from a judgment of conviction, pursuant fa a jury
verdict, of prohibited possession of a firearm by an unlawful user of a
controlled substance, addict, or felon; using or being under the influence of
a controlled substance; and two counts of battery by a prisoner in lawful
custody or confinement. Tenth Judicial District Court, Churchill County;
Robert E. Estes, Judge.
Affirmed in part, reversed in part, and remanded.

Steve E. Evenson, Lovelock,
for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; Arthur E.
Mallory, District Attorney, and Benjamin D. Shawcroft, Deputy District
Attorney, Churchill County,
for Respondent.

BEFORE THE COURT EN BANG.

OPINION

By the Court, PARFtAGUIRRE, J.:
In this appeal, we are asked to determine whether the
warrantless, forced blood draw on a driver suspected of driving under the
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 influence of a controlled substance violates the Fourth Amendment. In
light of the U.S. Supreme Court's decision in Missouri v. McNeely, we
conclude that the natural dissipation of marijuana in the blood stream
does not constitute a per se exigent circumstance justifying a warrantless
search. 569 U.S. „ 133 S. Ct. 1552, 1568 (2013) (plurality opinion).
We further conclude that despite NRS 484C.160, the state's implied
consent statute, the blood draw in this case was unlawful because
appellant did not submit to the blood draw, and NRS 484C.160(7), which
permits officers to use force to obtain a blood sample from a person, is
unconstitutional because it permits officers to conduct a search without a
warrant, valid consent, or another exception to the warrant requirement.
Nevertheless, we conclude that the blood draw was taken in good faith,
thus the exclusionary rule does not apply. We therefore conclude that the
Fourth Amendment violation does not warrant reversal of the judgment of
conviction.
We do, however, reverse the portion of the judgment of
conviction finding the defendant guilty on the count of unlawful user of a
controlled substance in possession of a firearm. The district court merged
that offense with the felon-in-possession count for sentencing and the
State concedes on appeal that the district court should not have
adjudicated the defendant guilty on both counts.
FACTS
On January 12, 2012, Nevada Highway Patrol Trooper
William Murwin pulled Michael Byars over for speeding on U.S. Highway
50 in Churchill County. Upon approaching Byars, Trooper Murwin
smelled marijuana. Byars admitted to having smoked marijuana five
hours before. Trooper Murwin performed field sobriety tests and arrested

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 Byars on the belief that he was under the influence of a controlled
substance.
Trooper Murwin and another trooper performed an inventory
search of Byars' car and found a handgun in a storage area of the car.
Trooper Murwin then read Byars Nevada's implied consent law and
informed Byars that he would perform a blood test. Byars refused to
submit to the test, but cooperated with Trooper Murwin until they reached
the hospital and the blood draw was actually performed. During the blood
draw, Byars struggled, striking Trooper Murwin in the head with his
elbow and a sheriff's deputy in the abdomen and side with his legs. The
blood draw showed that Byars had THC (tetrahydrocannabinol, the
psychoactive constituent of marijuana) in his blood.
The State charged Byars with being an unlawful user of a
controlled substance in possession of a firearm, a category B felony under
MRS 202.360(1); unlawful use or being under the influence of a controlled
substance, a category E felony under NRS 453.411(3)(a); two counts of
battery by a prisoner in lawful custody or confinement, a category B felony
under NRS 200.481(2)(f); and being a felon in possession of a firearm, a
category B felony under NRS 202.360(1)(a).
The district court bifurcated Byars' trial for the first four
counts and the fifth count, felon in possession of a firearm. During the
portion of Byars' trial on the felon-in-possession charge, the State
introduced two judgments of conviction for Marcus Jones and then
introduced testimony from Byars at a prior justice court appearance that
Marcus Jones was his alias and that those convictions were his. The State
did not introduce additional evidence identifying Byars as Marcus Jones.

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 Byars was convicted of all counts, and the district court
merged Count 1 with Count 5 for purposes of sentencing, imposing a
single sentence. In addition, Byars was convicted in a prior proceeding of
driving under the influence of a controlled substance, a misdemeanor.
On appeal, Byars argues that: (1) the warrantless blood draw
violated the Fourth Amendment prohibition on unreasonable searches and
seizures; (2) the "unlawful user of, or addicted to, any controlled
substance" element of unlawful possession of a firearm under NRS
202.360(1)(c) cannot be satisfied by proving a single use of a controlled
substance; (3) the State did not present sufficient evidence to establish the
corpus delicti of the felon-in-possession charge; (4) the convictions for
misdemeanor DUI and the felony under-the-influence charge violated the
Double Jeopardy Clause; (5) the State did not present sufficient evidence
to support the battery convictions; (6) Byars was not in custody when the
batteries occurred; (7) the district court abused its discretion by denying
Byars' motion to sever the charges; and (8) the prosecutor's remarks
during closing argument prejudiced Byars' right to a fair trial.
DISCUSSION
The warrantless blood draw violated the Fourth Amendment
Byars argues that, in light of the U.S. Supreme Court's
decision in Missouri v. McNeely, 569 U.S. „ 133 S. Ct. 1552, 1568
(2013) (plurality opinion), the warrantless blood draw violated the Fourth
Amendment prohibition on unreasonable searches and seizures. The
Fourth Amendment to the United States Constitution and Article 1,
Section 18 of the Nevada Constitution protect individuals from
unreasonable searches and seizures. A warrantless search is reasonable
only where it falls within a recognized exception. McNeely, 569 U.S. at
, 133 S. Ct. at 1558. The State argues that the warrantless search in
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 this case was reasonable under either of two exceptions: exigent
circumstances and consent.
The exigent circumstances exception to the warrant requirement does
not apply
The exigent circumstances exception to the warrant
requirement applies where "the exigencies of the situation make the
needs of law enforcement so compelling that a warrantless search is
objectively reasonable under the Fourth Amendment.' Id. at , 133 S.
Ct. at 1558 (quoting Kentucky v. King, 563 U.S. „ 131 S. Ct. 1849,
1856 (2011)). Applying that exception, the U.S. Supreme Court upheld the
constitutionality of a warrantless blood draw in Schmerber v. California,
where an officer reasonably believed that the delay involved in securing a
warrant would result in the dissipation of alcohol in a driver's blood. 384
U.S. 757, 772 (1966). Some courts "interpreted Schmerber as concluding
that the naturally rapid dissipation of alcohol in the bloodstream creates
an emergency that justifies a warrantless blood draw." State v. Shriner,
751 N.W.2d 538, 546-47 & 547 n.11 (Minn. 2008) (discussing majority and
minority views of Schmerber), abrogated by McNeely, 569 U.S. at , 133
S. Ct. at 1568; see also State v. Smith, 105 Nev. 293, 296, 774 P.2d 1037,
1039 (1989) (citing Schmerber in support of the conclusion that
warrantless administration of a breath test did not violate the Fourth
Amendment "because evidence such as breath samples may be lost if not
immediately seized"). Other courts, however, understood Schmerber to
require a review of the totality, of the circumstances, not just the rapid
dissipation of alcohol, to determine whether there was an exigency. See,
e.g., State v. Rodriguez, 156 P.3d 771 (Utah 2007). The Supreme Court
recently resolved this split of authority in McNeely, holding that the
natural dissipation of alcohol from the bloodstream is a relevant
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 consideration in an exigent circumstances analysis but is not a per se
exigent circumstance that justifies an exception to the Fourth
Amendment's warrant requirement for nonconsensual blood draws in
drunk-driving cases. 569 U.S. at 133 S. Ct. at 1568.
The McNeely Court reasoned that a per se rule of exigency
based on the natural dissipation of alcohol is inappropriate because it
would apply the exception in circumstances that are inconsistent with the
policy justifications that make a warrantless search based on an exigency
reasonable. Id. at , 133 S. Ct. at 1560-63. The Court observed that a
warrantless search in exigent circumstances is reasonable because 'there
is compelling need for official action and no time to secure a warrant." Id.
at , 133 S. Ct. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499, 509
(1978)). Accordingly, there is no justification for applying the exigent
circumstances exception when "officers can reasonably obtain a warrant
before a blood sample can be drawn without significantly undermining the
efficacy of the search." Id. at , 133 S. Ct. at 1561.
The Court reiterated that the question of the reasonableness
of a warrantless search should be answered on a case-by-case basis
considering the totality of the circumstances. Id. at , 133 S. Ct. at
1563. The case, however, did not lend itself to development of the various
factors that might inform a decision about the reasonableness of a
warrantless blood draw because Missouri had not offered any argument
based on the totality of the circumstances, such as whether a warrant
could be obtained within a reasonable amount of time. Id. at , 133 S.
Ct. 1568 (explaining that "the arguments and the record [did] not provide
the Court with an adequate analytic framework for a detailed discussion
of all the relevant factors that can be taken into account in determining

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 the reasonableness of acting without a warrant"). Because the totality of
the circumstances was not litigated in the case, the Court affirmed the
Missouri Supreme Court's decision that there were no exigent
circumstances and that the warrantless blood draw was unconstitutional.
Id.
Although McNeely involves alcohol intoxication and this case
involves marijuana, we conclude that the reasoning of McNeely applies
here and that, like the natural dissipation of alcohol, the natural
dissipation of THC from the blood does not create a per se exigency.
Looking to the totality of the circumstances, we conclude that the State
failed to establish exigent circumstances to justify the warrantless blood
draw. First, the State did not demonstrate that waiting for a warrant
would result in losing evidence of Byars' intoxication. In fact, there is
reason to believe that traces of marijuana in the bloodstream would take
longer to dissipate than alcohol, thus the fact that Byars was suspected of
marijuana use instead of alcohol use militates in favor of finding that
there were no exigent circumstances justifying the warrantless search.'
See State v. Jones, 111 Nev. 774, 776, 895 P.2d 643, 644 (1995) (noting
that cocaine had a slower dissipation rate than alcohol in holding that a
warrant was required before performing a blood test on a pedestrian
suspected of being under the influence of a controlled substance).

'The State's toxicologist testified that Byars had 4.5 nanograms of
THC per milliliter of blood, which is 2.5 nanograms higher than the
statutory amount for intoxication. NRS 484C.110(3)(g). According to the
toxicologist, 4.5 nanograms "probably represent[s] the tail-end of the
smoking." Even though Byars had stated that he smoked five hours prior,
there are no facts in the record establishing that the evidence would
dissipate significantly before a warrant could be obtained.

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 Furthermore, the facts in the record suggest that time was not a factor in
the officer's decision to take Byars' blood without a warrant. According to
Trooper Murwin, he waited about 30 minutes before a second K-9 officer
arrived to sniff the car for drugs, then drove Byars to a hospital to have
the blood collected, which Trooper Murwin acknowledged to be a lengthy
process. There is no indication in the record that Trooper Murwin was
prevented from seeking a warrant telephonically or that time was of the
essence in securing the blood. There is also no indication in the record
that the length of the warrant process would endanger the evidence
Trooper Murwin sought to collect. And we have held that delays in
securing warrants do not factor into the exigent circumstances analysis.
Jones, 111 Nev. at 776, 895 P.2d at 644. 2 Accordingly, we conclude that
the warrantless blood draw in question was not justified by the exigent
circumstances exception to the warrant requirement.
The consent exception to the warrant requirement does not apply
The State argues that even if the natural dissipation of THC
does not create an exigent circumstance, the search was reasonable based
on consent as provided by the implied consent statute, NRS 484C.160(1).
Consent to a search also provides an exception to both the Fourth
Amendment's probable cause and warrant requirements. Schneckloth v.

2 Byars argues that Jones supports this court creating a per se
warrant requirement where controlled substance use is suspected due to
the slower dissipation rate of some controlled substances. Although we
recognize that Jones supports our conclusion that a warrant was required
in this particular case, we note that a case-by-case examination of the
totality of the circumstances is still the appropriate way to determine
whether a warrant is required, especially given the lack of any empirical
data on the dissipation rate of THC in this case.

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 Bustamonte, 412 U.S. 218, 219 (1973). Byars argues that he did not
consent and that NRS 484C.160(7), which allows a police officer to use
reasonable force to take a driver's blood where the officer has a reasonable
belief that the driver was under the influence of alcohol or a controlled
substance, is unconstitutional.
We review the constitutionality of a statute de novo. Sheriff v.
Burdg, 118 Nev. 853, 857, 59 P.3d 484, 486 (2002). We presume that a
statute is constitutional, thus the party challenging a statute has a heavy
burden to show that it is unconstitutional. Id. We have never addressed
whether a forced blood draw taken pursuant to NRS 484C.160(7) is
constitutional.
According to the State, even though Byars refused to submit to
the blood draw, he had consented to it by choosing to drive on Nevada
roads. MRS 484C.160(1) provides that "any person who drives or is in
actual physical control of a vehicle on a highway or on premises to which
the public has access shall be deemed to have given his or her consent to
an evidentiary test of his or her blood, urine, breath or other bodily
substance" if a police officer has reasonable grounds to believe that the
person was driving or in actual physical control of a vehicle while under
the influence of alcohol or a controlled substance or was engaging in other
conduct prohibited by certain statutes. If a driver does not submit to a
test and the police officer has reasonable grounds to believe that the
person was under the influence of alcohol or a controlled substance or
engaging in other specified conduct, "the officer may direct that reasonable
force be used to the extent necessary to obtain samples of blood from the
person to be tested." NRS 484C.160(7).

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 The State's argument that consent is valid based solely on
Byars' decision to drive on Nevada's roads is problematic because the
statute makes the implied consent irrevocable. A necessary element of
consent is the ability to limit or revoke it. Florida v. Jimeno, 500 U.S. 248,
252 (1991) ("A suspect may of course delimit as he chooses the scope of the
search to which he consents."); see also United States v. McMullin, 576
F.3d 810, 815 (8th Cir. 2009) (holding that the occupant of a house "must
make an unequivocal act or statement to indicate the withdrawal of the
consent"). Just as consent must be freely given, a person must be free to
withdraw or limit it. United States v. McWeeney, 454 F.3d 1030, 1035-36
(9th Cir. 2006) (holding that law enforcement officers may not "coerce a
citizen into believing that he or she had no authority to enforce" the right
to withdraw consent).
A number of jurisdictions have upheld implied consent
statutes where refusing to submit to a blood test results in criminal or
administrative penalties. See, e.g., People v. Harris, 170 Cal. Rptr. 3d 729,
734 (Ct. App. 2014) (upholding the state's implied consent statute, which
attaches a criminal penalty to refusal, noting that "it is no great
innovation to say that implied consent is legally effective consent, at least
so long as the arrestee has not purported to withdraw that consent"); State
v. Brooks, 838 N.W.2d 563, 570, 572-73 (Minn 2013) (concluding that the
state's implied consent statute, which criminalizes refusal to consent, is
constitutional, and that the decision to submit to the test "is not coerced
simply because Minnesota has attached the penalty of making it a crime
to refuse the test"). The critical distinction between such jurisdictions and
Nevada is that NRS 484C.160(7) allows a police officer to force a blood
draw where a driver refuses to submit to a test, thus a Nevada driver who

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 falls under the criteria set forth in NRS 484C.160(7) is not given a choice
between submitting to a test or facing a penalty. We have found no
jurisdiction that has upheld an implied consent statute that allows an
officer to use force to obtain a blood sample upon the driver's refusal to
submit to a test.
The State argues that the plurality in McNeely tacitly
approved of Nevada's implied consent statute as an alternative to the
exigent circumstances justification for a warrantless blood draw. The
plurality in McNeely noted that in order to serve the important interest of
preventing impaired driving, all 50 states "have adopted implied consent
laws that require motorists, as a condition of operating a motor vehicle
within the [s]tate, to consent to BAC testing if they are arrested or
otherwise detained on suspicion of a drunk-driving offense." McNeely, 569
U.S. at , 133 S. Ct. at 1566. "Such laws impose significant
consequences when a motorist withdraws consent; typically the motorist's
driver's license is immediately suspended or revoked, and most [s]tates
allow the motorist's refusal to take a BAC test to be used as evidence
against him in a subsequent criminal prosecution." Id. at , 133 S. Ct.
at 1566. At no point does the plurality appear to retreat from the warrant
requirement for nonconsensual blood draws, and the Court's description of
implied consent laws does not appear to endorse our particular statutory
scheme.
In fact, the U.S. Supreme Court relied on McNeely in reversing
a Texas appellate court's determination that a forced blood draw was
constitutional based solely on consent derived from an implied consent
statute. Aviles v. Texas, 571 U.S. „ 134 S. Ct. 902, 902 (2014),
vacating Aviles v. State, 385 S.W.3d 110 (Tex. App. 2012). The defendant

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 in Aviles was stopped for suspicion that he was driving under the
influence. Aviles u. State, 385 S.W.3d at 112. Upon learning that Aviles
had two prior DUI convictions, the officer requested a breath or blood
specimen which Aviles refused. Id. The officer compelled a blood draw
under Tex. Transp. Code Ann. § 724.012(b) (West 2011), which provides
that an officer "'shall require the taking of a specimen of the person's
breath or blood' if the suspect has at least two prior DUI convictions. Id.
at 112-13 (quoting Tex. Transp Code Ann. § 724.012(b) (West 2011)). The
Texas Court of Appeals considered the defendant's appeal prior to the
McNeely decision, and concluded that such a search without a warrant
was justified based on consent alone, relying on prior Texas precedent. Id.
at 115-16.
Aviles filed a petition for a writ of certiorari with the U.S.
Supreme Court. After issuing McNeely, the U.S. Supreme Court granted
certiorari and issued a brief order vacating the Texas Court of Appeals'
opinion and remanding "for further consideration in light of Missouri v.
McNeely." Aviles, 571 U.S. at , 134 S. Ct. at 902. Although this very
short order appears to hold limited precedential value on its own, it
undermines support for the conclusion that consent alone is a viable
justification for a warrantless search where the subject of the search does
not have the option to revoke consent.
Thus, we conclude that NRS 484C.160(7) allows a police
officer to engage in a warrantless, nonconsensual search in violation of the
Fourth Amendment. The implied consent provision in NRS 484C.160(1)
does not overcome the statute's infirmity because the statute does not
allow a driver to withdraw consent, thus a driver's so-called consent

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 cannot be considered voluntary. Accordingly, we conclude that NRS
484C.160(7) is unconstitutional.
The good-faith exception to the exclusionary rule applies
The State argues that Trooper Murwin relied on the implied
consent statute in good faith, thus suppression is not required. In United
States v. Leon, the U.S. Supreme Court held that where the police rely in
good faith on a warrant issued by a neutral magistrate, evidence seized
pursuant to that warrant would not be suppressed. 468 U.S. 897, 919-20
(1984). The Court has also found such a good-faith exception where the
police reasonably rely on a statute later found unconstitutional. Illinois v.
Krull, 480 U.S. 340, 349-51 (1987). We conclude that the good-faith
exception applies here.
The U.S. Constitution does not provide for exclusion of
evidence obtained in violation of the Fourth Amendment. Arizona v.
Evans, 514 U.S. 1, 10 (1995) Instead, the exclusionary rule is a judicial
remedy designed to deter law enforcement from future Fourth
Amendment violations. Leon, 468 U.S. at 906. Accordingly, "suppression
of evidence obtained pursuant to a warrant should be ordered only on a
case-by-ease basis and only in those unusual cases in which exclusion will
further the purposes of the exclusionary rule." Id. at 918; see also State v.
Allen, 119 Nev. 166, 172, 69 P.3d 232, 236 (2003) ("Exclusion is only
appropriate where the remedial objectives of the exclusionary rule are
served."). While Leon is applicable to situations where a police officer has
an objectively reasonable good-faith belief in the validity of an improperly
issued warrant, the U.S. Supreme Court extended that same logic to
legislatures in Krull. Presuming that legislatures do not intentionally
pass unconstitutional laws, the Court determined that a government
agent was justified in relying on the presumption that a statute
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 authorizing warrantless administrative searches was constitutional.
Krull, 480 U.S. at 349-51. The Court has also refused to apply the
exclusionary remedy where a police officer relies in good faith on appellate
precedent that is later overturned. Davis v. United States, 564 U.S. ,
131 S. Ct. 2419, 2432-34 (2011).
We conclude that exclusion in the present case would not act
as a deterrent to unconstitutional police conduct, thus the exclusionary
remedy is not mandated. The record does not contradict the State's
assertion that Trooper Murwin relied in good faith on the constitutional
validity of NRS 484C.160, and such reliance appears reasonable, as prior
to McNeely, the U.S. Supreme Court had upheld the constitutionality of
warrantless blood draws under the exigent circumstances exception to the
warrant requirement. Schmerber v. California, 384 U.S. 757, 772 (1966).
While McNeely concluded that Schmerber did not create a per se exigency,
Trooper Murwin relied on the presumptive constitutionality of the statute
and prior U.S. Supreme Court precedent, thus the deterrent purpose of
the exclusionary rule would not be served by excluding the evidence in this
case. See Allen, 119 Nev. at 172, 69 P.3d at 236. 3
The district court erred by convicting Byars of being an unlawful user in
possession of a firearm after merging the count with the conviction for felon
in possession of a firearm
Byars argues that a person cannot be convicted of being an
unlawful user or addict in possession of a firearm under NRS 202.360(1)(c)
where the State only proves a single use of a controlled substance. We

3 Because the good-faith exception to the exclusionary remedy
applies, we need not determine whether the admission of the blood draw
evidence was harmless error beyond a reasonable doubt. Chapman v.
California, 386 U.S 18, 24 (1967).

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 need not reach this issue. The district court merged the sentence for
unlawful user in possession of a firearm with the sentence for felon in
possession of a firearm but did not merge the underlying 'convictions. On
appeal, the State concedes that the district court should not have found
Byars guilty of being an unlawful user in possession of a firearm after
merging the count with the conviction for felon in possession of a firearm.
In light of the State's concession, we reverse the portion of the judgment of
conviction adjudicating Byars guilty of being an unlawful user or addict in
possession of a firearm and remand for the district court to correct the
judgment of conviction. See Hewitt v. State, 113 Nev. 387, 391 & n.4, 936
P.2d 330, 333 & n.4 (1997) (reversing a conviction for a lesser-included
offense where the district court did not merge the lesser offense with the
greater offense but did not sentence the defendant for the lesser-included
offense, and noting that because the defendant was not sentenced for the
lesser-included offense, the effect of the reversal of the conviction should
be to correct the judgment of conviction), overruled on other grounds by
Martinez v. State, 115 Nev. 9, 12 n.4, 974 P.2d 133, 135 n.4 (1999). We
therefore need not address Byars' argument that a single use does not
justify a conviction under NRS 202.360(1)(c).
The State adequately proved the corpus delicti of the felon-in-possession
charge
Byars argues that the State did not prove the corpus delicti of
the felon-in-possession-of-a-firearm charge. We conclude that this
argument is unpersuasive.
We have held that "Wile corpus delicti of a crime must be
proven independently of the defendant's extrajudicial admissions." Doyle
v. State, 112 Nev. 879, 892, 921 P.2d 901, 910 (1996), overruled on other
grounds by Kaczmarek v. State, 120 Nev. 314, 333, 91 P.3d 16, 29 (2004).
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 At a minimum, this requires a prima facie showing by the State
"permitting the reasonable inference that a crime was committed." Id.
(quoting People v. Alcala, 685 P.2d 1126, 1136 (Cal. 1984), superseded by
statute on other grounds as stated in People v. Falsetta, 986 P.2d 182, 186
(Cal. 1999)).
Here, the State asserted that Byars went by the alias Marcus
Jones and introduced two judgments of conviction from a Las Vegas
district court for Marcus Jones, born on March 14, 1974. The State also
introduced testimony from the court clerk for the Justice Court of New
River Township that Byars told the court during his initial appearance
that he was convicted in Las Vegas of those charges under the name
Marcus Jones, and that he was born on March 14, 1974. The State then
played the audio of that appearance for the jury.
As the record demonstrates, the admission by Byars during
the initial appearance that he had identified himself as Marcus Jones, was
born on March 14, 1974, and had been convicted of prior felonies in Las
Vegas was corroborated by two judgments of conviction for a Marcus
Jones, born on March 14, 1974, in Las Vegas. Accordingly, we conclude
that the State provided prima facie evidence that supported a reasonable
inference that the crime, felon in possession of a firearm, was committed.
See Doyle, 112 Nev. at 892, 921 P.2d at 910.
The convictions for misdemeanor DUI and felony being under the influence
of a controlled substance do not violate the Double Jeopardy Clause
Byars argues that his convictions for misdemeanor DIJI and
felony being under the influence of a controlled substance violated the
Double Jeopardy Clause of the Fifth Amendment and that the convictions
are redundant. We conclude that neither argument is persuasive.

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 Double jeopardy
"[T]he Double Jeopardy Clause protects against three distinct
abuses: a second prosecution for the same offense after acquittal; a second
prosecution for the same offense after conviction; and multiple
punishments for the same offense." Williams v. State, 118 Nev. 536, 548,
50 P.3d 1116, 1124 (2002) (alteration in original) (internal quotations
omitted). The U.S. Supreme Court has held that "the test to be applied to
determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not." Blockburger v.
United States, 284 U.S. 299, 304 (1932).
NRS 453.411 provides that it is unlawful to knowingly use or
be under the influence of a controlled substance except in accordance with
a legal prescription. A conviction for driving under the influence of a
prohibited substance under NRS 484C.110(3) requires the State to prove
that a person (1) drove or was in "actual physical control of a vehicle on a
highway or on premises to which the public has access," (2) with an
amount of a prohibited substance in his or her blood or urine, (3) that is
equal to or greater than an amount of the prohibited substance found in
NRS 484C.110(3) (for marijuana, this is 2 nanograms per milliliter of
blood). NRS 484C.110(2) alternatively allows for a conviction where the
person is under the influence of a controlled substance.
This court has held that a violation of NRS 484C.110 on the
theory that an illegal amount of a controlled substance is found in the
blood (referred to as a "per se violation") is a separate violation from
driving a vehicle while impaired. Williams, 118 Nev. at 549, 50 P.3d at
1124. According to this court in Williams, "each of these subsections
defines a separate offense for purposes of double jeopardy analysis." Id.
Thus, we conclude that where the State secures a conviction for a per se
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 violation, as the State did here, the State is proving a separate element (a
threshold amount of marijuana in the blood) than the under-the-influence
element of NRS 453.411. For that count, the State introduced testimony
that the level of marijuana in Byars' blood would cause a person to be
impaired in addition to proving that Byars had the threshold statutory
amount for a DUI conviction.
Accordingly, we conclude that the two convictions did not
violate the Double Jeopardy Clause.
Redundancy
Byars argues that in addition to violating the Double Jeopardy
Clause, the two convictions are redundant. Byars cites to a number of
Nevada cases for the proposition that a defendant is not subject to
multiple convictions for the same conduct. This court has disapproved of
the "same conduct" theory, however, specifically mentioning the three
cases cited by Byars in support of his argument. Jackson v. State, 128
Nev. „ 291 P.3d 1274, 1282 (2012) (naming Salazar v. State, 119
Nev. 224, 228, 70 P.3d 749, 751-52 (2003), Skiba v. State, 114 Nev. 612,
616, 959 P.2d 959, 961 (1998), and Albitre v. State, 103 Nev. 281, 283-84,
738 P.2d 1307, 1309 (1987), and overruling these cases and their progeny).
In light of our prior disapproval, we conclude that Byars' argument in this
regard lacks merit.
Sufficient evidence supports the convictions for battery
Byars argues that sufficient evidence did not support his two
convictions for battery. Specifically, Byars argues that the State did not
provide evidence that he intended to strike the two officers during the
forced blood draw and the contact did not cause any injury to either the
officers or their uniforms. We conclude that this argument is
unpersuasive.
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 In reviewing the sufficiency of the evidence in a criminal case,
we determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt after viewing
the evidence in a light most favorable to the prosecution. McNair v. State,
108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
Battery is "any willful and unlawful use of force or violence
upon the person of another." NRS 200.481(1)(a). Looking to California,
whose battery statute Nevada's is based upon, we have interpreted battery
broadly to be "the intentional and unwanted exertion of force upon
another, however slight." Hobbs v. State, 127 Nev. „ 251 P.3d 177,
179-80 (2011) (emphasis added). California has further clarified that
battery is a general intent crime. People v. Lara, 51 Cal. Rptr. 2d 402, 405
(Ct. App. 1996). Thus, the prosecutor need only prove that "the defendant
actually intend[ed] to commit a willful and unlawful use of force or
violence upon the person of another." Id. (internal quotations omitted).
Here, the prosecution introduced evidence that Byars made
clear before the blood draw• that he would resist and that he stated,
"Watch. Watch. I know what I can do. Watch." Byars flailed during the
blood draw, striking Trooper Murwin and a sheriffs deputy who assisted
in restraining Byars for the blood draw. While Byars contests some of the
specific details of Trooper Murwin's testimony, he does not contest that he
made contact with the officers. Furthermore, the fact that the blows did
not result in injuries to the officers or their uniforms is not relevant to the
question of whether a battery occurred. Hobbs, 127 Nev. at , 251 P.3d
at 180. Thus, we conclude that the State has provided sufficient evidence
to support the jury's verdict beyond a reasonable doubt that Byars

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 intentionally used force upon another, however slight. Hobbs, 127 Nev. at
251 P.3d at 180; McNair, 108 Nev. at 56, 825 P.2d at 573.
Byars was in custody when he committed the batteries
Byars argues that he was not in lawful custody when the
batteries were committed. We disagree.
A battery committed on a peace officer while in lawful custody
or confinement is a felony under NRS 200.481. In the context of defining
lawful custody or confinement under NRS 200.481, we have noted that a
person is a prisoner "when one is 'held' in custody under process of law or
under lawful arrest." Domaine v. State, 103 Nev. 121, 124, 734 P.2d 1230,
1232 (1987) (quoting NRS 193.022 and NRS 208.085). This requires a
person to either submit to the control of an arresting officer or be taken
and held in control. Id. Here, Trooper Murwin placed Byars under arrest,
secured him in a restraining belt, and then transported him to the hospital
against Byars' will. Accordingly, we conclude that Byars was in custody
for the purposes of the battery enhancement. 4

4Byars also argues that his resistance to the officers was lawful
because the blood draw was unconstitutional under McNeely. The only
authority Byars cites for this proposition is Rosas v. State, 122 Nev. 1258,
1262, 147 P.3d 1101, 1104 (2006). In Rosas, the defendant argued that he
was entitled to an instruction on self-defense for a charge of battery upon
an officer. Id. We agreed that a defendant is entitled to such an
instruction where there is some evidence to support it. Id. At no point did
we decide the underlying factual issue of self-defense in Rosas, and in the
present case, Byars did not seek any such instruction from the district
court. Accordingly, we conclude that Rosas is inapposite and Byars'
argument is otherwise without merit. See Maresca v. State, 103 Nev. 669,
673, 748 P.2d 3, 6 (1987) (noting that this court need not consider
allegations of error not cogently argued or supported by any pertinent
legal authority).

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 The district court did not abuse its discretion by refusing to sever the first
four counts
Byars argues that the district court's denial of his motion to
sever the first four counts prejudiced his right to a fair trial.
A district court has discretion to join or sever charges, and we
review for harmless error a district court's misjoinder of charges. Weber v.
State, 121 Nev. 554, 570-71, 119 P.3d 107, 119 (2005). NRS 173.115
provides that multiple offenses may be charged together where they are
"[biased on the same act or transaction; or. [biased on two or more acts
or transactions connected together or constituting parts of a common
scheme or plan."
Byars cites McIntosh v. State, 113 Nev. 224, 227, 932 P.2d
1072, 1074 (1997), for the proposition that a motion to sever should be
granted where the charges have doubtful relevance to each other. In
McIntosh, we determined that the district court abused its discretion by
allowing the State to introduce evidence that the defendant was in
possession of a firearm when the only crime charged was possession or
being under the influence of a controlled substance. Id. McIntosh did not
involve a motion to sever, and there was no firearm-related charge.
Here, the district court bifurcated the felon-in-possession
charge in order to prevent prejudice to Byars as a result of testimony
about his prior felony convictions but refused to sever the remaining
counts. The remaining counts (two battery-upon-an-officer counts,
possession of a firearm while under the influence, and being under the
influence) are all related to the same transaction or occurrence—
specifically, Byars' marijuana use and the related efforts to secure a blood
sample. Accordingly, we conclude that the district court did not abuse its
discretion in refusing to sever those counts.
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 Remarks during the State's closing argument were not prejudicial
Byars argues that the State's remarks during closing
argument were prejudicial and denied him a fair trial. Byars' counsel did
not object to the State's remarks during trial. Accordingly, plain error
review is appropriate. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95
(2003).
To determine if a prosecutor's misconduct was prejudicial, we
examine whether a prosecutor's statements so infected the proceedings
with unfairness as to result in a denial of due process. Thomas v. State,
120 Nev. 37, 47, 83 P.3d 818, 825 (2004). "The statements should be
considered in context, and 'a criminal conviction is not to be lightly
overturned on the basis of a prosecutor's comments standing alone." Id.
(quoting United States v. Young, 470 U.S. 1, 11 (1985)). "[P]rosecutors
'may not argue facts or inferences not supported by the evidence?" Id. at
48, 83 P.3d at 825 (quoting Williams v. State, 103 Nev. 106, 110, 734 P.2d
700, 703 (1987)). The specific statements cited by Byars are as follows:
O "That's how dangerous the circumstance was. [The firearm]
was loaded at that time."
o "[H]e's an unlawful user in possession of that firearm
Dangerous combination."
• "And just think of how dangerous it is with somebody under
the influence of marijuana to be in possession of a firearm when an
officer, who thought he was just giving a speeding ticket out, came
up to that vehicle.
How dangerous is that when he was impaired? When he was
impaired, not thinking straight."
o In regard to the battery counts: "Who's looking after these
people who are in custody? They need greater protection for the
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 dangerous circumstances that can be created by dangerous
individuals."
• "What if in fighting he gets one—one of the officer's firearms
to go off, kills somebody? Still inadvertent? Not a battery?"
None of these statements include any assertion of fact that is
not supported by the record. The argument that the defendant was
dangerous is well within bounds because the State appears to refer to the
very dangers that justify the criminalization of the behaviors that the
State alleged that Byars engaged in. Thus, given the nature of the
statements and the high bar for overturning a jury verdict due to a
prosecutor's statements at closing argument, we conclude that Byars was
not denied a fair trial. See Thomas, 120 Nev. at 47, 83 P.3d at 825.
CONCLUSION
Given the U.S. Supreme Court's decision in Missouri v.
McNeely, we conclude that the natural dissipation of THC from Byars'
blood did not, standing alone, create exigent circumstances justifying a
warrantless blood draw. We further conclude that NRS 484C.160(7) is
unconstitutional because it permits officers to use force to take a suspect's
blood without a warrant, valid consent, or another exception to the
warrant requirement. Nevertheless, we conclude that Trooper Murwin
obtained the evidence in good faith, thus the evidence should not be
excluded.
We conclude that the district court erred by merging the
sentence for being an unlawful user in possession of a firearm with the
sentence for felon in possession of a firearm but not merging the
underlying convictions. Accordingly, we reverse the portion of the
judgment of conviction finding Byars guilty of being an unlawful user in

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 possession of a firearm and remand for the district court to correct the
judgment of conviction. We affirm By s' conviction in all other respects.

L_
0—t.9,-cr—an_61 J.
Parraguirre
We concur:
fl

\
Gibbons

J.

, J.
Hardesty

Douglas

J.

J.
Saitta

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