Gonzalez-Ayala (Jose) v. State

                40 minutes, law enforcement officers observed appellant enter the home.
                According to Mastyk and Valencia, appellant gave a bagged substance to
                Valencia, who gave it to Mastyk. Mastyk gave the bag to Detective
                Randall LeBlanc, who booked it into evidence. Criminalist Diane Machen
                tested "samples submitted by the Washoe County Sherriffs Office
                associated with [appellant]," and determined the substance to be
                methamphetamine with a weight of 13.607 grams. Machen's report was
                admitted into evidence and shared the same case number as the
                documents relating to the surveillance of Valencia's home.
                            We conclude that the jury could reasonably infer from the
                evidence presented that appellant committed the charged crimes.             See
                NRS 453.321(1); NRS 453.3385(1). Any gap in the chain of custody "goes
                to the weight of the evidence," Sorce v. State, 88 Nev. 350, 352-53, 497
                P.2d 902, 903 (1972), and "it is the jury's function, not that of the court, to
                assess the weight of the evidence," McNair v. State, 108 Nev. 53, 56, 825
                P.2d 571, 573 (1992).
                            Second, appellant contends that the district court abused its
                discretion by rejecting his proposed instruction, which instructed jurors to
                carefully weigh the testimony of drug addict-informers.      See Champion v.
                State, 87 Nev. 542, 543, 490 P.2d 1056, 1057 (1971). We disagree.           See
                King v. State, 116 Nev. 349, 355, 998 P.2d 1172, 1176 (2000) (finding that
                the district court did not err by failing to give the addict-informer
                instruction where the State did not concede the addict-informer was
                unreliable and the jury was otherwise properly instructed). But even
                assuming that the district court abused its discretion, the error was
                harmless because the jury was instructed to consider Mastyk's and
                Valencia's character, biases, and "all other facts" when evaluating their

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                credibility.   See Allred v. State, 120 Nev. 410, 415, 92 P.3d 1246, 1250
                (2004) ("An error is harmless when it is clear beyond a reasonable doubt
                that a rational jury would have found the defendant guilty absent the
                error." (internal quotation marks omitted)). Moreover, Mastyk's and
                Valencia's drug habits and beneficial guilty plea agreements were
                thoroughly explored at trial. We conclude that no relief is warranted.
                               Third, appellant contends that his convictions violate double
                jeopardy. We disagree. Dual convictions do not violate double jeopardy if
                "each offense contains an element not contained in the other." Jackson v.
                State, 128 Nev. , 291 P.3d 1274, 1278 (2012) (quoting United States
                v. Dixon, 509 U.S. 688, 696 (1993)). To prove trafficking based on a theory
                of possession, NRS 453.3385 required the State to demonstrate that
                appellant knowingly or intentionally possessed between 4 and 14 grams of
                methamphetamine, whereas NRS 453.321 required the State to
                demonstrate that he imported, transported, sold, exchanged, bartered,
                supplied, prescribed, dispensed, gave away, or administered
                methamphetamine in any amount. Because each offense included an
                element not contained in the other, we conclude that this claim lacks
                merit.   CI LaChance v. State, 130 Nev. „ 29, 321 P.3d 919, 927
                (2014) (explaining that simple possession is a lesser-included offense of
                possession for sale where the weight requirement is not an element of the
                crime but a sentencing consideration).
                               Fourth, appellant contends that the district court abused its
                discretion by denying his motions for an advisory instruction to acquit, see
                NRS 175.381(1), and to set aside the verdict, see NRS 175.381(2). We
                conclude that the district court did not abuse its discretion because



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                 sufficient evidence was presented to sustain the convictions. See Milton v.
                 State, 111 Nev. 1487, 1493, 908 P.2d 684, 688 (1995).
                              Fifth, appellant contends that reversal is warranted because
                 the State failed to preserve a photographic lineup of individuals with his
                 nickname, which was shown to Mastyk. We decline to consider this
                 assertion because appellant merely objected below based upon the best
                 evidence rule, see Grey v. State, 124 Nev. 110, 120, 178 P.3d 154, 161
                 (2008) (recognizing that, in order to properly preserve an objection, a
                 defendant must object at trial on the same ground he or she asserts on
                 appeal), and failed to develop an adequate record for appeal, see generally
                 Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998) (explaining
                 the remedies a district court can give to a defendant who challenges the
                 State's failure to preserve evidence at trial).
                              Having considered appellant's contentions and concluded that
                 no relief is warranted, we
                              ORDER the judgment of conviction AFFIRMED.




                 cc:   Hon. Lidia Stiglich, District Judge
                       Karla K. Butko
                       Attorney General/Carson City
                       Washoe County District Attorney
                       Washoe District Court Clerk


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