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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