it be said to charge the offense for which the defendant was convicted." Id.
(internal quotation marks omitted).
Here, the amended information informed Nelson of the State's
theory that Nelson committed burglary by entering the victim's apartment
while in the possession of a firearm with the intent to commit assault
and/or battery. See NRS 205.0600), (4). We concludeS that the burglary
charge in the amended information was sufficiently clear so as to apprise
Nelson of the theories of prosecution and allow him to prepare a defense.
See NRS 173.075(1), (2); Laney, 86 Nev. at 179, 466 P.2d at 670. Contrary
to Nelson's claim, the amended information did not permit the State to
change its theory of prosecution during trial, and the record does not
support Nelson's assertion that the State alleged a "number of theories"
for the burglary charge during closing argument. To the extent that
Nelson contends that the information should have included the means or
manner of assault and/or battery, Nelson fails to demonstrate that the
lack of specificity as to assault and/or battery rendered the information
deficient. See Bullis v. State, 83 Nev. 175, 176, 426 P.2d 423, 423 (1967)
("Since the primary concern in a burglary indictment is with the unlawful
entry, the intended [assault or battery] need not therein be described with
the same specificity that might be required in charging the offense of
[assault or battery]"). Accordingly, we conclude that the amended
information was sufficient to support the judgment of conviction.
Second, Nelson argues that the district court abused its
discretion in denying his motion to set aside the verdict and enter a
judgment of acquittal because the verdict was inconsistent. A motion for a
judgment of acquittal must be filed "within 7 days after the jury is
discharged." NRS 175.381(2). Because Nelson filed his motion 35 days
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after the jury returned its verdict and was discharged, the motion was
untimely and the district court did not have authority to grant it. See id.;
cf. Ross v. Giacomo, 97 Nev. 550, 553, 635 P.2d 298, 300 (1981), abrogated
in part on other grounds by Winston Prods. Co. v. DeBoer, 122 Nev. 517,
524, 134 P.3d 726, 731 (2006).
Third, Nelson contends that there was insufficient evidence to
support the conviction for burglary with the use of a deadly weapon. His
sole argument in this regard is that because the jury acquitted him of
battery, there was insufficient evidence that he committed burglary. This
argument relies on Nelson's mistaken belief that to be convicted of
burglary, he had to have actually committed the offense of battery when
he entered the apartment. However, as the plain language of the burglary
statute makes clear, Nelson needed only to have the intent to commit a
felony, in this case battery and/or assault, when he entered the apartment.
NRS 205.060(1). Nelson provides no argument as to how the elements of
burglary were not proven or how the evidence adduced at trial was
insufficient to support the conviction. See Maresca v. State, 103 Nev. 669,
673, 748 P.2d 3, 6 (1987) ("It is appellant's responsibility to present
relevant authority and cogent argument; issues not so presented need not
be addressed by this court."). Therefore, we decline to consider his
conclusory challenge to the sufficiency of the evidence.
Fourth, Nelson claims that the district court's instruction to
the jury about the specific intent required for burglary was inadequate.
His sole argument in support of this claim is that the jury must have been
confused about the intent instruction because it acquitted him of battery
but convicted him of burglary. Because Nelson failed to object to the
instruction below, we review for plain error. Green v. State, 119 Nev. 542,
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545, 80 P.3d 93, 95 (2003). The district court properly instructed the jury
on general intent, the elements of burglary, and the specific intent
required for burglary. Nelson's challenge to the specific intent instruction
appears to rely on his mistaken belief about the elements of burglary, and
he fails to demonstrate that the jury instructions were misleading or
erroneous.
Fifth, Nelson argues that the district court violated the
prohibition against double jeopardy by imposing a harsher sentence for his
carrying-a-concealed-firearm conviction than it imposed in his original
judgment of conviction. 2 We disagree. Because Nelson's original
judgment of conviction was reversed and his case was remanded for a new
trial, Nelson v. State, Docket No. 61951 (Order of Reversal and Remand,
July 22, 2013), the district court's imposition of a greater sentence upon
reconviction did not violate double jeopardy principles, see North Carolina
v. Pearce, 395 U.S. 711, 719-26 (1969), overruled in part on other grounds
by Alabama v. Smith, 490 U.S. 794 (1989). Nelson's reliance on Dolby v.
State, 106 Nev. 63, 787 P.2d 388 (1990), and Wilson v. State, 123 Nev. 587,
170 P.3d 975 (2007), is misplaced. Neither of those cases involved an
increased sentence upon retrial; rather, Dolby involved a sentencing
correction initiated sua sponte by the district court, 106 Nev. at 65, 787
2 Nelson was initially convicted and sentenced to 12-48 months in
prison for the offense of carrying a concealed firearm. However, this court
reversed the judgment of conviction on appeal and remanded for a new
trial because Nelson was denied his right to represent himself. Nelson v.
State, Docket No. 61951 (Order of Reversal and Remand, July 22, 2013).
Upon retrial, Nelson was again found guilty of carrying a concealed
firearm and the district court sentenced him to 24-60 months in prison on
that count.
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P.2d at 389, and Wilson involved a resentencing mandated on appeal after
the defendant's conviction was partially vacated, 123 Nev. at 589-90, 170
P.3d at 976. In those situations, this court held that "when a court is
forced to vacate an unlawful sentence on one count, the court may not
increase a lawful sentence on a separate count." Wilson, 123 Nev. at 594,
170 P.3d at 979 (quoting Dolby, 106 Nev. at 65, 787 P.2d at 389). That
holding is not applicable here because all of Nelson's sentences were
vacated on appeal and thus the sentence imposed by the district court on
retrial was a new sentence and not an increase of an existing lawful
sentence.
Finally, Nelson contends that the district court erred in
allowing the State to inform the district court at the sentencing hearing
about the jury's reasons for acquitting Nelson of battery based on the
State's post-verdict discussion with the jurors. He asserts that evidence of
the jury's mental processes was inadmissible for any purpose under NRS
50.065. Nelson did not object below, and we conclude that Nelson has
failed to demonstrate any error in this regard. See Green, 119 Nev. at 545,
80 P.3d at 95. After the district court denied Nelson's motion to set aside
the verdict, the State, in response to Nelson's argument that the jury
acquitted him of battery because they found that he acted in self-defense,
informed the district court that the jurors had indicated during the post-
verdict discussion that the acquittal was based on insufficient evidence of
battery, not on self-defense. Given that the State made this statement
after the district court denied the motion to set aside verdict, Nelson
cannot show that the mental processes of the jurors had any impact on the
district court's ruling. And, regardless of this evidence, the district court
had no authority to grant Nelson's untimely motion, as discussed above.
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Nelson makes no allegation, and the record does not support, that the
district court considered evidence of the jurors' mental processes in
imposing sentence.
For the foregoing reasons, we conclude that no relief is
warranted and we
ORDER the judgment of convriction AFFIRMED.
J.
Saitta
tivc-1
J.
Gibbons
Poth J.
Pickering
cc: Hon. James M. Bixler, District Judge
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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