questioned the child regarding whether Colver and James were dating.
The child, in accordance with Colver's instructions, told Smith that Colver
and James were not dating.
On April 11, 2007, James and the child dropped Colver off at
work and then went to a recreational facility. While there, the child called
Smith and told him that she wanted to stay with him for a while because
she was arguing with her mother. She additionally told Smith that she
was out with James and that she would call him when she returned to her
house so that he could pick her up. When she returned home, she packed
a bag and called Smith to come get her, but never informed her mother or
James that she was leaving. She provided Smith with the cross streets to
her housing complex, as she did not want to give him the address because
of her mother's rule that Smith could not know where they lived.
When Smith received the child's call, he did not understand
why the child was with James and expressed that concern to his girlfriend,
Stephanie Aragon. Smith then instructed Aragon to drive him to his
mother's home, where he retrieved a baseball bat, and to his brother's
home, where he retrieved a gun. Following the directions that the child
provided, Aragon and Smith located the housing complex. They drove
around the housing complex until they spotted the child in front of a house
where a car that Colver had been seen driving was also parked. After the
child got in the car, Aragon drove one block and stopped at a stop sign.
Smith then exited the vehicle and returned to the house he believed James
lived in, where James was in his bedroom watching television. After
Smith entered the home, a fight ensued between Smith and James. Smith
then shot James in the chest, killing him.
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A grand jury indicted Smith on charges of burglary while in
possession of a deadly weapon and murder with use of a deadly weapon.
Under the burglary charge, the State posed three theories of intent: intent
to commit assault, battery and/or murder. Under the murder charge, the
state also posed three theories: (1) killing with premeditation and
deliberation, (2) felony murder, to wit, killing in an attempt to commit a
burglary, and (3) killing as a result of a challenge to fight.
Smith filed a motion to strike felony murder as a theory of
murder, arguing that the felony murder doctrine cannot apply to a
burglary where the intent underlying the burglary is murder. In
response, the State filed a motion to amend the indictment, which the
district court granted. Instead of removing the felony murder theory of
murder, the State amended the indictment to remove the intent to murder
theory of burglary.
At trial, Dr. Timothy Dutra testified in place of the medical
examiner who conducted James' autopsy. Prior to his testimony, Dr.
Dutra reviewed photographs from the autopsy and the autopsy report. On
direct examination, Dr. Dutra testified about his conclusions based on the
photographs and autopsy report. In response to a juror question, Dr.
Dutra also testified that it was his opinion that the gunshot wound was a
long distance shot of a foot or more, which was consistent with the original
medical examiner's opinion.
A jury found Smith guilty of burglary while in possession of a
deadly weapon and murder with use of a deadly weapon.
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DISCUSSION
Amendment to Indictment
On appeal, Smith contends that the indictment became
defective when, after the grand jury issued its true bill, the State removed
the intent to murder theory of burglary. He argues the State does not
possess the authority to make such a substantive and prejudicial
amendment to the grand jury indictment.' The State asserts that it was
authorized to amend the grand jury indictment because Smith was not
prejudiced and was put on notice of the charges against him.
We review the district court's decision to allow the State to
amend its indictment for abuse of discretion. See Green v. State, 94 Nev.
176, 177, 576 P.2d 1123, 1123 (1978). Pursuant to NRS 173.095(1), "Nile
court may permit an indictment or information to be amended at any time
before verdict or finding if no additional or different offense is charged and
if substantial rights of the defendant are not prejudiced." (Emphasis
added).
The district court did not abuse its discretion in allowing the
indictment to be amended after the true bill was issued because it was
amended before the jury verdict was issued. See id. Additionally, the
State simply removed one theory of intent, without charging an additional
or different offense. See id. Further, Smith was not prejudiced by the
change. See id. The theory of intent removed from the burglary charge in
the amended indictment, intent to commit murder, is intent to commit a
"Smith contends that the district court should have dismissed the
felony murder charge instead of allowing the State to amend its
indictment.
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more serious offense than assault or battery, theories of intent that
remained in the amended indictment. Smith fails to demonstrate how the
State's decision to proceed on less serious theories of intent was prejudicial
to him. Therefore, the amendment to the indictment was not prejudicial,
and the district court did not abuse its discretion in allowing it.
Testimony of Substitute Medical Examiner
Smith contends that the district court erred by allowing Dr.
Dutra to testify in place of the original medical examiner in violation of his
right to confront and cross examine witnesses against hirn. 2 He further
contends that because the State used Dr. Dutra's testimony regarding the
absence of soot and stippling 3 on James' clothes to argue that the killing
was committed from a distance and therefore premeditated, he was
prejudiced by his inability to controvert the soot and stippling evidence
through cross examination of the original examiner. The State argues
that Dr. Dutra's testimony was admissible because it was not offered to
prove the truth of the original examiner's reports, but to show the bases of
Dr. Dutra's opinion.
We generally review claims of evidentiary error for an abuse of
discretion. Holmes v. State, 129 Nev., Adv. Op. 59, 306 P.3d 415, 418
(2013) (internal citation omitted). However, this court has determined
that, where a Crawford violation occurs, harmless error review is
2 Dr. Dutra did not conduct a separate autopsy.
3 Soot
and stippling are substances that result from the firing of a
gun and they do not pass through clothing. They are caught on clothing
when the gun is fired at close range.
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appropriate. 4 Polk v. State, 126 Nev. Adv. Op. 19, 233 P.3d 357, 359
(2010). A doctor's testimony regarding his or her independent opinions
based on a report generated by another doctor does not violate the
confrontation clause because the testifying doctor's "judgment, proficiency,
and methodology [are] subject to cross-examination." Vega v. State, 126
Nev. 332, 340, 236 P.3d 632, 638, (2010) (holding that testimony relating
to the content of such reports may violate the confrontation clause, but
testimony regarding the testifier's independent opinions does not).
Because Dr. Dutra's testimony related to his own opinions, for which he
was available for cross examination, Smith's confrontation right was not
violated. See id. To the extent that testimony regarding the content of the
autopsy report was admitted, we hold such error to be harmless. See id.
Sufficiency of Evidence
Smith contends that the State failed to prove the mens rea
elements of both felony murder and burglary. In reviewing a claim of
insufficient evidence, "[t]he relevant inquiry is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt." Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d
1378, 1380 (1998) (internal quotation omitted). "Since the assaultor's
4"Under Crawford, the testimonial statement of an otherwise
unavailable witness is inadmissible "unless the defendant had an
opportunity to previously cross-examine the witness regarding the
witness's statement." Polk v. State, 126 Nev., Adv. Op. 19, 233 P.3d 357,
359 (2010) (internal quotations omitted).
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state of mind is a subjective matter, the trier of the fact must resort to
inferences from attendant circumstances to ascertain intent." Wilson v.
State, 85 Nev. 88, 90, 450 P.2d 360, 361-62 (1969).
Testimony supported the fact that Smith went to his mother's
home to retrieve a bat and to his brother's home to retrieve a gun before
proceeding to James' home and beating and shooting him to death. This,
among other evidence of guilt, was sufficient to establish that Smith
"enter[edr with the intent to commit an assault or battery, and therefore,
a "rational trier of fact" could have found burglary. See NRS 205.060(1);
Origel-Candidoe, 114 Nev. at 381, 956 P.2d at 1380. Further, the burglary
charge, which resulted in James' death, is then sufficient to establish
felony murder. See Contreras v. State, 118 Nev. 332, 337, 46 P.3d 661, 664
(2002) (holding that burglary is sufficient to uphold a separate felony-
murder charge). Therefore, there was sufficient evidence to convict Smith
of burglary while in possession of a deadly weapon and first degree
murder with use of a deadly weapon. 5
5 Smith raises two additional issues on appeal. Smith first contends
that the presumption of innocence jury instruction violated his right to
due process because, although the instruction provided that the
prosecution must prove every material element, the instruction failed to
identify the material elements. This claim is meritless. See Nunnery v.
State, 127 Nev., Adv. Op. 69, 263 P.3d 235, 259 (2011) ("This court has
repeatedly upheld such language."). Smith's final contention is that
cumulative error warrants reversal. Because the district court did not err,
there is no cumulative error. See Rose v. State, 123 Nev. 194, 211, 163
P.3d 408, 419 (2007) (discussing standard for cumulative error).
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Based on the foregoing, we ORDER the judgment of the
district court AFFIRMED.
PaiTaguirre
Douglas
ci
Cherry
J.
cc: Hon. Valerie Adair, District Judge
Special Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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