IN THE SUPREME COURT OF THE STATE OF NEVADA
LESLIE VILLA, No. 67568
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
JUL 2 8 2016
TRACE K LINDEMAN
CLERK OF SUPREME COURT
BY - LS--(
- g
'ORDER OF AFFIRMANCE DEPUTY CLERK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of first-degree kidnapping, domestic battery (strangulation),
and battery causing substantial bodily harm. Fifth Judicial District
Court, Nye County; Kimberly A. Wanker, Judge.
Appellant Leslie Villa first argues that relief is warranted
because the jury's verdicts are inconsistent. Verdicts will not be rejected
for inconsistency when substantial evidence supports the defendant's
convictions. Bollinger; v. State, 111 Nev. 1110, 1116, 901 P.2d 671, 675
(1995); see also United States v. Powell, 469 U.S. 57, 65 (1984). The record
contains substantial evidence for the jury to find, beyond a reasonable
doubt, that Villa kidnapped the victim by carrying her to his car and
driving away with the intent of substantially harming or killing her,
battered her by strangling her, and battered her causing a protracted loss
of function to her right eye. See NRS 0.060; NRS 200.310(1); NRS
200.481(2)(b). Accordingly, we conclude that this claim lacks merit.
Second, Villa argues that the State filed multiplicitous charges
and thereby deprived him of a fair trial. "Multiplicity concerns the
charging of a single offense in several counts." Gordon v. Eighth Judicial
Dist. Court, 112 Nev. 216, 229, 913 P.2d 240, 248 (1996). The "test for
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multiplicity is that offenses are separate if each requires proof of an
additional fact that the other does not." Bedard v. State, 118 Nev. 410,
413, 48 P.3d 46, 48 (2002) (internal citations omitted). First-degree
kidnapping, domestic battery (strangulation), and battery causing
substantial bodily harm constitute separate offenses under this review.
As kidnapping requires a carrying away, domestic battery (strangulation)
requires strangulation but not substantial bodily harm, and battery
causing substantial bodily harm requires substantial bodily harm but not
strangulation, each contains an element that the other does not. Despite
Villa's misconception to the contrary, strangulation is conduct that
impedes a person's breathing or circulation in a manner that "creates a
risk of death or substantial bodily harm," and does not require that the
conduct actually cause substantial bodily harm. NRS 200.481(1)(h)
(emphasis added). We conclude that Villa's multiplicity claim lacks
merit.'
Third, Villa argues that his two battery convictions violated
the prohibition against double jeopardy. Two offenses do not violate the
prohibition against double jeopardy if each offense requires an element
that the other does not. Jackson v. State, 128 Nev. 598, 604, 291 P.3d
1274, 1278 (2012). As domestic battery (strangulation) and battery
causing substantial bodily harm each contain an element that the other
does not, as shown above, convictions for both offenses do not violate
double jeopardy, and we conclude that Villa's claim lacks merit.
Willa also argues that the charges were improperly duplicitous.
Duplicity is the charging of two crimes in one count, Gordon v. Eighth
Judicial Dist. Court, 112 Nev. 216, 228, 913 P.2d 240, 247-48 (1996), and
is in no way present here.
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Fourth, Villa argues that the State committed misconduct in
its closing argument. The court follows a two-step approach in assessing
claims of prosecutorial misconduct: we first determine whether the
conduct was improper, and if so, we then determine whether reversal is
warranted. Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476
(2008). The court reviews unpreserved error for plain error affecting the
appellant's substantial rights by causing "actual prejudice or a
miscarriage of justice." Id. at 1190, 196 P.3d at 477. Deputy District
Attorney Michael Vieta-Kabell undeniably committed prosecutorial
misconduct both in injecting personal opinion by stating his personal view
of certain facts and his belief that the case contained a clear instance of
attempted murder, see Collier v. State, 101 Nev. 473, 480, 705 P.2d 1126,
1130 (1985), and in urging the jury to disregard its instructions and find
Villa guilty of each offense and its lesser-included offenses, see State v.
McCorkendale, 979 P.2d 1239, 1252-53 (Kan. 1999), disapproved of on
other grounds by State v. King, 204 P.3d 585 (Kan. 2009). However, Villa
has failed to show that this error affected his substantial rights because
overwhelming evidence supported Villa's guilt and the jury rejected Vieta-
Kabell's personal opinion by acquitting Villa of attempted murder and
properly completing its verdict form in accordance with the jury
instructions. Thus, we conclude that Villa has failed to show that Vieta-
Kabell's misconduct warrants relief.
Fifth, Villa argues that the State improperly failed to preserve
potentially exculpatory evidence in failing to take a blood draw when he
gave his police statement. If the State fails to gather evidence and the
defense shows that the evidence was material, relief is warranted when
the failure to gather the evidence was the result of gross negligence or a
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bad faith effort to prejudice the defendant. Daniels v. State, 114 Nev. 261,
267, 956 P.2d 111, 115 5 (1998). Villa argues that a blood draw would have
demonstrated an elevated level of phentermine in his bloodstream,
showing that he was under the influence of that medication during the
incident. We conclude, however, that Villa has failed to show that the
bloodstream evidence was material because he has not shown a reasonable
degree of probability that the evidence would have led to a different trial
outcome when (1) he appeared cogent and not intoxicated when arrested
shortly after the incident and during the police statement the next day, (2)
the police statement was taken 18 hours after the incident and no
evidence was produced regarding phentermine's dissipation rate and
showing the significance that such a delayed sample could have, (3) the
State's expert testified that he had found no reported instances of
phentermine causing psychosis, and (4) overwhelming evidence supported
Villa's guilt. See id. Accordingly, this claim lacks merit.
Sixth, Villa argues that the district court erred in denying his
motion to suppress his police statement when he did not expressly waive
his Miranda2 rights. A defendant's statement during a police
interrogation is inadmissible unless the defendant knowingly and
voluntarily waived his Miranda rights. Berghuis v. Thompkins, 560 U.S.
370, 382 (2010); Mendoza v. State, 122 Nev. 267, 276, 130 P.3d 176, 181
(2006). We review whether a waiver was voluntary de novo. Mendoza,
122 Nev. at 276, 130 P.3d at 181. Here, Detective Michael Eisenloffel gave
Villa a Miranda warning, Villa asserted that he understood his rights and
had no questions, and Villa commenced speaking with Eisenloffel without
2Miranda v. Arizona, 384 U.S. 436 (1966).
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any coercion or undue pressure. Villa later objected to representation by
counsel and stated thdt he wanted to admit to his misconduct to "get it
over with." As the rectird shows that Villa received his Miranda warning,
understood the waiver, and made his statement without coercion, we
conclude that he implicitly waived his Miranda rights. See Berghuis, 560
U.S. at 384. 3
Seventh, Villa argues that the evidence presented at trial was
insufficient to support the jury's finding of guilt for the substantial-bodily-
harm element of battery causing substantial bodily harm. Our review of
the record on appeal, however, reveals sufficient evidence to establish
guilt beyond a reasonable doubt as determined by a rational trier of fact.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Origel-Candido v. State,
114 Nev. 378, 381, 956313 .2d 1378, 1380 (1998).
The victiml testified, and Villa admitted, that he punched and
choked the victim, caUsing her to lose consciousness. At the hospital, the
victim presented with petechiae on her face and eyes, among other
injuries, and the examining nurse testified that this indicated that the
compression that Villa applied caused capillaries in the victim's face, eyes,
and brain to rupture.t The following day, the victim's eye "completely
3 To the extent that Villa suggests that the phentermine he ingested
the previous day rendered him intoxicated and his waiver thus
involuntary, we reject that contention, as the record does not support that
he was intoxicated or unable to understand his rights during the
interrogation. See Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775
(1994) (concluding waiver was valid, despite prior ingestion of controlled
substances, when appellant exhibited no signs of intoxication, appeared
able to comprehend and voluntarily waive his rights, and spoke willingly
to police).
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turned inward towards [her] nose," remaining in that impaired condition
for more than one week.
The jury could reasonably infer from the evidence presented
that Villa willfully and unlawfully used force upon the victim's person,
causing protracted impairment of the function of her right eye. See NRS
0.060; NRS 200.481(2)(b). It is for the jury to determine the weight and
credibility to give witness testimony, and the jury's verdict will not be
disturbed on appeal where, as here, substantial evidence supports the
verdict. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
Accordingly, we conclude that this claim lacks merit.
Eighth, Villa argues that the district court erred in allowing
the State to amend the information by affidavit. The district court may
allow the State to amend the information by affidavit where the
magistrate made egregious errors in failing to bind the defendant over for
trial. NRS 173.035(2); State v. Sixth Judicial Dist. Court (Warren), 114
Nev. 739, 741-42, 964 P.2d 48, 49 (1998). We review determinations of
egregious error de novo. See Murphy v. State, 110 Nev. 194, 198, 871 P.2d
916, 919 (1994), overruled on other grounds by Warren, 114 Nev. at 742-43,
964 P.2d at 50. The preliminary-hearing transcript showed that the
magistrate concluded that the State had shown probable cause that Villa
committed first-degree kidnapping causing substantial bodily harm but
struck that count in favor of first-degree kidnapping. Having reviewed the
record, we conclude that the district court did not err in determining that
the magistrate egregiously erred by striking a count that it had found was
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supported by probable cause and permitting the State to amend its
information by affidavit. 4
Ninth, Villa argues that the kidnapping conviction should not
stand because the movement involved was incidental to the conduct
constituting the batteries. To sustain convictions for both kidnapping and
another offense arising i out of the same course of conduct, the movement or
restraint involved in the kidnapping must have independent significance
apart from the other offense, create a substantially greater risk of danger,
or involve movement that substantially exceeds that necessary to complete
the other offense. See Mendoza v. State, 122 Nev. 267, 275, 130 P.3d 176,
181 (2006). Whether the victim's movement was incidental to the
associated offense is generally a question of fact for the jury. Curtis D. v.
State, 98 Nev. 272, 274, 646 P.2d 547, 548 (1982). Here, movement is not
an element of the battery offenses, Villa created a substantially greater
risk by transporting the victim away from her home—as he said that he
had to take her to the desert to finish what he had started—and he had
completed his batteries when he moved the victim in his car. We conclude
that the jury had sufficient evidence to determine that the victim's
movement was not merely incidental. See Wright v. State, 106 Nev. 647,
649, 799 P.2d 548, 549 (1990).
4To the extent that Villa argues that he had inadequate notice of the
facts constituting kidnapping, in alleging that Villa seized and abducted
the victim to kill or substantially harm her by forcing her into a bedroom
and by carrying her away from her home in his car, we conclude that the
information provided sufficient notice for Villa to prepare an adequate
defense. See Viray v. State, 121 Nev. 159, 162, 111 P.3d 1079, 1081-82
(2005).
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Tenth, Villa argues that the district court erred in failing to
grant relief on his pretrial petition for a writ of habeas corpus challenging
the sufficiency of the [ evidence to establish probable cause. As Villa
concedes that sufficient evidence supported his charge of domestic battery
(strangulation), does not identify error pertaining to his other convictions
beyond mistakenly asserting that the salient arguments were raised
elsewhere, he failed to ;cogently argue this issue, and we need not address
this claim. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
Eleventh, [Villa argues that the district court erred in
calculating his credit for time served when it excluded the term that he
served for committing a subsequent offense during the pendency of this
matter. Villa relies solely on NRS 211.230, which addresses a prisoner's
temporary release for medical treatment and does not apply to the present
facts. We conclude that Villa has failed to present cogent argument and
need not address this claim. See Maresca, 103 Nev. at 673, 748 P.2d at 6. 5
Twelfth, Villa argues that cumulative error warrants relief.
As Villa has only identified the prosecutorial-misconduct error that did not
affect his substantial rights, the quality and character of this error do not
warrant relief under cumulative error. See Mulder v. State, 116 Nev. 1,
17, 992 P.2d 845, 854-55 (2000).
5To the extent that Villa intended to argue that he was entitled to
good-time credit on the 180-day sentence that he served during these
proceedings and should have received more credit for time served on this
sentence, he has offered no support to show that his misdemeanor
sentence was reduced, see Haney v. State, 124 Nev. 408, 413, 185 P.3d 350,
353-54 (2008) (concluding that power to award good-time credits under
NRS 211.320 lies with sheriff or chief of police and such awards are
discretionary), and thus has failed to show that the district court erred.
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Having considered Villa's contentions and concluded that they
are without merit, we
ORDER the judgment of conviction AFFIRMED.
J.
V , J.
Gibbons
cc: Hon. Kimberly A. Wanker, District Judge
Harry R. Gensler
Attorney General/Carson City
Nye County District Attorney
Nye County Clerk
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Villa (Leslie) v. State
Combined Opinion