IN THE SUPREME COURT OF THE STATE OF NEVADA
WAYNE MICHAEL CAMERON, No. 83531
Appellant,
vs.
FILE
THE STATE OF NEVADA, SEP 2 8 2022
Respondent. EL1ZABET A. EIFLO'NN
F EME COURT
ORDER OF REVERSAL AND REMAND DEPUTY CLERK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of murder with the use of a deadly weapon. Second Judicial
District Court, Washoe County; Barry L. Breslow, Judge.
Jarrod Faust was shot and killed in his truck in February 2020.
There were no witnesses to the crime. But shortly after the shooting,
appellant Wayne Cameron admitted to his friend David Colarchik that "I
think I just shot someone." Cameron indicated he (Cameron) was "the one
that got out of the car and went up to him" and that he shot the victim in a
fit of anger.' Colarchik reported the conversation to the police, who
interviewed Cameron and searched his home and vehicle. In his interview,
Cameron initially denied knowledge of the shooting, although he changed
his story several times. Detectives found bullet cartridges in Cameron's
vehicle that matched a casing recovered at the crime scene. But detectives
were unable to find DNA or blood evidence linking Cameron to the crime.
The State charged Cameron with murder with the use of a
deadly weapon, advancing alternate theories of premeditation and
'Cameron told Colarchik that "I hate when people make me mad. I
don't know why I get so angry."
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deliberation and felony murder. As to the felony murder theory, the State
charged that Cameron killed Faust "in the perpetration o[r] attempted
perpetration of a burglary by entering a vehicle with the intent to commit
assault or battery or any felony therein."
At trial, the State presented the forensic evidence, along with
other evidence that showed Cameron had been in the area the night of the
murder and attempted to cover his tracks following the shooting. Colarchik
and others testified to comments Cameron made or actions he took that
implicated him in the shooting. A pathologist testified that the gun was
fired at an intermediate range, meaning it was discharged within several
feet of the body but not right against Faust's face as he sat in the driver's
side of his vehicle. Cameron testified in his defense, claiming that he
followed Faust because he became concerned when Faust nearly hit a
motorcyclist. When Faust stopped his truck, Cameron asked if he was okay,
but Faust became angry and confrontational. Faust remained in his truck,
but Cameron opened his own door and stood behind it. Cameron testified
Faust began swearing and threatening to kill him. Cameron, allegedly
believing Faust was holding a gun, retrieved and loaded his own gun, which
he fired toward the truck when Faust began to drive at him as if to run him
over. Cameron claimed he and Faust thereafter drove off in opposite
directions.
Outside the jury's presence, the parties contested whether the
prosecutor could argue to the jury that shooting a bullet into the truck
constituted an entry for purposes of burglary and, by extension, felony
murder. Cameron contended it was improper to allow the State to argue
that he was guilty of felony murder-burglary for merely shooting a bullet
into the truck. The court overruled the objection, and in closing arguments
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the prosecutor advanced this argument to the jury as an alternative basis
to find felony murder. Defense counsel again objected, and the State in open
court countered, "What? The law says: entry with his hand or entry with an
implement. That's the law. The Court approved it. Can't un-approve what
the law is, Judge. It comes from the statute." Defense counsel reiterated
that burglary "was only putting the gun into the vehicle," objected to all the
felony murder instructions, and asked for a mistrial, to which the State
responded, "[s]our grapes, Judge. That is what the law says." The court
overruled defense counsel's objection and denied the request for a mistrial,
stating before the jury that "the Court does not find a legal basis at this
time. The prosecution may proceed." The prosecutor thereafter reiterated
that the jury could infer a burglary because a bullet entered the truck,
arguing, "[w]ould we expect your castle to be less protected from a bullet 10
inches out of your window than a spear driven through it at you? N-o,
period."
The jury convicted Cameron of first-degree murder with the use
of a deadly weapon and sentenced him to life in prison without the
possibility of parole.2 Cameron appeals, arguing, among other things, the
conviction must be reversed because there is no evidence that his gun or
body "entered" the truck within the meaning of NRS 193.0145 and that the
bullet's entry into the truck did not constitute a burglary. We agree.3
We review questions of statutory construction de novo,
beginning with the statute's text, and will apply the plain language if it is
2 Cameron was also sentenced to a consecutive term of 8-20 years for
the use of a deadly weapon.
light of our decision, we need not reach Cameron's additional
3In
arguments.
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unambiguous. Matter of Aragon, 136 Nev. 647, 648-49, 476 P.3d 465, 467
(2020); Castaneda u. State, 132 Nev. 434, 437, 373 P.3d 108, 110 (2016). We
have long strictly construed criminal statutes, Runion v. State, 116 Nev.
1041, 1046, 13 P.3d 52, 56 (2000), and the rule of lenity requires us to
resolve in the defendant's favor any ambiguity in statutes defining a crime,
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 296 (2012); see also State v. Fourth Judicial Dist. Court
(Martinez), 137 Nev. 37, 39, 481 P.3d 848, 850 (2021) (addressing the rule
of lenity). But in considering whether sufficient evidence supports a
conviction, we view the evidence in the light most favorable to the
prosecution. Hager v. State, 135 Nev. 246, 256, 447 P.3d 1063, 1070 (2019).
Reversal may still be appropriate where the jury is inaccurately instructed
on the law and that instruction causes prejudice, Guidry v. State, 138 Nev.,
Adv. Op. 39, 510 P.3d 782, 787 (2022), or where the verdict form does not
differentiate between the State's alternate theories and it is not clear the
jury would have convicted the defendant of the crime had it been properly
instructed, Nay v. State, 123 Nev. 326, 334, 167 P.3d 430, 435-36 (2007).
But we will not reverse if an error is ultimately harmless. NRS 178.598
("Any error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded.").
Murder is the unlawful killing of another human with express
or implied malice aforethought. NRS 200.010(1). In relevant part, NRS
200.030(1)(a) defines first-degree murder as a killing that is willful,
deliberate, and premeditated. A "willful first-degree murder [under NRS
200.030(1)(a)] requires that the killer actually intend[ed] to kill." Byford v.
State, 116 Nev. 215, 234, 994 P.2d 700, 713 (2000); see also Guidry, 138
Nev., Adv. Op. 39, 510 P.3d at 787-88 (explaining that to find a defendant
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guilty of an express-malice killing, the jury must determine the defendant
intended to kill).
A murder is also of the first-degree if it is done in the
perpetration or attempted perpetration of a burglary. NRS 200.030(1)(b).
Our statutes define burglary in part as unlawfully entering a vehicle with
intent to commit assault or battery. NRS 205.060(1) (2013); 2013 Nev. Laws
ch. 488, § 1 (A.B. 415). But there must be evidence of an entry. Cf. Barber
v. State, 131 Nev. 1065, 1072, 363 P.3d 459, 464-65 (2015) (reversing a
burglary conviction where no evidence established the defendant entered
the home). At common law, an entry occurred whenever the airspace within
the structure was penetrated, see Merlino v. State, 131 Nev. 652, 658, 357
P.3d 379, 383 (Ct. App. 2015), and our statutes define "unlawfully enters"
as "to enter or remain" in the structure or vehicle without license or
privilege to do so, NRS 205.060(6)(d). Critically, NRS 193.0145 defines
"enter" in criminal cases in part as "the entrance of the offender, or the
insertion of any part of the body of the offender, or of any instrument or
weapon held in the offender's hand and used or intended to be used to
threaten or intimidate a person."
We conclude that shooting a bullet into the truck does not
constitute an entry for purposes of burglary under NRS 193.0145's plain
language. The phrase "held in the offender's hand" requires the offender to
be holding the instrument as it enters the structure. To conclude otherwise
would expand the scope of burglary so that any time an offender discharged
a firearm into a structure, or even threw a rock through a window (or a
spear into a castle), such could constitute an entry for purposes of burglary
and, potentially, a felony murder. Such an interpretation is not only
unsupported by the plain language of the statute, but conflicts with existing
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Nevada law that requires evidence of the offender's entry into the structure.
See Barber, 131 Nev. at 1072, 363 P.3d at 464 (rejecting the argument that
evidence of the defendant's presence outside the structure, without more,
supports a burglary). Moreover, NRS 202.285(1)(b) already criminalizes
discharging a gun into a structure as a category B felony, and it would be
improper to construe NRS 193.0145 in a way that could render these
statutes in conflict. See Williams v. State, Dep't of Corr., 133 Nev. 594, 601,
402 P.3d 1260, 1265 (2017) (explaining that we read statutes in harmony
and that to the extent there is a conflict, the more specific statute will
control). The rule of lenity would further compel our conclusion even were
NRS 193.0145 ambiguous.4
Accordingly, the prosecutor's "bullet-entry" argument at trial
was improper and the district court erred by allowing the prosecutor to
advance that argument. The error was compounded by the district court's
comments when overruling defense counsel's objection in front of the jury,
as the district court effectively informed the jury that the bullet-entry
theory was legally sound. Nevertheless, the error will not be reversible if
"it appears beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained." Cortinas v. State, 124 Nev. 1013, 1027,
195 P.3d 315, 324 (2008) (internal quotations omitted).
Our prior decisions in Nay and Cortinas are useful in
determining whether the error here was harmless. In Nay, we determined
a similar error warranted reversing a conviction. 123 Nev. at 327-28, 167
4Although the State fails to raise this point, we acknowledge other
courts have concluded that a bullet's entry into a building may support a
burglary. See Whitehead v. State, 777 So. 2d 781, 837-38 (Ala. Crim. App.
1999); State v. Decker, 365 P.3d 954, 957-59 (Ariz. Ct. App. 2016). But we
decline to follow these courts for the reasons stated herein.
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,
P.3d at 431. Nay was charged with first-degree murder and robbery after
he beat his roommate to death and took some of the victim's belongings. Id.
Nay admitted to officers that he killed the victim but claimed that he did so
in self-defense. Id. at 328-29, 167 P.3d at 432. The State charged alternate
theories of willful, premeditated murder and felony murder. See id. at 334,
167 P.3d at 435-36. The district court instructed the jury that the robbery
was a predicate felony for felony murder, but failed to instruct the jury that
an afterthought robbery would not support a felony-murder conviction. Id.
at 334, 167 P.3d at 435. During closing arguments, the prosecutor argued
that if Nay committed any robbery, even one after the fact, he was guilty of
felony murder. Id. We determined that an afterthought robbery could not
support a felony-murder conviction, and concluded that in light of the
court's instructions and the prosecutor's argument "the jurors had no way
of arriving at the conclusion that afterthought robbery cannot provide the
predicate . . . for felony murder." Id. at 333-34, 167 P.3d at 435-36. And
because we could not determine based on the verdict forms on what
alternate theory the jury found Nay guilty of first-degree murder, we
reversed the conviction. Id. at 334-35, 167 P.3d at 436.
Conversely, in Cortinas, we determined a similar error was
harmless. 124 Nev. at 1016, 195 P.3d at 317. Cortinas killed a woman and
dumped her body in the desert. Id. at 1017, 195 P.3d at 317. He twice
confessed his crime to police, and during an interview he detailed the hour-
long killing. Id. at 1017-18, 195 P.3d at 317-18. Cortinas also stole some of
the victim's belongings, which detectives found in Cortinas's bedroom. Id.
As in Nay, the State charged Cortinas with first-degree murder and
robbery, and proceeded on alternative theories of a willful, deliberate, and
premeditated murder and felony murder predicated on the robbery. Id. at
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1018, 195 P.3d at 318. The jury instructions and prosecutor's closing
argument indicated the jury could return a first-degree murder conviction
based on felony murder even if the robbery occurred as an afterthought. Id.
The jury returned a general verdict finding the defendant guilty of first-
degree murder. Id. We concluded there was instructional error but that
the error was harmless beyond a reasonable doubt where Cortinas twice
confessed to the killing and his confession clearly showed the murder had
been willful, deliberate, and premeditated. Id. at 1027-29, 195 P.3d at 325-
26. We also distinguished Cortinas's case from Nay's in that Cortinas did
not attempt to minimize his responsibility or claim self-defense. Id. at 1029,
195 P.3d at 326.
We conclude this case is more like Nay than Cortinas. In those
cases, as here, it was clear that the defendant killed the victim, but here, as
in Nay, the defendant minimized his responsibility and claimed self-
defense. Moreover, there was limited evidence of the predicate malice for a
willful and deliberate murder, and Cameron's story, had it been believed,
would have warranted a conviction for something less than first-degree
murder. And although it is possible that Cameron committed a burglary,
there is no evidence here that Cameron actually put his hand or his gun
into the truck, and the prosecutor's bullet-entry argument closed that gap
in the State's evidence, enabling, and perhaps even compelling, the jurors
to find first-degree felony-murder based on a predicate burglary even if the
jurors would have otherwise determined the State failed to prove an entry.5
5The information lists attempted burglary as potentially supporting
the alternate felony-murder theory of first degree murder. However, the
record demonstrates the prosecutor abandoned that argument during
closing arguments. Moreover, the facts state that Cameron committed the
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These facts are in sharp contrast to Cortinas where the evidence
overwhelmingly supported the predicate malice for a willful and deliberate
murder and where detectives found clear evidence of the robbery. 124 Nev.
at 1029, 1031, 195 P.3d at 326-27. And because we cannot discern whether
the jury convicted Cameron on the felony-murder theory or the willful-
murder theory because a general verdict form was utilized, we cannot
determine beyond a reasonable doubt that the jury would have convicted
Cameron of first-degree murder had it been properly instructed. We
therefore conclude the error here is reversible.
Accordingly, we
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Silver
, J.
Cadish
burglary "by entering a vehicle." Because the defendant has a
constitutional right to be informed in the charging document of the facts
constituting the charge, the failure to allege facts of the attempt here may
have prevented the State from arguing attempted burglary at trial. See
Barlow v. State, 138 Nev., Adv. Op. 25, 507 P.3d 1185, 1193-94 (2022)
(explaining, in the context of addressing aggravating circumstances in a
notice seeking the death penalty, that defendants "should not have to gather
facts to deduce the State's theory" and "the supporting facts must be stated
directly in the notice itself'); Sirnpson v. Eighth Judicial Dist. Court, 88
Nev. 654, 659, 503 P.2d 1225, 1229 (1972) (explaining that it is a
constitutional violation to put a defendant on trial without providing, in the
information, the facts underlying the charge).
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PICKERING, J., dissenting:
After watching Jarrod Faust's lifted pickup truck narrowly miss
colliding with a motorcycle, Wayne Cameron began following Faust in his
own vehicle. Cameron tailed Faust for several minutes, through multiple
stops and turns, until Faust pulled over in a cul-de-sac. Cameron pulled
over to the right side of Faust in the cul-de-sac, with their vehicles facing
the same direction.6 Cameron then initiated a confrontation with Faust
regarding his driving, which escalated from "angry, weird words" to
Cameron brandishing and firing his gun through Faust's open driver-side
window. After responding to calls from residents of the cul-de-sac, police
discovered Faust slumped lifeless over his steering wheel, unarmed.
Cameron's friend led police to Cameron's door, telling police that Cameron
admitted he had "shot someone"—Faust—because he was "so angry."
The State offered alternative theories of first-degree murder
against Cameron for his killing Faust—under NRS 200.030(1)(a) as a
willful, premeditated, and deliberate murder or (1)(b) as felony murder,
committed during the perpetration of burglary or attempted burglary of a
vehicle (felony murder/burglary). The majority questions the propriety of
the latter theory. And because the jury convicted Cameron of first-degree
murder via a general verdict form, the majority frames its review in the
constitutional terms of alternative-theory instructional error, which is in
6There was differing testimony regarding the positioning of the
vehicles, among other facts. But given Cameron's jury conviction, on appeal
we view these discrepancies in a light most favorable to the State. McNair
v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
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play when a jury receives instructions on multiple theories of a crime, and
one of those instructions is legally incorrect. See Hedgpeth v. Pulido, 555
U.S. 57, 61 (2008) (discussing standard of review for alternative-theory
error). In such instances, a general verdict must be reversed unless there
can be no reasonable doubt that the instructional error was harmless. See
Cortinas v. State, 124 Nev. 1013, 1028, 195 P.3d 315, 325 (2008).
But Cameron's briefing on appeal is not as crystalline in
characterizing the basis for his challenge to his conviction. Cameron does
not point to any error with the felony murderThurglary instructions as given,
and which are pulled from Nevada's murder and burglary statutes
themselves. Instead, Cameron essentially argues that the State failed to
prove up his requisite "entry" under NRS 193.0145. This distinction is more
than academic: If we take Cameron's challenge as being to the sufficiency
of evidence of his "entry," rather than to an alleged error in substantive
alternative-theory instructions, our review is significantly more deferential.
In the latter case, Cameron's conviction by general guilty verdict would
stand if any rational trier of fact could have found the essential elements of
any one of the possible bases of conviction beyond a reasonable doubt.
Gordon v. State, 121 Nev. 504, 507, 117 P.3d 214, 216 (2005).
A rational juror could have convicted Cameron of a willful,
premeditated, and deliberate murder. Because of evidence regarding the
positioning of the vehicles—side-by-side and facing the same direction—and
the stippling marks around Faust's gunshot wound, a juror could have
determined that Cameron loaded his weapon, then made his way around to
the driver-side of Faust's vehicle to shoot him at a relatively close range,
giving Cameron time "to think upon or consider the act, and then determine
to do it." Curtis v. State, 93 Nev. 504, 507, 568 P.2d 583, 585 (1977) (quoting
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Payne u. State, 81 Nev. 503, 509, 406 P.2d 922, 925-26 (1965)) (describing
what meets elements of premeditation and deliberation). Or a rational juror
could have found that the State proved felony murder/burglary based on an
entry by established measure—the stippling surrounding Faust's gunshot
wound indicates that Cameron fired his weapon within a few feet of Faust;
the bullet's downward trajectory from Faust's left cheekbone to right spinal
column likewise could evince Cameron's close proximity to Faust, who was
elevated in his lifted pickup truck at the time of the killing; and Faust's
driver's-side window was down and unbroken when police found him. All
this could support that Cameron's hand and/or weapon penetrated Faust's
vehicle's airspace before or as he fired.
Even accepting the majority's position that Nevada law
forecloses an entry-by-projectile theory of burglary, these alternate paths to
conviction instruct that we affirm under Gordon. And if we instead
characterize Cameron's challenge as Cortinas-style instructional error,
then we must grapple with Cameron's failure to adequately raise any
potential entry-by-projectile instructional error on appeal. The potential
application of this theory under Nevada law is an interesting question with
a storied answer, see United States u. Brown, 957 F.3d 679, 687 (6th Cir.
2020) (noting "that Blackstone defined an entry as sufficient for burglary if
the entry was 'with an instrument held in the hand' (like a firearm reaching
through a window)" and recognizing as a disputed question, "Should a bullet
shot from outside a home qualify as an entry even though the bullet is not
in the 'hand' when it enters?"), cert. denied, U.S. , 141 S. Ct. 1286
(2021). Compare 1 Edward Hyde East, A Treatise of the Pleas of the Crown §
7, at 490 (1806) (recognizing disagreement among early authorities
regarding whether a projectile bullet could constitute entry), with 1 Sir
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Matthew Hale, The History of the Pleas of the Crown, 554-55 (1st Am. ed.
1847) ("But if he shoots without the window, and the bullet comes in, this
seems to be no entry to make burglary; qucere."), but one teed up by the
majority rather than the parties.
Cameron focuses instead on an entirely separate clause of NRS
193.0145, arguing that he did not enter because he did not use his weapon
"to threaten or intimidate a person." In sum, the argument Cameron
actually makes is that he could not have burgled Faust because he either
shot to kill Faust (rather than threaten or intimidate him) or blindly in
Faust's direction in imperfect self-defense; but this is just a variation on a
merger rule argument, which this court has already rejected in the felony
murder/burglary context. State v. Contreras, 118 Nev. 332, 46 P.3d 661
(2002). In any case, it does not land—Cameron's intent to threaten or
intimidate Faust is supported by his brandishing and firing a gun in Faust's
direction and his admission that he "[a]bsolutely" wanted to scare Faust.
Larsen v. State, 86 Nev. 451, 454, 470 P.2d 417, 418-19 (1970) (reasoning
under Nevada's burglary statute that "the jury could certainly infer that
the man at the door of the motel intended to enter unlawfully and that the
simulation of a gun, coupled with the words he would shoot if the door was
not opened, strongly inferred an intent to commit larceny had he gained the
entrance he sought").
In sum, the only error in play (that Nevada law forecloses a
theory of entry-by-projectile) is one the majority raises, not the parties. If
this court still thinks this is the proper vehicle for considering the merits of
the theory, supplemental briefing is required, both on that point and as to
whether the parties challenge the jury instructions themselves or the
evidence supporting Cameron's conviction. Absent such clarification and
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given Cameron's waiver of the theoretical entry-by-projectile instructional
error, I would decide only what is clearly presented. And sufficient evidence
supports Cameron's first-degree murder conviction, either as felony
murder/burglary, which a juror could find Cameron committed by entering
Faust's vehicle with his hand or gun, or because Cameron killed Faust
willfully, with premeditation and deliberation. Accordingly, I dissent.
Pickering
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cc: Hon. Barry L. Breslow, District Judge
Richard F. Cornell
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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