dissenting:
Simmons’ conviction of first-degree murder is based almost entirely on the testimony of his teen-age acquaintance, “Mike,” who claims that Simmons admitted to him that he shot and killed Jason Kopack. The problem with Mike’s story is that, under the facts as they were unfolded at trial, Mike’s story is impossible. Mike claims that Simmons told him that on the night of the murder Simmons walked up to the trailer home where Kopack lived, opened up the door, shot Jason with a shotgun, walked back to his parked car and drove home. The reason that Mike’s testimony cannot be true is that there was snow on the ground on the night of the murder; and this fact, in a number of respects, establishes irreconcilable inconsistencies in Mike’s story. As an example of such inconsistency, police investigators at the scene were able to trace footprints made in the snow on the night of the murder, which show that some person walked into the trailer home, but did not walk out of the trailer home. These footprints were the only footprints in the snow that surrounded the Kopack trailer home on the night of the murder. Whoever walked into the trailer home on that snowy night did not walk out, not, at least, until in the morning, after the police investigators completed their investigation of the pristine murder scene. This and other doubts created in my mind by the inconsistency between Mike’s rendition of Simmons’ confession and the physical evidence at the murder scene prompted me to make a more careful inspection of the record in this case than I might ordinarily have made. After doing this, I came to the conclusion that a jury could not have properly reached a guilty verdict based on proof beyond a reasonable doubt.
As stated, Simmons’ conviction is largely based on Mike’s testimony about Simmons’ supposed admission to Mike about how the murder was committed.1 Mike testified that Simmons *111confessed to him that in the early morning hours of the day of the murder he, Simmons, drove his mother’s car to a school parking lot that was near where Jason Kopack lived. According to Mike’s testimony, Simmons told Mike that when he reached the Kopack residence he sat in the victim’s father’s car and smoked a cigarette. Then, according to Mike, Simmons said that he walked up to the front door of the trailer home, opened the front door and attempted to shoot the victim with a 20-gauge shotgun that he had gotten from a closet in his parents’ bedroom. According to Mike’s story, the gun jammed on Simmons’ first attempt to shoot Kopack, and Simmons had to load another shell into the gun. Simmons, according to Mike’s account of Simmons’ confession, was, in a second attempt, able to, and did, in fact, shoot and kill Kopack with the shotgun. Mike also claims that Simmons told him that after he murdered Kopack, he left the trailer home, got into his mother’s car and drove back home.
The biggest problem in trying to believe Mike’s story is the snow. Simmons’ father testified that he brushed snow off of both his car and his wife’s car (the “murder” car) on the morning following the murder and that both cars had the same amount of snow on them, indicating that neither car had been driven that night. This and the fact that no one, including Simmons, trod out of the Kopack trailer home on the night of the murder tells me that Mike’s testimony about Simmons’ supposed confession to him is not true.
There are other evidential concerns that cast doubt on the truth of Mike’s testimony. The investigator who first found the snowprints at the scene testified that he believed them to have been laid down by Reeboks. Simmons, however, customarily wore combat boots, not Reeboks. Mike accommodatingly testified that Simmons told him that on the particular night of the murder he happened to be wearing Reeboks instead of his usual combat boots. Whether Mike’s testimony about what kind of shoes Simmons said he was wearing on the night of the murder is true or not, it is very difficult to tie these footprints in any way to Simmons. The police investigator who discovered the one-way footprints did not bother to photograph or make a mold of the prints. As a consequence, we do not really know what kind of shoe laid down the prints going into the trailer home or what size it was. The officer did go back to the scene, however, after he realized that he should have preserved the footprints; but, by this *112time, the original prints had been obliterated by the foot traffic of law enforcement personnel and the emergency medical personnel that had responded to the 911 call made by the victim’s father. Undaunted, the investigator proceeded to approximate the footprint that he had seen in the snow, and based on this recollection, testified not only that the footprints were Reeboks but that they resembled those of a pair of Reeboks that investigators had found in Simmons’ bedroom. Strangely, however, officers found another single Reebok lying on the floor of the victim’s trailer home, next to the victim’s body. I do not know the significance of this find because this shoe has disappeared, and it, like the snowprints, was never photographed. The defense has, understandably, been very much concerned about the disappearance of the Reebok found at the crime scene, as it has about the failure of the police to preserve any evidence as to the nature of the one-way footprints.
If the jury were to believe that Simmons was not wearing his usual combat boots on the snowy night of the murder, and believed Mike’s story that Simmons was wearing Reeboks of the kind that the investigators remembered the footprints to resemble, then we arrive at the point where we might suspect that Simmons entered that trailer home on the night of the murder, but never came out. This, of course, would be entirely inconsistent with Mike’s story. Another permissible inference would be that the one-way footprints were laid down by some occupant of the trailer home, someone (other than Simmons) who entered the trailer home on that snowy night and remained in the trailer home for the rest of the night.
In my judgment, once we get rid of Simmons’ supposed confession to Mike, the prosecution’s case collapses, and it becomes impossible for a jury to find guilt beyond a reasonable doubt; still, I will go on to discuss some of the other aspects of this case.
Aside from the police investigator’s recollection of what the one-way footprints might have looked like, the only other pieces of evidence that might place Simmons at the murder scene are a cigarette butt found at the scene and an expended shotgun shell seized at Simmons’ house.
The only reason that the cigarette butt has any significance in this case is that Mike reported that Simmons smoked a cigarette in the victim’s father’s car just before the shooting. Even if we were to assume that Mike’s testimony about the cigarette butt is true, there is great doubt as to the value of this piece of evidence because, again, the snow enters the picture.
Weather records show that it was either snowing or had just stopped snowing at the time the murder was committed (at an *113estimated 1:20 a.m. on February 24, 1994). The cigarette butt was not found by investigators when they first went to the crime scene. On the following day, investigators went back to the scene, deciding to do so because of Mike’s statement to them that Simmons said he had smoked a cigarette while outside the Kopack residence on the night of the killing. The State submitted the cigarette butt to DNA testing. DNA tests revealed that eleven percent of the population possessed the kind of epithelial cells that were retrieved from the cigarette butt. For what it is worth, both Simmons and Mike fall within that eleven percent.
If the story Mike related to the deputies were true, Simmons would have to have smoked the cigarette sometime prior to 1:20 a.m. and dropped it on the ground into either the still-falling or recently-fallen snow. The forensic serologist who conducted tests on the cigarette butt testified that traces of saliva would have been removed by contact with moisture or precipitation. According to expert testimony, it is highly probable that any cigarette butt dropped into the snow on the night in question would be so saturated with water on the day following the murder that all traces of saliva and of the epithelial cells from which the DNA was extracted would be gone. This suggests that the cigarette butt in question was dropped or placed at some other, drier time than at the time of the murder. It is entirely possible, if not probable, that the DNA in this case had no connection with Simmons, but, rather, was the DNA of some person who dropped the cigarette after the snow had melted and under circumstances in which the residual saliva on the butt would not have been flushed away. The DNA evidence in this case does not reliably place Simmons at the scene of the crime at the time of the murder.
The only other piece of physical evidence in this case connecting Simmons to the murder scene is a 20-gauge shotgun seized at the Simmons trailer home. The shotgun contained an expended Federal shell in the chamber. This evidence, however, is also problematic. The shell wad recovered from Jason’s body came from a factory-loaded 20-gauge shell. The primer in the gun’s expended shell, however, was that of a reloaded shell. In fact, every single shell found at Simmons’ house was a reloaded shell. Not a single factory-loaded shell was discovered anywhere. The State tried to put together a way in which a non-factory primer might be found in a factory loaded shell; however, an expert witness testified that he did not believe that a primer could have come out of a factory loaded shell and be replaced with a non-factory primer. It is not likely that Jason was killed with a Federal shell which contained a factory wad (which is not distributed to the public for reloading) and a non-factory primer. Thus, it *114appears highly probable that the shell in the gun seized at Simmons’ house was not the one that killed Jason. Because a shotgun does not leave distinctive markings in the way that other kinds of guns do, ballistics tests on a shotgun would be of no use. What we are left with, then, is the fact that Jason was killed with a 20-gauge shotgun shell and that a 20-gauge shotgun was seized at Simmons’ house; but the shell that was in the gun was almost certainly not the shell that expelled the projectiles that killed Jason.2
Another fact which casts doubt on the State’s theory of this case is the claim that the shotgun had been stored in Simmons’ parents’ bedroom closet. If this were the case, Simmons would have to have crept into his parents’ bedroom after midnight without waking his parents, removed the shotgun and then replaced it when he returned after the shooting. Although it would not be impossible for a teenager to creep, undetected, into his parents’ bedroom and remove something from the closet, it seems unlikely in this case. Simmons’ mother, Annalea, testified that she suffers from fibromyalgia, a condition which causes her to experience chronic muscular pain. She testified that on the night of the murder she had a particularly restless night, was frequently in and out of bed and had great difficulty sleeping. It seems unlikely, given her fitful condition that night, that Simmons could have retrieved the shotgun from his mother’s closet and then returned it without disturbing her or alerting her to his presence.
On the night of the murder, Simmons’ mother, Annalea Simmons, was not the only one who was up during the night in the Simmons household. Simmons’ younger sister, Cheryl, testified that she got up at least twice (once at 12:30 a.m. and once at 1:30 a.m.), and both times she saw her brother, Brian Simmons, in the living room. If Cheryl’s story could be accepted, then there is no way that Simmons could have left his home in Stagecoach (which is fifteen miles away) after 12:30 a.m., gone to the Kopacks’ trailer home in Dayton, committed the murder at approximately 1:20 a.m. and been back at his home by 1:30 a.m.
Another weakness in the prosecution’s case comes from the testimony of Sonja Sacks, who is a cook at the Dayton schools. She testified that she was the first person to arrive on the morning of February 24 at the school, where Simmons is claimed to have *115told Mike that he parked his mother’s car while he committed the murder. Ms. Sacks saw no tire tracks in the snow at the place where Mike said Simmons told him that he had parked his mother’s car on the night of the murder. Again, if Mike’s testimony were true, because of the timing of the murder in relation to the snowfall that night, tire tracks should have been observable in the freshly fallen snow at the school. Tire tracks would have been left and thus observable if Simmons had in fact parked the car at the school and then returned from committing the murder by driving the car home in the manner that Mike testified. We have, then, another “snow problem” to add to the prosecution’s case.
The prosecution also places some reliance on a drawing which was found in Simmons’ school locker. A student told law enforcement officials that Simmons had drawn him a map of a residence that he said he planned to burn down. Five or six days after the student made his statement to the police, Simmons’ school locker was secured with a padlock by the Lyon County Sheriff’s Office. Later, however, the locker was found to be unsecured, and it is conceded that a number of people knew the combination to the lock on the locker. When a search was finally conducted, some three weeks after the murder, police recovered a crude drawing of a rectangular object which they claimed to be a floor plan of the Kopacks’ trailer home. It is entirely possible that the drawing is that of a trailer home floor-plan, but there is nothing from which it can be concluded that this was a drawing of the Kopacks’ trailer home. Additionally, other than the fact that it was found in Simmons’ locker, there is nothing to connect it to him. The paper does not match that of any of Simmons’ notebooks, nor is there any writing on it. The locker was unsecured for five or six days, and anyone could have placed the drawing inside. Even if it had been established that Simmons had drawn a map of some trailer home floor plan, the only claimed purpose for Simmons’ drawing of that plan was to facilitate arson, not murder.
Turning again to the circumstances surrounding the night of the murder, it is troublesome that no gunshot or other unusual sounds were heard by anyone in the vicinity of the trailer home on the night of the murder. Kenneth Bradley, a neighbor of the Kopacks, testified that he heard nothing and that his dogs did not bark during the night. Since Bradley’s trailer home is situated a mere thirty feet from the Kopacks’ trailer home, it seems likely that had a shotgun been discharged at the Kopacks’ trailer home, Bradley would have heard it. A videotape made during the initial investigation of the scene contained the sound of Bradley’s dogs barking. The only question that the jury asked the court while deliberating was whether anyone had heard the dogs barking on *116the night of the murder. No one had. Obviously it appeared to the jury (and it appears to me) that a noise as loud as a shotgun blast would have been noticed by either human or canine. The fact that no one heard the blast is one of many questions that plague the State’s case and its theory that Simmons shot Jason Kopack in the living room of Kopack’s trailer home on that snowy night.
The only person who testified that he heard anything unusual on the night of the murder was the victim’s father, David. David testified that at 1:23 a.m. he heard a noise, which he assumed was a cat jumping on the roof of a shed next to his bedroom window, or perhaps something blowing against the shed. In any event, he got up, walked out into the living room and saw nothing amiss. The Kopacks’ trailer home was small, only ten feet by fifty feet. The father’s bedroom was down a short hall from the living room, and his bedroom had no door, only a curtain hanging over the opening. It seems that a shotgun blast would necessarily be heard by everyone occupying such a small space. It adds to the consternation to read in the record that David testified that he did not smell any gunpowder when he walked out into the living room. David was a gunner in Vietnam and testified that he was familiar with the smell of gunpowder. It seems very strange that immediately following the discharge of a shotgun in a space as small as the trailer home’s living room no one heard the discharge and there was no smell of gunpowder in the confined space of that small trailer home.
As I have pointed out before, the State’s case rested primarily on the testimony of the teenager, Mike, who is a far-from-credible witness. Although credibility of witnesses is a determination for the finder of fact, several facts about Mike are worth mention. Mike has been hospitalized for various psychological problems, including drug and alcohol addiction and for having expressed a desire to kill his parents. At the preliminary hearing, Mike testified that he had last used narcotics three weeks prior to the hearing. At trial, he testified that he had used narcotics since the preliminary hearing, some three weeks prior to the trial. Mike also admitted smoking marijuana approximately one week prior to Jason Kopack’s death.
At the time of the murder, Mike was on probation with the juvenile authorities because of his drug violations. As a term of his probation, Mike had been required to provide urine samples for testing. Once he became an informant for the State, no one checked him for drug use during the pendency of the case against Simmons. Also, Mike was never brought into court to answer for his admitted drug offenses.
The defense proposes that Mike was the actual murderer and that Mike had a motive to try to frame Simmons. Mike, the *117defense proposes, had every reason to try to give the State what it wanted in terms of evidence against Simmons. Mike was frequently in trouble with the authorities, and his friendly cooperation with police authorities in this case arguably gave him an opportunity to get back in the good graces of the police, despite the fact that he admitted to continuous and ongoing drug use.
Finally, with regard to the student who discovered the trailer home sketch, this boy had no apparent motive for fabricating testimony, but it is worth noting that he was Mike’s brother’s best friend. The student testified further, on behalf of the State’s case, that Simmons had talked a lot about murder, mayhem and satanism.3 But he also testified that he believed that Simmons was all talk, and that his bizarre rantings were a defense to cover up his adolescent insecurities. The student’s testimony, by itself, adds little or no convincing evidence of Simmons’ guilt in this case.
I understand that it is not the appellate function to interfere with fact-findings made by a jury; however, I approach the evidence in this case as a whole, and everywhere I turn I find inconsistencies and facts that simply are not in harmony with a finding of guilt. I have recounted a wide array of inconsistencies in the State’s proof in this case because I believed that I was obligated to make a thorough survey of the record in order to support the uncommon conclusion that this conviction must, as a matter of law, be set aside. My attention, however, is focused on what I have called the “snow problem.” It appears to me that when Mike put together his incriminatory account of Simmons’ confession, he forgot that the ground was covered with snow on the evening in question and that Simmons’ travels, by vehicle and by foot, would be recorded and traceable as long as snow was lying on the ground.
The snow evidence shows that the supposed murder vehicle was not driven by Simmons or anyone else on the night of the murder. The snow evidence shows that no vehicle was driven in the area of the school where Mike claims that Simmons admitted he had parked his mother’s car on the night in question. The snow evidence shows that only one person walked in the vicinity of the murder scene and that that one person entered but did not leave the trailer home. This snow evidence tells me that Mike was not *118telling the truth. Without Mike’s truthful testimony there can be no conviction in this case.
“The standard of review for sufficiency of the evidence upon appeal is whether, the jury, acting reasonably, could have been convinced of the defendant’s guilt beyond a reasonable doubt.” Kazalyn v. State, 108 Nev. 67, 71, 825 P.2d 578, 581 (1992). In the present case, evidence does not support a finding of guilt beyond a reasonable doubt. It appears that Simmons was convicted on the basis of a theory which was cobbled together by the prosecution out of unreliable and contradictory evidence. No rational trier of fact could have found, beyond a reasonable doubt, based on the evidence in this case, that Simmons was guilty of killing Jason Kopack.
A reading of the record makes it plain that the focus of the prosecution was Mike’s detailed account of how Simmons told him that he committed the murder. Mike’s testimony together with the prejudicial evidence that Simmons was some kind of budding “Satanist” is what convicted Simmons. The majority tells us that “the conviction could be sustained on the testimony of Dan alone.” This is not the case. Dan claims to have come forward only when he read in the paper that his friend Mike’s story was being questioned. In his statement to police, Dan claimed that he was sitting near Mike when he *111overheard Simmons saying that “he did it.” Dan was seriously impeached on the witness stand, and this little morsel is hardly of the evidential value that it could have, of itself, sustained the conviction. It was Mike’s very damaging and detailed testimony of Simmons’ supposed confession that sustained the conviction. Mike’s testimony is false, inconsistent and at variance with the physical facts. This is what prompted me to write a dissent in this case.
Mike’s testimony told of the Simmons family owning a 20-gauge shotgun with Federal shells. What Mike did not know was that the shells were reloads and not of the type that caused Kopack’s death. The defense suggested that this is evidence that Mike was trying to use this testimony to “frame” Simmons.
The majority mentions Simmons’ journals, in which he had copied Satanic invocations and written of murder and mayhem. The journals also contained a list of “People to Kill.” Simmons explained that this list related to a game of Dungeons & Dragons which he had been playing with Jason, Mike and others. For the most part, the journals simply reiterated Simmons’ ramblings about satanism.