agrees, dissenting:
I would affirm the judgments of conviction entered below against appellants on all counts.
I. Severance of charges
The majority holds that the district court abused its discretion by failing to sever the “Casey” counts against Tabish from those filed against appellants in connection with the murder of Lonnie Theodore Binion. I disagree.
A district court’s decision to join charges is governed by NRS 173.115.1 “ ‘The decision to sever is left to the discretion of the trial court, and an appellant has the “heavy burden” of showing that the court abused its discretion.’ ’ ’2 Errors arising from mis-joinder are subject to a harmless error analysis and we will reverse “only if the error has a ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ”3
A. Factual predicate supporting joinder
The district court in my view properly refused to sever the “Casey” charges from the “Silver” and “Binion” charges because the factual underpinnings of both supported the State’s theory that appellants engaged in a common scheme or plan to kill Theodore Binion for monetary gain. Substantial evidence in the record in aid of all three sets of charges suggests that these appellants harbored individual and joint motivations for the fatal attack on Binion.
Proofs generated in support of the Casey charges against Tabish revealed the circumstances surrounding Tabish’s takeover of the Jean Sand Pit, a marginally funded financial endeavor with the potential for profits in the millions of dollars. The attempts at acquiring and operating the pit described by trial witnesses demonstrated Tabish’s dire financial circumstances and his need for *317substantial sums of money that he did not have available for an investment of that magnitude. A fair reading of the evidence supports the State’s theory that his goal was to acquire Binion’s stockpile of silver bars, worth approximately $8 million, and that Murphy, whose relationship with Theodore Binion had deteriorated and was possibly ending, harbored images of marriage to Tabish. Trial evidence also strongly suggests that she joined with him in the enterprise to murder Binion to preserve and secure testamentary gifts of the Binion residence and $300,000 in cash assets, as well as substantial proceeds from a life insurance policy on the life of Theodore Binion. The jury was thus entitled to conclude that Tabish needed financing for the sand pit enterprise, that Murphy wanted to preserve her financial well-being via Binion’s last will and testament because her relationship with Binion was about to end, that both Tabish and Murphy sought to come out of the scheme as a couple, and that none of this could be successfully accomplished with Binion alive. Certainly, the State was permitted the inference that Tabish’s illicit relationship with Murphy facilitated her complicity in this murder.
The State’s evidence also creates a fair inference that, for all of Murphy’s developed ill will towards Binion, she never would have been able to murder him on her own without Tabish’s direct assistance. Therefore, although the joined charges involved separate victims and separate alleged violations of the State criminal code, the evidence generated in support of all three sets of charges suggests a consolidated plan to secure substantial portions of Binion’s personal wealth.
I recognize that other trial evidence supported the defense theory that other avenues were available to Tabish, short of murder, to exploit his commercial interests in the sand pit. For example, at least one witness indicated that Tabish’s trucking business and the Jean Sand Pit were viable although financially strapped. This was certainly a permissible inference from the evidence that undermined a portion of the State’s overall case based upon the “Casey” counts. However, the totality of the evidence introduced at trial entitled the jury to reject the defense evidence and conclude that the pit was part of the scenario that motivated appellants to commit murder.
To me, joinder of the Casey and Binion charges provided an explanation as to why Tabish chose to kill Binion, instead of merely running off with Murphy. Had such an elopement occurred, Tabish would have been forced to forego his attempt to appropriate Binion’s silver; and Murphy would have forfeited the lifestyle she enjoyed with Theodore Binion, as well as a substantial portion of the bequests in his last will and testament.
*318B. Cross-admissibility
Joinder of criminal counts is permissible in situations where the evidence in one count is cross-admissible between counts.4 In light of the above, I am of the view that the Casey evidence was admissible as evidence of motive under NRS 48.045(2),5 against both appellants with regard to the remaining counts.
As noted by the majority, admissibility under NRS 48.045(2) of other “bad acts” as non-character evidence, i.e., to demonstrate motive, must be analyzed under our decision in Tinch v. State.6 In Tinch, prior bad act evidence of motive must be tested under a three-pronged determination that “(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.”7 Although determining that the Casey evidence was at least marginally relevant and was proved by clear and convincing evidence, the majority concludes that the probative value of the evidence on the issue of motive was limited and thus substantially outweighed by the danger of unfair prejudice.
In my view, ample evidence was generated at trial demonstrating the intertwined motives of these appellants, centering around their desires to join as a couple and effect their joint financial security via Binion’s wealth and the economic potential of the sand pit operation. Thus, I have concluded that the probative value of the Casey evidence was substantial and not outweighed in any respect by a potential for unfair prejudice.
C. Prejudicial joinder
As indicated, both appellants argue that the refusal to sever the Casey and Binion counts mandates reversal. Murphy argues additionally that the case against her should have been tried separately.
In certain situations, joinder of charges or defendants, although proper, may result in prejudice to the defendants.8 However, as also *319noted, joinder of offenses in a single indictment or information is allowed under NRS 173.115, where the charges are based upon connected acts or transactions or acts or transactions constituting parts of a common scheme or plan. “To require severance [of separate counts], the defendant must demonstrate that a joint trial would be ‘manifestly prejudicial.’ ”9 Also, the district court may generally reduce the risk of prejudice to joined defendants through a limiting instruction.10 Consequently, “the ultimate issue [concerning joined defendants] is ‘whether the jury can reasonably be expected to compartmentalize the evidence as it relates to [the] separate defendants.’ ”11 Therefore, the district court is not required to grant severance of charges or defendants based solely on a defense theory of “guilt by association.”12
The majority concludes that the refusal to sever the Casey and Binion counts requires reversal in light of the State’s closing arguments intertwining the Casey and Binion evidence, the lack of probative value of the Casey evidence on the question of motive, and the graphic nature of the Casey evidence. I disagree.
First, as noted above, I am of the view that the Casey evidence was admissible on the issue of motive as to both defendants and that, accordingly, joinder of the Casey counts as to Tabish had no prejudicial effect on either appellant.
Second, as to Murphy, the district court repeatedly instructed the jury that it could not in any way consider the evidence in support of the Casey counts in determining Murphy’s guilt in connection with the Binion-related counts. Here, the majority adopts Murphy’s argument that the State’s intertwining of the evidence supporting both sets of charges “ guarantee[d]” that the jury would violate the admonition. In my view, because the State should have been free to intertwine the two sets of counts in terms of arguing motive and common scheme, the cautionary instruction was actually overly broad in its attempts to protect Murphy. To me, the admonitions should have been narrower in scope, advising the jury that the Casey evidence was relevant only to the issues of common scheme and motive. Thus, Murphy obtained a particular benefit to which *320she was not entitled, a cautionary instruction that excluded any consideration of the Casey evidence against her.
In any event, I believe that the Casey evidence was admissible against both appellants with regard to the Binion and Silver charges. Thus, I am of the view that the district court committed no error with regard to its cautionary instruction in connection to Murphy and that the State properly attempted to intertwine the three sets of criminal charges as to both appellants.
D.. Judicial economy
When determining whether a district court abused its discretion in deciding issues of joinder, this court “ ‘must consider not only the possible prejudice to the defendant but also the possible prejudice to the Government resulting from two time-consuming, expensive and duplicitous trials.’ ”13 The majority concludes that the other Casey defendants were granted separate trials, and thus, the district court should have granted appellants’ motions for the same relief. Several factors contained in the record undermine this conclusion.
First, none of the defendants in these other actions were romantically involved with Murphy. Second, none of the other Casey defendants had a motive to kill Binion. Third, none of these other defendants stood to gain anything from Binion’s death. Lastly, there is no evidence that the other Casey defendants conspired with Tabish and Murphy to murder Binion.14
II. Criminal agency
I agree with the majority that the State provided sufficient proof at trial of criminal agency as the cause of Binion’s death. I take this opportunity to expand upon the majority analysis.
As noted by the majority, to establish corpus delicti, “ ‘two elements must be established (1) the fact of death; and (2) the criminal agency of another responsible for that death.’ ”15 Corpus delicti may be established by “purely direct evidence, partly direct and partly circumstantial evidence, or entirely circumstantial evidence.”16 At the time of trial, “the presence or existence of the corpus delicti is a question for the jury.”17
*321In Sheriff v. Middleton, we held:
Although medical evidence as to the cause of death is often critical in establishing that a death occurred by criminal agency, there is no requirement that there be evidence of a specific cause of death. The state is required only to show a hypothesis that death occurred by criminal agency; it is not required to show a hypothesis of a specific cause of death.18
Based on our prior holding in Middleton, it was not necessary that the State prove the exact cause of Binion’s death. The State was only required to prove that the victim’s death was directly caused by criminal agency. Although there was conflicting evidence on this issue at trial, competent expert testimony was admitted that supports the jury’s implied finding through the guilty verdicts that Binion’s death was occasioned by a criminal agency.
The State presented testimony from Chief Medical Examiner for Clark County, Dr. Lary Simms, and forensic pathologist Dr. Michael Baden, who has conducted over 20,000 autopsies. Both Doctors Simms and Baden concluded that Binion’s death was caused by criminal agency. Dr. Baden concluded that Binion’s death was the result of “burking.”19 Dr. Simms concluded that Binion’s death was the result of an overdose of drugs. Appellants introduced their own medical experts to contradict the testimony of Doctors Baden and Simms.
‘ ‘Where conflicting testimony is presented, the jury determines what weight and credibility to give it,”20 and “[t]he jury is the sole and exclusive judge of the credibility of the witnesses and the weight to be given their testimonies.”21 Appellants did not object to the admissibility of Doctors Baden’s and Simms’s testimony, but instead chose the trial tactic of attempting to undermine their credibility before the jury. Thus, the issue at trial was not whether the State provided proof of criminal agency; rather, the issue framed by the parties, including these appellants, was which body of expert evidence was worthy of belief by the jury.
Appellants rely heavily on Azbill v. State22 in support of their argument that the State presented insufficient proof of corpus delecti. In Azbill, the State proffered a theory of criminal.agency that the *322defendant, Azbill, disabled the decedent, his wife, by starvation and administration of a mixture of drugs and alcohol, and then killed her by setting fire to her bed. Although an eyewitness saw Azbill start the fire that engulfed his wife, the State introduced evidence from two qualified pathologists, both of whom concluded that the decedent died prior to the fire, most likely from the synergistic effects of alcohol and barbiturates. Neither could affirmatively opine that a criminal agency caused Mrs. Azbill’s demise.23 The Azbill court noted that Azbill’s attempt to burn the body may have been circumstantial evidence of criminal agency; but that the introduction of expert testimony to the contrary by the State factually “closed the door” on the theory of death by fire. Further, in Azbill, the State also eliminated the hypothesis that Azbill simply provided a lethal dose of alcohol and drugs to his wife by indicating at oral argument before this court that it did not rely on such a theory of criminal agency. Thus, the only evidence of criminal agency relied upon by the State in Azbill was renounced by its own witnesses; and no other theory was offered for consideration by this court.24
Here, as indicated, the State introduced competent expert testimony that Theodore Binion died as a result of a criminal agency. Thus, Azbill provides no sustenance to appellants’ claims in these proceedings.25
III. Hearsay statement
At trial, the district court allowed the State to elicit a hearsay statement allegedly made by Binion to 'his estate attorney, James Brown, Esq., during a phone conversation the day before his death: ‘ ‘Take Sandy [Murphy] out of the will if she doesn’t kill me tonight. If I’m dead, you’ll know what happened.” The statement was admitted by the district court under NRS 51.105(1):
A statement of the declarant’s then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain and bodily health, is not inadmissible under the hearsay rule.
In Shults v. State,26 we concluded that evidence should only be admitted under this state of mind exception if relevant, after a weighing of probative value versus prejudice, and with an instruction outlining its limited probative value.
*323Appellants placed Binion’s state of mind in issue when they contended at trial that he may have been suicidal or accidentally killed himself through a drug overdose. The Binion hearsay statement thus took on considerable importance and was highly probative to refute the alternative theories concerning cause of death proffered by the defense. There was no question that the evidence was admissible, but only for non-hearsay purposes — to prove state of mind — a lack of suicidal ideation; not as proof of an “accusation from the grave.” Thus, admission under the state of mind exception does not provide a general license to argue the truth of the content of the statement; again, it is simply admissible for non-hearsay purposes.27 Accordingly, although agreeing that Binion’s hearsay statement was admissible under NRS 51.105(1), the majority concludes that the district court abused its discretion by failing to give the jury a limiting instruction concerning the statement to his attorney, and that failure to give the instruction requires reversal. I disagree.
A. Preservation of error for appeal
At the outset, I would observe that the record is somewhat muddled as to whether the defense perfected and preserved its objections concerning admission of the statement, its use by the State in closing argument, and the failure of the district court to give the limiting instruction under Shults. Thus, a brief statement of the procedural history of the litigation of this issue is in order.
Appellants first submitted written briefs on the admissibility of Brown’s statement, in which they essentially conceded admissibility under the “state of mind” exception, but requested a limiting instruction concerning its probative value. The parties also orally argued the issue in limine on two occasions, once during jury selection and again before opening statements.
At the first oral argument, defense counsel again agreed that the statement was perhaps admissible under the so-called “state of mind” exception to the hearsay rule, and again argued that the district court give a limiting instruction admonishing the jury that it could not consider the statement for the truth of its contents. The State, erroneously in my view, argued that the probative value of Brown’s statement was not so limited and that the jury should be allowed to consider the statement for the proof of the matters asserted in the statement. Rather than give a final determination on the question of admissibility and the prospect of giving the limiting instruction, the court deferred ruling pending further study.
At the second oral argument on the issue, heard before opening statements, the defense argued that the State be prevented from *324mentioning the Brown hearsay statement because it was too early to determine whether the defense case would require its admission. The State reiterated its erroneous position that the statement was admissible for the truth of its content, and the defense reiterated the correct position that the probative value of the evidence was limited and that the court should admonish the jury accordingly. Interestingly, in making a partial ruling at the second hearing, the district court referred to the Shults decision, performed a weighing analysis in determining admissibility under NRS 51.105, allowed the State to mention Brown’s testimony in its opening statement, but did not further mention or make any orders concerning the issue of whether a limiting instruction should be given at any point. Further, in a subsequent written order, apparently memorializing its ruling on the issue at the second hearing in open court, the district court simply observed, “The State will be allowed to use the Jim Brown statements which are an exception to the hearsay rule, and found to be admissible evidence.” No comment regarding a limiting instruction is contained within this written order, prepared by the State for the district court’s signature.
At trial, Mr. Brown testified without further objection from the defense and without further request for a limiting instruction. There is likewise nothing in this record reflecting an attempt by the defense during final settlement of jury instructions to obtain a limiting instruction concerning the probative value of the statement.28 Finally, in this regard, counsel for the State during its summation to the jury, in a rhetorical flourish, referred to the statement and argued the truth of the contents of the hearsay statement, first by quoting it: “If I’m dead, you’ll know what happened,” and then by stating: “Truer words were never spoken. Less than twenty-four hours later Ted Binion was murdered in his house.” Again, the defense interposed no objection or request for a limiting instruction in response to this admittedly improper argument.29
It is true that the State erroneously argued in limine that the statement was admissible for more than a limited purpose and improperly argued a much broader probative value of the statement to *325the jury. It is also true that the defense correctly advised the court of its obligation to instruct on the limited probative value of the statement, to rebut the claims of accidental death or suicide. And it is also true that the district court failed to properly admonish the jury in this regard. However, under our rules governing preservation of issues for appeal, I conclude that appellants have waived any issues concerning Brown’s testimony.
By way of further history, under the procedural doctrine governing trials at the time of the trial of this matter, it was incumbent upon the defense to continue to object to admissibility of the evidence at trial without the required cautionary instruction, and to object to the line of argument proffered by the State in summation. Until our December 2002 decision in Richmond v. State,30 our rule of appellate review was that “a motion in limine, without a contemporaneous objection during trial, is insufficient to preserve an issue for appeal.’ ’31 In Richmond, we relaxed the preservation rule so that now, an explicit and definitive ruling on a motion in limine prevents the need of the movant to take further action to preserve an appellate record.32 This new rule should apply to this appeal.
Applying Richmond, I first note that the district court definitively ruled that the statement was admissible under NRS 51.105, a ruling with which neither the appellants or the majority take basic issue. However, the district court never made a definitive or explicit ruling as to whether a limiting instruction should be given. Referring to the oral ruling at the second hearing concerning admissibility of the statement:
The Court finds that the alleged conversation that Jim Brown had with Ted Binion on September 16th, 1998, does fit under the state of mind exception of NRS 51.105. Additionally, under Shults versus State, 96 Nev. 742, the Court finds the statements to be a relevant [sic] issue, weighted against the prejudice. The victim’s extrajudicial declaration to Mr. Brown that day, of his desire to remove Ms. Murphy from his will, along with his revelation that “if I am dead, you will know what happened,” are admissible under the state of mind exception to the hearsay mle, due to its being relevant to a material issue in the case subject to a motion to strike if something comes up down the road, *326the Court is going to allow that and allow Mr. Roger to indicate that in his opening statement.
This is the last verbal observation of record by the judge in this regard. There is no mention of the issue of the limiting instruction in the court’s oral or written orders, much less a definitive or final ruling on the giving of a limiting instruction. Going further, no contemporaneous objections to the testimony or to the rhetorical use of the evidence in the State’s summation were forthcoming. Thus, even under the new preservation rule of Richmond, appellants’ objections to admission of the statement without a limiting instruction and the expansive use of the hearsay statement in summation have been waived. The question then becomes whether the failure to give the limiting instruction compels reversal under a plain error analysis.33
B. Plain or harmless error
I would not reverse on a plain error analysis because appellants’ failure to object can be defended on tactical grounds. For example, at oral argument before this court, counsel for one of the appellants argued that the statement was actually consistent with a person with suicidal ideations. That is, having been recently advised that his paramour was unfaithful and perhaps was starting a new relationship, the statement that she should be taken out of the will was an indication of severe despondency and that he would not be alive for very long.
Hearsay errors, including a failure to comply with Shults, are subject to a harmless error analysis.34 To me, under any weighing of probative value versus prejudice, the Binion statement was clearly admissible. In my view, notwithstanding the erroneous failure to give a cautionary instruction, and notwithstanding the State’s improper use of it at closing argument, it is clear beyond a reasonable doubt that the outcome of the trial was not affected.
It cannot be disputed that, once admitted, this evidence was dramatic and it negatively affected, i.e., prejudiced, the defense position. As stated, however, the district court could only reject admissibility based upon “unfair” prejudice. Because the defense *327took the position that Binion’s demise may have been occasioned accidentally or by suicide, the evidence was clearly admissible. While I recognize that our case authority required the cautionary instruction to reduce the chance of unfair prejudice, the admonition would not have affected the outcome because an overwhelming body of trial evidence supports these convictions.
First, although the evidence concerning criminal agency was in conflict, the State provided a very plausible theory of suffocation as the cause of death. Second, the State introduced a substantial body of circumstantial evidence in support of appellants’ complicity in Theodore Binion’s death. In general, although appellants never actually “confessed” to murdering Binion, they made numerous statements to witnesses from which guilt could be inferred, which were likewise corroborated by additional witnesses. Also, the financial and personal motives of appellants to conspire together to kill Binion certainly augmented the case against them.
More specifically, witnesses testified to appellants’ suspicious conduct, including Murphy’s discharge of the maid on the day of Binion’s demise, the unusual closure of window draperies at the Binion residence that day, absence of valuables from the premises before police took control of the residence as a crime scene, and marked differences in the almost incessant phone activity between appellants on the day of Binion’s demise.
Also, a substantial body of evidence was introduced confirming Tabish’s severe financial problems, including previously defaulted debts totaling hundreds of thousands of dollars, a $200,000 note to Bank West due for payment on September 18, 1998, and federal tax obligations approximating $1 million, all of which motivated the theft of Binion’s silver bars. Witnesses provided evidence of Tabish’s discussions with third parties concerning plans to kill Binion; particularly, solicitations of witness Kurt Gratzer to come from Montana to Las Vegas to kill a heroin addict who was dating an ecdysiast. Although subject to attacks on his own credibility, Casey testified that Tabish bragged about an illicit relationship with Murphy, that he was using her to get at Binion’s valuable silver collection, and that he was going to accomplish his goals by “pump[ing] him [Binion] full of these drugs.”
As to Murphy, uncontradicted evidence demonstrated her virtual total economic dependence on Binion and her desire to maintain her newly acquired lifestyle despite her deteriorated relationship with him. Murphy was substantially motivated to kill Binion because the relationship was about to end, thus compromising her perceived status as a beneficiary under Binion’s will and life insurance policy. The rendezvous between Murphy and Tabish in Beverly Hills, California, shortly before Binion’s death confirms her hopes to join Tabish in a new relationship, the economic via*328bility of which was dependent upon Tabish obtaining Binion’s collection of silver and Murphy’s inheritance of a substantial portion of his estate.
The State also bolstered its case as follows. First, witnesses testified to Murphy’s questionable statements to third parties prior to Binion’s death that Binion would be dead in a few weeks from an overdose and she would be left with nothing. Second, a videotape of Murphy at the Binion residence showed her secreting a wine glass in her purse at a time when investigators were concerned as to whether a mixture of prescription drugs and heroin poisoned Binion. Third, Tabish gave a preposterous story to law enforcement about his presence at the Pahrump Valley vault and made inconsistent statements to Nye County law enforcement at the scene of the vault about the presence of the silver bars in his truck. Finally, Tabish’s instructions to witnesses after his incarceration concerning prospective testimony, along with the promise of financial rewards, abundantly demonstrated his consciousness of guilt.
Thus, given proof of criminal agency, the State produced substantial rebuttal to the defense claims that Binion committed suicide. As pointed out by the State, it seems a wholly unlikely coincidence that Binion killed himself as he was ending the relationship; on the last day that appellants could gain access to his wealth; at a time when he was making plans to restore his gaming license, invest in real property and become involved in a statewide political race via a substantial monetary contribution to a major gubernatorial candidate; and, most tellingly, on the very last day before Tabish’s $200,000 debt to Bank West was due.
CONCLUSION
First, the State elicited competent evidence establishing criminal agency. Second, severance was not required because the evidence in support of the Casey counts against Tabish was admissible on the issue of common scheme and motive against both appellants in connection with the Binion charges. Third, because of a substantial body of evidence in support of the guilt of both appellants, the failure to give a limiting instruction with regard to Binion’s hearsay statement did not affect the outcome of the trial.
I again recognize that the parties below provided the jury with conflicting evidence bearing on the guilt or innocence of these appellants. However, the trial record supports the State’s theory that a helpless benefactor was the victim of a pitiless attack by a pair of mercenary opportunists. It is also apparent that the financial am*329bitions of these appellants far exceeded their capabilities, thus providing a motive for taking what they could not obtain through their own individual or joint resources.
In light of the above, I would affirm the judgments of conviction.35
NRS 173.115 provides:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Honeycutt v. State, 118 Nev. 660, 667, 56 P.3d 362, 367 (2002) (quoting Middleton v. State, 114 Nev. 1089, 1108, 968 P.2d 296, 309 (1998)).
Robins v. State, 106 Nev. 611, 619, 798 P.2d 558, 564 (1990) (quoting Mitchell v. State, 105 Nev. 735, 739, 782 P.2d 1340, 1343 (1989) (quoting United States v. Lane, 474 U.S. 438, 450 (1986))).
See Mitchell, 105 Nev. at 738, 782 P.2d at 1342.
NRS 48.045(2) states in part:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997).
Id.
NRS 174.165 states in part:
1. If it appears that a defendant or the State of Nevada is prejudiced by a joinder of offenses or of defendants in an indictment or information, *319or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
Honeycutt, 118 Nev. at 667-68, 56 P.3d at 367 (quoting United States v. Bronco, 597 F.2d 1300, 1302 (9th Cir. 1979)).
Lisle v. State, 113 Nev. 679, 689, 941 P.2d 459, 466 (1997) (“Any possible prejudice may be cured by providing an adequate jury instruction to prevent the jury from associating evidence admissible for one defendant with the other defendant.”), overruled on other grounds by Middleton, 114 Nev. 1089, 968 P.2d 296.
Id. (quoting Jones v. State, 111 Nev. 848, 854, 899 P.2d 544, 547 (1995)).
Id.
Lisle, 113 Nev. at 688-89, 941 P.2d at 466 (quoting United States v. Andreadis, 238 F. Supp. 800, 802 (E.D.N.Y. 1965)).
In line with my conclusions that no error occurred from the district court’s refusal to sever the Casey and Binion-related charges, I agree with the majority that appellants should be tried together on remand and that the Casey counts against Tabish be affirmed.
Frutiger v. State, 111 Nev. 1385, 1389, 907 P.2d 158, 160 (1995) (quoting Azbill v. State, 84 Nev. 345, 350-51, 440 P.2d 1014, 1017 (1968)).
Sheriff v. Middleton, 112 Nev. 956, 962, 921 P.2d 282, 286 (1996).
Azbill, 84 Nev. at 352, 440 P.2d at 1018.
112 Nev. at 962, 921 P.2d at 286.
The term “burking” was named after William Burke, who along with an accomplice in 1815, killed a number of people and sold their bodies to medical schools in Edinburgh, Scotland. Burke and his accomplice would follow and kill intoxicated individuals by one of them holding a hand over the victim’s nose and mouth, while the other would sit on the victim’s chest until he or she died of asphyxia.
Braunstein v. State, 118 Nev. 68, 79, 40 P.3d 413, 421 (2002).
Dorsey v. State, 96 Nev. 951, 954, 620 P.2d 1261, 1263 (1980).
84 Nev. 345, 440 P.2d 1014.
Id. at 353, 440 P.2d at 1019.
Id.
I agree with the majority that the district court correctly instructed the jury that it need not reach unanimity on the mode of criminal agency in order to convict appellants on the charges lodged in connection with the murder of Binion.
96 Nev. 742, 751, 616 P.2d 388, 394 (1980).
See Fed. R. Evid. 803(3) advisory committee’s notes.
Trial transcripts confirm that a packet of proposed jury instructions submitted by appellants marked “A” through “Y” were made part of the record below. However, this packet was not included as part of the record in this appeal. Further, no argument concerning a proposed Shults instruction is reflected in the transcript of the proceedings during which jury instructions were settled. Finally, no argument was made in the course of this appeal that the packet of instructions marked “A” through “Y” contained any reference to a limiting instruction concerning the hearsay statement.
Murphy’s counsel conceded at the oral argument on this appeal that Binion’s hearsay statement was at least theoretically admissible to demonstrate his state of mind, i.e., that he was not suicidal. He correctly stressed, however, that the State improperly argued the statement for the truth of its content.
118 Nev. 924, 59 P.3d 1249 (2002).
Id. at 929, 59 P.3d at 1253 (citing Daly v. State, 99 Nev. 564, 568, 665 P.2d 798, 801 (1983) (failure to object to admission of evidence at trial previously excluded by the grant of a motion in limine removes error from appellate review); Rice v. State, 113 Nev. 1300, 949 P.2d 262 (1997) (same); Staude v. State, 112 Nev. 1, 908 P.2d 1373 (1996) (after denial of pretrial motion in limine, appellant must object at trial to preserve issue for appeal)).
Id. at 932, 59 P.3d at 1254.
See NRS 178.602.
See Rowland v. State, 118 Nev. 31, 43, 39 P.3d 114, 122 (2002) (citing Franco v. State, 109 Nev. 1229, 1237, 866 P.2d 247, 252 (1993) (noting that errors concerning hearsay are subject to a harmless error analysis)); see also Schoels v. State, 115 Nev. 33, 35, 975 P.2d 1275, 1276 (1999) (noting that an error is harmless if in absence of the error the outcome would have been the same).
Notwithstanding my conclusion that the assignment of error concerning this issue was waived, I have determined to reach the merits of the claim because of the efforts made by the defense concerning this issue and because of the ambiguous nature of the record of the trial judge’s ruling under NRS 51.105.
I take this opportunity to separately comment upon appellants’ claim that jury misconduct requires reversal for a new trial. To me, the claims that the jury applied an improper standard for guilt, i.e., depraved indifference, and a theory of guilt by omission, i.e., that the defendants did nothing to aid Theodore Binion as he lay dying, improperly require us to delve into the thought processes of the jurors in violation of NRS 50.065(2). As to the claims of juror misconduct in connection with the use of a palm pilot computer, this improper action did not, in my view, affect the jury’s verdict.
Although I have not provided an analysis of the remaining claims of error, given the overwhelming evidence of guilt of these appellants, I have concluded that the remaining claims do not compel reversal.