McDonald (Paul) v. State ( 2014 )

 rendered its decision on the other counts. McDonald was acquitted of
counts 1-3 and was convicted of count 4.
First, McDonald contends that insufficient evidence supports
his conviction. We disagree because, when viewed in the light most
favorable to the State, the evidence was sufficient 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); Mitchell v. State, 124 Nev. 807, 816,
192 P.3d 721, 727 (2008); see also Deueroux v. State, 96 Nev. 388, 391, 610
P.2d 722, 724 (1980) ("[C]ircumstantial evidence alone may sustain a
conviction."). Accordingly, we conclude that this claim lacks merit.
Second, McDonald contends that the district court abused its
discretion by denying his motion to dismiss count 4 because the charging
document did not provide adequate notice of the date he was alleged to
have committed the crime. We review a district court's decision regarding
a motion to dismiss for an abuse of discretion. See Hill v. State, 124 Nev.
546, 550, 188 P.3d 51, 54 (2008). "The indictment or the information must
be a plain, concise and definite written statement of the essential facts
constituting the offense charged." NRS 173.075(1). "Unless time is an
essential element of the offense charged, there is no absolute requirement
that the state allege the exact date, and the state may instead give the
approximate date on which it believes the crime occurred." Cunningham
v. State, 100 Nev. 396, 400, 683 P.2d 500, 502 (1984). Here, the charging
document alleged that McDonald possessed a firearm between June 3 (the
date Gomez was shot) and August 1 (the date he was apprehended).
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McDonald concedes that he understood these dates "as potential dates for
asserting that [he] violated NRS 202.360." We conclude that the charging
document provided sufficient notice to enable McDonald to defend against
the charges and that the district court did not abuse its discretion by
denying his motion to dismiss. See Simpson v. Eighth Judicial Dist.
Court, 88 Nev. 654, 660, 503 P.2d 1225, 1229-30 (1972).
Third, McDonald contends that the State violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to obtain the results of a DNA
test conducted on the firearm discovered in the vehicle. Relatedly,
McDonald contends that the district court erred by forcing him to choose
between the DNA test results and his right to a speedy trial. We conclude
that no relief is warranted because McDonald fails to (a) demonstrate that
the State withheld favorable evidence in its possession, see Mazzan v.
Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000), (b) explain how he was
inappropriately forced to choose between his rights, or (c) establish that he
was prejudiced by the district court's actions.
Fourth, McDonald contends that the prosecutor committed
misconduct by arguing that the jury could consider the evidence presented
during the first phase of trial when determining whether he was guilty of
count 4. When considering allegations of prosecutorial misconduct, we
first determine whether the prosecutor's conduct was improper and then
consider whether the improper conduct warrants reversal. Valdez v.
State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). We conclude that
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this claim lacks merit. The State followed the procedure approved of in
Morales and its argument did not constitute misconduct.
Fifth, McDonald contends that the prosecutor committed
misconduct by arguing that he was guilty of possessing a firearm even if
he took it from Gomez in self-defense. Because McDonald did not object,
we review for plain error. Id. at 1190, 196 P.3d at 477. Even assuming
that self-defense is a defense to felon in possession of a firearm, McDonald
fails to demonstrate plain error because the prosecutor simply argued that
he was guilty of possessing a firearm on August 1 even if he acted in self-
defense on June 3.
Sixth, McDonald contends that the district court erred by
admitting his statements that he would speak with detectives so long as
the conversation was not recorded because they were more prejudicial
than probative and unfairly commented on his right to remain silent. We
review a district court's decision to admit evidence for an abuse of
discretion. Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008).
We disagree with McDonald's assertion that admission of these
statements, and the prosecutor's argument regarding these statements,
was a comment on his right to remain silent. See Deutscher v. State, 95
Nev. 669, 682, 601 P.2d 407, 416 (1979) ("The established test is whether
the language was manifestly intended or was of such character that the
jury would naturally and necessarily take it to be a comment on the
failure of the accused to respond." (internal alteration and quotation
marks omitted)). We also disagree that these statements implied that "not
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only is [McDonald] a felon but that he has been to prison previously."
Even assuming that these statements had no probative value, we conclude
that any error in admitting the statements was harmless because
McDonald was acquitted of counts 1-3 and substantial evidence was
presented to support count 4.
Seventh, McDonald contends that cumulative error entitles
him to relief. Having considered the appropriate factors, see Valdez, 124
Nev. at 1195, 196 P.3d at 481, we conclude that no relief is warranted.
Accordingly, we
ORDER the judgment of conviction AFFIRMED.'
CA.
Pickering
'McDonald's appendix fails to comply with NRAP 30(b) because it
contains numerous documents which are "not essential to the decision of
issues presented by the appeal." See NRAP 3C(e)(2)(c) (requiring appendix
to comply with the provisions of NRAP 30). For example, the appendix
contains over 500 pages of documents which merely explain the
qualifications of the State's potential experts. We remind counsel for
McDonald that brevity in the appendix is required and "the court may
impose costs upon parties or attorneys who unnecessarily enlarge the
appendix." NRAP 30(b).
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cc: Hon. Elissa F. Cadish, District Judge
Law Offices of Martin Hart, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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