Snipes (Andre) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
ANDRE GRANT SNIPES, No. 82384
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
FEB 172022
ELIZASETH A. BROWN
CLERK • SUPREME COURT
BY
CLERK
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of six counts of burglary, four counts of grand larceny, two
counts of conspiracy to commit robbery, and one count each of robbery,
robbery with the use of a deadly weapon, burglary while in possession of a
firearm, and participation in an organized retail theft. Eighth Judicial
District Court, Clark County; Eric Johnson, Judge. Appellant argues there
is insufficient evidence to support the jury's finding of guilt for three of his
burglary convictions and the weapon enhancements for his convictions of
robbery with the use of a deadly weapon and burglary while in possession
of a firearm. We disagree with both of appellant's contentions.
Regarding the burglary convictions, appellant contends the
State did not present evidence that the merchandise he returned was stolen.
The State introduced evidence that appellant and a co-offender walked out
of various stores with specific merchandise without paying. The State also
1Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted.
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introduced evidence that appellant went to another store and returned
items similar to the stolen merchandise in exchange for gift cards.
Appellant returned the items without a receipt and, at least on two
occasions, on the same day the merchandise was stolen. We "must respect
the exclusive province of the fact finder to determine the credibility of
witnesses, resolve evidentiary conflicts, and draw reasonable inferences
from proven facts." United States v. Hubbard, 96 F.3d 1223, 1226 (9th Cir.
1996); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979) (recognizing
the role of the jury is "to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate
facte). And we have held that "entirely circumstantial evidence may
suffice. Sheriff v. Middleton, 112 Nev. 956, 962, 921 P.2d 282, 286 (1996).
Based on the above, a rational juror could infer that appellant entered the
stores with the intent to return stolen merchandise in exchange for gift
cards, and therefore we conclude sufficient evidence supports the jury's
guilty verdicts for the three challenged burglary convictions. See Origel-
Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998) (The
relevant inquiry is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." (internal
quotation marks omitted)); see also Jackson, 443 U.S. at 319 (same); NRS
205.060.
Regarding the weapon enhancements, appellant contends the
State did not present evidence that the victim saw a functioning gun. The
victim testified that he followed the two men who had stolen merchandise
until the co-offender lifted his shirt to expose a semi-automatic pistol. The
2
witness testified that he was positive it was a gun, that he was familiar with
guns, and that he contemporaneously told the 9-1-1 operator he saw a gun.2
"[I]t is the jury's function, not that of the court, to assess the weight of the
evidence and determine the credibility of witnesses." McNair v. State, 108
Nev. 53, 56, 825 P.2d 571, 573 (1992). And considering the evidence in the
light most favorable to the State, a rational juror could conclude that the co-
offender possessed a firearm when entering the store with the intent to steal
merchandise and used the firearm during the robbery. See NRS 193.165(1),
(6); NRS 200.380(1); NRS 205.060(1), (4); Berry v. State, 125 Nev. 265, 276,
212 P.3d 1085, 1093 (2009) (approving of a jury instruction that said a
firearm "was a deadly weapon regardless of whether it was unloaded or
inoperable"), abrogated on other grounds by State v. Castaneda, 126 Nev.
478, 245 P.3d 550 (2010); see also Jackson, 443 U.S. at 319; Origel-Candido,
114 Nev. at 381, 956 P.2d at 1380. Accordingly, the State presented
sufficient evidence upon which the jury could have found appellant guilty of
the weapon enhancements.
2We rely on testimony describing the 9-1-1 recording, as appellant
failed to provide the recording as part of the appellate record. "The burden
to make a proper appellate record rests on appellant," Greene v. State, 96
Nev. 555, 558, 612 P.2d 686, 688 (1980), and missing portions of the record
are presumed to support the jury's verdict, cf. Riggins v. State, 107 Nev.
178, 182, 808 P.2d 535, 538 (1991) (concluding that if materials are not
included in the record on appeal, the missing materials "are presumed to
support the district court's decision"), rev'd on other grounds by Riggins v.
Nevada, 504 U.S. 127 (1992). We note that either party may move to have
the district court clerk transmit original exhibits that are necessary and
relevant to the issues raised on appeal. See NRAP 30(d).
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Having considered appellant's arguments and concluded they
lack merit, we
ORDER the judgment of conviction AFFIRMED.3
....94.0%ohjareasimam.C.J.
arraguirre
, J. , Sr.J.
Hardesty
cc: Hon. Eric Johnson, District Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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