Walker (Codie) v. State ( 2014 )

 door, but she did not answer. Walker sent Butler a text message asking
her why Pacheco was there and why she did not answer her door, but
again, she did not respond. Later that evening, Walker called Butler and
asked if he could pick up his dog; she responded that he could so long as he
was "in and out."
Walker and Johnson returned to the apartment while Pacheco
was upstairs in Butler's bedroom. When Butler opened the door, Walker
and Johnson immediately proceeded upstairs and began "talking trash" to
Pacheco. Butler protested, and Walker came down, telling Johnson that
they should not fight Pacheco and should just get the dog and leave.
Johnson remained upstairs and continued "talking trash." Walker opened
the back door to retrieve his dog and it immediately ran upstairs. Johnson
shouted either "don't throw [Walker's] dog" or "don't touch [Walker's] dog,"
and Walker ran upstairs. Walker entered the bedroom with Butler close
behind and Butler observed him punch Pacheco several times in the head.
Butler intervened, but as Walker exited the room Johnson moved in and
punched Pacheco several times before making a stomping motion on his
head. Pacheco died the next morning as a result of multiple blunt force
trauma injuries of the head, caused by one blow, which propelled the brain
into the cranium, or multiple blows.
We conclude that the jury could reasonably infer from the
evidence presented that Walker was guilty of first-degree murder because
he and Johnson committed burglary and Pacheco died as a result of
injuries sustained in the perpetration of that burglary. See NRS 195.020
(defining principals); NRS 200.030(1)(b) (murder committed in the
perpetration of burglary is first-degree murder); NRS 200.481(1)(a)
("Battery' means any willful and unlawful use of force or violence upon
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the person of another."); NRS 205.060(1) (a person who enters a house
with the intent to commit battery is guilty of burglary); see also Sanchez-
Dominguez v. State, 130 Nev. , P.3d (Adv. Op. No. 10, February
27, 2014) (analyzing the meaning of "in the perpetration or); see also
Anderson v. State, 121 Nev. 511, 515, 118 P.3d 184, 186 (2005) (Where
alternate theories of culpability are presented, "[a] unanimous general
verdict of guilt will support a conviction so long as there is substantial
evidence in support of one of the alternate theories of culpability.").
Whether Walker broke the chain of events flowing from the initial
burglary and withdrew from any conspiracy by announcing his intent to
leave and going downstairs was a factual determination for the jury to
decide, Payne v. State, 81 Nev. 503, 507, 406 P.2d 922, 924 (1965), and a
jury's verdict will not be disturbed where, as here, it is supported by
sufficient evidence, see Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20
(1981).
Second, Walker contends that the district court abused its
discretion by denying his motion for a severance because Johnson sent
postcards stating that he believed it was his actions which caused
Pacheco's death, and the joinder of their cases prevented him from
confronting Johnson with the postcards. See Marshall v. State, 118 Nev.
642, 647, 56 P.3d 376, 379 (2002) (severance is warranted where 'there is
a serious risk that a joint trial would compromise a specific trial right of
one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence" (quoting Zafiro v. United States, 506
U.S. 534, 539 (1993))). The district court denied the motion because there
was no indication that Johnson would testify on Walker's behalf if the
trials were severed and their defenses were not antagonistic, but allowed
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Walker to admit the postcards into evidence. See NRS 174.165(1) (if it
appears a defendant will be prejudiced by joinder, the district court may
grant a severance "or provide whatever other relief justice requires"
(emphasis added)). We conclude that the district court did not abuse its
discretion. See Marshall, 118 Nev. at 646-47, 56 P.3d at 379 (reviewing a
district court's determination as to whether severance is warranted for an
abuse of discretion).
Third, Walker contends that the district court erred by
denying his motion to set aside the verdict or for a new trial. Because
sufficient evidence supports the verdict, we conclude that the district court
did not err by denying Walker's motion to set aside the verdict. See State
v. Purcell, 110 Nev. 1389, 1394, 887 P.2d 276, 278-79 (1994) (a court must
set aside the verdict if "the prosecution has not produced a minimum
threshold of evidence upon which a conviction may be based"). And
because the record supports the district court's determination that there
was no conflicting evidence which undermined the jury's verdict, we
conclude that the district court did not abuse its discretion by denying
Walker's motion for a new trial. See id.
Fourth, Walker contends that the application of the felony-
murder rule in this case constituted impermissible bootstrapping and
produced an absurd result; therefore, he urges this court to revisit its
holding in State v. Contreras, 118 Nev. 332, 337, 46 P.3d 661, 664 (2002)
(rejecting defendant's argument regarding felony murder where the
underlying felony is burglary with the intent to commit battery). We
decline to do so. NRS 200.030(1)(b) states that first-degree murder
encompasses murders committed in the perpetration of burglary, and NRS
205.060(1) states that a person who enters an apartment with the intent
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to commit battery is guilty of burglary; "[t]he legislative language is clear,
and we are not persuaded that any policy considerations should override
the legislature's determination that burglary should be one of the
enumerated felonies appropriate to elevate a homicide to felony murder."
Contreras, 118 Nev. at 337, 46 P.3d at 664; see also Sanchez Dominguez,
-
130 Nev. at , P.3d at (Adv. Op. No. 10 at 13) (the felony-murder
rule holds felons "strictly accountable for the consequences of perpetrating
a felony, and it is immaterial whether [the] killing is intentional or
accidental").
Having considered Walker's contentions and concluded that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
Pickering
J.
cc: Hon. Jerome Polaha, District Judge
Law Office of Thomas L. Qualls, Ltd.
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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