Ellison (Cody) v. State ( 2015 )

 After the presentation of evidence, the defense objected to a
proposed jury instruction, which allowed the jury to infer that a person
knowingly possesses stolen property when that person (1) possesses
property that was recently stolen, and (2) cannot satisfactorily explain
that possession. Ellison proposed his own instruction, which was worded
differently. The court overruled Ellison's objection because the elements
of the crime were already adequately covered. The jury found Ellison
guilty on both counts of burglary and the court sentenced him to two
concurrent five year sentences with parole eligibility after two years.
On appeal, Ellison argues that (1): the district court erred by
admitting the pawnshop receipt and surveillance video because that
evidence violated the Confrontation Clause and because it was not
properly authenticated; (2) the district court erred by issuing a misleading
and improper jury instruction regarding possession of stolen property; and
(3) there was not sufficient evidence to support his conviction.
We conclude that the district court did not err in admitting the
receipt or the video because the Confrontation Clause does not apply to
machine-produced business records and the State laid a proper foundation
for the evidence. We further conclude that the district court did not abuse
its discretion in instructing the jury because the State may produce
evidence of possession of stolen property to prove an element of burglary,
even if it is not charging possession of stolen property in and of itself.
Finally, we conclude that there was sufficient evidence for a rational juror
to conclude that Ellison was guilty beyond a reasonable doubt because the
evidence established that Ellison knew the property was stolen when he
entered the stores to sell the property.
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Admission of pawnshop receipt and video surveillance
Ellison argues that admission of the sales receipt and
surveillance footage violated the Sixth Amendment's Confrontation Clause
because it effectively introduced testimony of an unknown pawn store
employee. Ellison also argues that the receipt and footage were
inadmissible hearsay because the State did not present testimony of the
employee who maintained the security equipment or the employee who
performed the transaction producing the receipt.
Confrontation Clause
Because Ellison preserved the issue for appeal, we would
generally review the district court's decision to admit this evidence, over
Ellison's objection, for an abuse of discretion. See Mclellan v. State, 124
Nev. 263, 267, 182 P.3d 106, 109 (2008). "However, whether a defendant's
Confrontation Clause rights were violated is ultimately a question of law
that must be reviewed de novo." Chavez v. State, 125 Nev. 328, 339, 213
P.3d 476, 484 (2009) (internal quotation marks omitted).
"[T]he Confrontation Clause bars 'admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for
cross-examination." Id. at 337, 213 P.3d at 483 (2009) (quoting Crawford
v. Washington, 541 U.S. 36, 53-54 (2004)).
Although much Confrontation Clause jurisprudence has "dealt
with the definition of 'testimonial,' id. at 338, 213 P.3d at 483, the main
issue here is whether the receipt and surveillance video include
statements at all.
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The California Supreme Court and some federal courts have
recently held that machines are not declarants for purposes of the
Confrontation Clause. See People v. Lopez, 286 P.3d 469, 478 (Cal. 2012)
(noting agreement with federal courts). Here, the receipt is a statement
automatically generated by a machine. Likewise, the surveillance videos
are silent and do not include statements from the store employees.
Therefore, the receipt and videos are not subject to the Confrontation
Clause because machines are not witnesses that can be confronted. 1
Therefore, we conclude that the admission of this evidence does not violate
the Confrontation Clause.
Authentication
Because Ellison did not object on the grounds that the video
surveillance was not a fair and accurate representation, we review for
plain error. See Mclellan, 124 Nev. at 267, 182 P.3d at 109 (2008). An
error is plain when it is clear from a casual inspection of the record and
affected the defendant's substantive rights. Id.
"[Me requirement of authentication ... is satisfied by
evidence or other showing sufficient to support a finding that the matter
in question is what its proponent claims." Archanian v. State, 122 Nev.
'To the extent that the receipt depends on human input, that
input is not a testimonial statement. At the time, the unidentified clerk
was unaware that prosecution would emerge: He or she entered the
information into the machine in order to complete the transaction. The
key here is that the relevant information was contemporaneously entered
into the machine, not entered once the store suspected the items were
stolen. See Davis v. Washington, 547 U.S. 813, 827-28 (2006)
(distinguishing a 911 call as non-testimonial when declarant was speaking
about events as they were happening in order to call for help, not
reporting a past event).
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1019, 1030, 145 P.3d 1008, 1016-17 (2006) (quoting NRS 52.015(1)). In
Archanian, a police detective "testified that the substance of the composite
videotape was identical to what he viewed downloaded from the
surveillance system on the first videotape." Id. at 1030, 145 P.3d at 1017.
We explained that, although a security professional should have been
called to testify to the authenticity of the original surveillance video,
Inlothing in the record raise[d] such concerns." Id. We also noted that
the defendant conceded that the surveillance video was accurate. Id.
Therefore, we held that the officer's testimony sufficiently authenticated
the video evidence. Id.
Here, like in Archanian, an officer testified that the video
downloaded onto the CD was identical to what he viewed on the
surveillance system. Moreover, nothing in the record raises any concerns
that the video was not accurate. Further, not only did the defense fail to
object to authenticity or accuracy at trial, defense counsel stipulated to its
authenticity. Therefore, we conclude that the district court did not plainly
err by admitting the surveillance video.
Jury instructions
Ellison contends that the jury instruction might have confused
the jurors because the jury may have inferred criminal intent sufficient for
burglary using the inference that Ellison knowingly possessed stolen
property. The State argues that this instruction was not confusing
because the knowledge that the electronics were stolen is necessary to
show that Ellison had the intent to obtain money under false pretenses, in
this case, selling property that he did not lawfully own. Further, there
was an additional instruction stating that the State had the burden to
show a specific intent to cheat or defraud the pawnshop.
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"The district court has broad discretion to settle jury
instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error." Crawford v. State, 121 Nev. 744,
748, 121 P.3d 582, 585 (2005)
"The State may present a full and accurate account of the
crime, and such evidence is admissible even if it implicates the defendant
in the commission of other uncharged acts." Bellon v. State, 121 Nev. 436,
444, 117 P.3d 176, 181 (2005). "Other criminal acts of a defendant are
admissible if substantially relevant and if not offered for the purpose of
showing the likelihood that he committed the act of which he is accused in
conformity with a trait of character." Santillanes v. State, 104 Nev. 699,
701, 765 P.2d 1147, 1148 (1988). Thus, the State was allowed to present
evidence and instruction on possession of stolen property because it is the
underlying felony to the burglary charge even though the State did not
charge Ellison with possession of stolen property.
We have approved the instruction that a jury may infer from
the circumstances that a person knowingly possessed stolen property. See
Gray v. State, 100 Nev. 556, 558, 688 P.2d 313, 314 (1984) (holding "that a
person may be found guilty of possession of stolen property in Nevada
where the circumstances are such as to put a reasonable person on notice
as to the stolen nature of the goods he possessed"). Further, the
instruction was relevant. See Moore v. State, 122 Nev. 27, 36, 126 P.3d
508, 514 (2006) (the fact that defendant entered a store with a stolen
credit card was relevant to establishing the requisite intent for burglary).
Although the State did not charge Ellison with possession of
stolen property, the fact that Ellison knowingly possessed stolen property
was relevant to establishing his intent to obtain money by false pretenses.
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The State was required to present evidence that Ellison knew the property
was stolen in order to prove that he entered• the pawnshops with the
intent to obtain money by false pretenses. The evidence showed that
Ellison at the very least knew that the electronics were probably stolen.
From that evidence, the jury could reasonably conclude that Ellison
knowingly possessed and intended to sell stolen property to obtain money
by false pretenses. Therefore, the court correctly instructed the jury it
may reasonably draw the inference and find that Ellison knew the
property had been stolen if he possessed the recently stolen property
without a satisfactory explanation.
Additionally, Ellison argues that the district court erred by
rejecting his proposed negatively worded defense instruction and his
proposed instruction on the elements of the crime. He argues that courts
may not exclude proposed defense instructions simply because other
instructions cover the material. We disagree. This court has stated that
"it is not error to refuse to give an instruction when the law encompassed
therein is substantially covered by other instructions given to the jury."
Hooper v. State, 95 Nev. 924, 926, 604 P.2d 115, 116 (1979).
Therefore, the district court did not abuse its discretion when
it instructed the jury on the elements of possession of stolen property.
Sufficiency of the Evidence
Ellison argues that the evidence was insufficient because he
had no reason to think that the property was stolen and that he presented
a compelling defense that he legitimately purchased the electronics from
someone in his neighborhood and supported that defense with witness
testimony. The State argues that the evidence was sufficient and points
out that the interviewing officer caught Ellison in a lie regarding his
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defense, whereby Ellison claimed to have bought the items on Craigslist,
but changed his story when he could provide no emails or other
documentation to show any online purchases.
"When reviewing a criminal conviction for sufficiency of the
evidence, this court determines whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt
when viewing the evidence in the light most favorable to the prosecution."
Brass v. State, 128 Nev., Adv. Op. 68, 291 P.3d 145, 149-50(2012). "This
court will not reweigh the evidence or evaluate the credibility of witnesses
because that is the responsibility of the trier of fact." Clancy v. State, 129
Nev., Adv. Op. 89, 313 P.3d 226, 231 (2013) (internal quotations omitted).
To convict Ellison of burglary, the State needed to produce sufficient
evidence to prove that Ellison, "enter[ed] any. . . shop ... store. . or
other building. . . with the intent ... to obtain money or property by false
pretenses." NRS 205.060(1).
We conclude that Ellison's argument lacks merit. The
surveillance video showed Ellison entering the store and selling the items.
Further, the receipt showed that Ellison received money for the items.
The jury was not persuaded by Ellison's alibi defense because testimony
showed that he initially lied about how he obtained the stolen property.
Further, the jury believed the officer's testimony that Ellison admitted to
thinking that the items were probably stolen. Moreover, Ellison conceded
that he entered the pawnshop to sell the items. Therefore, viewed in the
light most favorable to the prosecution, a rational juror could reasonably
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conclude that the evidence was sufficient to establish beyond a reasonable
doubt that Ellison entered the pawnshop with the intent to obtain money
by false pretenses. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Parraguirre
J.
cc: Hon. David B. Barker, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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