Gonzales (Yadhir) v. State ( 2015 )

 95 Nev. 140, 142, 591 P.2d 250, 251-52 (1979) (reasoning that the identity
exception is inappropriate where the crimes are only generally similar).
Here, the similarities between the instant burglary and the
other burglary were that they occurred within a month of each other, the
front door at each home had pry damage on the door frame near the
deadbolt and doorknob lock and each door had been forcibly pushed open,
and some electronics and small items were stolen from the homes.
Gonzales contends that there was nothing unique about the offenses, and
we agree. At trial, a police officer who responded to the scene in this case
testified that prying the locks to weaken them and then using force to
push the door open was one of the most common ways to commit burglary.
The State presented no evidence to demonstrate that the similarities
between the burglaries were unique in comparison with other burglaries
committed by other perpetrators. See Coty, 97 Nev. at 244, 627 P.2d at
408. Therefore, we conclude that evidence of Gonzales's committing a
burglary and home invasion a month after the current offenses was
improperly admitted to show identity. We also conclude that the bad act
evidence was not properly admitted to show intent, as the defense did not
place Gonzales's intent at issue. See Wallin v. State, 93 Nev. 10, 11, 558
P.2d 1143, 1144 (1977).
However, we conclude that the error in admitting this
evidence was harmless in light of the evidence of Gonzales's guilt—
namely, Gonzales was identified as one of the two perpetrators by both the
victim's neighbor and the apartment maintenance technician, and the
• description and license plate of the car in which the perpetrators drove
away matched those of Gonzales's wife's car, which Gonzales also drove.
Therefore, we conclude that the error in admitting the bad act evidence
was harmless and does not warrant reversal of the judgment of conviction.
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Second, Gonzales contends that the district court abused its
discretion in admitting into evidence photographs of his wife's car, which
were not disclosed by the State until the middle of trial. He contends that
the district court judge lacked authority to admit the photographs because
another judge, during pretrial proceedings, had already prohibited
admission of evidence that had not been disclosed prior to trial. While a
district judge "may not directly overrule the decision of another district
judge on the same matter in the same case," the judge is not prohibited
"from deciding a matter related but not identical to . . . earlier rulings."
State v. Beaudion, 131 Nev., Adv. Op. 48, 352 P.3d 39, 42 (2015).
Here, the pretrial judge's ruling that undisclosed
incriminatory evidence would not be admitted at trial appeared to be
directed at two pieces of evidence—a second photographic lineup and a
fingerprint analysis of a screwdriver. Thus, it is not clear that the trial
judge's admission of the photographs of the car "directly overrule[df the
pretrial judge's decision. See id. Moreover, the photographs were not
directly incriminating, as they merely depicted the red Nissan Versa
owned by Gonzales's wife. Gonzales contends that the photographs were
incriminating and prejudicial because they depicted the car with license
plates affixed on both its back and front, which undermined his wife's
testimony that she had loaned one of the license plates to a man with a
similar red Nissan Versa at the time of the offenses. However, the State
had no knowledge of this testimony when it showed the photographs to the
wife, the wife testified that the photographs fairly and accurately
represented her car, and the defense had the opportunity to elicit from the
wife that the photographs did not accurately depict her car at the time of
the burglary. Thus, we conclude that there was no error in the admission
of these photographs.
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Third, Gonzales argues that the district court erred in refusing
to instruct the jury, in accordance with Sanborn v. State, 107 Nev. 399,
407-08, 812 P.2d 1279, 1285-86 (1991), that the State's failure to preserve
a second photographic lineup and photographs of Gonzales's wife's car
created a presumption that the lineup and photographs were favorable to
Gonzales. We conclude that there was no error by the district court in
refusing to give the Sanborn instructions. Two witnesses testified that
they were shown two photographic lineups and that they identified
Gonzales from the first lineup. A detective testified that the witnesses
were shown only one lineup but were later shown a set of photographs
concerning the second perpetrator. It is not clear from the testimony of
the two witnesses that the second photographic lineup differed from this
set of photographs, which was provided to the defense. Regardless,
Gonzales fails to demonstrate that the State acted in bad faith or that he
suffered prejudice from any loss of a second lineup. See id.; Daniel v.
State, 119 Nev. 498, 520, 78 P.3d 890, 905 (2003). Both witnesses
identified Gonzales's photograph from the first lineup and any second
lineup pertained only to the second suspect, who was distinctly different in
appearance from Gonzales. While Gonzales argues that the second lineup
was material because the fact that one of the witnesses identified an
individual in the second lineup meant either that the witness made an
incorrect identification or the State withheld the identity of the other
perpetrator, he fails to demonstrate that the actual lineup would have
exculpated him.
As for the photographs of Gonzales's wife's car, the detective
testified that he took two pictures of the car—one picture of the license
plate on the back and one picture of the side—while it was parked in the
wife's driveway, and that he thought he provided the photographs to the
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prosecution. Gonzales contends that the photograph of the side of the car
may have also shown the front of the car and the absence of a license plate
there, which would have corroborated his wife's testimony that she had
loaned a license plate to someone else. This contention is speculative and
is insufficient to warrant a Sanborn instruction. See Daniel, 119 Nev. at
520, 78 P.3d at 905. Moreover, the detective had no reason to look at the
front of the car or to believe that the photographs were exculpatory, given
that the witness obtained the license plate number off the back of the
burglar's car and Gonzales's wife never disclosed to the detective that she
had given away one of her license plates. See id. ("To establish prejudice,
the defendant must show that it could be reasonably anticipated that the
evidence would have been exculpatory and material to the defense."
(internal quotations omitted)).
Finally, Gonzales contends that the cumulative effect of these
errors warrants a new trial. Because Gonzales has demonstrated only one
error, there is nothing to cumulate. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
cc: Hon. Ronald J. Israel, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
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