Schoner (Anthony) v. State ( 2015 )

 prohibits a repossesor's agent from breaching the peace, it does not permit
a property owner to use deadly force when the peace is breached); see also
Corn. v. Alexander, 531 S.E.2d 567, 568 (Va. 2000) ("Even if [the
repossession agent's] actions were unwarranted or illegal, the defendant,
as an owner of personal property, did not have the right to assert or
defend his possessory rights thereto by the use of deadly force.").
Second, the district court did not abuse its discretion when it
rejected Schoner's proposed defense of property jury instruction because
Schoner's lone citation in support of this instruction, Davis v. State, 130
Nev., Adv. Op. 16, 321 P.3d 867 (2014), does not support it. See Edwards
v. Emperor's Garden Rest., 122 Nev. 317, 330 n. 38, 130 P.3d 1280, 1288
n.38 (2006) (stating that this court need not consider claims that are not
cogently argued or supported by relevant authority). Specifically, Schoner
argued that the district court abused its discretion in rejecting this
instruction because the instruction accurately restated the law and was
appropriately tailored under Davis. However, Davis stands for the
proposition that a self-defense jury instruction should be provided in a
battery case—a proposition wholly inapplicable to Schoner's proposed
defense of property jury instruction.
Third, the district court did not abuse its discretion when it
rejected Schoner's proposed jury instruction regarding the ejection of
trespassers because, again, Schoner failed to support the legal accuracy of
the instruction with any law. Id.Fourth, the district court did not abuse its discretion in
rejecting Schoner's proposed jury instruction regarding the burden to
disprove because his proposed instruction is based upon a misreading of
Barone v. State, 109 Nev. 778, 780-81, 858 P.2d 27, 28-29 (1993). Schoner
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argues that Barone supports the proposition that the State must always
prove beyond a reasonable doubt that a defendant acted without
justification, but Barone states that if a defendant claims self-defense, the
State must prove beyond a reasonable doubt that the defendant's actions
were not justified by self-defense. 109 Nev. at 781, 858 P.2d at 29.
Because Schoner did not argue self-defense, Barone does not support this
proposed jury instruction.
Fifth, the district court did not abuse its discretion when it
rejected Schoner's proposed mistake-of-fact jury instruction because
Schoner's proposed instruction was substantially covered by jury
instructions 25 and 27. See Davis, 130 Nev., Adv. Op. 16, 321 P.3d at 874
(stating that the district court "may refuse a jury instruction on the
defendant's theory of the case which is substantially covered by other
instructions" (emphasis added)).
Finally, the district court did not abuse its discretion in
rejecting Schoner's proposed stand-your-ground instruction because its
contents were substantially covered by jury instruction 24. Id. (stating
that the district court "may refuse a jury instruction on the defendant's
theory of the case which is substantially covered by other instructions"
(emphasis added)).
Next, we conclude that cumulative error does not warrant
reversal in this case. First, the district court did not abuse its discretion
when it denied the admittance of the contested photographs for
untimeliness. Here, Schoner untimely sought to admit the photos and the
applicable statute grants the district court wide discretion. See Chavez v.
State, 125 Nev. 328, 344, 213 P.3d 476, 487 (2009) (stating that this court
reviews a district court's evidentiary rulings for an abuse of discretion); see
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also NRS 174.295(2) ("If . . . a party has failed to comply with the
provisions of NRS 174.234 to 174.295, inclusive, the court may. . . prohibit
the party from introducing in evidence the material not disclosed, or it
may enter such other order as it deems just under the circumstances").
Second, the State did not commit misconduct during closing
arguments that rises to the level of plain error. Here, Schoner contends
that the following constituted prosecutorial misconduct: (1) an un-objected
to statement urging the jury to find Schoner guilty because it is the "right
thing to do;" (2) an un-objected to summary of Schoner's girlfriend's
testimony; (3) an un-objected to statement asserting that one witness flew
in from Las Vegas to testify; (4) the statement "the second [Turley] turns
around and sees a gun in his face, the crime of assault with a deadly
weapon is committed right there," to which Schoner objected; and (5) the
State's reliance on jury instruction 24 to discuss justification, to which
Schoner objected. Regarding the three claims to which Schoner failed to
object, we disagree because the conduct did not "(1) [have] a prejudicial
impact on the verdict when viewed in context of the trial as a whole, or (2)
seriously affect[ ] the integrity or public reputation of the judicial
proceedings." Rose v. State, 123 Nev. 194, 209, 163 P.3d 408, 418 (2007)
(internal quotations omitted). Regarding the two claims to which Schoner
objected, we disagree because the State did not engage in improper
conduct by simply arguing its theory of the case and the jury instructions.
See Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008) (stating
that prosecutorial misconduct requires the prosecutor to engage in
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improper conduct, and for that improper conduct to warrant reversal)?
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
J.
Gibbons
cc: Chief Judge, The Second Judicial District Court
Hon. Noel E. Manoukian, Senior Judge
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
'We have considered the parties' remaining arguments and conclude
that they are without merit.
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