Jaramillo (Jesus) v. State ( 2015 )

 sold for $15,000. Surveillance video footage established that Jaramillo left
and re-entered Harely's house after Hardy was killed
We conclude that a jury could reasonably infer the following
from the evidence presented. See Lisle v. State, 113 Nev. 679, 691-92, 941
P.2d 459, 467-68 (1997) ("[C]ircumstantial evidence alone may sustain a
conviction."), holding limited on other grounds by Middleton I). State, 114
Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998). Jaramillo used a
firearm and means of force to take personal property from Harely after
shooting Harely. See NRS 193.165; NRS 200.380. Jaramillo used a
firearm willfully, deliberately, premeditatedly, and with malice
aforethought, to kill Harely. See NRS 193.165; NRS 200.010(1); NRS
200.030(1). Jaramillo entered Harely's house with the intent to commit
larceny therein. See NRS 205.060(1). Jaramillo entered Harely's Lexus
with the intent to commit grand larceny auto or possession of a stolen
vehicle. See id. Jaramillo intentionally stole and drove away Harely's
Lexus, which was valued at greater than $3,500. See NRS 205.228.
Second, Jaramillo argues that the district court violated his
Sixth Amendment rights by denying him an opportunity to cross-examine
the author of the autopsy report, which was testimonial in nature and
thus subject to the Confrontation Clause. An expert witness testifying
about the content of a written report prepared by another person who did
not testify "effectively admit[s] the report into evidence" and violates the
Confrontation Clause, unless the testifying expert only presents
independent opinions based on the report's data. Vega v. State, 126 Nev.
332, 340, 236 P.3d 632, 638 (2010). We review Jaramillo's unpreserved
contention for plain error. Id. At 338, 236 P.3d at 636-37. Dr. Telgenhoff s
testimony on his own findings, conclusions, and opinions based on autopsy
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photographs that were admitted as evidence subjected his judgment,
competence, and methodology to cross-examination, and the district court
did not err in permitting this testimony. Though Dr. Telgenhoff recited
the autopsy report's toxicology findings, Jaramillo has not shown prejudice
to his substantial rights because the victim's toxicology results were not
relevant to his guilt.
Third, Jaramillo argues that the district court admitted
improper hearsay evidence in permitting Karl Williams and Jesse
Bearden to testify about statements that Mario Mason made to them
regarding admissions that Jaramillo made to Mason. The district court's
discretion to admit such evidence will not be disturbed unless manifestly
wrong. Tabish v. State, 119 Nev. 293, 310, 72 P.3d 584, 595 (2003).
Williams testified that "[Mason] said that [Jaramillo] had told him that he
had—he had killed somebody" when asked why Mason was upset when
asking for Williams' assistance. Bearden testified that he asked Mason if
Jaramillo had killed someone and Mason told him that Jaramillo had.
Jaramillo objected to William's testimony but not to Bearden's. See Green
v. State, 119 Nev. 545, 545, 80 P.3d 93, 95 (2003) (noting that unobjected-
to error is reviewed for plain error); Franco v. State, 109 Nev. 1229, 1237,
866 P.2d 247, 252 (1993) (noting that preserved objections are reviewed for
harmless error). Mason's state of mind was relevant to Williams' decision
to assist him but of minimal relevance to the offenses charged. See NRS
51.105(1); Shults v. State, 96 Nev. 742, 751, 616 P.2d 388, 394 (1980)
(stating that state-of-mind exception to the hearsay rule only applies when
state of mind is relevant, relevance is weighed against prejudice, and a
proper limiting instruction is given). Further, the prejudice of this
testimony outweighs the relevance because the hearsay contains
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Jaramillo's admission of guilt, and the district court offered no limiting
instruction to the jury. The error in admitting Williams' testimony,
however, is harmless beyond a reasonable doubt because Mason
previously testified about Jaramillo's admission to him, Mason was cross-
examined, and overwhelming evidence supported Jaramillo's guilt.
Similarly, Bearden's challenged testimony did not affect Jaramillo's
substantial rights because the jury had already heard this assertion from
Mason and the evidence of guilt was overwhelming.
Having considered Jaramillo's contentions and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
J. J.
cc: Hon. Stefany Miley, District Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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