Howard (Wendolen) v. State ( 2014 )

 admit res gestae evidence absent manifest error). Moreover, the State
stipulated at trial that appellant was not charged with battery against the
employee or Richard's brother, and the jury was instructed regarding the
limited purpose for which the evidence could be used. See Summers v.
State, 122 Nev. 1326, 1333, 148 P.3d 778, 783 (2006) ("[T]his court
generally presumes that juries follow district court orders and
instructions.").
Second, appellant contends that insufficient evidence supports
the elder enhancement. See NRS 193.167(1). We disagree. Richard's
testimony that he was 68 years old at the time of the incident is sufficient
to establish the elder enhancement beyond a reasonable doubt as
determined by a rational trier of fact. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727
(2008); Walker v. State, 91 Nev. 724, 726, 542 P.2d 438, 439 (1975) ("Mt is
the function of the jury, not the appellate court, to weigh the evidence and
pass upon the credibility of the witness.").
Third, appellant contends that the State violated Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose that Richard and his
brother admitted to law enforcement that they possessed weapons during
the incident. "[T]here are three components to a Brady violation: the
evidence at issue is favorable to the accused; the evidence was withheld by
the state, either intentionally or inadvertently; and prejudice ensued, i.e.,
the evidence was material." Mazzan v. Warden, 116 Nev. 48, 67, 993 P.2d
25, 37 (2000). Here, appellant knew that Richard and his brother
possessed weapons as it formed the basis of his self-defense claim and he
fails to explain how their admissions to the same were material.
Appellant also fails to demonstrate that the evidence was withheld
SUPREME COURT
OF
NEVADA
2
(0) 1947A
because the parties stipulated at trial that Richard and his brother told
law enforcement about the weapons. Even assuming that appellant only
learned of the admissions during trial, he fails to explain how he was
prejudiced by the mid-trial disclosure because he had the opportunity to
cross-examine the witnesses regarding their admissions. See Rippo v.
State, 113 Nev. 1239, 1258, 946 P.2d 1017, 1029 (1997). We conclude that
no relief is warranted on this claim.
Fourth, appellant asserts that the State violated Brady by
turning over other statements one week prior to the date originally set for
trial. Appellant also contends that the district court erred by failing to
determine whether he was prejudiced and by punishing him for the State's
violation. Appellant fails to demonstrate that Brady was violated because
the statements were provided prior to the originally scheduled trial date
and well in advance of the actual trial date. Although appellant asserts
that it was unfair for the district court to remedy the tardy disclosure by
moving the trial date rather than suppressing the evidence, we note that
he did not move to suppress the evidence, and it appears that the evidence
was favorable to the defense. To the extent appellant asserts that another
remedy was warranted, he offers no cogent argument in support of his
assertion and fails to demonstrate that the district court erred.' See
generally Rudin v. State, 120 Nev. 121, 139, 86 P.3d 572, 584 (2004)
(concluding that a Brady violation was harmless where the district court
provided the defendant with various remedies).
3-We reject the assertion that the district court's ruling constitutes
judicial misconduct.
SUPREME COURT
OF
NEVADA
3
(0) 1947A
Fifth, appellant contends that "the district court erred by
refusing to seat another jury panel that included African Americans." We
disagree. During voir dire, appellant asserted that the number of African
Americans in the venire was not proportionate to that in the community.
Appellant did not demonstrate or attempt to demonstrate that this
disproportion was the result of systematic discrimination in the jury
selection process, see Williams v. State, 121 Nev. 934, 940, 125 P.3d 627,
631 (2005); Duren v. Missouri, 439 U.S. 357, 366 (1979), rather, he merely
asked for the venire to be excused and replaced with one containing more
African Americans. We conclude that no relief is warranted on this claim.
Sixth, appellant contends that the prosecutor committed
misconduct during closing argument by asserting that Richard acted in
self-defense after appellant pushed him. When reviewing allegations of
prosecutorial misconduct, we first consider whether the prosecutor's
conduct was improper, and then determine whether any improper conduct
warrants reversal. See Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465,
476 (2008). We conclude that the prosecutor merely argued the State's
theory of the case and did not commit misconduct.
Seventh, appellant contends that the district court abused its
discretion by rejecting his jury instruction and giving an instruction
offered by the State. We review a district court's decision to give a jury
instruction for an abuse of discretion and whether the instruction was an
accurate statement of the law de novo. Funderburk v. State, 125 Nev. 260,
263, 212 P.3d 337, 339 (2009). Appellant contends that the State's
instruction suggested that the elder enhancement was a lesser-included-
offense of battery causing substantial bodily harm and his instruction
clarified the issue. Although the State's instruction was confusing when
SUPREME COURT
OF
NEVADA
4
(0) 1947A
read in isolation, we conclude that this claim lacks merit because, when
read together, the instructions given correctly stated the law. See Rose v.
State, 86 Nev. 555, 558, 471 P.2d 262, 264 (1970). Moreover, appellant's
instruction was incomplete, and even assuming that it was more clear
than the State's, no relief is warranted because "we are convinced beyond
a reasonable doubt that the jury's verdict was not attributable to the error
and that the error was harmless under the facts and circumstances of this
case." Crawford v. State, 121 Nev. 744, 756, 121 P.3d 582, 590 (2005).
Eighth, appellant contends that the district court abused its
discretion by denying his motion for bail. This claim lacks merit.
Appellant concedes that he never filed such a motion.
Ninth, appellant contends that cumulative error entitles him
to relief. Having considered the appropriate factors, see Valdez, 124 Nev.
at 1195, 196 P.3d at 481, we conclude that no relief is warranted.
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Hardesty
Douglas
cc: Hon. Douglas Smith, District Judge
Legal Resource Group
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1947A