Griffo (Llewell) v. State ( 2015 )

 Although Griffo alleged the State unconstitutionally delayed seeking the
indictment to penalize him for raising competency concerns, he did not
claim the State added charges for vindictive reasons. Nor did Griffo's
motion cite authority relevant to vindictive prosecution. We therefore
conclude Griffo waived, his vindictive prosecution claim. See NRS
174.105(2). Regardless, the record on appeal is insufficient for us to
review this claim. See Wilkins v. State, 96 Nev. 367, 372, 609 P.2d 309,
312 (1980) (stating this court will not review unpreserved constitutional
errors if the record is insufficient "to provide an adequate basis for
review"); see also United States v. Gamez-Orduno, 235 F.3d 453, 462 (9th
Cir. 2000) ("[V]indictiveness will not be presumed simply from the fact
that a more severe charge followed on, or even resulted from, the
defendant's exercise of a right.").
Second, Griffo contends NRS 178.562(1) requires dismissing
the indictment because the State violated NRS 178.556(1) and 174.085(7).
We previously rejected the same argument under NRS 174.085(7). See
Thompson v. State, 125 Nev. 807, 811-13, 221 P.3d 708, 711-12 (2009).
Moreover, Griffo waived these "objections based on defects in the
institution of the prosecution" by failing to raise them prior to trial. NRS
174.105(1)-(2). Like his other challenges to the indictment, Griffo waived
this argument by failing to raise it prior to trial. See NRS 174.105(2).
The district court properly exercised subject matter jurisdiction over the
aggravated domestic battery charge
Griffo claims the district court lacked subject matter
jurisdiction over the aggravated domestic battery charge because the
prosecutor interfered with the grand jury's deliberations and the grand
jury only voted to indict Griffo for misdemeanor domestic battery.
Contrary to Griffo's assertions, the record clearly reflects that
only the grand jurors were present during deliberations and voting. See
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NRS 172.235(2) (stating only grand "jurors may be present while the
grand jury is deliberating or voting"). After deliberations and voting, the
prosecutor returned to the room, asked whether the grand jury found the
aggravated domestic battery as alleged in the proposed indictment, and
sought "to clarify" the foreperson's statements. In addition, the foreperson
instructed the prosecutor to prepare an indictment to match the proposed
indictment, which alleged the aggravated domestic battery, indicating
that the grand jury voted to indict Griffo for the aggravated domestic
battery. Given that no grand jurors disputed that they voted to indict
Griffo for the aggravated domestic battery, we have no reason to doubt the
foreperson's statement that he merely "misread" the proposed indictment
when telling the prosecutor that the grand jury found probable cause
supporting the charges. We therefore conclude the record does not support
Griffo's assertions that the prosecutor interfered with the grand jury or
the grand jury only voted to indict Griffo for a misdemeanor battery.'
As a result, the district court properly exercised subject matter
jurisdiction over the aggravated domestic battery charge. See NRS
4.370(3) (stating that justice courts have jurisdiction over misdemeanors).
The district court did not abuse its discretion in its evidentiary rulings
Griffo contends the district court abused its discretion in
several evidentiary rulings. First, Griffo argues the district court
1 Griffo'sreliance on State v. Eckel, 60 A.3d 834 (N.J. Super. Ct. Law
Div. 2013), is misplaced. In Eckel, the court held that dismissing the
indictment was warranted where the prosecutor improperly attempted "to
influence the grand jury in its findings" by telling the jurors about the
defendant's criminal history and opining that the defendant was guilty.
Id. at 841. Here, the prosecutor simply sought to clarify the grand jury's
findings and did not comment on the evidence or opine on Griffo's guilt.
Eckel is therefore inapposite.
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improperly admitted evidence that he called and threatened Richardson
after the shooting. Evidence of other acts is admissible if it is relevant for
a proper non-propensity purpose, "is proven by clear and convincing
evidence, and" its probative value "is not substantially outweighed by the
danger of unfair prejudice," and a district court's decision to admit such
evidence will not be overturned absent an abuse of discretion. Bigpond v.
State, 128 Nev., Adv. Op. 10, 270 P.3d 1244, 1250 (2012). Griffo argues
the threatening phone call was not proven by clear and convincing
evidence and the danger of unfair prejudice substantially outweighed the
probative value of the evidence.
At the evidentiary hearing, Ransom testified she was certain
Griffo was the caller because she had spoken with Griffo on the phone 50
or 60 times. Richardson testified Ransom gave her the phone, and the
caller asked Richardson why she sent "the police to his house" and told her
"if he goes down, it's over with," which Richardson understood as a threat.
We cannot conclude this testimony fails to satisfy the clear and convincing
evidence standard. See Bigpond, 128 Nev., Adv. Op. 10, 270 P.3d at 1250.
Moreover, this evidence was highly relevant to Griffo's consciousness of
guilt because Griffo knew the police were looking for him and could not be
found for nearly two months. In addition, Griffo's statement could be
interpreted as a threat, but, as Griffo himself argues, the statement could
also be interpreted as merely expressing displeasure at having the police
interested in his whereabouts, thus decreasing any potential prejudice.
Therefore, we conclude the district court did not abuse its discretion by
finding the probative value of this evidence was not substantially
outweighed by the danger of unfair prejudice. See id.
Despite the district court's proper exercise of discretion in
analyzing the Bigpond factors, we conclude the district court erred by
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admitting evidence of the phone call because the State failed to file its
motion to admit this evidence in a timely fashion. See EDCR 3.20(a);
EDCR 3.28; Hernandez v. State, 124 Nev. 639, 648-50, 188 P.3d 1126,
1133-34 (2008) (stating a district court should deny untimely motions in
limine absent good cause for the delay). This error, however, is harmless.
See Newman v. State, 129 Nev., Adv. Op. 24, 298 P.3d 1171, 1181 (2013).
Griffo received an unfiled copy of the State's motion almost two years
before trial, and his counsel could have investigated the phone call despite
the State's failure to file the motion. In addition, the evidence of guilt in
this case is overwhelming, and we cannot conclude the evidence of the
phone call "had a substantial and injurious effect" on the jury's verdict.
Id. (internal quotation marks omitted).
Griffo further argues the district court abused its discretion by
allowing a police officer to testify that he had no reason to doubt Griffo
and Ransom were dating. Contrary to Griffo's claim, this was not a legal
conclusion. Rather, it was fact-based testimony explaining why the officer
did not further investigate Griffo's relationship with Ransom. The district
court properly admitted this testimony. See NRS 50.025(1)(a).
Griffo next claims the district court abused its discretion by
allowing a police officer to testify that people in the neighborhood would
probably not cooperate with police due to fear of retaliation. Assuming the
district court abused its discretion by admitting this testimony, the only
prejudice Griffo alleges is that this testimony was evidence of other bad
acts reflecting on Griffo's character. To the contrary, the officer only
discussed the general reluctance of potential witnesses to talk to the police
and did not mention Griffo. Thus, if there was error, it was harmless. See
Lay v. State, 110 Nev. 1189, 1193-94, 886 P.2d 448, 450-51 (1994) (holding
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harmless any error in admitting evidence of "the general reluctance of
witnesses to testify").
Nevada's statutory definition of "dating relationship" is not
unconstitutionally vague
"[Diating relationship' means frequent, intimate associations
primarily characterized by the expectation of affectional or sexual
involvement. The term does not include a casual relationship or an
ordinary association between persons in a business or social context."
NRS 33.018(2). Griffo contends this definition is unconstitutionally vague.
We disagree.
Griffo first argues NRS 33.018(2) is vague because its
individual words are vague, but he fails to account for the meaning of the
words in the context of the entire statute. Because "words are known by—
acquire meaning from—the company they keep," Ford v. State, 127 Nev.,
Adv. Op. 55, 262 P.3d 1123, 1132 n.8 (2011), this argument lacks merit.
Griffo further contends NRS 33.018(2) is unconstitutionally
vague because other jurisdictions have defined "dating relationship"
differently. The decisions made in other jurisdictions are irrelevant to
whether the definition enacted by our Legislature (1) "fails to provide a
person of ordinary intelligence fair notice of what is prohibited," or (2) "is
so standardless that it authorizes or encourages seriously discriminatory
enforcement." State v. Castaneda, 126 Nev., Adv. Op. 45, 245 P.3d 550,
553 (2010). (quoting Holder v. Humanitarian Law Project, 561 U.S.
, 130 S. Ct. 2705, 2718 (2010)). Accordingly, this argument has no
merit.
Next, Griffo claims NRS 33.018(2) is unconstitutionally vague
because it lacks an intent element. Grillo cites no authority for this
proposition and fails to recognize that absent a dating relationship,
battery itself is a crime that requires intent. NRS 200.481(1)(a); see also
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Sheriff, Washoe Cnty. v. Burdg, 118 Nev. 853, 857, 59 P.3d 484, 487 (2002)
(stating a criminal statute may be unconstitutionally vague where it
"contains no intent element" and "imposes criminal sanctions on what is
otherwise non-criminal activity"). We therefore reject this argument.
Finally, Griffo contends NRS 33.018(2) might be broad enough
to include young children within its sweep. Assuming this to be true, this
example does not render NRS 33.018(2) unconstitutional because a statute
need only be clear "in most applications" to withstand scrutiny. Flamingo
Paradise Gaming, LLC v. Chanos, 125 Nev. 502, 513, 217 P.3d 546, 554
(2009) (emphasis added).
Griffo has failed to overcome the presumption that NRS
33.018(2) is constitutional. 2 See id. at 509, 217 P.3d at 551.
Substantial evidence supports the convictions of aggravated domestic
battery and carrying a concealed weapon, but does not support the
conviction of discharging a firearm in a structure in a designated
populated area
Griffo next argues the State failed to present sufficient
evidence to support his convictions. We will not reverse a conviction that
is supported by substantial evidence. Thompson, 125 Nev. at 816, 221
P.3d at 715.
We reject Griffo's claim that the State presented insufficient
evidence Griffo was in a dating relationship with Ransom. Ransom
testified she and Griffo spoke on the phone and exchanged text messages
daily for several weeks and saw each other seven times in the three weeks
preceding the shooting. Ransom further testified she and Griffo talked
about their relationship, "were boyfriend and girlfriend," held hands,
2As a result, we also reject Griffo's argument that the district court
abused its discretion by providing the jury the statutory definition of
"dating relationship."
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kissed, and tried to engage in sexual activities. Thus, the State presented
substantial evidence that Griffo's relationship with Ransom involved
"frequent, intimate associations primarily characterized by the
expectation of affectional or sexual involvement." NRS 33.018(2); see also
Thompson, 125 Nev. at 816, 221 P.3d at 715. Moreover, although this
relationship was brief, Ransom's testimony was sufficient to support
finding the relationship neither casual nor platonic. See NRS 33.018(2).
We also conclude the State presented sufficient evidence Griffo
intended to shoot Ransom. Ransom testified that after Richardson
separated Ransom from Griffo, Griffo pulled out the gun, pointed it at her,
and pulled the trigger. Despite Griffo's subsequently looking confused and
putting the gun to his head, this evidence was sufficient to prove Griffo
intentionally shot Ransom. See Thompson, 125 Nev. at 816, 221 P.3d at
715; see also NRS 193.200 ("Intention is manifested by the circumstances
connected with the perpetration of the offense . . . .").
We similarly reject Griffo's argument the State presented
insufficient evidence that Griffo concealed the gun on his person. Both
Ransom and Richardson testified they did not see the gun, and Ransom
testified she could not see where the gun came from but saw Griffo pull
the gun out. This evidence was more than sufficient for the jury to
conclude the gun was not "discernible by ordinary observation." NRS
202.350(8)(a); see also Thompson, 125 Nev. at 816, 221 P.3d at 715.
We conclude, however, the State presented insufficient
evidence to support Griffo's conviction of discharging a firearm in a
structure in a designated populated area. NRS 202.287(1)(b) prohibits
discharging a firearm in a structure "within an area designated by city or
county ordinance as a populated area for the purpose of prohibiting the
discharge of weapons." Although evidence of the apartment's address and
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occupied status was admitted, no evidence indicating an ordinance
designated the area as populated was offered, admitted, or judicially
noticed. Therefore, the evidence was insufficient to support Griffo's
conviction of discharging a firearm in a structure in a designated
populated area, and we reverse Griffo's conviction of this offense. 3
The district court properly instructed the jury
Last, Griffo contends the district court improperly instructed
the jury. We disagree.
Griffo argues the district court abused its discretion by
refusing to include misdemeanor battery on the verdict form. Griffo
claims he was entitled to this lesser-included-offense alternative because
some evidence suggested he pushed Ransom. Griffo was accused only of
shooting Ransom, not pushing her, so the jury could not properly find
Griffo guilty of any battery for pushing Ransom. See Alford v. State, 111
Nev. 1409, 1415, 906 P.2d 714, 718 (1995) (noting due process requires a
defendant "receive adequate notice of the charges" against him). Griffo
further argues the district court should have included misdemeanor
battery on the verdict form because some evidence suggested Griffo shot
Ransom accidentally. "Battery' means any willful and unlawful use of
force or violence upon the person of another," NRS 200.481(1)(a) (emphasis
added), and a person cannot be guilty of a crime if he committed the act
"through misfortune or by accident," NRS 194.010(6). Thus, the jury could
not convict Griffo of any form of battery for the shooting if it found he shot
Ransom accidentally. See id.; NRS 200.481(1)(a). As a result, the district
court properly refused to include misdemeanor battery on the verdict form.
3 Given this conclusion, we need not consider Griffo's other
arguments regarding this offense. See Hollis v. State, 96 Nev. 207, 210,
606 P.2d 534, 536 (1980).
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See Cortinas v. State, 124 Nev. 1013, 1019, 195 P.3d 315, 319 (2008)
(reviewing "de novo whether a particular [jury] instruction. . . comprises a
correct statement of the law").
In addition, Griffo contends the district court gave confusing
instructions on dating and domestic relationships. Because Griffo failed to
object to these instructions, we review for plain error. Green v. State, 119
Nev. 542, 545, 80 P.3d 93, 95 (2003). The district court gave the jury the
statutory definition of "dating relationship" and instructed that a domestic
battery "occurs when an individual commits a battery upon his spouse,
former spouse .. . , [or] a person with who[m] he has had or is having a
dating relationship." The district court then instructed the jury to
"determine whether a 'domestic relationship' existed between" Griffo and
Ransom. Griffo contends these instructions were confusing because some
used the phrase "dating relationship" and others used "domestic
relationship." Although consistently using "dating relationship"
throughout the jury instructions may have been clearer, "domestic
relationship" obviously referred to the list of relationships that support a
domestic battery conviction, and its use did not affect Griffo's substantial
rights. Accordingly, any error was harmless and Griffo is not entitled to
relief. See Green, 119 Nev. at 545, 80 P.3d at 95.
Griffo next contends the district court committed plain error
by failing to instruct the jury on the statutory definition of "concealed."
See NRS 202.350(8)(a). Because NRS 202.350(8)(a) uses "concealed" in its
"commonly understood" and "ordinary sense," "no further defining
instructions" were necessary. Dawes v. State, 110 Nev. 1141, 1146, 881
P.2d 670, 673 (1994). Regardless, Griffo fails to demonstrate any impact
on his substantial rights, and thus any error was harmless. See Green,
119 Nev. at 545, 80 P.3d at 95.
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In addition, Griffo argues the district court erred by replacing
"a person" in NRS 202.350(1) with "[e]very person," thereby eliminating
from the jury's consideration the possibility that any exceptions existed.
"[A] person" does not indicate the existence of any exceptions. Therefore,
using "[e]very person" did not limit the applicability of any exceptions, and
any error was harmless. See Green, 119 Nev. at 545, 80 P.3d at 95.
Finally, Griffo claims the district court erred by instructing
the jury it could consider evidence of flight as evidence of Griffo's
consciousness of guilt. A police officer testified he contacted Griffo's
parents and associates and visited five different residences at which Griffo
might have been staying, but could not find Griffo for approximately two
months. Combined with the evidence of the phone call, this evidence
suggested Griffo knew the police were looking for him and avoided his
parents, friends, and the places he normally stayed. Therefore, the
district court did not commit any error, let alone plain error, by
instructing the jury on flight. See Potter v. State, 96 Nev. 875, 876, 619
P.2d 1222, 1222 (1980) ("[Flight] embodies the idea of going away with a
consciousness of guilt and for the purpose of avoiding arrest"); see also
Green, 119 Nev. at 545, 80 P.3d at 95. We also decline Griffo's invitation
to conclude that flight instructions improperly comment on evidence. 4 Cf.
Renner v. State, 397 S.E.2d 683, 685-86 (Ga. 1990) (holding that flight
instructions constitute improper comments on evidence).
4Given thefl overwhelming evidence of Griffo's guilt, we conclude
cumulative error does not warrant reversal of the remaining convictions.
See Valdez v. State, 124 Nev. 1172, 1195-96, 196 P.3d 465, 481 (2008).
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Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
Haxdesty
J.
Parraguirre
Dizzti—et )41-S
(---
Dou '
, J.
cc: Hon. James M. Bixler, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth Judicial District Court Clerk
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(0) 1.947A 440.