Ball (Richard) v. State ( 2015 )

 sister, and Ball. The victim testified that after telling her to stop making
noise, Ball grabbed her arms, pushed her toward a closet, and eventually
punched her twice in the face—once on the lip causing it to bleed, and a
second time on her cheek. The victim's half-sister testified that she did
not witness the attack, but that she saw the victim immediately after Ball
left the room and saw the victim's bloody lip, which was not bleeding
before Ball entered the room. Celeste Gregg, a school nurse, testified that
the victim was brought to her office the following day and, among other
things, had a swollen lip. Gregg testified, based on her own experiences,
that the injury did not appear to be consistent with a lip that had been
bitten and that the injury appeared to be fresh, "within the last 24 hours."
Shannon Edwards, a registered nurse, also testified that she saw the
victim the day after the incident and observed "several small cuts inside
the cheek on the top and the bottom and they were open." Like Gregg,
Edwards stated that based on her own experiences, she "wouldn't
consider" the victim's mouth wounds as being self-inflicted. Photographs
of the victim's injuries were provided to the jury.
Circumstantial evidence alone may sustain a conviction.
Buchanan v. State, 119 Nev. 201, 217, 69 P.3d 694, 705 (2003). It is for
the jury to determine the weight and credibility to give conflicting
testimony, McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992), and
a jury's verdict will not be disturbed on appeal where, as here, sufficient
evidence supports the verdict, Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20,
20 (1981); see also NRS 200.508(1)(b). Therefore, we conclude that Ball's
contention is without merit.
Second, Ball contends that the district court erred by
overruling his objections and allowing the State to introduce improper lay
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opinion testimony from two witnesses regarding the timing and nature of
the victim's injuries. Ball claims that the testimony from Gregg and
Edwards, noted above, amounted to expert testimony and exceeded the
scope allowed by NRS 50.265 for lay witness opinion. We conclude that
the district court did not abuse its discretion by admitting the testimony of
Greggs and Edwards because it was within their lay experience as it was
based on their own experiences and observation of the victim's injuries
and did not constitute expert testimony. 2 See Mclellan v. State, 124 Nev.
263, 267, 182 P.3d 106, 109 (2008) (stating that district court's decision to
admit or exclude evidence is reviewed for an abuse of discretion; see also
Watson v. State, 94 Nev. 261, 264, 578 P.2d 753, 756 (1978) ("The
admissibility and competency of opinion testimony, either expert or non-
expert, is largely discretionary with the trial court.").
Third Ball contends that the State committed misconduct
during trial by changing its theory of prosecution without notice. Ball
claims that the State never alleged that he committed child abuse, neglect
or endangerment by scratching the victim's arms yet presented evidence
and argued during its closing and rebuttal argument that the jury could
find him guilty of the charged offense if it found that he did. Ball concedes
that he failed to object below but argues that we should review the issue
for plain error. See NRS 178.602 ("Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the
2 Ballalso claims that Detective Monique Bulmer's alleged opinion
that Ball was arrogant was improper lay witness opinion testimony. Ball,
however, offers no argument in support of this claim, therefore, we need
not address it. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6
(1987).
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attention of the court."); see also Grey v. State, 124 Nev. 110, 120, 178 P.3d
154, 161 (2008) ("Failure to object below generally precludes review by this
court; however, we may address plain error and constitutional error sua
sponte." (internal quotation marks omitted)). Our review of the record
reveals that the State never argued that the scratches amounted to child
abuse, instead arguing and demonstrating that Ball committed the offense
of child abuse, neglect or endangerment by punching the victim "in the
mouth and face," as alleged in the charging document. We conclude that
Ball has not demonstrated plain error entitling him to the reversal of his
conviction. See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)
(when reviewing for plain error, "the burden is on the defendant to show
actual prejudice or a miscarriage of justice").
Fourth, Ball contends that the district court erred by rejecting
his proposed jury instruction on corporal punishment where the
instruction provided did "not adequately advise[ I that corporal
punishment is a defense to child abuse." During the settling of jury
instructions, Ball informed the district court that he was withdrawing
several previously proposed instructions, including the corporal
punishment instruction, "because I believe they have been incorporated in
the jury instructions that you have." We therefore conclude that Ball
waived any challenge to the instruction given or the failure to give his
proposed instruction.
Fifth, Ball contends that the district court erred by allowing
the victim's half-sister's father, Calvin Jones, to act as the half-sister's
attendant during her testimony pursuant to NRS 178.571(2) because
Jones was on the State's witness list and had not yet testified, and he "was
an alternate source of' the victim's injuries. We conclude that no relief is
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warranted for two reasons. Ball has changed the theory underlying his
objection below, which was that NRS 178.571 did not apply to this case.
We therefore need not consider his argument on appeal. See Ford v.
Warden, 111 Nev. 872, 884, 901 P.2d 123, 130 (1995) (stating that
appellant "cannot change [his] theory underlying an assignment of error
on appeal"); see also Pantano v. State, 122 Nev. 782, 795 n.28, 138 P.3d
477, 485 n.28 (2006) (stating that "failure to specifically object on the
grounds urged on appeal preclude[s] appellate consideration on the
grounds not raised below"). Further, Jones was never called to testify
during the trial, and therefore, the fact that he was not examined and
cross-examined before any other witness testified did not result in actual
prejudice or a miscarriage of justice. See Green, 119 Nev. at 545, 80 P.3d
at 95 (describing plain-error review).
Sixth, Ball contends that the district court violated his right to
due process by limiting his ability to present evidence of the victim's
behavior days earlier in Minnesota that resulted in her getting punched in
the face by her half-sister's father and grandmother. The district court
determined that evidence that the victim had been punched in the face
days earlier was relevant and admissible, but that evidence regarding the
reasons for the beatings in Minnesota were collateral and irrelevant. See
NRS 48.025(2) ("Evidence which is not relevant is not admissible."). We
agree and conclude that the district court did not abuse its discretion. See
Mclellan, 124 Nev. at 267, 182 P.3d at 109 (stating that district court's
decision to admit or exclude evidence is reviewed for an abuse of
discretion).
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Finally, Ball contends that cumulative error deprived him of a
fair trial and requires the reversal of his conviction. Because we found no
error, there are no errors to cumulate. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
P ro°
0-ut
Parragui
CHERRY, J., dissenting:
Due to the number of issues raised in this appeal, I would
order full briefing and then determine whether oral argument is
appropriate in this case. Therefore, I respectfully dissent.
CL
Cherry
J.
cc: Hon. Michael Villani, District Judge
Clark County Public Defender
Attorney General/Carson. City
Clark County District Attorney
Eighth District Court Clerk
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