Dodd (Shaunna) v. State ( 2014 )

 (2001). Here, the district court gave a limiting instruction before any prior
bad act testimony was presented. However, the first witness who testified
after that instruction did not address any prior bad acts; the next seven
witnesses testified to prior bad acts but there was no limiting instruction
immediately before their testimony. The district court provided another
limiting instruction before the jury deliberated. Although Dodd did not
object to the manner in which the district court instructed the jury, it does
not appear that she "explicitly waive[d] the limiting instruction prior to
the admission of the evidence" so as to relieve the district court of its duty
to properly instruct the jury. Mclellan v. State, 124 Nev. 263, 270, 182
P.3d 106, 111 (2008). We agree with Dodd that the district court erred in
failing to give a limiting instruction immediately before the testimony
relating to Dodd's prior bad acts. We are not persuaded, however, that
this error had any injurious effect or influence on the jury's verdict in light
of the instructions provided and the overwhelming direct evidence
supporting Dodd's conviction. See id. at 269, 182 P.3d at 110 ("The failure
of the district court to issue a limiting instruction will be reviewed for
nonconstitutional error under NRS 178.598."). In particular, by providing
a limiting instruction before the jury heard any testimony regarding prior
bad acts, the district court guided the jury to avoid considering the
evidence for an improper purpose. Tavares, 117 Nev. at 733, 30 P.3d at
1133; see Rhymes v. State, 121 Nev. 17, 24, 107 P.3d 1278, 1282 (2005)
(finding error harmless where the district court erred by failing to give a
bad-act limiting instruction at the time the testimony was admitted but
gave a limiting instruction prior to the jury being charged); Leonard v.
State, 117 Nev. 53, 66, 17 P.3d 397, 405 (2001) (providing that the jury
SUPREME COURT
OF
NEVADA
2
(0) 1947A stew
shall be presumed to have followed its instructions). We conclude that no
relief is warranted on this claim.
Dodd argues further that the district court abused its
discretion in admitting testimony about an extramarital sexual encounter
between Dodd and Ryan Bonnenfant because this evidence of infidelity
would unfairly prejudice the jury against Dodd. Under NRS 48.045(2),
prior bad act evidence is not admissible to prove the character of a person,
but may be admissible to show "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident."
Here, the district court conducted a hearing outside the jury's presence as
required by Petrocelli v. State, 101 Nev. 46, 51, 692 P.2d 503, 507 (1985),
modified on other grounds by Sonner v. State, 112 Nev. 1328, 1333-34, 930
P.2d 707, 711-12 (1996) and superseded in part by statute as stated in
Thomas v. State, 120 Nev. 37, 45, 83 P.3d 818, 823 (2004), and determined
that the evidence was relevant to Dodd's motive to kill her husband, that
the prior bad act was proven by clear and convincing evidence, and that
the evidence was more probative than unfairly prejudicial. See Bigpond v.
State, 128 Nev. , , 270 P.3d 1244, 1250 (2012) (discussing three
findings required to overcome presumption under NRS•48.045(2) that
prior bad act evidence is inadmissible). The record supports each of the
district court's determinations. Accordingly, we conclude that the district
court did not abuse its discretion in admitting evidence of Dodd's infidelity.
with Bonnenfant. See Braunstein v. State, 118 Nev. 68, 72, 40 P.3d 413,
416 (2002) (stating that decision whether to admit prior bad act evidence
is discretionary and will not be reversed absent a manifest abuse of
discretion).
SUPREME COURT
OF
NEVADA
3
(0) 1947A 4DP4
We reject Dodd's argument that the district court improperly
relied on her apparent lack of remorse in imposing its sentence. Where
the sentencing judge considers the defendant's lack of remorse in setting a
sentence and the defendant maintains that she is not guilty of the offense,
the sentencing judge violates the defendant's Fifth Amendment rights
because the defendant will be unable to show remorse without giving up
her right to not incriminate herself. See Brake v. State, 113 Nev. 579, 584-
85, 939 P.2d 1029, 1033 (1995). Although such a violation constitutes an
abuse of discretion that requires resentencing before a different district
judge, id. at 585, 939 P.2d at 1033, the record in this case does not reflect
a violation of Dodd's Fifth Amendment rights. The district judge's
explanation of his sentence clearly shows that he regarded Dodd's conduct
during the sentencing hearing as illustrative of her capacity for
criminality and that it was her capacity for criminality that warranted
sentencing at the high end of the statutory limits. This explanation shows
that the district court did not impose a harsher sentence based on Dodds
failure to express remorse, but rather that the sentence was based on
Dodd's life, conduct, and mental and moral propensities, which are proper
considerations at sentencing. See Denson v. State, 112 Nev. 489, 494, 915
P.2d 284, 287 (1996). Thus, we conclude that the district court did not
abuse its discretion in imposing its sentence. See Randell v. State, 109
Nev. 5, 8, 846 P.2d 278, 280 (1993) (reviewing the district court's
sentencing determination for an abuse of discretion).
We also reject Dodd's argument that her sentence shocks the
conscience. The trial court has wide discretion in imposing a sentence,
and this court will uphold its determination absent a showing of an abuse
SUPREME COURT
OF
NEVADA
4
(0 1947A 4V10
of discretion. Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379
(1987). Regardless of its severity, a sentence that is within the statutory
limits is not 'cruel and unusual punishment unless the statute fixing
punishment is unconstitutional or the sentence is so unreasonably
disproportionate to the offense as to shock the conscience." Blume v.
State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996) (quoting CuIverson v.
State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979)); see also Harmelin v.
Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion) (explaining
that Eighth Amendment does not require strict proportionality between
crime and sentence; it forbids only an extreme sentence that is grossly
disproportionate to the crime). The district court sentenced Dodd in
accordance with the statutory parameters. See NRS 193.165; NRS
200.030. Dodd has not challenged the constitutionality of those statutes,
and we are not convinced that the sentence imposed is so unreasonably
disproportionate to the offense as to shock the conscience. We therefore
conclude that the sentence is not cruel or unusual and that the district
court acted within its discretion.'
1 To the extent that Dodd argues, by footnote, that the district court
relied on uncharged "crimes" in sentencing her, we are not persuaded that
the record shows that the district court did, in fact, punish Dodd for
uncharged offenses in imposing this sentence, especially as the district
judge's explanation made clear the extent to which he was moved by his
perception of Dodd's moral character. See Denson, 112 Nev. at 494, 915
P.2d at 287 (holding that it is improper to impose a sentence that intends
to punish a defendant for uncharged crimes, while noting that such crimes
may be considered as part of a fuller assessment of the defendant's life and
moral propensities).
SUPREME COURT
0F
NEVADA
5
(0) 1947A 44119
Having considered Dodd's contentions and concluding that
they are without merit, we
ORDER the judgment of conviction AFFIRMED.
C.J.
,Cgid
Gibbons
, J. --7 Lir AXE
Pickering Saitta
cc: Hon. David A. Hardy, District Judge
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
6
(0) 194m cep>