Gaines, III (Cornelius) v. State ( 2014 )

 month time span in the same area of Las Vegas. Gaines was arrested
after detectives from the Las Vegas Metropolitan Police Department
(LVMPD) observed him driving around the area where the crimes had
.
been committed in a car that they had identified as possibly being
involved in the crimes. The detectives initially pulled Gaines over for
expired license plates, but after seeing certain incriminating items in plain
view on the front passenger seat floor and the back seat of his car, they
placed him under arrest for the expired tags. Shortly thereafter, they
obtained a search warrant and found knives and black duct tape in the
trunk of his car. Gaines was then charged with crimes related to the three
incidents of sexual assault and robbery.
Prior to trial, Gaines filed a motion to suppress the evidence
found in his car, but the district court denied the motion. Gaines also
sought to sever the counts for each separate incident, but the district court
again denied his request. At the conclusion of trial, the jury convicted
Gaines on all counts. Gaines appeals his convictions, alleging that: (1) the
district court abused its discretion in denying his motion to suppress, (2)
the district court abused its discretion in denying his motion to reconsider
the denial of the motion to suppress, (3) the district court abused its
discretion in denying his motion to sever, (4) it was error for the district
court to preclude him from offering evidence as to his brother's prior
conviction and incarceration as part of his alternative perpetrator defense,
and (5) cumulative error warrants reversal. Because we conclude that no
error occurred in this case, we affirm the judgment of conviction.
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The district court did not abuse its discretion by denying Gaines's motion to
suppress
Gaines argues that the district court abused its discretion
when it denied his motion to suppress because his arrest was unlawful.
He contends that, although it was lawful for the detectives to stop him
based upon the expired license plates, the detectives abused their
discretion in deciding to arrest him rather than simply citing him for the
traffic violation.'
"Suppression issues present mixed questions of law and fact."
State v. Beckman, 129 Nev. „ 305 P.3d 912, 916 (2013) (quoting
Johnson v. State, 118 Nev. 787, 794, 59 P.3d 450, 455 (2002), overruled on
other grounds by Nunnery v. State, 127 Nev. „ 263 P.3d 235, 250-51
(2011)). "This court reviews findings of fact for clear error, but the legal
consequences of those facts involve questions of law that we review de
novo." Id. The United States Supreme Court has held that if an officer
has probable cause to believe that even a minor offense has occurred, such
as a misdemeanor punishable only by a fine, then he may arrest the
person without violating the Fourth Amendment. Atwater v. City of Lago
Vista, 532 U.S. 318, 354 (2001). The Court recognized, however, that
'Gaines also argues that the district court should have held an
evidentiary hearing to determine the facts surrounding the search of his
vehicle. However, the district court is not required to sua sponte order an
evidentiary hearing when the defendant fails to identify disputed issues of
fact. Cortes v. State, 127 Nev. , , 260 P.3d 184, 187 (2011). Gaines
failed to request an evidentiary hearing and his motion to suppress did not
identify factual disputes, but instead focused on a legal argument that the
detectives abused their discretion to make an arrest pursuant to NRS
484A.730 and NRS 171.1771 when they arrested him Thus, we conclude
that Gaines's argument lacks merit.
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states may statutorily impose stricter conditions for permitting a lawful
arrest for a minor offense. Id. at 352. Nevada has imposed such
restrictions through NRS 484A.730.
Under NRS 484A.730, aside from certain enumerated
situations that mandate arrest, an officer has discretion to either arrest a
person or issue a citation for a minor traffic offense. In this case, since
none of the situations mandating arrest apply, the issue is whether the
detectives abused their discretion by arresting Gaines for the minor traffic
violation. This court addressed what constitutes an abuse of discretion by
an officer under NRS 484A.730 in State v. Bayard, 119 Nev. 241, 71 P.3d
498 (2003). 2 In Bayard, this court stated that "[a]bsent special
circumstances requiring immediate arrest," individuals should be cited
rather than arrested for minor traffic violations. Id. at 247, 71 P.3d at
502. Special circumstances exist either as provided for in the statute or
"when an officer has probable cause to believe other criminal misconduct
is afoot." Id.
We conclude that the district court properly determined that
the detectives did not abuse their discretion in arresting Gaines for the
traffic violation because there was "probable cause to believe other
criminal misconduct [was] afoot." Id. The detectives had initially
identified the vehicle as one matching the description of a car they were
looking for in conjunction with the attacks. Furthermore, the vehicle
appeared to be cruising shopping centers in proximity to the area where
statute under review in State v. Bayard was NRS 484.795. 119
2 The
Nev. 241, 245-47, 71 P.3d 498, 501-02 (2003). In 2009, the Legislature
amended NRS Chapter 484 and NRS 484.795 was renumbered as NRS
484A.730, but the statutory language remained materially the same.
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the crimes were committed. Finally, once Gaines was stopped, the
detectives observed zip ties, condom wrappers, and gloves in the car. 3
Thus, Gaines's arrest was lawful and the district court did not abuse its
discretion in denying his motion to suppress. 4
The district court did not abuse its discretion by denying reconsideration of
Gaines's motion to suppress or in denying his motion to suppress on
alternate grounds
Gaines next argues that the district court erred in denying his
motion for reconsideration and motion to suppress on alternate grounds
because his alternate suppression motion raised new issues.
"A district court may reconsider a previously decided issue if
substantially different evidence is subsequently introduced or the decision
is clearly erroneous." Masonry & Tile Contractors Ass'n of S. Nev. v.
Jolley, Urga & Wirth, Ltd., 113 Nev. 737, 741, 941 P.2d 486, 489 (1997).
Gaines did not introduce new evidence, instead he pointed to the same set
of facts discussed in his original motion to suppress. Furthermore, as we
conclude in this order, the district court's decision on Gaines's motion was
3 Gaines disputes the district court's factual finding that the items
LVMPD Detective Gabriel Lebario saw in Gaines's car were in plain view.
The district court relied upon the Declaration of Arrest in which Detective
Lebario stated that he saw zip ties and condom wrappers in Gaines's
vehicle when he looked through the windows. Thus, because the district
court did not clearly err in finding that the items were in plain view, we
will not disturb its findings. State v. Beckman, 129 Nev. „ 305 P.3d
912, 916 (2013).
4 Because we determine that the detectives did not abuse their
discretion in arresting Gaines for the traffic violation pursuant to NRS
484A.730, we need not address Gaines's argument that the detectives also
abused their discretion in arresting him pursuant to NRS 171.1771 for the
misdemeanor offense of failing to notify local law enforcement of a change
in address.
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not clearly erroneous, and the district court thus did not abuse its
discretion in denying his motion to reconsider.
With regard to Gaines's motion to suppress on alternate
grounds, EDCR 7.12 states:
When an application or a petition for any writ or
order shall have been made to a judge and . .
denied by such judge, the same application,
petition or motion may not again be made to the
same or another district judge, except in
accordance with any applicable statute and upon
the consent in writing of the judge to whom the
application, petition or motion was first made.
Although Gaines premised his motion to suppress on alternative grounds
on new legal theories, he sought to suppress the same evidence based on
the same set of events and facts as those present in his first motion.
Additionally, these theories could have been raised in the original motion.
Therefore, we conclude that the district court did not abuse its discretion
in denying the motion to suppress on alternate grounds.
The district court did not abuse its discretion by denying Gaines's motion to
sever
Gaines argues that the district court abused its discretion
when it denied his motion to sever counts 1-5, from counts 6-10, from
counts 11-16. The district court concluded that joinder was proper under
NRS 173.115 because all counts showed a common scheme or plan.
A district court's decision regarding joinder will not be
overturned unless the court abused its discretion. Zana v. State, 125 Nev.
541, 548, 216 P.3d 244, 249 (2009). Pursuant to NRS 173.115(2), "[t]wo or
more offenses may be charged in the same indictment or information in a
separate count for each offense if the offenses charged . . . are . . . [b]ased
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on two or more acts or transactions connected together or constituting
parts of a common scheme or plan."
A careful review of the record reveals that at the hearing on
Gaines's motion to sever, the State presented evidenceS to demonstrate
that the three incidents forming the basis of the charged crimes all shared
significant similarities—the perpetrator invaded the private home of an
elderly woman, each incident involved robbery and a sexual assault or the
perpetrator asking the victim questions of a sexual nature, and each
incident was proximate in location and time. Finally, all three victims
were bound in a similar manner and threatened with a knife. Although
Gaines contends that there were significant differences between all three
of the incidents, such as how the intruder entered the home and the level
of violence inflicted upon the victims, we conclude that the State
sufficiently demonstrated that all three incidents were connected together
as part of a common scheme or plan. See Weber v. State, 121 Nev. 554,
572, 119 P.3d 107, 120 (2005) (stating that "a scheme or plan can in
practice reflect some flexibility and variation but still fall within an overall
intended design"). Thus, we further conclude that the district court did
not abuse its discretion by denying Gaines's motion to sever.
The district court's decision to preclude Gaines from introducing evidence
regarding his brother's prior conviction and incarceration was not
manifestly wrong
During trial, Gaines sought to introduce evidence that his
brother Phillip Gaines had previously been convicted of robbery and was
currently incarcerated. The State objected and the district court sustained
the objection, concluding that the evidence was not relevant because
Gaines had failed to lay the proper foundation. Gaines argues that the
district court's preclusion of the •evidence was an abuse of discretion
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because evidence of Phillip's robbery conviction was relevant as part of his
alternative-perpetrator defense to show that Phillip had motive and intent
to commit the crimes. "A district court's decision to admit or exclude
evidence will not be reversed on appeal unless it is manifestly wrong."
Archanian v. State, 122 Nev. 1019, 1029, 145 P.3d 1008, 1016 (2006).
"[R]elevant evidence" is any evidence that "[tends] to make the existence
of any fact that is of consequence to the determination of the action more
or less probable." NRS 48.015.
Gaines sought to introduce Phillip's judgment of conviction as
part of his alternative-perpetrator defense, claiming that the DNA
evidence implicating him could also point to Phillip. However, as the
district court stated, Gaines failed to introduce any DNA evidence showing
that he and Phillip were actually brothers, or that they shared similar
genetic markers. Furthermore, although Gaines claimed that both he and
Phillip worked in the heating and air conditioning field and used similar
tools, like zip ties, no evidence was introduced on that issue. Gaines also
claimed that the judgment of conviction was relevant because Phillip was
incarcerated during much of the same time as Gaines. However, the
record reflects that Phillip was not incarcerated until one year after
Gaines's arrest, thus any argument that the crimes stopped when Phillip
was incarcerated lacks merit as Phillip would have had an entire year to
commit more assaults after Gaines was incarcerated. Therefore, we
conclude that the district court's decision to exclude this evidence was not
manifestly wrong.
Cumulative error
Lastly, Gaines argues that cumulative error warrants reversal
because, even if all the errors alone were harmless, the cumulative effect
was harmful and prejudicial. Cumulative error may deny a defendant a
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fair trial even if the, errors, standing alone, would be harmless. Valdez v.
State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008). "When evaluating a
claim of cumulative error, we consider the following factors: ``(1) whether
the issue of guilt is close, (2) the quantity and character of the error, and
(3) the gravity of the crime charged." Id. (quoting Mulder v. State, 116
Nev. 1, 17, 992 P.2d 845, 854-55 (2000)).
After reviewing the entire record, we determine that Gaines's
assignments of error are meritless and that the State established Gaines's
guilt by overwhelming evidence. As a result, we conclude that Gaines's
cumulative error challenge is unavailing.
Having considered Gaines's contentions and concluded that
they do not warrant reversal, we
ORDER the judgment of the district court AFFIRMED.
°L 1 -4-4- s
1 -t J.
Hardesty
\DK) ofic J.
Douglas
411- J.
Cherry
cc: Hon. Valorie J. Vega, District Judge
Jonathan E. MacArthur
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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