Lorenzo (Richie) v. State ( 2014 )

 evidence supports the verdict, Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20,
20 (1981); see also NRS 193.330(1); NRS 200.380(1); NRS 200.400(2); MRS
200.481(2)(b). Therefore, we conclude that Lorenzo's contention is without
merit.
Second, Lorenzo contends that the district court unreasonably
restricted his defense by excluding surrebuttal evidence of photographs of
the area where the crime occurred. Lorenzo claims that the State
presented new evidence during rebuttal when the victim testified about
the path he walked and that the photographs would have impeached the
victim's rebuttal testimony and were relevant to the victim's credibility.
The district court concluded that Lorenzo was not entitled to surrebuttal
as the State did not re-open its case by presenting new evidence and that
appellant was not denied his right to confront a witness. "We review a
district court's decision to admit or exclude evidence for an abuse of
discretion." Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008).
In response to Lorenzo's detailed testimony of the path he walked, the
victim further explained the path he walked on rebuttal. This was not
new evidence. The victim testified about the path he walked during the
State's case-in-chief, utilizing the State's pictorial exhibits of the area to
explain his path, and his testimony on rebuttal did not differ but was more
detailed. Lorenzo had the opportunity, both during the State's case-in-
chief and rebuttal, to cross-examine the victim regarding the path he
walked Therefore, we conclude that the district court did not abuse its
discretion by excluding Lorenzo's surrebuttal evidence.
Third, Lorenzo contends that the district court limited his
theory of self-defense by excluding any reference to the victim's military
background or experience. The district court did not preclude testimony of
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the victim's military background or experience. Instead, the district court
held that Lorenzo must lay an adequate foundation to establish the
relevance of the victim's military background or experience before
reference to such could be made and determined that the victim's
voluntary statement did not provide an adequate foundation to establish
the relevance of the victim's military background or experience. At trial,
Lorenzo did not ask the victim about his military background or attempt
to establish an adequate foundation for admitting this evidence. We
conclude that the district court did not abuse its discretion.
Fourth, Lorenzo contends that the district court erred by not
allowing evidence that he made a statement to police to support the theory
that he acted in self-defense and cooperated with police during the
investigation. Lorenzo argues that the district court erred by relying on
Glover v. State, 125 Nev. 691, 220 P.3d 684 (2009), because Lorenzo only
sought to admit the fact that he gave a voluntary statement but not the
statement itself.' The district court ruled that, because the statement was
inadmissible hearsay, the evidence that Lorenzo gave a statement to the
police was irrelevant and that the evidence led to a negative inference
prohibited by Glover. We review the district court's decision for an abuse
of discretion. Mclellan, 124 Nev. at 267, 182 P.3d at 109. Lorenzo fails to
demonstrate that the evidence was relevant to support a theory of self-
defense or to "explain the resulting conduct of the police." Shults v. State,
96 Nev. 742, 747-48, 616 P.2d 388,392 (1980) (determining that testimony
by police officers that they had a conversation with a witness did not
'To the extent Lorenzo asks this court to reconsider and narrow our
holding in Glover, we decline to do so.
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violate the hearsay rule because the officers did not divulge any specific
statements and the testimony was offered to "explain the resulting
conduct of the police"). Therefore, he fails to demonstrate that the district
court abused its discretion.
Fifth, Lorenzo contends that the State committed
prosecutorial misconduct by disparaging Lorenzo and by shifting the
burden of proof and that the district court abused its discretion by denying
his motion for a mistrial. He argues that the State's closing argument
informed jurors that defendants have a duty to confess and to cooperate,
that all arrested persons must be guilty, and that Lorenzo's pre-arrest
silence constituted evidence of guilt. 2 Additionally, he claims that the
State's argument was unsupported by the evidence and that the State
suggested his defense was a "story." Lorenzo objected to the statements
and moved for a mistrial after the State concluded its argument and after
the case had been submitted to the jury. Because Lorenzo did not object to
the statements at the time they were made, we review for plain error.
NRS 178.602; Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003); see
also McKague v. State, 101 Nev. 327, 330, 705 P.2d 127, 129 (1985)
(providing that claims of error "need not be considered" where defendant
fails to make a contemporaneous objection).
When considered in context, the State properly responded to
argument made by Lorenzo, commented on the evidence presented, and
2Lorenzo challenges the following language: "The defendant doesn't
want to get in trouble. It's only after he's arrested that he decides to talk
to the police and at that point he blames the victim. He has a motive. He
has a motive to tell that story. He doesn't want to get in trouble."
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asked the jury to draw inferences from that evidence. See State v. Green,
81 Nev. 173, 176, 400 P.2d 766, 767 (1965) ("The prosecutor ha[s] a right
to comment upon the testimony and to ask the jury to draw inferences
from the evidence, and has the right to state fully his views as to what the
evidence shows."). Furthermore, the State properly commented on
Lorenzo's motive to lie. See, e.g., Ross v. State, 106 Nev. 924, 927, 803
P.2d 1103, 1106 (1990). Both the State and Lorenzo referred to the
different versions of events as stories, and Lorenzo fails to• demonstrate
that the use of the word "story" affected his substantial rights.
Accordingly, we conclude that there was no plain error and the district
court did not abuse its discretion by denying Lorenzo's motion for mistrial.
See Rose v. State, 123 Nev. 194, 206-07, 163 P.3d 408, 417 (2007) (we
review a district court's decision to deny a motion for a mistrial for an
abuse of discretion).
Sixth, Lorenzo contends that the district court's denial of his
for-cause challenge of a potential juror constitutes reversible error. He
argues that the potential juror demonstrated a manifest bias against the
defense based on her experiences with her brother and the criminal justice
system. The district court denied the for-cause challenge after clarifying •
counsels' questions and extensively questioning the potential juror
regarding any bias. Lorenzo exercised a peremptory challenge to remove
the potential juror. Even if the district court erred, Lorenzo has not
alleged or demonstrated that any jurors actually empanelled were unfair
or not impartial. See Weber Ix State, 121 Nev. 554, 581, 119 P.3d 107, 125
(2005) ("Any claim of constitutional significance must focus on the jurors
who were actually seated, not on excused jurors."). Therefore, no relief is
warranted on this claim.
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Seventh, Lorenzo argues that the district court erred by
denying his proposed "two reasonable interpretations" jury instruction and
by denying his alternative jury instruction for robbery and instead giving
one that lowered the State's burden of proof. "This court reviews a district
court's decision settling jury instructions for an abuse of discretion or
judicial error; however, whether the instruction was an accurate
statement of the law is a legal question that is reviewed de novo."
Funderburk v. State, 125 Nev. 260, 263, 212 P.3d 337, 339 (2009) (citation
omitted). We have previously held that it is not error to reject the type of
"two reasonable interpretations" instruction that Lorenzo proposed when,
as here, the jury was properly instructed on the standard of reasonable
doubt, and Lorenzo fails to demonstrate that the district court abused its
discretion. Bails v. State, 92 Nev. 95, 96-98, 545 P.2d 1155, 1155-56 (1976)
(citing Holland v. United States, 348 U.S. 121, 139-40 (1954)); see also
Crawford v. State, 121 Nev. 744, 754, 121 P.3d 582, 589 (2005) (holding
that a defendant is not entitled to misleading, inaccurate, or duplicative
jury instructions). Furthermore, Lorenzo's alternative instruction for
robbery was not an accurate statement of the law and the instruction
given was a correct statement of the law, see Cortinas v. State, 124 Nev.
1013, 1030, 195 P.3d 315, 326 (2008), therefore, Lorenzo fails to
demonstrate that the district court abused its discretion.
Lastly, Lorenzo claims that his conviction for battery with
intent to commit a crime is redundant to his convictions for attempted
robbery and battery with substantial bodily harm and that it violates the
Double Jeopardy Clause. Lorenzo concedes that Blockb urger v. United
States, 284 U.S. 299 (1932), and this court's opinion in Jackson v. State,
128 Nev. , 291 P.3d 1274 (2012) cert. denied, U.S. 134 S. Ct. 56SUPREME COURT
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(2013), negate his argument but asks this court to reconsider our decision
and return to the "same act" analysis. We decline to do so. Each of
Lorenzo's convictions requires proof of an element that the others do not,
compare NRS 200.400(2), with NRS 193.330(1), NRS 200.380(1), and NRS
200.481(2)(b); therefore, Lorenzo's convictions do not violate the Double
Jeopardy Clause. Blockb urger, 284 U.S. at 304 (establishing an elements
test for double jeopardy purpose). Furthermore, none of the statutes
indicate that cumulative punishment is precluded; therefore, Lorenzo's
convictions are not redundant. See NRS 193.330(1); NRS 200.380(1); NRS
200.400(2); NRS 200.481(2)(b); Jackson, 128 Nev. at , 291 P.3d at 1278
(applying the Blockb urger test to redundancy claims when the relevant
statutes do not expressly authorize or prohibit cumulative punishment).
Having considered Lorenzo's claims and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
J.
Pickering
cm
altita—czer- J.
Parraa-uirre
J.
Saitta
cc: Hon. Carolyn Ellsworth, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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