Gaston (Gary) v. State ( 2014 )

 through the back door unannounced and walked into Moffett's bedroom.
Gaston told Moffett that he needed to talk to her, but she slammed the
door in his face and locked it. Gaston used a hammer to break down the
door and, once inside, stabbed Moffett in the chest with an army knife he
had concealed beneath his clothing. Moffett died from the wound. When
law enforcement arrived, Gaston told them that he entered Moffett's home
"with intent" because she had stolen from him and cheated on him When
asked what he meant by "intent," Gaston said "well, I had a knife on me."
We conclude that the jury could have reasonably inferred from
the evidence presented that Gaston committed burglary.' See NRS
205.060(1); Valdez v. State, 124 Nev. 1172, 1197, 196 P.3d 465, 481 (2008)
("Mntent can rarely be proven by direct evidence of a defendant's state of
mind, but instead is inferred by the jury from the individualized, external
circumstances of the crime." (internal quotation marks omitted)); see also
United States v. Powell, 469 U.S. 57, 67 (1984) (a sufficiency of the
evidence review should be conducted independently of any assertion of
inconsistent verdicts). A jury's verdict will not be disturbed on appeal
where, as here, it is supported by sufficient evidence. See Bolden v. State,
97 Nev. 71, 73, 624 P.2d 20, 20 (1981).
Second, Gaston contends that his right to due process was
violated because his convictions for burglary and voluntary manslaughter
are "mutually exclusive." We disagree. Although the verdicts may be
'We reject the State's assertion that Gaston committed burglary by
entering Moffett's bedroom with the intent to commit murder because this
theory was not alleged in the charging document or argued at trial. See
Alford v. State, 111 Nev. 1409, 1415, 906 P.2d 714, 717-18 (1995);
Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 584-85 (2005).
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inconsistent, they are not mutually exclusive under the circumstances
presented, 2 see generally W.E. Shipley, Annotation, Inconsistency of the
Criminal Verdict as Between Different Counts of an Indictment or
Information, 18 A.L.R.3d 259, 287 (1968), and inconsistent verdicts are
permitted where supported by sufficient evidence, see Greene v. State, 113
Nev. 157, 173-74, 931 P.2d 54, 64 (1997), receded from on other grounds by
Byford v. State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000). Under the
facts of this case in particular, we are convinced that the jury's verdict
should not be disturbed. See Powell, 469 U.S. at 65 (recognizing that
inconsistent verdicts "should not necessarily be interpreted as a windfall
to the Government at the defendant's expense," because it is "equally
possible" that the jury was convinced of the defendant's guilt but reached
its verdict "through mistake, compromise, or lenity"). We conclude that no
relief is warranted.
Third, Gaston contends that the district court abused its
discretion at sentencing by failing to state on the record that it had
considered the factors required by NRS 193.165(1) before imposing the
sentence for the deadly weapon enhancement. We disagree because
Gaston did not object and fails to demonstrate plain error which affected
his substantial rights. See Mendoza-Lobos v. State, 125 Nev. 634, 644, 218
P.3d 501, 507-08 (2009).
'Gaston notes that the charging document and jury instructions
improperly stated that he was guilty of burglary if he entered Moffett's
home with the "intent to commit substantial bodily harm." This deficiency
does not compel the conclusion that the verdicts are mutually exclusive.
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Having considered Gaston's contentions and concluded that no
relief is warranted, we
ORDER the judgment conviction AFFIRMED.
Pideutty
J.
Pickering
J.
Parrag-uirre
J.
Saitta
cc: Hon. Jerome T. Tao, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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