Barchenger (Dan) v. State ( 2014 )

 leaving a bruise. During the fracas, the shotgun discharged. Afterward,
Barchenger forced Walters at gunpoint to leave the residence in his boxer
shorts and socks. As Walters walked down the road, Barchenger
attempted to hit Walters with his car, but Wilson intervened by driving
her car between Walters and Barchenger's car. Walters climbed into
Wilson's car and they, along with Cheynia and Ricky, fled and contacted
the police.
Barchenger contends that the evidence presented at trial was
insufficient to support his conviction for battery with the use of a deadly
weapon involving Cheynia on two grounds. When reviewing a challenge to
the sufficiency of the evidence, we consider "whether, after viewing the
evidence in the light most favorable to the prosecution, any rational [juror]
could have found the essential elements of the crime beyond a reasonable
doubt." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "[I]t is the
function of the jury, not the appellate court, to weigh the evidence and
pass upon the credibility of the witness." Walker v. State, 91 Nev. 724,
726, 542 P.2d 438, 439 (1975). The jury's verdict will not be disturbed on
appeal where substantial evidence supports the verdict. See Bolden v.
State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair, 108 Nev. at
56, 825 P.2d at 573.
First, Barchenger argues that his battery conviction must fall
because his striking Cheynia with the shotgun was accidental and not an
intended consequence of battering Walters. Cheynia testified that when
Barchenger pointed the shotgun at Wilson, she pushed the shotgun way
and Barchenger "grabbed the butt of the gun, twisted it around and hit me
in my arm." Walters testified that he saw Barchenger hit Cheynia with
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the shotgun. The jury could reasonably infer from the evidence presented
that Barchenger battered Cheynia with a deadly weapon. See NRS
200.481(2)(e).
Second, Barchenger argues that the offense was not
committed with the use of a deadly weapon because Cheynia was struck,
rather than shot, with the shotgun. In this, he suggests that, "a deadly
weapon' should be governed by the 'old' definition of a 'deadly weapon'
under NRS 193.165, before the legislature amended that statute with NRS
193.165(6): A shotgun is a 'weapon' when it is used in an ordinary manner
contemplated by its design or construction." NRS 193.165 speaks to
sentence enhancement for the use of a deadly weapon during the
commission of a crime and does not apply where the use of a deadly
weapon is a necessary element of the offense, NRS 193.165(4). We have
observed that when a deadly weapon is an element of the offense, "an
instrumentality, even though not normally dangerous, is a deadly weapon
whenever it is used in a deadly manner." Zgombic v. State, 106 Nev. 571,
573, 798 P.2d 548, 549 (1990), superseded by statute on other grounds as
stated in Steese v. State, 114 Nev. 479, 499 n.6, 960 P.2d 321, 334 n.6
(1998). Under the facts presented here, we conclude that the jury could
reasonably infer that Barchenger battered Cheynia with a deadly
weapon.' See Loretta v. Sheriff, 93 Nev. 344, 345 n.1, 565 P.2d 1008, 1009
"In the alternative, Barchenger argues that the district court erred
by not giving appropriate instructions so that the jury could determine
whether the evidence presented was sufficient to support his conviction for
battery with the use of a deadly weapon involving Cheynia. He argues
that "[w]hat would be required is a general intent to commit a battery (in
this case against [Walters]) in such a way that it has the direct, natural
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11.1 (1977) (noting that an unloaded pistol may be considered a deadly
weapon to support a charge of assault with a deadly weapon if used as a
bludgeon); see generally Archie v. Sheriff, 95 Nev. 182, 183, 591 P.2d 245,
245 (1979) (concluding that evidence showing that the defendant struck
the victim with a two-by-four piece of lumber provided sufficient probable
cause to support a charge of battery with the use of a deadly weapon).
Barchenger next argues that the district court erred by not
giving an instruction in accordance with Mendoza v. State, 122 Nev. 267,
275-76, 130 P.3d 176, 181 (2006), advising the jury that to convict him of
kidnapping, the prosecution must show that the kidnapping was not
incidental to the battery of Walters. Because he did not object to this
omission, his claim is reviewed for plain error affecting his substantial
rights. See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003).
Barchenger argues that "because of the way in which the kidnapping[ 2]
. . . continued
and probable consequence, if successfully completed, of causing injury to
another (in this case, to [Wilson] and/or Cheynia). He further contends
that the deadly weapon instruction was misleading because it allowed the
jury to find that the shotgun used here was a deadly weapon although it
was not used in the manner contemplated by its design. Barchenger did
not request such instructions or object to any instructions given, and we
conclude that he has not demonstrated plain error in this regard. See
Green, 119 Nev. at 545, 80 P.3d at 95. And to the extent he challenges the
charged offense of battery with the use of a deadly weapon involving
Wilson, he was acquitted of that offense and therefore no relief is
warranted.
2 The district court instructed the jury on second-degree kidnapping
as follows:
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and false imprisonment counts were charged and argued, and because of
the way in which the jury was instructed, the crimes of second-degree
kidnapping and false imprisonment were both indistinguishable and
necessarily intrinsic to the associated crime of battery." In this, he
reasons that "by cornering Walters on the couch and striking him with a
shotgun, [he] to some degree detained, seized, and/or violated the personal
liberty of Walters at that point in time," a single act that could result in
convictions for battery, false imprisonment, and second-degree
kidnapping. Therefore, according to Barchenger, a Mendoza instruction
was necessary to ensure that he was not convicted of second-degree
kidnapping based on any movement of Walters that was incidental to the
battery. We conclude that he has not demonstrated plain error.
The State charged Barchenger with second-degree kidnapping
of Walters by "willfully, unlawfully, and without the authority of law,
. . . continued
Every person who shall willfully and without the
authority of law seize, inveigle, take, carry away
or kidnap another person with the intent to keep
such person secretly imprisoned within the state,
or for the purpose of conveying such person out of
state without authority of law, or in any manner
held to service or detained against his or her will,
shall be deemed guilty of kidnapping in the second
degree.
To support the charge of kidnapping it is the fact
of moving the victim, not the distance, which is
controlling. In other words, there does not have to
be any appreciable movement as long as the victim
was taken from one place to another.
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carry away, and/or kidnap the person of Robert Walters with the intent to
detain the victim against his/her will . . . ." Although not evident from the
charging document, the State argued to the jury twice during closing
arguments that it had proved second-degree kidnapping by Barchenger's
actions in taking Walters from inside the residence and forcing him at
gunpoint to walk down a road. While Barchenger appears to suggest that
the kidnapping occurred when he detained Walters on the couch at
gunpoint and beat him, that does not appear to be the factual basis of the
second-degree kidnapping charge. Barchenger's actions in removing
Walters from his residence at gunpoint and forcing him to walk some
distance down a road were not incidental to the battery but distinct
conduct that supports a separate second-degree kidnapping conviction.
Further, we are not persuaded by Barchenger's arguments concerning the
relevance of the false imprisonment charge to this issue as he was
acquitted of that charge. Having reviewed the trial transcripts, jury
instructions, and charging document, we cannot say that the district court
had a sua sponte duty to provide a Mendoza instruction and therefore
Barchenger has failed to demonstrate plain error.
Having considered Barchenger's arguments and concluded
that they lack merit, we
ORDER the judgment of conviction AFFIRMED.
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cc: Hon. Brent T. Adams, District Judge
Richard F. Cornell
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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