Kay (Andrew) v. State ( 2014 )

 Kay's defense and convicted him of all but the possession of stolen
property counts.
Almost two years after the verdict, Kay filed a motion for a
new trial based on newly discovered evidence. The alleged new evidence
was obtained as a result of document production related to Frates' civil
suit against Twin-Vest and consisted of: a May 1, 2008, invoice from Kay
for work done at the Nipton pit; a bill of sale in which Coast to Coast sold
equipment to Twin-Vest in lieu of being in default on the promissory note;
depositions from Janet Bivens (a former employee of Twin-Vest), Philip
Boeckle, and Frates; and a letter from Frates written to the family court
on behalf of Kay. Kay asserted that this evidence entirely discredited the
Boeckleses' trial testimony that they did not hire or authorize him to
recover equipment from the Nipton site and were not aware that he had
taken the equipment, and demonstrated that the Boeckles were intimately
involved in the seizure of the equipment from the Nipton site. Kay further
asserted that this evidence would have established that he acted in good
faith when seizing the equipment and changed the outcome of the trial.
The district court summarily denied the motion and this appeal followed.
Kay claims that the district court erred by denying his motion
for a new trial.' We disagree. Kay failed to demonstrate that all of the
'Kay failed to adequately cite to the record in his briefs and provide
this court with a copy of the trial transcripts and the transcript of the
hearing on the motion for a new trial See NRAP 3C(e)(1)(C); NRAP
30(b)(1). The trial transcripts are essential for resolving this claim. We
are able to reach the merits of this claim only because the State provided
copies of the trial transcripts in its appendix. We remind Kay's counsel
that it is appellant's responsibility to provide this court with all
transcripts and documents necessary for this court's review of the issue
raised on appeal. NRAP 30(b)(1)-(3).
SUPREME COURT
OF
NEVADA
2
(0)1947A 44C14(
evidence was "newly discovered" or "that even with the exercise of
reasonable diligence it could not have been discovered and produced for
trial." Sanborn v. State, 107 Nev. 399, 406, 812 P.2d 1279, 1284 (1991).
Further, much of the evidence is cumulative to other evidence presented
at trial, and Kay failed to demonstrate that presentation of this evidence
would "render a different result probable upon retrial." Id. Finally, the
primary purpose of the alleged new evidence was to impeach the
Boeckleses' trial testimony. Although the Boeckleses' testimony was
important, Kay presented other testimony at trial aimed at discrediting
the Boeckleses' testimony, and their testimony was not so important that
further discrediting of their testimony would make a different result at
trial reasonably probable. Id. We therefore conclude that the district
court did not abuse its discretion by denying the motion for a new trial, see
id.; NRS 176.515, and we
ORDER the judgment of the district court AFFIRMED.
cc: Hon. Michelle Leavitt, District Judge
Cremen Law Offices
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
3
A)) I 947A