Sanchez-Dominguez v. State , 2014 NV 10 ( 2014 )


Menu:
  •                                                   130 Nev., Advance Opinion 10
    IN THE SUPREME COURT OF THE STATE OF NEVADA
    DAVID SANCHEZ-DOMINGUEZ,                             No, 58345
    Appellant,
    vs.                                                           FILED
    THE STATE OF NEVADA,
    FEB 2 7 2014
    Respondent.
    TRAACIEN LINDEMA
    CLEPOWSCIEIRgMe:q
    BY
    C1-1(EF DEPUTY CLERK
    Appeal from a judgment of conviction, pursu t to a jury
    verdict, of first-degree murder with the use of a deadly weapon,
    aggravated stalking, and burglary. Second Judicial District Court,
    Washoe County; Steven R. Kosach, Judge.
    Affirmed.
    Richard F. Cornell, Reno,
    for Appellant.
    Catherine Cortez Masto, Attorney General, Carson City; Richard A.
    Gammick, District Attorney, and Terrence P. McCarthy, Deputy District
    Attorney, Washoe County,
    for Respondent.
    BEFORE THE COURT EN BANC.'
    OPINION
    By the Court, PICKERING, J.:
    First-degree felony murder      occurs   when a murder is
    "EcIommitted in the perpetration or attempted perpetration of' certain
    'Following oral argument, this matter was transferred from a panel
    to the en banc court pursuant to TOP Rule 13(b).
    SUPREME COURT
    OF
    NEVADA
    (0 1947A
    pide 5'4a
    felonies, including burglary. NRS 200.030(1)(b). In this appeal, we
    address the meaning of "in the perpetration or attempted perpetration of'
    a burglary, specifically, whether a killing must be caused by, and occur at
    the exact moment of, a burglar's entry into a protected structure. Because
    NRS 200.030(1)(b) holds felons strictly responsible for killings that result
    from their felonious actions, we affirm the judgment of conviction, even
    though the killing here occurred after the offense of burglary was
    complete.
    I.
    David Sanchez-Dominguez married Maria Angustias Corona
    in 2002. Over the course of their seven-year marriage, Sanchez-
    Dominguez subjected Maria to physical and mental abuse. Maria
    attempted to leave Sanchez-Dominguez several times, but always
    returned. In September 2009, Maria again left Sanchez-Dominguez and
    moved into her mother's home. She also obtained a temporary protective
    order that forbade Sanchez-Dominguez from coming within 100 yards of
    Maria, her mother's home, or her place of work. Despite the protective
    order, Sanchez-Dominguez continued to pursue Maria.
    On November 13, 2009, Sanchez-Dominguez drove to Maria's
    mother's home. He entered the home, uninvited, through the unlocked
    front door. Inside, he encountered several of Maria's relatives, including
    her mother, two cousins, and two brothers. Repeatedly, Sanchez-
    Dominguez asked for Maria and was told that she was not home. Maria's
    relatives told Sanchez-Dominguez to leave, but he refused. When Maria's
    cousin Jose moved toward the phone to call 911, Sanchez-Dominguez
    pulled a gun from the waist of his pants and told Jose not to move. He
    then pointed the gun at Maria's mother. Hearing the commotion, Roberto
    SUPREME COURT
    OF
    NEVADA
    2
    (0) 1947A ero
    Corona, Maria's brother, came downstairs. Upon realizing what was
    happening and seeing that Sanchez-Dominguez had the gun drawn,
    Roberto stepped between his mother and Sanchez-Dominguez and said, "if
    you're going to shoot, shoot." Immediately, Sanchez-Dominguez held the
    gun to Roberto's chest and fired a single shot, killing him
    The State charged Sanchez-Dominguez with burglary,
    aggravated stalking, and murder. The murder count was charged as
    willful, deliberate, and premeditated murder and, alternatively, as felony
    murder in the perpetration of burglary. After a seven-day trial, the jury
    found Sanchez-Dominguez guilty on all three counts. The jury then chose
    a sentence of life imprisonment without parole for the murder, and the
    district court sentenced Sanchez-Dominguez on the remaining counts.
    Sanchez-Dominguez raises two issues on appeal, only one of
    which warrants extended discussion: Did the district court err by issuing
    an incomplete jury instruction regarding felony murder and rejecting the
    alternative instructions Sanchez-Dominguez proffered, thereby allowing
    the jury to base a first-degree murder conviction on the felony-murder
    theory predicated on a completed felony? 2
    2Sanchez-Dominguez also argues that the aggravated stalking
    charge should have been severed and tried separately because it was
    unrelated to the other offenses and highly prejudicial. The district court
    did not abuse its discretion in refusing severance. The record shows that
    Sanchez-Dominguez had an overarching plan to terrorize and control
    Maria that ultimately resulted in the burglary and murder. See NRS
    173.115(2). Also, the evidence that Sanchez-Dominguez burglarized the
    home and killed Roberto was overwhelming, leaving little reason to
    believe the jurors convicted him of murder based on emotional outrage
    over the stalking, rather than admissible evidence regarding the murder.
    SUPREME COURT
    OF
    NEVADA
    3
    (0) 1947A    ADP
    In the district court, Sanchez-Dominguez's theory of defense
    was that the felony-murder rule did not apply because the underlying
    felony, burglary, was complete before the killing happened, and thus, the
    death did not occur "during the perpetration or attempted perpetration" of
    a felony. He offered three jury instructions consistent with his theory of
    the case:
    (1) Burglary is confined to a fixed locus in time.
    The crime of Burglary is complete at entry into a
    house where the necessary specific intent is also
    determined to exist at that same fixed locus in
    time. All matters following the burglary are not a
    part of the Burglary. Thus, any act of violence
    following the actual entry into a house cannot be
    an act done during the perpetration or attempted
    perpetration of a Burglary.
    Because the evidence in this case
    demonstrates that ROBERTO CORONA was
    killed after the defendant's entry into the
    house . . . , you may not consider the alternative
    theory of felony murder as a basis for conviction of
    First Degree Murder. That theory is therefore
    removed from your consideration.
    The only theory of First Degree Murder that
    you may consider is premeditated and deliberate
    murder as defined in these instructions.
    (2) In order to find that the defendant willfully
    and unlawfully killed ROBERTO CORONA in the
    perpetration or attempted perpetration of a
    Burglary . . . , you must find beyond a reasonable
    doubt that the killing occurred while the
    defendant was entering the house.
    (3) The offense of Burglary is complete upon entry
    of a house only when at the time the house
    SUPREME COURT
    OF
    NEVADA
    4
    (0) I94Th
    is entered, the defendant has the specific intent to
    commit assault or battery or coercion or
    kidnapping therein.
    The district court rejected the proffered instructions on the grounds they
    did not accurately state the law.
    Citing Carter v. State, 
    121 Nev. 759
    , 765, 
    121 P.3d 592
    , 596
    (2005), Sanchez-Dominguez argues that defendants are entitled to have
    the jury instructed on their theory of the case. He urges that even if his
    proposed instructions were poorly worded, the district court had an
    obligation to provide the substance of the requested instructions to the
    jury. And because the district court refused to instruct the jury on the
    substance of his theory that the burglary ended before the murder,
    Sanchez-Dominguez maintains that the court violated his constitutional
    rights.
    We review the district court's rejection of the proposed
    instructions for an abuse of discretion, keeping in mind that a defendant is
    not entitled to misleading, inaccurate, or duplicative jury instructions.
    Crawford v. State, 
    121 Nev. 744
    , 748, 754, 
    121 P.3d 582
    , 585, 589 (2005).
    The first and second proposed instructions misstate the law
    regarding felony murder because the duration of felony-murder liability
    can extend beyond the termination of the felony. See infra § III(B). Thus,
    the district court had no obligation to give either instruction. See Barron
    v. State, 
    105 Nev. 767
    , 773, 
    783 P.2d 444
    , 448 (1989) ("if a proffered
    instruction misstates the law or is adequately covered by other
    instructions, it need not be given"); see also Eddy v. State, 
    496 N.E.2d 24
    ,
    27-28 (Ind. 1986) (affirming district court's rejection of defendant's
    completed-felony instruction). The third instruction is an accurate
    statement of the law of burglary enumerated in NRS 205.060.
    SUPREME COURT
    OF
    NEVADA
    5
    (0) 1947A
    Nonetheless, the court did not err by omitting this instruction because the
    instruction duplicates, and is less accurate than, the burglary instruction
    the court gave as instruction 31. 3 See 
    Crawford, 121 Nev. at 754
    , 121 P.3d
    at 589. Thus, the district court did not abuse its discretion by rejecting
    the three instructions that Sanchez-Dominguez proffered.
    Sanchez-Dominguez also argues that jury instruction number
    24 did not include all the elements of felony murder. The instruction read:
    The elements of the second category of First
    Degree Murder are:
    1. During the defendant's perpetration or
    attempted perpetration of a Burglary;
    2. a killing resulted.
    Whenever death occurs during the
    perpetration or attempt to perpetrate certain
    felonies, including Burglary, the killing
    constitutes First Degree Murder. This second
    category of First Degree Murder is the "Felony
    Murder" rule.
    While the district court was settling jury instructions, Sanchez-Dominguez
    objected that the phrase "a killing resulted" did not have the same
    meaning as "a murder committed in the perpetration." He did not tender
    an alternative instruction to capture this concept or expand on this
    objection.
    3 Instruction
    31 read: "The elements of the crime of Burglary are: (1)
    the defendant willfully and unlawfully; (2) entered any house, room
    apartment, tenement, shop or other building; (3) with the intent to
    commit. (a) assault, or (b) battery, or (c) any felony crime; including
    coercion and/or kidnapping."
    SUPREME COURT
    OF
    NEVADA
    6
    (0) 1947A    e
    Now, for the first time on appeal, Sanchez-Dominguez argues
    that instruction 24 erroneously omitted the principle of causation from its
    definition of felony murder, thereby relieving the State of its burden of
    proving "that the killing [was] linked to or part of the series of incidents so
    as to be one continuous transaction," as required by Payne v. State, 
    81 Nev. 503
    , 506-07, 
    406 P.2d 922
    , 924-25 (1965). At oral argument,
    Sanchez-Dominguez admitted that he did not request a causation
    instruction or use causation as a theory of his defense. And so, Sanchez-
    Dominguez essentially argues that the district court had a sua sponte
    obligation to instruct the jury on the required connection between the
    burglary and the killing.
    Generally, a party's failure to object to or request an
    instruction precludes appellate review. Flanagan v. State, 
    112 Nev. 1409
    ,
    1423, 
    930 P.2d 691
    , 700 (1996); Green v. State, 
    119 Nev. 542
    , 545, 
    80 P.3d 93
    , 95 (2003) (failure to clearly object to a jury instruction generally
    precludes review). There is an exception to this rule, however, if a plain
    and obvious error occurred that is so serious, it affected the defendant's
    substantial rights. 
    Green, 119 Nev. at 545
    , 80 P.3d at 95. "In conducting
    plain error review, we must examine whether there was 'error,' whether
    the error was 'plain' or clear, and whether the error affected the
    defendant's substantial rights."     
    Id. To demonstrate
    plain error, the
    appellant has the burden of demonstrating actual prejudice. 
    Id. A. "A
    necessary antecedent to invoking the plain-error doctrine is
    to determine whether error occurred at all." People v. Walker, 
    982 N.E.2d 269
    , 273 (Ill. App. Ct. 2012); see also Archanian v. State, 
    122 Nev. 1019
    ,
    SUPREME COURT
    OF
    NEVADA
    7
    (p)   1947A    e
    1031, 
    145 P.3d 1008
    , 1017 (2006) (the first step in conducting plain-error
    analysis is to consider whether an error exists).
    NRS 200.030(1)(b) defines first-degree felony murder as a
    killing that is "[c]ommitted in the perpetration or attempted perpetration
    of' certain felonies, including burglary. The phrase "[c]ommitted in the
    perpetration or attempted perpetration" of a felony does not give clear
    answers as to the time, place, and causal connection required. 2 Wayne R.
    LaFaye, Substantive Criminal Law § 14.5(f) (2d ed. 2003). And, as noted
    in 
    Payne, 81 Nev. at 506
    , 406 P.2d at 924, "Mhe point at which the crime
    was 'perpetrated' ... has been subject to varying degrees and wide
    latitude."
    Sanchez-Dominguez construes the phrase "committed in the
    perpetration of' temporally—as requiring that the killing occur before all
    the statutory elements of burglary have been completed. Citing Carr v.
    Sheriff, 
    95 Nev. 688
    , 689-70, 
    601 P.2d 422
    , 423-24 (1979), he maintains
    that he was no longer engaged "in the perpetration" of a burglary when he
    shot Roberto; the burglary, he argues, was complete once he had entered
    the family home with the specific intent to commit a felony against Maria.
    Because the burglary was completed before Roberto was killed, Sanchez-
    Dominguez maintains that the felony-murder rule does not apply.
    B.
    1.
    The phrase "in the perpetration of' has common-law roots. In
    most states, "felony murder statutes are premised upon the 1794 felony-
    murder statute of Pennsylvania." People v. Gillis, 
    712 N.W.2d 419
    , 427
    (Mich. 2006) (comparing the Pennsylvania statute with Michigan's
    identical felony-murder statute); see also 2 Wharton's Criminal Law § 147
    SUPREME COURT
    OF
    NEVADA
    8
    (0) 1947A    e
    (15th ed. 1994) ("In most states, the felony-murder statutory pattern
    continues to this day to be grounded conceptually on the 1794 felony-
    murder statute of Pennsylvania"). Pennsylvania defined felony murder as
    "[a]ll murder. . . which shall be committed in the perpetration or attempt
    to perpetrate any arson, rape, robbery or burglary . ."       Rodriguez v.
    State, 
    953 S.W.2d 342
    , 346 (Tex. App. 1997) (citing Edwin Keedy, History
    of the Pennsylvania Statute Creating Degrees of Murder, 97 U. Pa. L. Rev.
    759 (1949)).
    Nevada's original first-degree murder statute dates back to
    territorial days and used the same "in the perpetration of' language to
    describe a killing committed during the course of an enumerated felony.
    See 1861 Laws of the Territory of Nevada, ch. 28, § 17, at 58 (murder
    includes a killing "which shall be committed in the perpetration, or
    attempt to perpetrate any arson, rape, robbery, or burglary. . ."); see also
    State v. Millain, 
    3 Nev. 409
    , 440 (1867) ("Let us here, however, repeat the
    parent statute, being the Pennsylvania one of 1791."). 4 The Nevada
    Legislature has continued to use this language, with small changes, for
    over 153 years. Much like the current statute, the original version did not
    define "in the perpetration of." But because this language was widely
    used, the contemporaneous understanding of "in the perpetration of'
    among the states in the mid-to-late 1800s is useful in understanding what
    Nevada's statute meant in 1861 and still means today.
    4 The 1791 statute that Nevada adopted is identical to the 1794
    version that most states followed.
    SUPREME COURT
    OF
    NEVADA
    9
    (0) 1947A
    Indiana was one of the first states to address the meaning of
    "perpetration." In an 1876 decision, the Indiana Supreme Court upheld a
    felony-murder conviction where the defendant killed a marshal who
    confronted him after he broke into a drug store.     Bissot v. State, 
    53 Ind. 408
    , 411-12 (1876); see also State v. Pratt, 
    873 P.2d 800
    , 811-12 (Idaho
    1993). Rejecting the suggestion the burglary was already "complete"
    before the killing occurred, the court explained that "where the homicide is
    committed within the res gestae of the felony charged, it is committed in
    the perpetration of, or attempt to perpetrate, the felony within the true
    intent and fair meaning of the statute," and affirmed the conviction.
    
    Bissot, 53 Ind. at 413-14
    .
    In another early case, Ohio similarly rejected a defendant's
    argument that a killing was not "in the perpetration of" a burglary
    because the burglary was complete before he killed the victim. Conrad v.
    State, 
    78 N.E. 957
    , 958-59 (Ohio 1906). Citing the well-established rule
    that statutory construction must not defeat the purpose of a statute, the
    court explained that a killing within the res gestae of burglary is
    committed in the "perpetration of" the burglary, as the term is used in the
    felony-murder statute. 
    Id. at 959;
    see also Dolan v. People, 
    64 N.Y. 485
    ,
    497 (1876) (even if the offense of burglary is "doubtless complete," an
    accused "may be said to be engaged in the commission of the crime until
    he leaves the building").
    And in 1905, this court used a similar analysis when it
    interpreted the time requirement of the felony-murder rule.      See State v.
    Williams, 
    28 Nev. 395
    , 
    82 P. 353
    (1905). There, the defendant claimed he
    finished robbing a victim two minutes before shooting the victim and he
    therefore could not be found guilty of first-degree murder. 
    Id. at 407,
    82 P.
    SUPREME COURT
    OF
    NEVADA
    10
    (0) 1947A
    at 353. This court disagreed and affirmed Williams's conviction because
    the shooting was part of a continuous assault that began with the robbery
    and did not end until after the shooting. 
    Id. 2. The
    felony-murder rule has not substantially changed over
    time. Its "purpose [is] to deter felons from killing negligently or
    accidentally by holding them strictly responsible for the killings that are
    the result of a felony or an attempted one."    
    Payne, 81 Nev. at 506
    , 406
    P.2d at 924.   See also People v. Wilkens, 
    295 P.3d 903
    , 911 (Cal. 2013)
    ("Once a person perpetrates . . . one of the enumerated felonies [in the
    felony-murder statute], then in the judgment of the Legislature, he is no
    longer entitled to such fine judicial calibration, but will be deemed guilty
    of first degree murder. . ."). Because the felony-murder rule seeks to
    make punishment more certain, "[it was not intended to relieve the
    wrong-doer from any. . . consequences of his act." People v. Boss, 
    290 P. 881
    , 884 (Cal. 1930). Consistent with this purpose, under NRS
    200.030(1)(b), the perpetration of a felony does not end the moment all of
    the statutory elements of the felony are complete Instead, the duration of
    felony-murder liability can extend beyond the termination of the felony
    itself if the killing and the felony are part of one continuous transaction.
    See, e.g., State v. Hardy, 
    283 P.3d 12
    , 18-19 (Ariz. 2012) (en banc)
    (upholding felony-murder conviction where a felony occurred before a fatal
    shooting); Yates v. State, 
    55 A.3d 25
    , 34 (Md. 2012) (holding that "the
    felony murder doctrine applies when the felony and the homicide are parts
    of one continuous transaction").
    While the phrase "in the perpetration of' suggests a temporal
    component, it is not absolute; "the crimes of arson, burglary and rape may
    SUPREME COURT
    OF
    NEVADA
    11
    (0) 1947A    el.>
    be considered to continue while the building burns, while the burglars
    search the building and while the sexual connection is maintained."
    LaFaye, supra, § 14.5(0; see also 2 Charles E. Torcia, Wharton's Criminal
    Law § 150 (15th ed. 1994 & Supp. 2012) ("the period during which a
    burglary is deemed to be in progress has ordinarily been extended"). If the
    opposite were true and a technical construction was given to the statute,
    as advanced by Sanchez-Dominguez, it would make it "quite impracticable
    to ever convict for a murder committed in the perpetration of any of the
    felonies mentioned" in the felony-murder statute.       
    Bissot, 53 Ind. at 412
    ;
    see also 
    Pratt, 873 P.2d at 811-12
    (to say felony murder predicated upon
    burglary cannot obtain once the burglary is complete would restrict the
    felony-murder rule to cases where "the burglar had one leg over the
    windowsill or one foot across the threshold" and defeat the purpose of the
    felony-murder statute (internal quotations omitted)).
    3.
    Thus, both historical and modern interpretations of the phrase
    "in the perpetration of" as used in the felony-murder rule lead to the same
    conclusion: the phrase encompasses acts beyond the predicate felony's
    statutory elements to include all acts connected to the predicate felony.
    So, even granting that Sanchez-Dominguez had completed the statutory
    elements of burglary by the time he killed Roberto, the felony-murder rule
    still applies because the killing occurred moments later while Sanchez-
    Dominguez remained in the family home uninvited.
    C.
    But Sanchez-Dominguez argues that NRS 200.030
    additionally requires, as a separate element, direct and immediate
    causation between the underlying felony and the victim's death. He
    SUPREME COURT
    OF
    NEVADA
    12
    (0) 194Th 4E0199
    asserts that if a felony is already complete, there can be no direct causal
    connection between the felony and the killing, such that the district court's
    failure to instruct on causation beyond the reference to "a killing resulted"
    in instruction number 24 constitutes plain error. We disagree.
    A cause is "something that precedes an effect or result,"
    whereas perpetration is a specific type of causation where an actor
    "commit[s] or cardies] out" a• crime. Black's Law Dictionary 250, 1256 (9th
    ed. 2009). So, if a person commits a homicide "in the perpetration" of a
    felony, he commits the homicide while "causing" a felonious event. In
    other words, "Mlle only nexus required is that the felony and the killing be
    part of a continuous transaction." People v. Thompson, 
    785 P.2d 857
    , 877
    (Cal. 1990). And with regard to Sanchez-Dominguez's actions, that nexus
    is established.
    After all, the felony-murder rule holds felons strictly
    accountable for the consequences of perpetrating a felony, and it is
    immaterial whether a killing is intentional or accidental.           State v.
    Fouquette, 
    67 Nev. 505
    , 529-30, 
    221 P.2d 404
    , 417 (1950); 
    Walker, 982 N.E.2d at 275
    ) (discussing pattern jury instructions); People v. Huynh, 
    151 Cal. Rptr. 3d 170
    , 191 (Ct. App. 2012) ("the felony-murder rule imposes a
    type of strict liability on the perpetrator .. ."). So, even if a perpetrator
    did not intend to cause a death, causation is assumed where a killing
    would not have occurred but for the perpetrator's purposeful decision to
    cause a felony. See, e.g., 
    Walker, 982 N.E.2d at 270
    (upholding a felony-
    murder conviction where a Jehovah's Witness's decision to refuse a blood
    transfusion actually caused death because the victim would not have
    needed a life-saving transfusion but for perpetrator's actions); 
    Gillis, 712 N.W.2d at 422-23
    (holding felony-murder rule applied where a burglar
    SUPREME COURT
    OF
    NEVADA
    13
    (0) 1947A    me
    killed two people during a high-speed police chase). Accordingly, "in the
    perpetration of' captures the nominal causation that felony murder
    requires.
    This is not• to say that a felon is responsible for "mere
    coincidence [s] of time and place." 2 LaFave, supra, § 14.5(0. For example,
    the felony-murder rule would not apply where a bank customer unaware
    that a robbery is taking place suffers a fatal heart attack from natural
    causes. 
    Id. See also,
    e.g., 
    Huynh, 151 Cal. Rptr. 3d at 190-91
    (explaining
    that "causation principles" are only pertinent where other acts allegedly
    caused the death). But in these situations what has absolved the
    defendant of felony-murder liability is not a lack of causation, but rather
    that the death did not occur "in the perpetration of' the felony.
    Here, Roberto's death would not have occurred but for
    Sanchez-Dominguez's burglary of the home, and there is no doubt that
    Sanchez-Dominguez shot Roberto at point-blank range as Roberto stood
    between Sanchez-Dominquez and Roberto's and Maria's mother, the
    matriarch of their family. Even though Sanchez-Dominguez completed
    the statutory elements of burglary once he crossed the threshold of the
    house, Roberto's efforts to defend his family and home were natural
    consequences of Sanchez-Doming-uez's unlawful entry.            See State v.
    Contreras, 
    118 Nev. 332
    , 336, 
    46 P.3d 661
    , 663 (2002) ("It should be
    apparent that the Legislature, in including burglary as one of the
    enumerated felonies as a basis for felony murder, recognized that persons
    within domiciles are in greater peril from those entering the domicile with
    criminal intent. ." (quoting People v. Miller, 
    297 N.E.2d 85
    , 87 (N.Y.
    1973))). Accordingly, as we have indicated above, the killing that resulted
    falls within the purview of the first-degree felony-murder statute.      See,
    SUPREME COURT
    OF
    NEVADA
    14
    (0) 1 94 Th e
    e.g., Contreras, 
    118 Nev. 337
    , 46 P.3d at 664 (reversing a district court's
    dismissal of a felony-murder charge predicated upon burglary because the
    legislative language in NRS 200.030(1)(b) is clear); State v. Burzette, 
    222 N.W. 394
    , 399 (Iowa 1928) (upholding felony murder predicated upon
    burglary even though the killing happened after the perpetrator's illegal
    entry); 
    Dolan, 64 N.Y. at 498-99
    (same); 
    Conrad, 78 N.E. at 958
    (same);
    
    Hardy, 283 P.3d at 18-19
    (same)
    In light of this analysis, we conclude that the district court did
    not commit plain error in instructing the jury on the felony-murder rule.
    Its instruction informed jurors that felony murder requires a finding that,
    during the perpetration or attempted perpetration of a burglary, a killing
    resulted. This language closely mirrors NRS 200.030(1)(b), as interpreted
    in 
    Payne, 81 Nev. at 506
    -07, 406 P.2d at 924-25. The district court did not
    err by not sua sponte including more in the instruction than it did.
    Thus, we conclude that the assignments of error are without
    merit and affirm the judgment of conviction.
    Pitiebt 7
    Pickering
    , J.
    Parraguirre
    Douglas
    SUPREME COURT
    OF
    NEVADA
    15
    (0) 1947A    cgatp
    CHERRY and SAITTA, JJ., dissenting:
    We respectfully dissent. We would reverse thefl judgment of
    conviction on the grounds that the district court plainly erred in failing to
    instruct the jury that it could not convict appellant of felony murder if it
    concluded that the crime of burglary was completed at the time of the
    killing.
    The felony-murder rule exists "to deter dangerous conduct by
    punishing as a first degree murder a homicide resulting from dangerous
    conduct in the perpetration of a felony, even if the defendant did not
    intend to kill." Nay v. State, 
    123 Nev. 326
    , 332, 
    167 P.3d 430
    , 434 (2007)
    (quoting State v. Allen, 
    875 A.2d 724
    , 729 (Md. 2005)). It aims to deter a
    person from committing the felony itself, or, at the very least, to avoid
    committing it in a violent manner.        
    Id. It cannot
    apply where the
    perpetrator does not have the "'intent to commit the underlying felony at
    the time of the killing," 
    id. (quoting State
    v. Buggs, 
    995 S.W.2d 102
    , 107
    (Tenn. 1999)), because "the intent to commit the felony supplies the
    malice" which elevates the killing to a murder, 
    id. This rule
    alleviates the
    State's burden of proving the malice required for murder if it shows that
    the murder occurred during the course of certain felonies.       See Rose v.
    State, 127 Nev. , 
    255 P.3d 291
    , 295 (2011) ("The felony-murder rule
    makes a killing committed in the course of certain felonies murder,
    without requiring the State to present additional evidence as to the
    defendant's mental state."). Accordingly, this court should be cautious
    with any ruling that could expand this doctrine.
    In holding that the district court did not err in denying the
    requested instructions that burglary could not support felony murder if it
    SUPREME COURT
    OF
    NEVADA
    (0) 1947A
    ended prior to the killing, the majority adopts the premise that the killing
    occurred within the res gestae of the burglary and, therefore, "in the
    perpetration of' the burglary. It relies on State v. Pratt, 
    873 P.2d 800
    ,
    811-12 (Idaho 1993); Bissot v. State, 
    53 Ind. 408
    , 411-12 (1876); Dolan v.
    People, 
    64 N.Y. 485
    , 497 (1876); and Conrad v. State, 
    78 N.E. 957
    , 958-59
    (Ohio 1906). These cases, while similar to each other, are too dissimilar to
    the facts before us. In each of the cited cases, the defendants entered a
    structure with the intent to steal property. See 
    Pratt, 873 P.2d at 811-12
                      (entering home with intent to steal); 
    Bissot, 53 Ind. at 408
    (entering drug
    store for purpose of robbing it); 
    Dolan, 64 N.Y. at 487
    (entering dwelling
    with intent to steal); 
    Conrad, 78 N.E. at 958
    (entering home with intent to
    remove property). During the burglary, or their escape from the premises,
    a killing occurs. The cases concluded that the burglary continued until the
    defendants left the building with the property they intended to steal. See
    
    Pratt, 873 P.2d at 811-12
    (holding that killing occurring after entry but
    before belongings were removed occurred in the perpetration of the
    burglary); 
    Bissot, 53 Ind. at 408
    (holding that killing occurring during
    burglary at drug store was committed in the perpetration of the burglary);
    
    Dolan, 64 N.Y. at 497
    (holding that a burglar "may be said to be engaged
    in the commission of the crime until he leaves the building with his
    plunder"); 
    Conrad, 78 N.E. at 959
    (holding that killing occurring during
    escape from burglary of dwelling occurred in the res gestae of the
    burglary). Inherent in the intent to steal is the desire to carry that
    property from the structure in order to enjoy the possession of it.      See
    State v. Fouquette, 
    67 Nev. 505
    , 528, 
    221 P.2d 404
    , 416 (1950) ("The escape
    of the robber with his ill-gotten gains by means of arms is as important to
    SUPREME COURT
    OF
    NEVADA
    2
    (0) 1947A atiO>
    the execution of the robbery as gaining possession of the property.").
    Therefore, the felonious intent with which these defendants crossed the
    threshold informed their actions during the crime and accompanied them
    in their flight. See 
    id. at 527,
    221 P.2d at 416 ("Robbery, unlike burglary,
    is not confined to a fixed locus, but is frequently spread over considerable
    distance and varying periods of time."). This case, conversely, lacks such
    unifying intent.
    The evidence produced at trial showed that Sanchez-
    Dominguez entered the home of his estranged wife's family with the intent
    to commit assault, battery, coercion, or kidnapping against his estranged
    wife. The charged burglary was complete when he entered the home. See
    Carr v. Sheriff Clark Cnty., 
    95 Nev. 688
    , 689-90, 
    601 P.2d 422
    , 423 (1979)
    ("The offenseS of burglary is complete when the house or other building is
    entered with the specific intent designated in the statute."). Upon
    learning that his wife was not at home and, therefore, the crimes he
    intended to inflict upon her became impossible to complete, the intent that
    accompanied Sanchez-Dominguez across the threshold of the residence
    waned. He did not attempt to escape, which may have demonstrated the
    logical continuation of the intent, but instead abandoned it. Thereafter,
    Sanchez-Dominguez's actions became informed by an intent that arose
    after entry into the home and could not support a burglary conviction, see
    State v. Adams, 
    94 Nev. 503
    , 505, 
    581 P.2d 868
    , 869 (1978) ("A criminal
    intent formulated after a lawful entry will not satisfy the statute."), and
    was separate and distinct from the earlier intent which accompanied him
    into the home.
    SUPREME COURT
    OF
    NEVADA
    3
    (01 I907A
    This discontinuity in the intent distinguishes the instant case
    from those relied upon by the majority. Unlike the defendants in those
    cases, Sanchez-Dominguez's actions after the completion of the burglary
    were not the logical continuation of the intent that accompanied him
    through the door. See Payne v. State, 
    81 Nev. 503
    , 507, 
    406 P.2d 922
    , 924
    (1965) ("The res gestae of the crime begins at the point where an
    indictable attempt is reached and ends were the chain of events between
    the attempted crime or completed felony is broken, with that question
    usually being a fact determination for the jury."). Therefore, there was a
    factual issue as to whether the killing occurred in the course of the
    burglary that turned on an obscure legal theory and the district court
    plainly erred in failing to provide sufficient instruction for the jury to
    evaluate the facts before it. See Crawford v. State, 
    121 Nev. 744
    , 754, 
    121 P.3d 582
    , 588 (2005) ("Jurors should neither be expected to be legal
    experts nor make legal inferences with respect to the meaning of the law;
    rather, they should be provided with applicable legal principles by
    accurate, clear, and complete instructions specifically tailored to the fact
    and circumstances of the case.").
    We further conclude that the failure to give the instruction
    affected Sanchez-Dominguez's substantial rights. See NRS 178.602; Green
    v. State, 
    119 Nev. 542
    , 545, 
    80 P.3d 93
    , 95 (2003). Although the evidence
    unquestionably shows that Sanchez-Dominguez killed the victim, it is a
    close question regarding whether that killing occurred in the perpetration
    of the earlier burglary. Further, as there was evidence that Sanchez-
    Dominguez was extremely intoxicated, the evidence supporting the
    SUPREME COURT
    OF
    NEVADA
    4
    (0) 1947A
    premeditation theory of liability was not so convincing that the failure to
    give the instruction did not have a prejudicial impact on the verdict.
    Accordingly, we would reverse the judgment of conviction and
    remand for a new trial.
    SUPREME COURT
    OF
    NEVADA
    5
    (0) 1947A    e