State v. Jernigan (Darnell) ( 2014 )

 the kidnapping charges, arguing that the State failed to present sufficient
evidence to support the indictment because it did not establish that the
kidnapping was not incidental to the robbery. The district court granted
the petition and dismissed the kidnapping counts (Counts 3-7). The State
now appeals.
We defer to the district court's determination of factual
sufficiency when reviewing pretrial orders on appeal. See Sheriff, Clark
Cnty. v. Provenza, 97 Nev. 346, 630 P.2d 265 (1981). Here, the district
court granted the petition and dismissed the kidnapping charges finding
that this court's holding in Wright v. State, 94 Nev. 415, 581 P.2d 442(1978), that a conviction for first-degree kidnapping cannot stand where
the kidnapping is incidental to the robbery, applied to this case and this is
a clear case where the alleged kidnapping is incidental to the robbery, see
Curtis D. v. State, 98 Nev. 272, 274, 646 P.2d 547, 548 (1982) ("Whether
the movement of the victim is incidental to the associated offense and
whether the risk of harm is substantially increased thereby are questions
of fact to be determined by the trier of fact in all but the clearest cases.").
At the grand jury hearings, Josiah Blocks was the sole
testifying witness to support the kidnapping allegations. Blocks testified
that he, Rayonna Gordon, Henry Santos, and Blocks' two children were in
his apartment when three intruders forced their way into the apartment
with guns drawn and ordered Blocks, Gordon, and Santos to get on the
floor. After removing items from the apartment, the intruders held
Blocks, Gordon, Santos, and the children at gunpoint and ordered them to
enter the bathroom. One of the intruders shut the bathroom door and said
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that Blocks and the others could come out when they heard a knock on the
door. Blocks testified• that he waited approximately five minutes and,
because he had not heard a knock, exited the bathroom and looked out his
apartment window to see if the intruders had left. Blocks identified
Jernigan as one of the intruders.
Although the evidence presented to the grand jury may not be
sufficient to sustain dual convictions for• robbery and kidnapping, see
Mendoza v. State, 122 Nev. 267, 275, 130 P.3d 176, 181 (2006) (setting
forth parameters under which dual convictions for robbery and kidnapping
arising from the same court of conduct may be sustained), we are not
concerned with whether the evidence currently in the record is, by itself,
sufficient to sustain such dual convictions. Rather, we are solely
concerned with whether the evidence presented to the grand jury
establishes probable cause that the offense of kidnapping was committed
against Blocks, his children, Gordon, and Santos, and that Jernigan
committed it. See Sheriff Washoe Cnty. v. Hodes, 96 Nev. 184, 186, 606
P.2d 178, 180 (1980). Although marginal, we conclude that the evidence
presented to the grand jury is sufficient to establish probable cause to
support the kidnapping charges. See NRS 200.310(1) ("A person who
willfully . . . confines . . . a person by any means whatsoever with the
intent to hold or detain, or who holds or detains, the person . . . for the
purpose of committing . . . robbery . . is guilty of kidnapping in the first
degree."); Hodes, 96 Nev. at 186, 606 P.2d at 180 ("The finding of probable
cause may be based on slight, even 'marginal' evidence, because it does not
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involve a determination of the guilt or innocence of an accused." (citations
omitted)). Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
cc: Hon. Michael Villani, District Judge
Attorney General/Carson City
Clark County District Attorney
Yampolsky, Ltd.
Eighth District Court Clerk
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