Goode (Shawn) v. State ( 2013 )

 Nev. 156, 164, 42 P.3d 249 255 (2002) (internal quotation marks omitted),
abrogated on other grounds by Grey v. State, 124 Nev. 110, 178 P.3d 154(2008).
Here, the district court denied Goode's motion to sever based
on a finding that there was a common scheme or plan with regard to the
latter three robberies/burglaries (counts 3 to 8), all of which occurred in a
week's time, and that evidence from the Cricket robbery/burglary (counts
1 and 2) would be admissible under NRS 48.045(2). See id. at 573, 119
P.3d at 120 (holding that "for two charged crimes to be connected together
under NRS 173.115(2), a court must determine that evidence of either
crime would be admissible in a separate trial regarding the other crime")
(internal quotation marks omitted). Goode has failed to demonstrate that
he was unfairly prejudiced by joinder. The jury was instructed to consider
each charge and the evidence supporting that charge separately and not to
let its finding regarding one charge control its verdict as to any other
charge. Additionally, substantial evidence was presented to support a
finding of guilt on each of the eight charges. Accordingly, we conclude that
the district court did not abuse its discretion.
Second, Goode argues that the in-court identifications by three
eyewitnesses should have been excluded because they were unfairly
prejudicial. As Goode failed to preserve this claim by making an objection
at trial, we review for plain error. Leonard v. State, 117 Nev. 53, 63, 17
P.3d 397, 403-04 (2001). Goode alleges that the in-court identifications
were suggestive because they happened during trial and were based on
eyewitnesses identifying the only person sitting in front of the bar as the
possible perpetrator and identifying Goode through a courtroom door.
Goode offers no authority to support his argument that identification at
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trial is unnecessarily suggestive nor does he demonstrate prejudice, as his
counsel was able to cross-examine the eyewitnesses about the
circumstances surrounding their identification. 1 Goode further alleges
that he was prejudiced because he had no opportunity to prepare for the
in-court eyewitness identifications with expert testimony regarding the
unreliability of eyewitness identification. Goode fails to demonstrate he
was prejudiced by the fact that three of the eyewitnesses identified him at
trial as he was aware of other eyewitnesses who had identified him with
some certainty prior to trial. Accordingly, we discern no plain error.
Third, Goode asks that we revisit our decision in Berry v.
State, 125 Nev. 265, 212 P.3d 1085 (2009) abrogated on other grounds by
State v. Castaneda, 126 Nev. , 245 P.3d 550 (2010), and clarify that the
definition of "deadly weapon" is limited to those items specifically designed
to fire a metallic object as opposed to those items that can fire a metallic
object only through misuse. We have held that the Legislature intended
the term "deadly weapon" to have broad applicability and that "the
definitions set forth in NRS 193.165(6) are instructive to determine what
constitutes a deadly weapon." Funderburk v. State, 125 Nev. 260, 265, 212
P.3d 337, 340 (2009) (internal quotation marks omitted). Under NRS
202.265(5)(b), a statute referenced in NRS 193.165(6)(c), "any device from
which a metallic projectile, including any ball bearing or pellet, may be
expelled by means of spring, gas, air or other force" is a firearm and
constitutes a deadly weapon under NRS 193.165(6)(c). We are not
'We are not convinced by Goode's argument that the identification
issue was exacerbated by the prosecutor's statements during closing
argument.
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convinced by Goode's argument that these definitions require clarification
or limitation. 2
Further, Goode argues that the evidence presented at trial
was insufficient to support the use of a deadly weapon or firearm
enhancements. At trial, the State elicited testimony from a firearms
expert that he had examined the device used and determined that it was
capable of firing a metallic projectile. The jury could reasonably infer from
this testimony that the device used was capable of firing a metallic
projectile and therefore qualified as a firearm under NRS 202.265(5)(b)
and consequently a deadly weapon under NRS 193.165(6)(c). 3 It is for the
jury to "assess the weight of the evidence and determine the credibility of
witnesses," and the jury's verdict will not be disturbed on appeal where
substantial evidence supports the verdict. McNair v. State, 108 Nev. 53,
56, 825 P.2d 571, 573 (1992); see also Bolden v. State, 97 Nev. 71, 73, 624
P.2d 20, 20 (1981).
Fourth, Goode alleges that the prosecutor engaged in
misconduct during his closing argument with regard to his comments on
2As to Goode's analysis of the test utilized in Zgombic v. State, 106
Nev. 571, 798 P.2d 548 (1990), "[w]e note that the rule enunciated in
Zgombic was superseded in 1995 by a legislative modification of NRS
193.165(5) which provides a broader definition of 'deadly weapon' than
that of Zgombic." Steese v. State, 114 Nev. 479, 499 n.6, 960 P.2d 321, 334
n.6 (1998).
3 To the extent that Goode argues that the expert agreed with his
counsel's classification of the device as a "toy" or that the device was
merely feared to be a deadly weapon but was only a replica, the jury
received instructions defining a firearm and a deadly weapon and
concluded that the device satisfied the definitions.
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what constitutes a deadly weapon. Goode claims that the prosecutor
misstated the law when he argued that because the device looked like a
firearm, it should be considered a firearm. We review for plain error as
Goode failed to preserve this issue. Valdez v. State, 124 Nev. 1172, 1190,
196 P.3d 465, 477 (2008). "Under that standard, an error that is plain
from a review of the record does not require reversal unless the defendant
demonstrates that the error affected his or her substantial rights, by
causing actual prejudice or a miscarriage of justice." Id. (internal
quotation marks omitted). "A prosecutor's comments should be considered
in context, and 'a criminal conviction is not to be lightly overturned on the
basis of a prosecutor's comments standing alone." Leonard v. State, 117
Nev. 53, 81, 17 P.3d 397, 414 (2001) (quoting United States v. Young, 470
U.S. 1, 11 (1985)). Considering the prosecutor's comments in context, we
conclude that Goode has failed to demonstrate reversible plain error.
Having considered Goode's claims and concluded that no relief
is warranted, we
ORDER the judgment of conviction AFFIRMED.
J.
J.
Saitta
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cc: Hon. David A. Hardy, District Judge
David Kalo Neidert
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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