Fast (Stephanie) v. State ( 2013 )

 victim to retain possession of the purse. See NRS 193.200 (intent); NRS
205.060(1) (burglary); NRS 200.380(1) (robbery); Sharma v. State, 118
Nev. 648, 659, 56 P.3d 868, 874 (2002) (observing that "intent can rarely
be proven by direct evidence of a defendant's state of mind, but instead is
inferred by the jury from the individualized, external circumstances of the
crime, which are capable of proof at trial"). It is for the jury to determine
the weight and credibility to give conflicting testimony, and the jury's
verdict will not be disturbed on appeal where, as here, sufficient evidence
supports the verdict. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20
(1981).
Evidentiary decisions
Fast contends that the district court made three evidentiary
errors. "We review a district court's decision to admit or exclude evidence
for an abuse of discretion." Mclellan v. State, 124 Nev. 263, 267, 182 P.3d
106, 109 (2008).
First, Fast contends that the district court erred by admitting
a county jail property transaction report into evidence because it was
irrelevant, prejudicial, and revealed her custodial status. Fast had elicited
testimony during her cross-examination of the State's witnesses that no
burglary tools were found in her possession. However, the report showed
that Fast possessed a knife when she was booked into the county jail. The
State wanted the report admitted into evidence to show that Fast had a
knife and to argue that the knife could have been used as a burglary tool.
The district court ruled that the report was relevant to the issue of
whether Fast possessed an object that could be used to gain entry into the
car, the fact that she had a knife was not overly prejudicial because lots of
people carry knives, and the fact that she had been arrested was not
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prejudicial because this fact was already before the jury. The district
court further ruled that the State could not ask the records custodian
whether Fast was in custody when her property was released. We
conclude that the district court did not abuse its discretion by admitting
this evidence and the evidence did not erode Fast's constitutional right to
a fair trial. See NRS 48.015 (relevant evidence); NRS 48.025 (relevant
evidence is generally admissible); NRS 48.035(1) ("[Relevant] evidence is
not admissible if its probative value is substantially outweighed by the
danger of unfair prejudice."); see also Haywood v. State, 107 Nev. 285, 288,
809 P.2d 1272, 1273 (1991) ("Informing the jury that a defendant is in jail
raises an inference of guilt." (emphasis added)).
Second, Fast contends that the district court erred by allowing
prosecutors to elicit testimony and present argument that shifted the
burden of proof to the defense. In her opening statement, Fast asserted
that the burglary and robbery charges were all a big misunderstanding
because she believed that the car and the purse belonged to her friend
"Rosa" who had asked her to retrieve the purse. The State asked each of
its witnesses whether anyone had come forward and stated, "Stephanie
Fast is my friend, this is a mistake, I told her to get my purse," and it
argued during closing argument that Fast's theory of defense was not
believable because Rosa did not exist. Fast did not object to the State's
questions or argument and we conclude she has not demonstrated that the
district court committed plain error in this regard. See Valdez v. State,
124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (reviewing unpreserved
claims for plain error); Evans v. State, 117 Nev. 609, 631, 28 P.3d 498, 513
(2001) (IAN long as a prosecutor's remarks do not call attention to a
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defendant's failure to testify, it is permissible to comment on the failure of
the defense to counter or explain evidence presented.").
Third, Fast contends that the district court erred by allowing a
police officer to opine that an uncollected surveillance video recording
would not have added anything to the instant case. Officer Kirwin
testified that he did not collect a video recording from the nearby Lowe's
because there was an independent witness, facts that Fast had entered the
car and took the purse were uncontested, and the identity of the suspect
was not an issue. The State then asked Officer Kirwin if the video
recording would have "add [ed] anything to this case" and Kirwin
responded, "no." Fast did not object to the question or testimony and we
conclude that she has not demonstrated that the district court committed
plain error in this regard. See Valdez, 124 Nev. at 1190, 196 P.3d at 477.
Proposed jury instructions
Fast contends that the district court erred by rejecting her
proposed jury instructions. "This court reviews a district court's decision
to issue or not to issue a particular jury instruction for an abuse of
discretion." Ouanbengboune v. State, 125 Nev. 763, 774, 220 P.3d 1122,
1129 (2009). We have reviewed Fast's proposed "reasonable doubt," "two
reasonable interpretations," and "negatively phrased" jury instructions
and conclude that the district court did not abuse its discretion by
rejecting them. See NRS 175.211(2); Crawford v. State, 121 Nev. 744, 753,
121 P.3d 582, 588 (2005); Mason v. State, 118 Nev. 554, 559, 51 P.3d 521,
524 (2002).
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Cumulative error
Fast contends that cumulative error deprived her of a fair
trial. However, because Fast has failed to demonstrate any error, we
conclude that he was not deprived of a fair trial due to cumulative error.
Having concluded that Fast is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED. 1
Gibbons
J.
Douglas
cc: Hon. Douglas W. Herndon, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3-The fast track response does not comply with formatting
requirements of NRAP 3C(h)(1) and NRAP 32(a)(4) because the text is not
double-spaced. We caution counsel for the State that future failure to
comply with the applicable rules when filing briefs in this court may result
in the imposition of sanctions. See NRAP 3C(n).
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