Johnson (Quinal) v. State ( 2013 )

 not be disturbed on appeal where, as here, substantial evidence supports
the verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see
also McNair, 108 Nev. at 56, 825 P.2d at 573.
Second, Johnson argues that the district court erred in
instructing the jury. Specifically, he contends that Instruction 14, which
combined the definition of express and implied malice, instructed the jury
that it could convict him of attempted murder based on implied malice.
We discern no plain error. See Saletta v. State, 127 Nev. _„ 254 P.3d
111, 114 (2011) (providing failure to object at trial precludes review unless
error is plain). Any error in referring to implied malice was cured by the
previous instruction that noted an essential element of attempted murder
was a failed attempt "to kill a human being, when such acts are done with
express malice, namely, with the deliberate intention unlawfully to kill."
See Riebel v. State, 106 Nev. 258, 261-62, 790 P.2d 1004, 1007 (1990); Keys
v. State, 104 Nev. 736, 740, 766 P.2d 270, 272-73 (1988). Therefore,
Johnson failed to demonstrate that the misleading instruction was
prejudical. See Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239
(2001) (requiring appellant to demonstrate prejudice to show that plain
error affected his substantial rights), abrogated on other grounds by
Nunnery v. State, 127 Nev. , 263 P.3d 235 (2011), cert. denied, U.S.
, 132 S.Ct. 2774 (2012).
Third, Johnson asserts that the district court erred in
admitting evidence of uncharged bad acts. He contends that the district
court should not have admitted evidence that he tapped the victim's
pockets after striking him. We discern no plain error. See Saletta, 127
Nev. at , 254 P.3d at 114. Evidence of Johnson tapping the pockets of
the victim immediately after striking him with a hammer and prior to
leaving the scene was "so closely related" to the crime that the witness
SUPREME COURT could not describe the charged offense without referring to the uncharged
OF
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acts. See NRS 48.035(3); Bletcher v. State, 111 Nev. 1477, 1479-80, 907
P.2d 978, 980 (1995).
Fourth, Johnson contends that the district court abused its
discretion by restricting his ability to ask the victim about his marijuana
use prior to the alleged crime. We agree. The challenged inquiry
concerned questions related to the witness's ability to perceive the events
as they occurred and remember those events. See Collman v. State, 116
Nev. 687, 709, 7 P.3d 426, 440 (2000) (permitting impeachment with
respect to a witness's perception and memory); see also NRS 50.085
(permitting inquiry into specific instances of a witness's conduct "for the
purpose of attacking or supporting the witness's credibility"). However, as
another witness corroborated the victim's testimony that Johnson struck
him without any provocation, any error in limiting further inquiry did not
have a "substantial and injurious effect or influence in determining the
jury's verdict." Tavares v. State, 117 Nev. 725, 732, 30 P.3d 1128, 1132
(2001) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)
(providing that nonconstitutional trial error reviewed for harmless error)).
Having considered Johnson's contentions and concluded that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
Gibbons
J. J.
Saitta
SUPREME COURT
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cc: Hon. David B. Barker, District Judge
Coyer & Landis, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
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