Lopez (Preston) v. State ( 2013 )

 area and who matched the description of the suspect given by the first
officer. Lopez's identification card, Visa card, and bible were found in the
car his coconspirator was stopped in as he fled the scene. An acquaintance
of Lopez testified that she lent the car to him months earlier. Finally, the
victims testified as to the value of various items taken during the
burglary. From this evidence, a rational juror could reasonably infer that
Lopez committed the charged offenses. See NRS 199.480; NRS 205.060(1);
NRS 205.220(1)(a) (1997); 1 see also NRS 205.251. 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, substantial
evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624
P.2d 20, 20 (1981).
Second, Lopez asserts that the district court erred by denying
his Batson challenge to the State's peremptory challenge of the only
African-American male in the venire. See Batson v. Kentucky, 476 U.S. 79(1986). The district court concluded that Lopez did not demonstrate a
prima facie case of racial discrimination and Lopez fails to demonstrate
that the district court's conclusion was in error. See Johnson v. California,
545 U.S. 162, 169 (2005) (a prima facie showing of discrimination is made
when "the sum of the proffered facts gives rise to an inference of
discriminatory purpose" (internal quotation marks omitted)); Batson, 476
U.S. at 96-97; Diomampo v. State, 124 Nev. 414, 422-23, 185 P.3d 1031,
1036-37 (2008) (the district court's determination regarding
1 Because Lopez committed his offenses on January 11, 2011, prior to
the effective date of the current version of NRS 205.220, the prior version
of the statute controls. See 1997 Nev. Stat., ch. 150, § 12, at 341.
SUPREME COURT
OF
NEVADA
2
(0) 1947A
discriminatory intent is afforded significant deference on appellate
review).
Third, Lopez argues that the district court erred by allowing a
lay witness to testify as an expert because the witness was not noticed as
an expert under NRS 174.234(2)-(3). Even assuming that the witness's
testimony was expert testimony, we conclude that the error was harmless
in light of the substantial evidence of Lopez's guilt. See NRS 178.598;
Mclellan v. State, 124 Nev. 263, 269-71, 182 P.3d 106, 111-12 (2008)
(discussing harmless error standard).
Fourth, Lopez argues that the district court erred by declining
to give the jury his proposed instruction on eyewitness identification
testimony. "[S]pecific eyewitness identification instructions need not be
given, and are duplicitous of the general instructions on credibility of
witnesses and proof beyond a reasonable doubt." Nevius v. State, 101 Nev.
238, 248-49, 699 P.2d 1053, 1060 (1985). The jury here was properly
instructed regarding the reasonable doubt standard and witness
credibility. Therefore, we conclude that the district court did not abuse its
discretion by declining to give the proffered instruction. See Cortinas v.
State, 124 Nev. 1013, 1019, 195 P.3d 315, 319 (2008).
Fifth, Lopez contends that the district court erred by
instructing the jury that the "carrying away" element of larceny is met by
" any removal of the property from the place where it was kept or placed by
the owner, done with the specific intent to deprive the owner permanently
of his property, whereby the perpetrator obtains possession and control of
the property for any period of time." We conclude that Lopez fails to
demonstrate that the district court abused its discretion by giving this
instruction. See Walker v. Sheriff, 93 Nev. 298, 300, 565 P.2d 326, 326-27
SUPREME COURT
OF
NEVADA
3
(0) 1947A
(1977) (noting that asportation requires only a slight movement); see also,
e.g., People v. Duran, 106 Cal. Rptr. 2d 812, 816 (Ct. App. , 2001); In re
D.K., 684 S.E.2d 522, 524 (N.C. Ct. App. 2009); State v. Moultrie, 322
S.E.2d 663, 664 (S.C. 1984) (the slightest movement of the stolen property
satisfies the asportation requirement; it is not necessary to prove that
items were removed from the premises). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
ofei J.
Douglas
cc: Hon. David B. Barker, District Judge
Blaine D. Beckstead
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
Preston Lopez
SUPREME COURT
OF
NEVADA
(0) 1947A
4