Barbieri (Matthew) v. State ( 2013 )

 Petrocelli2 hearing. He further argues that the evidence was inadmissible
because it was more prejudicial than probative. We disagree.
First, arguably the evidence did not refer to prior bad acts
because the entries appear to reflect a future plan rather than a written
recording suggesting that appellant took any action toward shooting a
police officer and killing Danny and Rodger or accomplished those deeds.
As such, no Petrocelli hearing was required before admitting the note.
Second, even assuming a Petrocelli hearing should have been
conducted, the error is not reversible when the record sufficiently
establishes that the evidence was admissible under Tinch v. State, 113
Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997) (setting forth test for
admissibility of prior bad act evidence—"(1) the incident is relevant to the
crime charged; (2) the act is proven by clear and convincing evidence; and
(3) the probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice"), as amended by Bigpond v. State, 128 Nev.
_7 -7 270 P.3d 1244, 1249-50 (2012), "or the trial result would have
been the same had the trial court excluded the evidence." Diomampo v.
State, 124 Nev. 414, 430, 185 P.3d 1031, 1041 (2008). Here, we conclude
that the evidence met the Tinch test because it was relevant to the offense
and proven by clear and convincing evidence based on the victim's
identification of the handwriting in the note as belonging to appellant. We
reject appellant's contention that the challenged evidence was more
prejudicial than probative. Although the evidence was prejudicial, it was
not unfairly prejudicial because it was probative of the perpetrator's
2Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).
SUPREME COURT
OF
NEVADA
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identity and possible motive for committing the offense. See NRS
48.035(1); NRS 48.045(2).
Having considered appellant's arguments and concluded that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
,J
Hardesty
Parraguirre Cherry
cc: Chief Judge, Tenth Judicial District
Hon. Robert E. Estes, Senior Judge
Churchill County Public Defender
Troy Curtis Jordan
Churchill County District Attorney
Attorney General/Carson City
Churchill County Clerk
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