McNair (John) v. State ( 2013 )

 involved in residential burglaries and had brought stolen items to the
house where appellant was living, and that appellant had previously
pawned other stolen items for the juveniles. We conclude that a rational
trier of fact could reasonably infer from this evidence that appellant knew
the rifle was stolen and entered the pawn shop with intent to obtain
money by false pretenses and thus committed burglary with a dangerous
weapon. See NRS 205.060(1), (4). A rational trier of fact could also
reasonably find that appellant was in possession of a stolen rifle, see NRS
202.360(1)(a), and that he was a felon in possession of a firearm, see NRS
205.275(1). Although some evidence may have suggested that appellant
did not actually know that the rifle was stolen, it was for the jury to assess
the weight and credibility of that evidence, and circumstantial evidence
alone may sustain a conviction. See Buchanan v. State, 119 Nev. 201, 217,
69 P.3d 694, 705 (2003). At trial, the State also presented evidence that
appellant offered and gave a confidential informant methamphetamine in
exchange for a stolen computer. A rational trier of fact could reasonably
infer from this evidence that appellant engaged in the unlawful sale or
exchange of methamphetamine. See NRS 453.320(1)(a). Thus, we
conclude that there was sufficient evidence to support his convictions.
Second, appellant argues that his convictions for burglary,
possession of stolen property, and being a felon in possession of a firearm
are redundant and violate the Double Jeopardy Clause because they
punish the same illegal act—entering a pawn shop with a rifle. We
disagree. Each of appellant's convictions requires proof of an element that
the others do not: burglary requires proof that a defendant entered a
building with the intent to obtain money by false pretenses, NRS
205.060(1); possession of stolen property requires proof that the defendant
SUPREME COURT
OF
NEVADA
2
(0) 1947A
Tn'ilraSBEWO I Enit7i - a c, pisT
possessed property knowing that it is stolen, NRS 205.275(1)(a); and being
a felon in possession of a firearm requires proof that the defendant
possessed a firearm after having been convicted of a felony, NRS
202.360(1)(a). Accordingly, appellant's convictions do not violate the
Double Jeopardy Clause. See Blockburger v. United States, 284 U.S. 299,
304 (1932) (establishing an elements test for double jeopardy purposes);
Jackson v. State, 128 Nev. „ 291 P.3d 1274, 1278 (2012), petition for
cert. filed, 81 U.S.L.W. (U.S. Mar. 5, 2013) (No. 12-9118). Further,
because the statutes do not indicate that cumulative punishment is
precluded, appellant's convictions are not redundant. See Jackson, 128
Nev. at , 291 P.3d at 1278 (applying the Blockb urger test to
redundancy claims when the relevant statutes do not expressly authorize
or prohibit cumulative punishment); NRS 202.360; NRS 205.060; NRS
205.275.
Third, appellant claims that his sentence is excessive and
constitutes cruel and unusual punishment because he received 31 years
for pawning a single rifle. He also claims that the district court relied
upon impalpable or highly suspect evidence during sentencing because the
court considered his prior criminal history in determining that the
sentences should run consecutively. We disagree. This court will not
disturb a district court's sentencing determination absent an abuse of
discretion. See Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379
(1987). Appellant's consecutive prison terms of 72-180 months, 48-120
months, 28-72 months, and 28-72 months fall within the parameters
provided by statute, and are not "so unreasonably disproportionate to the
offense as to shock the conscience." CuIverson v. State, 95 Nev. 433, 435,
SUPREME COURT
OF
NEVADA
3
(0) I947A
s ....OST:M.,.LE7-17%),
,,,...A.11V_AIRM.wv3WM..,AVNI,.S.A.714 ...1 9, .
MERESOLZIBUDMIEMIN
596 P.2d 220, 221-22 (1979); see also Harmelin v. Michigan, 501 U.S. 957,
1000-01 (1991) (plurality opinion).
Furthermore, appellant has failed to demonstrate that the
district court relied on impalpable or highly suspect evidence. See Silks v.
State, 92 Nev. 91, 93-94, 545 P.2d 1159, 1161 (1976). Although appellant's
sentence is substantial, nothing in the record suggests that the district
court considered impalpable or highly suspect evidence or other improper
matters in imposing consecutive sentences, and appellant does not identify
any inaccuracies in his criminal history. To the extent that he argues that
the district court should not have considered his criminal history at
sentencing, we conclude that this argument lacks merit. See Martinez v.
State, 114 Nev. 735, 738, 961 P.2d 143, 145 (1998) (stating that the district
court may "consider a wide, largely unlimited variety of information to
insure that the punishment fits not only the crime, but also the individual
defendant"); see also NRS 176.015(6); NRS 176.035(1). Therefore, we
conclude that the district court did not abuse its discretion at sentencing
and the sentence imposed does not constitute cruel and unusual
punishment.
Fourth, appellant claims that the district court erred by failing
to give him three days of credit for time served between the oral
pronouncement of the sentence and the entry of the judgment of
conviction. We conclude that this claim lacks merit because the time
spent incarcerated after the sentencing hearing but before entry of the
judgment of conviction is already credited as flat time against the
sentence, as the prison begins to calculate a sentence from the sentencing
date.
SUPREME COURT
OF
NEVADA
4
(0) 1947A
ffgtE ,
Fifth, appellant argues that the district court erred by
allowing prior bad act evidence at trial. Appellant challenges the
admission of evidence of burglaries committed by a group of juveniles, of
certain individuals' use of methamphetamine at the residence where
appellant stayed, of one of the juvenile's drug addiction, and of a drug
arrest of a woman who lived at appellant's residence. Appellant did not
object to the testimony regarding these bad acts, and we conclude that
there was no plain error from the admission of them at trial. See Green v.
State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) ("In conducting plain error
review, we must examine whether there was 'error,' whether the error was
'plain' or clear, and whether the error affected the defendant's substantial
rights."). Evidence regarding the juvenile burglary ring was relevant to
showing that appellant knew that the rifle was stolen, as appellant had
previously pawned items stolen by the juveniles. As to the testimony
about other people's drug use, we conclude that it did not change the
outcome of the case and thus did not affect appellant's substantial rights.
Sixth, appellant claims that the district court erred by failing
to sua sponte instruct the jury on entrapment, the "procuring agent"
defense, and how to evaluate the reliability of an informant. We conclude
that no patently prejudicial error occurred here. See McKenna v. State,
114 Nev. 1044, 1052, 968 P.2d 739, 745 (1998) ("Failure to object to or
request a jury instruction precludes appellate review, unless the error is
patently prejudicial and requires the court to act sua sponte to protect the
defendant's right to a fair trial."). An entrapment defense consists of two
elements: the State presenting the opportunity to commit a crime and a
defendant who is not predisposed to commit the act. Miller v. State, 121
Nev. 92, 95, 110 P.3d 53, 56 (2005). Here, although a confidential
SUPREME COURT
Of
NEVADA
5
(0) 1947A
informant initiated contact with appellant, appellant initiated the
transaction by later contacting the informant and asking for a computer,
and then offering methamphetamine to the informant as partial payment
for the stolen computer.' Thus, the evidence adduced at trial proved that
appellant was predisposed to possessing stolen property and
methamphetamine, and an entrapment instruction was not warranted.
See id. We further conclude that appellant was not entitled to a
"procuring agent" jury instruction, as appellant was in no way an agent of
the purchaser of methamphetamine. See Adam v. State, 127 Nev. „
261 P.3d 1063, 1065 (2011). Lastly, as to an instruction on the credibility
of the informant, we conclude that no such instruction was warranted
because the informant "was not known to be or deemed unreliable." King
v. State, 116 Nev. 349, 355, 998 P.2d 1172, 1176 (2000). The informant
had a consistent history of aiding law enforcement and the informant's
testimony was consistent with the monitoring detectives' observations.
See id. Given that none of these instructions were warranted, we conclude
that the district court did not have a duty to sua sponte proffer the
instructions to the jury.
"We note that, while appellant appears to argue that the informant
was the person who initially suggested payment in drugs, appellant has
not provided the audio recordings of the wire taps, and the record on
appeal does not support this assertion. See Thomas v. State, 120 Nev. 37,
43 n. 4, 83 P.3d 818, 822 n. 4 (2004) ("Appellant has the ultimate
responsibility to provide this court with 'portions of the record essential to
determination of issues raised in appellant's appeal."); Greene v. State, 96
Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The burden to make a proper
appellate record rests on appellant.").
SUPREME COURT
OF
NEVADA
6
(0) 1947A
Seventh, appellant claims that the district court erred by
instructing the jury that, if it found that the defendant made false or
deliberately misleading statements concerning the charges before trial,
the jury could consider those statements as tending to prove consciousness
of his guilt. Appellant argues only that the instruction should not have
been given because his statements were not false or misleading.
Appellant did not object to this instruction, and we discern no plain error.
See Green, 119 Nev. at 545, 80 P.3d at 95.
Eighth, appellant claims that the district court improperly
allowed Detective Jones to vouch for the credibility of the confidential
informant. Appellant appears to contend that Detective Jones vouched for
the informant when the detective testified about other cases that the
informant worked on, the informant's successful work in prison, the
number of cases generated by the informant's information, and that the
informant's work exceeded expectations. We discern no plain error. See
Anderson v. State, 121 Nev. 511, 516, 118 P.3d 184, 187 (2005) (reviewing
instances of vouching for plain error where defendant fails to object at
trial). A witness may not vouch for the credibility of another witness.
Marvelle v. State, 114 Nev. 921, 931, 966 P.2d 151, 157 (1998), abrogated
on other grounds by Koerschner v. State, 116 Nev. 1111, 1114-17, 13 P.3d
451, 454-55 (2000). Here, much of the detective's testimony was elicited
from appellant on cross-examination to show that the informant was not
reliable and had a motive to lie. While the detective stated that the
informant was "actually one of the best informants that I've worked with,"
this statement referred to the informant's ready availability and not to his
credibility. As such, we determine that the detective did not improperly
vouch for the credibility of the informant.
SUPREME COURT
OF
NEVADA
7
(0) 1947A
): , ;174;;;11FF,fn
MEE
Ninth, appellant claims that his right to a speedy trial was
violated by a nearly one-year delay between his arrest and his trial. This
claim lacks merit. While appellant's trial took place approximately five
and a half months after the information was filed, appellant's counsel
waived appellant's statutory right to a trial within 60 days after
arraignment. See Furbay v. State, 116 Nev. 481, 484, 998 P.2d 553, 555
(2000). Furthermore, appellant failed to allege that the State acted in bad
faith or that he was prejudiced from the delay, and the record does not
support such a finding. See Barker v. Wingo, 407 U.S. 514, 530 (1972)
(identifying four factors to be weighed when determining whether a
defendant's constitutional right to a speedy trial has been violated).
Tenth, appellant argues that the district court erred by
granting the State's motion to join together the charges relating to the
stolen rifle and charges relating to a computer and drugs. He claims that
the counts relating to the firearm should have been tried separately from
the counts relating to a stolen computer and methamphetamine, and that
charging all of the counts together made it more likely that the jury would
convict him of the firearm charges. The district court has discretion to join
or sever charges, and "[e]rror resulting from misjoinder of charges is
harmless unless the improperly joined charges had a substantial and
injurious effect on the jury's verdict." Weber v. State, 121 Nev. 554, 570-
71, 119 P.3d 107, 119 (2005). We conclude that the district court erred in
joining the charges because they were not part of a common scheme and
plan and appellant's pawning of a stolen rifle was not connected to
appellant's transaction of drugs for a stolen computer more than a month
later. See id. at 571-72, 119 P.3d at 119. Nevertheless, we conclude that
no reversal is required because the misjoinder of charges did not have a
SUPREME COURT
OF
NEVADA
8
(0) 1947A
4:
-WILINEMMINMEMWMM PqMIM
- L- r
-
substantial and injurious effect on the jury's verdict. At trial, sufficient
evidence was adduced to support the convictions relating to the rifle.
Notably, the juvenile testified that appellant had previously pawned
stolen property that was unloaded at appellant's residence, and that
appellant asked the juvenile on the way to the pawn shop what he would
do if he got caught, which contradicted appellant's statements to the police
that he repeatedly asked the juvenile if the rifle was stolen and the
juvenile denied that it was. Therefore, in light of the evidence that
appellant knew that the rifle was stolen, we conclude that the verdict was
not substantially affected by the evidence regarding the stolen computer
and methamphetamine.
Finally, appellant argues that cumulative error deprived him
of a fair trial. Because he demonstrates only one error, we conclude that
appellant is not entitled to relief on this claim. See United States v. Sager,
227 F.3d 1138, 1149 (9th Cir. 2000) ("One error is not cumulative error.").
Having considered appellant's contentions and concluded that
he is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED.
eg-f-7c J.
Hardesty
p ..4.),
Partaguirre
J.
Cherry
SUPREME COURT
OF
NEVADA
9
(0) 1947A
EWA
cc: Hon. Patrick Flanagan, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
10
(0) 1947A