Franklin (Teron) v. State ( 2013 )

 Winship off him, but as he attempted to get up, she grabbed and pulled on
his leg before he was able to get away. Franklin testified that he and
Winship spoke the next day and that she accused him of breaking her arm
during the altercation.
Failure to collect evidence
Franklin argues that all evidence concerning the bicycle
should have been suppressed because the police officers failed to collect
and preserve the potentially exculpatory evidence. Franklin failed to
object at trial, therefore we view for plain error. See Leonard v. State, 117
Nev. 53, 63, 17 P.3d 397, 403-04 (2001). We conclude that Franklin has
failed to demonstrate a reasonable probability that, had the bicycle been
collected and available, the outcome of the trial would have been different.
See Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998)
(providing that defendant must show that evidence police failed to gather
was material). Franklin's claim that the absence of his fingerprints or
Winship's blood and hair on the bicycle would tend to establish that he
never picked it up and that Winship was never hit with it was "'merely a
hoped-for conclusion." Sheriff v. Warner, 112 Nev. 1234, 1240, 926 P.2d
775, 778 (1996) (quoting Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107,
108 (1979)). Furthermore, while the police may have been negligent in
failing to collect the bicycle, Franklin failed to demonstrate gross
negligence or bad faith. See Daniels, 114 Nev. at 267, 956 P.2d at 115(providing that, where defendant demonstrates evidence was material,
"the court must determine whether the failure to gather evidence was the
result of mere negligence, gross negligence, or a bad faith attempt to
prejudice the defendant's case" and, in the case of mere negligence,
limiting defendant's remedy to cross-examination regarding investigative
SUPREME COURT
OF
NEVADA
2
(0) 1947A
deficiencies). On cross-examination, the on-scene officer admitted that it
was unusual to not photograph a scene or an alleged weapon but that the
immediate focus was on locating Franklin and, when he was not found, on
meeting with Winship at the hospital for a follow-up interview. The officer
stated that Winship's arm had no open cuts and that he felt it was
unnecessary to fingerprint the bicycle. As Franklin failed to demonstrate
bad faith or gross negligence, it was not error to admit testimony and
photographs that were later taken regarding the bicycle.'
Gruesome photograph
Franklin argues that the district court erred by admitting a
photograph of Winship's arm after surgery, claiming that the picture was
gruesome and more prejudicial than probative. The district court, after
reviewing post-surgical photographs of Winship's arm with staples,
admitted one photograph, finding that the probative value of the picture
was not substantially outweighed by unfair prejudice, but disallowed a
close-up photograph of the same image. "The admission of photographs of
victims is within the sound discretion of the trial court and will be
disturbed only if that discretion is abused." Wesley v. State, 112 Nev. 503,
512-13, 916 P.2d 793, 800 (1996). The admitted photograph was probative
to illustrate the victim's injury and disfigurement, which was relevant to
establish the substantial-bodily-harm element of the offense, see NRS
'While Franklin argues that he was prejudiced by law enforcement's
actions and that a showing of prejudice is an alternative to a
demonstration of bad faith, this standard, as well as the cases cited,
address a failure to preserve evidence. As the police officers never had
possession of the bicycle, there could be no failure to preserve it.
SUPREME COURT
OF
NEVADA
3
(0) 1947A •
0.060 (definition of substantial bodily harm), and we conclude that the
district court did not abuse its discretion.
Jury instruction
Franklin claims that the district court erred in giving a
transition jury instruction, offered by his counsel, and argues that the jury
was incorrectly instructed that he could be acquitted of battery or battery
causing substantial bodily harm but not of both. While the failure to
object to an instruction generally precludes appellate review, we may
address plain error affecting the defendant's substantial rights. Green v.
State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). We discern no error as the
instruction correctly informed the jury that Franklin could be found not
guilty of either crime and the district court instructed the jury on the
presumption of innocence, the standard of reasonable doubt, and the
State's burden of proving each element beyond a reasonable doubt.
Substantial bodily harm
Franklin challenges the finding of substantial bodily harm,
specifically whether sufficient evidence was presented to establish that
Winship suffered substantial bodily harm and that Franklin was the cause
of the harm. Our review of the record, however, reveals sufficient
evidence to establish guilt beyond a reasonable doubt as determined by a
rational trier of fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Origel Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998).
-
With regard to Franklin's claim that Winship did not suffer
substantial bodily harm, the jury heard testimony from Winship and her
mother that nothing was wrong with Winshp's arm prior to the incident.
Winship testified that immediately after the incident she was in pain and
could not lift her arm and that she subsequently required surgery and a
SUPREME COURT
OF
NEVADA
4
(0) 1947A
titanium plate to repair the injury. Winship testified that she continued
to experience numbness and weakness in her arm. To the extent that
Franklin argues that the evidence presented was based on hearsay, or the
doctor's statements to Winship that her arm was broken, we conclude
that, while it may have been error to introduce the doctor's diagnosis, 2
Winship was able to testify as to her pain and subsequent surgery, as she
had direct knowledge of these facts, see NRS 50.025, and from the
evidence presented, the jury could reasonably infer that she suffered
substantial bodily harm. See NRS 0.060.
With regard to Franklin's claim that there was no evidence
that his conduct was the cause of the harm, Winship and her mother
testified that he threw a bicycle onto Winship. The on-scene officer
relayed Winship's statement that she tried to block the bicycle with her
arm and felt it break right away. Paramedics took Winship from the scene
to the hospital, and she testified that as a result of the bicycle being
thrown on her, she required surgery to mend her arm. We conclude that a
reasonable juror could infer from the evidence presented that Franklin
was the cause of Winship's substantial bodily harm. It is for the jury to
determine the weight and credibility to give to conflicting testimony, and
the jury's verdict will not be disturbed on appeal where, as here,
substantial evidence supports the verdict. Bolden v. State, 97 Nev. 71, 73,
624 P.2d 20, 20 (1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d
571, 573 (1992).
2 Franklin fails to demonstrate prejudice by the State's decision not
to call Winship's doctor to testify.
SUPREME COURT
OF
NEVADA
5
(0) 1947A
Perjury
Franklin contends that his conviction must be set aside
because Winship committed perjury, as evidenced by inconsistencies
between her testimony at the preliminary hearing and at trial. Franklin
failed to object to the admission of these statements, therefore we review
for plain error. See Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402
(1992). Franklin's counsel cross-examined Winship on her account of the
incident, drawing out inconsistencies as to her memory of Franklin
throwing the bicycle on her, and Winship acknowledged the
inconsistencies and explained that she had been nervous and scared at the
preliminary hearing. We conclude that Franklin has failed to demonstrate
that Winship committed perjury. See NRS 199.120 (defining perjury).
Any inconsistencies or improbabilities in her testimony went to the weight
of the testimony and not the admissibility of the testimony; it was for the
jury to determine the weight and credibility of the witnesses and
testimony presented. See Bolden, 97 Nev. at 73, 624 P.2d at 20.
Therefore, we conclude that there was no error in the admission of
Winship's testimony.
Prosecutorial misconduct
Franklin claims that the prosecutor's comments during
rebuttal argument, that Franklin's testimony was riddled with lies and
inconsistencies and that Franklin's story about throwing Winship's supply
of pills down the sink was absurd, warrant reversal. While the failure to
object generally precludes appellate review, "we will consider prosecutorial
misconduct, under plain error review, if the error either: (1) had a
prejudicial impact on the verdict when viewed in context of the trial as a
whole, or (2) seriously affects the integrity or public reputation of the
SUPREME COURT
OF
NEVADA
(0) 1947A
judicial proceedings." Rose v. State, 123 Nev. 194, 208-09, 163 P.3d 408,
418 (2007) (internal quotation marks omitted).
While it is improper to characterize a witness as a liar or a
witness's testimony as a lie, to represent to the jury that testimony might
be incredible or to demonstrate through inferences that a witness's
testimony is palpably untrue is within the confines of proper argument.
Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1106 (1990); see also
Rowland v. State, 118 Nev. 31, 40, 39 P.3d 114, 119 (2002) ("A prosecutor's
use of the words 'lying' or 'truth' should not automatically mean that
prosecutorial misconduct has occurred."). Here, the prosecutor detailed
specific inconsistencies between Franklin's version of the incident and
evidence presented at trial and argued that Franklin's story was palpably
untrue. While the final observation by the prosecutor, that Franklin's
story was riddled with lies, was a violation of our prior admonitions to
refrain from characterizing testimony as a lie, see Witherow v. State, 104
Nev. 721, 724, 765 P.2d 1153, 1155 (1988), we conclude that this comment
does not warrant reversal of Franklin's conviction. 3
3 To the extent that Franklin argues, for the first time in his reply
brief, that the prosecutor vouched for Winship's story by referencing her
medical records, which were never introduced into evidence, the argument
is improperly raised. A reply brief is limited to answering any new matter
in the opposing brief, NRAP 28(c), and therefore we need not address it,
City of Elko v. Zillich, 100 Nev. 366, 371, 683 P.2d 5, 8 (1984).
Nevertheless, we conclude that Franklin's claim is without merit as the
comments were a fair response to Franklin's argument regarding
Winship's injuries and the absence of the medical records.
SUPREME COURT
OF
NEVADA
7
(0) 1947A
Habitual criminal
Franklin challenges his adjudication as a habitual criminal
pursuant to NRS 207.010(1)(b) on multiple grounds. First, Franklin
claims that the district court erred in adjudicating him as a habitual felon
under NRS 207.010(1)(b) in that the sentencing judge failed to make a
finding that the requisite number of prior convictions existed and failed to
exercise discretion in determining whether to dismiss the allegation. The
district court admitted into evidence certified copies of Franklin's prior
convictions, see NRS 207.016(5). In reviewing the record as a whole, we
conclude that the district court understood its sentencing discretion,
considered the appropriate factors in determining whether to adjudicate
Franklin as a habitual criminal, see Hughes v. State, 116 Nev. 327, 332-33,
996 P.2d 890, 893-94 (2000) (holding that there is no requirement that the
district court "utter specific phrases or make 'particularized findings' that
it is 'just and proper' to adjudicate a defendant as a habitual criminal"),
and exercised its discretion. Accordingly, we discern no error in this
regard. 4
Second, Franklin contends that the State failed to prove three
valid prior felony convictions to support a determination of habitual
criminality. Specifically, Franklin argues that the State failed to prove he
4We are unconvinced by Franklin's argument that the district court
found facts, other than the existence of prior convictions, that would
increase the penalty for his crime beyond the statutory maximum, in
violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Rather, the
record reveals that the district court outlined its consideration of the
appropriate factors and exercised its discretion in determining whether to
dismiss the allegation. See O'Neill v. State, 123 Nev. 9, 16, 153 P.3d 38, 43
(2007).
SUPREME COURT
OF
NEVADA
8
(0) 1947A
is the individual convicted of stop-required-on-signal-of-police-officer, that
the State failed to affirmatively show that he had counsel in connection
with the robbery conviction, that some of the prior convictions were
duplicitous, that the attempted unauthorized use of a vehicle was a
misdemeanor, and that the submitted convictions contained documents
wholly unrelated to Franklin or Franklin's criminal history. Franklin
made no objection at the sentencing hearing; rather, his counsel stated
that she had reviewed the prior convictions and that there was no issue in
terms of their constitutionality. "[A]n unexcused failure to object in the
trial court to the State's failure to make an affirmative showing of the
validity of the prior convictions relied upon to enhance a penalty under
NRS 207.010 precluded the raising of this objection for the first time on
appeal." Baymon v. State, 94 Nev. 370, 372, 580 P.2d 943, 944 (1978). In
his reply brief, Franklin attempts to explain his failure to object by
alleging ineffective assistance of counsel. This court has repeatedly
declined to address claims of ineffective assistance of counsel on direct
appeal unless an evidentiary hearing has been held or would be
unnecessary. See Pellegrini v. State, 117 Nev. 860, 883, 34 P.3d 519, 534
(2001). Neither of these exceptions exists here; therefore, we decline to
address this claim.
Third, Franklin argues that the district court was prejudiced
by the State's submission of a packet of convictions which contained the
errors mentioned above. As Franklin failed to object at the sentencing
hearing, we review for plain error. Davidson v. State, 124 Nev. 892, 899,
192 P.3d 1185, 1190-91 (2008). "Under plain error review, this court has
the discretion to address an error if it was plain and affected the
defendant's substantial rights." Id. at 899-900, 192 P.3d at 1191 (internal
SUPREME COURT
OF
NEVADA
9
(0) 1947A
quotation marks omitted). "Normally, the defendant must show that an
error was prejudicial in order to establish that it affected substantial
rights." Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001),
abrogated on other grounds by Nunnery v. State, 127 Nev. , 263 P.3d
235 (2011), cert. denied, U.S. , 132 S. Ct. 2774 (2012). Franklin has
failed to demonstrate that the requisite number of prior convictions under
NRS 207.010(1)(b) was not proven to the district court and that he was
prejudiced by the district court's review of the packet of convictions.
Fourth, Franklin argues that the district court abused its
discretion when it adjudicated him a habitual criminal because his prior
convictions were stale and trivial. The age of the convictions does not
eliminate them from potential consideration; rather, the statute leaves the
matter to the district court's discretion. Arajakis v. State, 108 Nev. 976,
983, 843 P.2d 800, 805 (1992) ("NRS 207.010 makes no special allowance
for non-violent crimes or for the remoteness of convictions; instead, these
are considerations within the discretion of the district court"); see also
NRS 207.010(2). Besides the prior felony convictions, the district court
considered Franklin's presentence investigation report, outlining his
criminal activity in its entirety, and his institutional behavior. We
conclude that the district court did not abuse its discretion by declining to
dismiss the habitual criminal count.
Fifth, Franklin contends that NRS 207.010 is unconstitutional
as applied because his sentence of life without the possibility of parole
constitutes cruel or unusual punishment in violation of the United States
and Nevada Constitutions. We review the constitutionality of a statute de
novo. Silvar v. Eighth Judicial Dist. Court, 122 Nev. 289, 292, 129 P.3d
682, 684 (2006). "Statutes are presumed to be valid, and the challenger
10
bears the burden of showing that a statute is unconstitutional. In order to
meet that burden, the challenger must make a clear showing of
invalidity." Id. (footnote omitted). Because Franklin has not
demonstrated that the habitual-criminal-punishment statute is
unconstitutional, his sentence falls within the parameters of that statute,
and we are not convinced that the sentence is so grossly disproportionate
to the gravity of the offense and Franklin's history of recidivism as to
shock the conscience, we conclude that the sentence does not violate the
constitutional proscriptions against cruel and unusual punishment.
Ewing v. California, 538 U.S. 11, 29 (2003) (plurality opinion); Harmelin v.
Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion); Blume v. State,
112 Nev. 472, 475, 915 P.2d 282, 284 (1996); see also Arajakis, 108 Nev. at
983, 843 P.2d at 805.
Having considered Franklin's contentions and determined that
they are without merit, we
ORDER the judgment of conviction AFFIRMED.
J.
Douglas
J.
Saitta
11
cc: Hon. Brent T. Adams, District Judge
Janet S. Bessemer
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
12
(0) 1947A