Mosby (Marvin) v. State ( 2013 )

 deter police misconduct" and therefore would not further the purpose of
the rule. Davis v. United States, 564 U.S. , _, 131 S. Ct. 2419, 2423-
24, 2427 (2011); see also United States v. Pineda-Moreno, 688 F.3d 1087,
1090 (9th Cir. 2012), cert. denied, 568 U.S. , 133 S. Ct. 994 (2013).
Mosby fails to explain why this court should deviate from the reasoning in
Davis. In addition, Mosby failed to demonstrate that the district court
erred in concluding that he did not have a reasonable expectation of
privacy in the parking lot of the apartment complex where the device was
placed on his car. See State v. Harnisch, 113 Nev. 214, 221-22, 931 P.2d
1359, 1364-65 (1997), clarified on denial of reh'g, 114 Nev. 225, 954 P.2d
1180 (1998). Therefore, the district court did not err in denying the
motion to suppress.
Second, Mosby argues that the district court erred in denying
his motion for a mistrial based on the State's reference to inadmissible
evidence during its opening statement. We discern no abuse of discretion.
See Rose v. State, 123 Nev. 194, 206-07, 163 P.3d 408, 417 (2007)
(reviewing district court order denying mistrial for abuse of discretion).
The State's remarks did not refer to the repeat offender program and thus
did not mention evidence that had been precluded. Further, the evidence
related to the surveillance of Mosby on the day of the offense was relevant,
see NRS 48.025 (providing that relevant evidence is generally admissible),
and did not refer to any uncharged bad acts, see NRS 48.045(2) (limiting
use of uncharged bad acts evidence).
Third, Mosby contends that the district court erred in
imposing the habitual criminal sentences absent a jury trial on the issue
in accordance with Apprendi v. New Jersey, 530 U.S. 466 (2000). Because
we have previously concluded that Apprendi's holding does not apply to
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habitual criminal adjudications, O'Neill v. State, 123 Nev. 9, 10-11, 153
P.3d 38, 39 (2007), we conclude that Mosby is not entitled to relief on this
claim.
Fourth, Mosby asserts that the State presented insufficient
evidence at trial to sustain his convictions. This claim lacks merit because
the evidence, when viewed in the light most favorable to the State, is
sufficient to establish guilt beyond a reasonable doubt as determined by a
rational trier of fact. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). The jury
heard evidence that Mosby drove to a bus stop, boarded a bus, and was
observed taking wallets from three people and touching the coat of a
fourth person in a probing manner. After his arrest, Mosby was
discovered in possession of cash from one victim's wallet; wallets belonging
to two other victims, one of which had the victim's identification and credit
cards; Canadian currency belonging to some of the victims; and a driver's
license bearing the name of one individual and number corresponding to
the license of another individual. Based on this evidence, we conclude that
a rational juror could reasonably find that Mosby intended to commit
larceny when he boarded the bus, NRS 205.060(1) (burglary defined), took
property, including identification and credit cards, from several people
with the intent to appropriate it for himself, NRS 205.270(1) (larceny from
the person defined); NRS 205.690(1) (obtaining credit or debit card
without consent of cardholder), attempted to take property from another,
MRS 205.070(1); NRS 193.330(1) (attempt defined), and used the
identification of another to delay or avoid prosecution, NRS 205.463(2)
(obtaining and using personal identification information of another
defined).
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Having reviewed Mosby's contentions and concluded that they
lack merit, we
ORDER the judgment of conviction AFFIRMED.
J.
J.
cc: Hon. Adriana Escobar, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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