Sullivan (Richard) v. State ( 2013 )

 jeopardy violations implicate both statutory and constitutional issues and
are reviewed de novo. Jackson v. State, 128 Nev. P.3d
(Adv. Op. No. 55, December 6, 2012). Because neither the coercion nor
domestic violence statute expressly allows for, or prohibits, convictions for
both, see NRS 207.190, NRS 33.018, we apply the test outlined in
Blockburgerl to determine "whether each offense contains an element not
contained in the other; if not, they are the 'same offence' and double
jeopardy bars additional punishment and successive prosecution."
Jackson, 128 Nev. at , P.3d at (Adv. Op. No. 55 at 7) (quoting
United States v. Dixon, 509 U.S. 688, 696 (1993)). Both coercion and
domestic violence—charged here under a theory of battery—require proof of
an element that the other does not. See NRS 207.190, NRS 33.018.
Although Sullivan contends that under the unique facts of this case the
State had to demonstrate that he was in a domestic relationship with the
victim in order to prove coercion, we look only to what the statute
requires, "notwithstanding a substantial overlap in the proof offered to
establish the crimes." Brown v. Ohio, 432 U.S. 161, 166 (1977) (internal
quotation omitted). Because Sullivan failed to demonstrate that the
legislature intended to prohibit punishment for both offenses, we conclude
that he is not entitled to relief on this claim.
Similarly, Sullivan also argues that Walker v. Florida, 397
U.S. 387 (1970), and NRS 171.070 mandate reversal of his felony coercion
conviction because it was based on the same act as his municipal court
domestic violence conviction. Although respondent did not specifically
iBlockburger v. United States, 284 U.S. 299 (1932).
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address these arguments in its response, its argument regarding double
jeopardy generally applies with equal force. Therefore, we decline to
construe the lack of a specific argument as a confession of error. See
NRAP 31(d). Because the acts constituting domestic violence were not
necessary to prove the offense of coercion, we conclude that these claims
also lack merit. See Sacco v. State, 105 Nev. 844, 846-47, 784 P.2d 947,
949 (1989).
Third, Sullivan argues that his two convictions are redundant
because, while different offenses under Blockburger, they are factually
based upon the same act. We have recently rejected these challenges as
unworkable and have reemphasized that the appropriate analysis is the
intent of the legislature. See Jackson, 128 Nev. Adv. Op. at , P.3d
at (Adv. Op. at 17-18). We conclude that Sullivan is not entitled to
relief on this claim.
Fourth, Sullivan argues that the district court erred by failing
to give his proposed "two reasonable interpretations" jury instruction,
claiming that the district court's rejection of his proposed instruction was
tantamount to denying an instruction on his theory of the offense. We
reject Sullivan's claim that denial of his proposed instruction was similar
to the denial of a "duty to acquit instruction." Cf. Crawford v. State, 121
Nev. 744, 753, 121 P.3d 582, 588 (2005). Because the jury was properly
instructed regarding reasonable doubt, we conclude that the district court
did not err by rejecting Sullivan's proposed instruction. See Bails v. State,
92 Nev. 95, 98, 545 P.2d 1155, 1156 (1976).
Fifth, Sullivan argues that the State committed prosecutorial
misconduct by referring to defense counsel as a public defender. Because
Sullivan did not object to the statement, we review it for plain error
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affecting his substantial rights. Dieudonne v. State, 127 Nev. „ 245
P.3d 1202, 1204-05 (2011). While we are mindful of the concerns that
Sullivan raises, we conclude that the singular, innocuous reference to
counsel as a public defender was not misconduct. See Williams v. State,
103 Nev. 106, 110, 734 P.2d 700, 703 (1987) (a prosecutor may not make
comments intended to influence the outcome of a case). We conclude that
Sullivan is not entitled to relief on this claim.
Sixth, Sullivan argues cumulative error. Because we have
found no error, there are no errors to cumulate. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
vesLA.L\ J.
Hardesty
Parraguirre
Congo& J.
Cherry
cc: Hon. Joanna Kishner, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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