Evans (Stacie) v. State ( 2013 )

 support a conviction, Lisle v. State, 113 Nev. 679, 691-92, 941 P.2d 459,
467 (1997), holding limited on other grounds by Middleton v. State, 114
Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998), and the jury's verdict
will not be disturbed on appeal where, as here, substantial evidence
supports the verdict. See 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).
Second, Evans contends that the district court abused its
discretion by denying his motion to dismiss because insufficient evidence
was presented at the preliminary hearing to support each charge. We
review a district court's decision to grant or deny a pretrial motion to
dismiss for an abuse of discretion. Hill v. State, 124 Nev. 546, 550, 188
P.3d 51, 54 (2008). Even assuming that Evans' motion was procedurally
proper, we conclude that the district court did not abuse its discretion by
denying it because the State presented sufficient evidence to support each
charge. See Sheriff v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180 (1980)
(to bind an accused over for trial, "the state is not required to negate all
inferences which might explain [his] conduct, but only to present enough
evidence to support a reasonable inference" that the accused committed
the offense); Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (we
will affirm the district court if it reaches the right result).
Third, Evans contends that the district court abused its
discretion by allowing the State to introduce into evidence outdated field
identification cards in order to establish his gang affiliation and that
evidence regarding his gang affiliation was unduly prejudicial. This claim
lacks merit because evidence that Evans was a member of a gang was
necessary to prove the gang enhancement of the charged crime and the
field identification cards were relevant evidence of Evans' gang
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membership. See NRS 193.168; Somee v. State, 124 Nev. 434, 446, 187
P.3d 152, 160 (2008). And, no prejudice resulted because Evans was
ultimately acquitted of the gang enhancement. We conclude that the
district court did not abuse its discretion.
Fourth, Evans contends that the district court erred by
granting the State's pretrial motion to admit Eric Dimas' preliminary
hearing testimony because it was untimely and the State failed to
demonstrate good cause to excuse the untimely filing. See NRS
174.125(1); Hernandez v. State, 124 Nev. 639, 648-49, 188 P.3d 1126, 1132-
33 (2008). Even assuming that the district court erred by granting the
State's motion and allowing Dimas' preliminary hearing testimony to be
read into the record, we conclude that any error was harmless because we
are convinced beyond a reasonable doubt that Dimas' testimony did not
contribute to Evans' conviction. See Hernandez, 124 Nev. at 652, 188 P.3d
at 1135.
Fifth, Evans contends that the district court abused its
discretion by rejecting his proposed instruction defining "affray." A
defendant is entitled to a jury instruction on his theory of the case if some
evidence supports it, Rosas v. State, 122 Nev. 1258, 1262, 147 P.3d 1101,
1104 (2006), but he is not entitled to instructions that are misleading or
inaccurate, Crawford v. State, 121 Nev. 744, 754, 121 P.3d 582, 589 (2005),
and a request for a lesser-included offense instruction is conditioned on
that offense being necessarily included in the charged offense, Rosas, 122
Nev. at 1263, 147 P.3d at 1105. Because "affray" is not a lesser-included
offense of the charged crimes, compare NRS 199.480(3)(a), and NRS
200.481(2)(f), with NRS 203.050, and the instruction was misleading
because "affray" was not charged, we conclude that the district court did
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not abuse its discretion, see Ouanbengboune v. State, 125 Nev. 763, 774,
220 P.3d 1122, 1129 (2009).
Sixth, Evans contends that cumulative error deprived him of a
fair trial. Balancing the relevant factors, we conclude that this contention
lacks merit. See Valdez v. State, 124 Nev. 1172, 1195, 196 P.3d 465, 481
(2008).
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Hardesty
Parr irre
J.
Cherry
cc: Hon. Douglas W. Herndon, District Judge
Law Office of Betsy Allen
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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