Zabala (Hank) v. State ( 2013 )

 were "in an extreme condition and would be easily used as a weapon more
so than the typical extender on a normal golf pencil."
Deputy Lux also discovered, hidden from plain view, an item
which he described as approximately eleven inches long, made from a
rolled-up magazine and "toilet paper that was wetted, hardened, like
squeezed to make smaller. . . wrapped around with packing tape holding
it together." The item was "very hard," he "couldn't bend it," and based on
his training, Deputy Lux identified it as an illegal billy, stating, "[y]ou can
strike somebody with it, [and] use it as a choking instrument." Deputies
Paul Poljak and Lux both testified that a billy, "basically," is a club.
Deputy Iveson testified that the billy was "pretty well made" and
"dangerous." A photograph of the billy was admitted as an exhibit.
Deputy Lux testified that inmates were not allowed to have pencil
extenders or billies in their cells, so they were confiscated as contraband
and booked into evidence.
Circumstantial evidence alone may sustain a conviction.
Buchanan v. State, 119 Nev. 201, 217, 69 P.3d 694, 705 (2003). It is for
the jury to determine the weight and credibility to give conflicting
testimony, McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992), and
a jury's verdict will not be disturbed on appeal where, as here, sufficient
evidence supports the verdict, Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20,
20 (1981); see also NRS 212.185(1)(a) & (c). Therefore, we conclude that
Zabala's contention is without merit.
Second, Zabala contends that NRS 212.185(1)(a) & (c) are
unconstitutionally vague because "[a] reasonable person reading [the
statute] would not have notice that a rolled up magazine constituted a
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'billy,' or that a jail-issued golf pencil constituted a 'sharp instrument."
We disagree with Zabala's contention.
"The constitutionality of a statute is a question of law, which
this court reviews de novo." Aguilar Raygoza v. State, 127 Nev.
- „
255 P.3d 262, 264 (2011), cert. denied, U.S. 132 S. Ct. 551 (2011).
A statute is unconstitutionally vague "(1) if it fails to provide a person of
ordinary intelligence fair notice of what is prohibited; or (2) if it is so
standardless that it authorizes or encourages seriously discriminatory
enforcement." State v. Castaneda, 126 Nev. „ 245 P.3d 550, 553
(2010) (internal quotation marks omitted). Statutes are presumed to be
valid and the challenger bears the burden of demonstrating their
unconstitutionality. Nelson v. State, 123 Nev. 534, 540, 170 P.3d 517, 522
(2007).
Zabala was charged, pursuant to NRS 212.185(1)(a) & (c), with
"being a person incarcerated" and having "in his possession and/or under
his dominion and control, a 'billy' or other similar weapon, instrument or
device and/or a sharp instrument capable of being used as a weapon." The
statute is not vague because a person of ordinary intelligence has fair
notice that possession by an inmate of a rolled-up magazine and golf
pencils, altered in the manner described above, is forbidden. Further,
Zabala fails to demonstrate that the statute encourages discriminatory
and arbitrary enforcement. Therefore, we conclude that Zabala failed to
satisfy his burden and demonstrate that the statute is unconstitutional.
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Third, Zabala contends that the district court erred by
rejecting his two proposed instructions defining "billy." 1 We disagree.
"This court reviews a district court's decision to issue or not to issue a
particular jury instruction for an abuse of discretion." Ouanbengboune v.
State, 125 Nev. 763, 774, 220 P.3d 1122, 1129 (2009). Here, the district
court rejected Zabala's proposed instructions after noting that the jury
was "properly instructed on the elements of the offense" and that "the
term has been the subject of testimony which is for the jury to consider."
As noted above, two deputies testified that a billy, "basically," is a club.
Further, Zabala's proposed instructions were misleading. See Carter v.
State, 121 Nev. 759, 765, 121 P.3d 592, 596 (2005) (defendant not entitled
to misleading or inaccurate jury instructions). We conclude that the
district court did not abuse its discretion by rejecting Zabala's proposed
instructions. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Douglas Saitta
1 Rejected instruction no. 1: "Billy' is defined as a heavy, usually
wooden club." Rejected instruction no. 2: "Billy' is defined as a tin or
enamel cooking pot with a lid and a wire handle, for use when camping or
a heavy, usually wooden club."
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cc: Hon. Brent T. Adams, District Judge
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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