Strader (Kevin) v. State ( 2014 )

 neither of the two victims was present. The justice court granted the
State's continuance and Strader agreed at that time to continue his own
preliminary hearing for status check negotiations. On August 1, 2011, the
State requested another continuance and presented sworn testimony that
(1) victim S. Shehata had been subpoenaed on July 21, (2) he was an
essential witness because he was able to identify Strader as the person
who robbed him, and (3) the prosecutor had received notice that morning
that Shehata was on vacation and unavailable to attend the hearing.
Over Strader's objection, the justice court granted the continuance.
We conclude that the justice court did not abuse its discretion
in granting the continuances. As to the first continuance, Strader himself
agreed to it and thus cannot argue that it was improper. As to the second
continuance, the totality of the circumstances does not demonstrate that
the continuance was made without good cause or for the purpose of delay.
See Sheriff, Clark Cnty. v. Terpstra, 111 Nev. 860, 863, 899 P.2d 548, 550
(1995) ("What constitutes 'good cause' is not anienable to a bright-line
rule. The justice's court must review the totality of the circumstances to
determine whether 'good cause' has been shown."). The State
substantially complied with the Bustos requirements and nothing in the
record suggests a "willful disregard" or "conscious indifference" to the
rules. See McNair v. Sheriff, Clark Cnty., 89 Nev. 434, 438, 514 P.2d 1175,
1177 (1973). While Strader points to inconsistencies in the State's
averments in support of the first continuance, that continuance was
requested only as to Chavez and the reasons for that continuance did not
pertain to Strader's case.
Second, Strader argues that the district court erred by
allowing the State to display a booking photograph of him to the jury
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during opening statement. 1 Strader did not object to the photograph
during trial, and we conclude that Strader has failed to demonstrate plain
error affecting his substantial rights. See Valdez v. State, 124 Nev. 1172,
1190, 196 P.3d 465, 477 (2008) (providing that this court reviews
unpreserved claims for plain error); Browning v. State, 120 Nev. 347, 358,
91 P.3d 39, 47 (2004) (concluding that a booking photograph "had no
appreciable prejudicial effect since jurors had no reason to assume that it
had been taken in any other case but the one for which [appellant] was
being tried").
Third, Strader argues that there was insufficient evidence to
support his convictions because the victim's identification of him was not
credible and there was no physical evidence connecting him to the crimes.
We disagree because thefl 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. See Jackson v. Virginia,
443 U.S. 307, 319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d
721, 727 (2008).
1Strader originally argued on appeal that the State displayed a
PowerPoint slide with Strader's photograph and the word "GUILTY"
written on it to the jury during opening statement. This court allowed
Strader time to seek relief pursuant to NRAP 10(c) because it was unclear
from the record whether the PowerPoint slide was actually displayed.
Strader has provided notice that, following a hearing by the district court,
the parties agree that a photograph of Strader was shown to the jury
without the word "guilty" on it. Strader has corrected the trial court
record to include the photograph and requests that all references to the
presence of the word "guilty" on the slide be deemed withdrawn from his
fast track statement.
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The evidence at trial showed that the two victims, J. Sotelo
and S. Shehata, were sitting in a car in an apartment complex late at
night when Strader and Chavez approached them. Chavez pointed a gun
through the lowered window at Sotelo and demanded his wallet and keys,
and Strader took an iPhone from Shehata's lap. As Strader and Chavez
peeled out of the apartment complex in a white pickup truck, a security
officer took down the license plate number. The police were notified and
within minutes, officers located the truck nearby, followed it into a
residential area, and took Strader and Chavez into custody. Shehata's
phone was found near Chavez's feet, a gun matching the one Chavez was
holding was discovered nearby, and Sotelo's wallet was found in the truck.
Shehata showed up and immediately identified Strader and Chavez as the
robbers.
We conclude that the jury could reasonably infer from the
evidence presented that Strader was guilty of conspiracy to commit
robbery and robbery with the use of a deadly weapon. See NRS 199.480;
NES 200.380; NRS 193.165. As to Strader's contention that the victims
did not see the robber clearly, Shehata's description of the robber to the
police largely matched Strader's appearance when he was arrested, and
Shehata testified that there were plenty of lights shining in the apartment
complex and he got a good look at Strader during the robbery. It is for the
jury to determine the credibility of witnesses, 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).
Fourth, Strader argues that the district court erred by
rejecting his proposed "two reasonable interpretations" jury instruction.
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Because the jury was properly instructed regarding reasonable doubt, we
conclude that the district court did not err by rejecting Strader's proposed
instruction. See Bails v. State, 92 Nev. 95, 98, 545 P.2d 1155, 1156 (1976).
Fifth, Strader argues that the district court erred by denying
his proposed instructions regarding the lesser-related offense of larceny.
Strader concedes that this court's holding in Smith v. State, 120 Nev. 944,
946, 102 P.3d 569, 571 (2004), forecloses his contention that larceny is a
lesser-related offense of robbery, but he asks this court to revisit Smith in
light of the newer decision in Rosas v. State, 122 Nev. 1258, 1269, 147 P.3d
1101, 1109 (2006). In Smith, this court held that an offense cannot be a
lesser-included offense where the elements of the offense areS defined in a
manner that excludes acts that constitute the greater offense. 120 Nev. at
946, 102 P.3d at 571. The crime of larceny requires the taking of property
"under circumstances not amounting to robbery." NRS 205.270. Thus,
larceny cannot be a lesser-included offense of robbery because the
statutory definition excludes acts amounting to robbery. In Rosas, this
court addressed when a defendant is entitled to an instruction on a lesser-
included offense. Because Rosas in no way altered our decision in Smith
about when an offense is considered lesser-included, we decline Strader's
request to revisit our holding in Smith and conclude that the district court
did not err in rejecting Strader's proposed instructions.
Finally, Strader argues that the district court erred by
denying his for-cause challenge of prospective juror 524 who repeatedly
stated that she expected the defense to prove Strader's innocence. The
district court denied the challenge after questioning the prospective juror
about her understanding of the burden of proof and her willingness to
follow the district court's instructions. Even if the district court erred in
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denying the challenge to the prospective juror, Strader has failed to
demonstrate that he was prejudiced. Prospective juror 524 did not sit on
the jury, and Strader has not demonstrated that any jurors actually
empanelled were not fair or impartial. See Weber v. State, 121 Nev. 554,
581, 119 P.3d 107, 125 (2005) ("Any claim of constitutional significance
must focus on the jurors who were actually seated, not on excused
jurors."). Therefore, no relief is warranted on this claim.
For the foregoing reasons, we
ORDER the judgment of conviction AFFIRMED.
A.4.; J.
Hardesty
J.
Douglas
fl
J.
Cherry
cc: Hon. Elissa F. Cadish, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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