Smith (Rodney) v. State ( 2014 )

 against the front door to preclude Smith's reentry, but Smith managed to
get inside the residence and began climbing the stairs towards her, knife
in hand. Smith was convicted of subsequently committing assault with
the use of a deadly weapon and battery inside the residence. "When there
is conflicting testimony presented, it is for the jury to determine what
weight and credibility to give to the testimony." Hankins v. State, 91 Nev.
477, 477, 538 P.2d 167, 168 (1975). We conclude that the jury could have
reasonably inferred from the evidence presented that Smith committed
burglary. See NRS 205.060(1); Valdez v. State, 124 Nev. 1172, 1197, 196
P.3d 465, 481 (2008) ("[I]ntent can rarely be proven by direct evidence of a
defendant's state of mind, but instead is inferred by the jury from the
individualized, external circumstances of the crime." (internal quotation
marks omitted)). A jury's verdict will not be disturbed on appeal where, as
here, it is supported by sufficient evidence. See Bolden v. State, 97 Nev.
71, 73, 624 P.2d 20, 20 (1981).
To the extent that Smith claims he could not be convicted of
burglary because the residence was his own, we disagree. Even assuming
Smith was a resident prior to the incident, Smith testified at trial that he
and the other tenant had been evicted as of 5 p.m. on December 18, 2012,
before the incident that led to these charges occurred. Therefore, Smith
could be convicted of burglary because he did not have "an absolute
unconditional right" to enter the residence. State v. White, 130 Nev. ,
P.3d , (Adv. Op. No. 56, July 10, 2014, at 9).
Second, Smith claims that the State improperly provided
evidence of his bad character when a witness made reference to prior bad
acts, and the district court abused its discretion by denying his motions for
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a mistrial. Inadvertent references to prior bad acts, where blurted out by
a witness rather than elicited by the prosecution, can be cured by the
district court's immediate admonishment to the jury to ignore the
testimony. Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992).
Here, when asked if she was afraid that Smith was going to cause serious
harm, the witness responded that she believed Smith was going to do
something harmful because he had harmed her before. Counsel for Smith
moved for a mistrial. The district court denied the motion and offered to
give an immediate limiting instruction, but counsel for Smith declined as
he did not want to draw further attention to the testimony. The district
court allowed the defense to frame a question, which the State
immediately asked the witness, that clarified that the witness's fear
stemmed from the threatening text messages sent by Smith earlier in the
day. We conclude that this was sufficient to cure any prejudice the
witness's testimony may have caused Smith, and the district court did not
abuse its discretion by denying Smith's motion for a mistrial. Raclin v.
State, 120 Nev. 121, 142, 86 P.3d 572, 586 (2004) ("The trial court has
discretion to determine whether a mistrial is warranted, and its judgment
will not be overturned absent an abuse of discretion.").
Smith's counsel moved for a mistrial a second time after the
same witness, in response to a defense question of whether Smith hit her
in any way, answered "not that time." The district court found that the
answer was ambiguous and that, in context, the jury could have
reasonably inferred that the statement referenced Smith's behavior on the
day of the incident. The district court further instructed counsel to be
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very specific with his questions. We conclude that the district court did
not abuse its discretion by denying Smith's motion for a mistrial. Id.
Having considered Smith's contentions and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
_c_ksza
_ J.
Dou777A-' HIL.H:H3v7
cc: Hon. Stefany Miley, District Judge
Justice Law Center
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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