Oliver (Donald) v. State ( 2014 )

 1, 7-8 (2003). Here, the district court heard arguments from counsel and
denied Oliver's motion. The district court stated that "the information
probably should have been turned over," but ultimately found that the
victim's identification of the second suspect in the robbery was not
exculpatory. Moreover, we conclude, in light of the evidence presented,
there is not a "reasonable possibility" that a more timely disclosure of the
information in question would have affected the outcome of Oliver's trial.
See Mazzan v. Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000); see also
State v. Huebler, 128 Nev. , 275 P.3d 91, 95 (2012) ("To prove a
Brady violation, the accused must make three showings: (1) the evidence
is favorable to the accused, either because it is exculpatory or impeaching;
(2) the State withheld the evidence, either intentionally or inadvertently;
and (3) prejudice ensued, i.e., the evidence was material." (quotation
marks omitted)), cert. denied, U.S. 133 S. Ct. 988 (2013).
Therefore, we further conclude that the district court did not err by
determining that the State did not violate Brady or abuse its discretion by
denying Oliver's motion to dismiss or, alternatively, for a mistrial. See
Hill v. State, 124 Nev. 546, 550, 188 P.3d 51, 54 (2008) (we review a
district court's denial of a motion to dismiss for an abuse of discretion);
Rose v. State, 123 Nev. 194, 206-07, 163 P.3d 408, 417 (2007) (we review a
district court's denial of a motion for a mistrial for an abuse of discretion).'
'To the extent it was raised, we also conclude that Oliver fails to
demonstrate that he is entitled to relief based on the late disclosure of a
taped interview of a third individual involved in the July 10th robbery.
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Second, Oliver contends that the district court erred by
denying his pretrial motion to sever the charges. 2 Oliver claims that
charges stemming from the two robberies were improperly joined for trial
because the offenses were not "connected together" and "there is no
mutually cross-admissible evidence." We disagree.
Under NRS 173.115(2), the State may charge two or more
offenses in the same information, with a separate count for each offense, if
the offenses are "[biased on two or more acts or transactions connected
together or constituting parts of a common scheme or plan." If it appears
that a defendant will be prejudiced by joinder, the district court may grant
a severance. See NRS 174.165(1). Here, the district court conducted a
hearing and found that "due to the close proximity in time and location
and the similar modus operandi, there is sufficient evidence that the
alleged robberies constitute a common scheme or plan." See Middleton v.
State, 114 Nev. 1089, 1107, 968 P.2d 296, 308 (1998). The district court
determined that "evidence of each robbery would be cross-admissible in
separate trials" pursuant to NRS 48.045(2), see Weber v. State, 121 Nev.
554, 573, 119 P.3d 107, 120 (2005), and that Oliver was "not unfairly
prejudiced by joinder of the charges," see id. at 574-75, 119 P.3d at 121; see
also Middleton, 114 Nev. at 1108, 968 P.2d at 309 ("Misjoinder requires
reversal only if the error has a substantial and injurious effect on the
2 TheHonorable Douglas Smith, District Judge, ruled on Oliver's
motion to sever the charges.
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jury's verdict."). We conclude that the district court did not abuse its
discretion by denying Oliver's motion to sever the charges. See Weber, 121
Nev. at 570, 119 P.3d at 119 (we review a district court's decision to join or
sever charges for an abuse of discretion). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
_ualissff J.
Parraguirre
J.
cc: Hon. Jerry A. Wiese, District Judge
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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