Esquivel (Johnny) v. State ( 2013 )

while standing in West's front yard. Meanwhile, Eddie's girlfriend heard
the commotion, climbed out of the back of a truck in the driveway, and
grabbed a bat. This occurred after Esquivel displayed the firearm. When
Eddie saw the gun, he told West and his girlfriend, "he's got a gun, he's got
a gun" and threw a chair at Esquivel. Esquivel dodged the chair and shot
Eddie in the back as he ran toward the front door of West's home. When
Esquivel tried to fire a second shot his gun jammed and he fled.
We conclude that a rational juror could infer from these
circumstances that Esquivel was the original aggressor, see NRS
200.120(2)(a), did not have a right to be present at the location where he
used deadly force, see NRS 200.120(2)(b), and was actively engaged in
conduct in furtherance of criminal activity, see NRS 200.120(2)(c); NRS
207.200(1) (unlawful trespass), when he shot the victim. Therefore, he
had the duty to retreat before using deadly force in order for his homicide
to be justifiable. See NRS 200.120; see also Harkins v. State, 122 Nev. 974,
990, 143 P.3d 706, 716 (2006) ("Self-defense is not available to an original
aggressor."). No evidence was presented that Esquivel attempted to
retreat before he shot the victim in the back, and a rational juror could
conclude from these circumstances that Esquivel committed second-degree
murder. See NRS 200.010(1); NRS 200.030(2). The jury's verdict will not
be disturbed on appeal where, as here, substantial evidence supports the
conviction. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also
Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112 (2002)
("[C]ircumstantial evidence alone may support a conviction."); McNair,
108 Nev. at 56, 825 P.2d at 573 ("Mt is the jury's function, not that of the
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court, to assess the weight of the evidence and determine the credibility of
witnesses."). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Hardesty
cc: Hon. Valerie Adair, District Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
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