Clark (Robert) v. State ( 2015 )

 Clark claims that the district court abused its discretion when
it refused to provide his proposed jury instruction because the court
believed the instruction was not supported by Nevada law. He asserts
that the instruction is supported by Bails v. State, 92 Nev. 95, 96-97, 545
P.2d 1155, 1155-56 (1976), which permits the district court to allow such
an instruction. The State asserts that the court properly instructed the
jury on reasonable doubt, so the court had the discretion to reject the
proposed instruction.
"The district court has broad discretion to settle jury
instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error." Rose v. State, 127 Nev. 494,
500, 255 P.3d 291, 295 (2011) (quoting Crawford v. State, 121 Nev. 744,
748, 121 P.3d 582 585 (2005)). "An abuse of discretion occurs if the district
court's decision is arbitrary or capricious or if it exceeds the bounds of law
or reason." Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001).
In Bails, the defendant was charged with first-degree murder.
92 Nev. at 96, 545 P.2d at 1155. The only evidence against him was
circumstantial. Id. He requested a specific jury instruction on reasonable
doubt, but the district court rejected Bails's specific instruction. Id. at 96-
97, 545 P.2d at 1155-56. This court affirmed the district court's decision
and explained that the district court does not err when it "refuse[s] to give
the instruction if the jury is properly instructed regarding reasonable
doubt." Id. at 97, 545 P.2d at 1156. However, this court also clarified that
the district court had the discretion to issue such an instruction. Id.In the instant case, the district court did not abuse its
discretion by rejecting Clark's proposed instruction. Although the district
court could have issued the instruction, it was not required to do so
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because it properly instructed the jury on reasonable doubt. The court's
mistaken belief that the instruction was not supported by Nevada law is of
no import. The district court correctly concluded that instruction need not
be given, even if it did so, at least in part, based on the incorrect belief
that the instruction was not supported by Nevada law. See Wyatt v. State,
86 Nev. 294, 298, 468 P.2d 338, 341 (1970) ("If a judgment or order of a
trial court reaches the right result, although it is based on an incorrect
ground, the judgment or order will be affirmed on appeal.")."
Sufficiency of the evidence
Clark next argues that the State did not present any direct
evidence that he committed the crimes charged and that it solely relied
upon circumstantial evidence. He claims that the State also did not
present any evidence that he entered the victim's apartment, only that he
was outside the apartment and that he carried a pole. The State concedes
that it used circumstantial evidence to prove Clark's guilt, but it argues
that Nevada law permits this reliance.
In reviewing the sufficiency of the evidence, this court
determines "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Mitchell v.
State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008) (internal quotation
'Clark secondarily argues that this court should adopt the Indiana
rule articulated in Robey v. State, 454 N.E.2d 1221, 1222 (Ind. 1983),
abrogated by McGowan v. State, 27 N.E.3d 760 (2015), and require that
such an instruction be given when requested. This argument is also•
unpersuasive because the Nevada Legislature has codified the precise
instruction that the trial courts must provide for reasonable doubt. See
NRS 175.211.
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marks omitted). "This court will not reweigh the evidence or evaluate the
credibility of witnesses." Id. "[I]t is the jury's function .. . to assess the
weight of the evidence and . . . credibility of witnesses." Rose v. State, 123
Nev. 194, 202-03, 163 P.3d 408, 414 (2007) (internal quotations omitted)
(alteration in original). Moreover, a jury may rely on circumstantial
evidence. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980).
To convict a defendant of home invasion, the State must prove
that the defendant (1) "forcibly enter[ed]," (2) "an inhabited dwelling," (3)
"without permission of the owner, resident or lawful occupant." NRS
205.067(1). A person "forcibly enters" when he or she enters through "any
act of physical force resulting in damage to the structure." NRS
205.067(5)(a). An "inhabited dwelling" is "any structure . . . in which the
owner or other lawful occupant resides." NRS 205.067(5)(b).
First, police officers testified at trial that force was used to
gain entry to the apartment and the victim described the window as being
"completely trashed." Trial testimony also revealed that Clark (or a
person for whom he is vicariously liable 2) was the person who entered the
apartment. Second, the victim testified that he lived with his daughter in
the apartment where the crime occurred. Lastly, the victim testified that
he did not give anyone permission to be in his apartment at the time the
crime occurred and that he did not give anyone permission to take his
2At trial, a witness testified that during the later evening hours of
April 26, 2013, she saw Clark and another man, who also resided in the
complex, on the balcony of the apartment where the victim resided. She
also testified that she contacted the police because she believed that Clark
and his associate were breaking into the victim's apartment.
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DVD player. Therefore, the State presented sufficient evidence to prove
home invasion.
To convict a defendant of burglary, the State must prove that
the defendant (1) "enter[ed] any house, room, apartment," etc., (2) "with, [
inter alict], the intent to commit grand or petit larceny." NRS 205.060(1).
The jury may determine the defendant's intent based upon his or her
actions. NRS 205.065.
The same trial testimony that demonstrates that Clark or
someone for whom he is vicariously liable forcibly entered the victim's
residence for the home invasion charge also demonstrates that Clark or
someone for whom he is vicariously liable entered the victim's apartment
to commit burglary. Additionally, a police detective testified that he
recovered the victim's DVD player from the apartment where Clark lived.
Because the victim's property was stolen and one item of property was
recovered from Clark's residence, the jury can infer that Clark or someone
for whom he is vicariously liable entered the victim's apartment with the
intent to commit larceny. Therefore, the State presented sufficient
evidence to prove burglary.
Habitual criminal adjudication
At the sentencing hearing, the State presented certified prior
judgments of conviction against Clark for being under the influence of a
controlled substance, coercion, larceny from the person, and two
convictions for possession of a controlled substance with intent to sell.
After testimony and argument, the court announced that it was
sentencing Clark under the small habitual criminal statute and sentenced
him to 5 to 15 years.
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Clark contends that his prior convictions do not justify
adjudication as a habitual criminal because three of his five felony
convictions were for stale, non-violent, drug offenses. He also contends
that the court merely adjudicated him to be a habitual criminal because he
had the necessary number of prior convictions. The State argues that the
district court appropriately sentenced Clark under the small habitual
criminal statute because Clark's criminal history was extensive. 3
This court has indicated that "[o]ur habitual criminality
statute exists to enable the criminal justice system to deal determinedly
with career criminals who pose a serious threat to public safety." Sessions
v. State, 106 Nev. 186, 191, 789 P.2d 1242, 1245 (1990). Adjudication of a
defendant as a habitual criminal is "subject to the broadest kind of judicial
discretion." Tanksley v. State, 113 Nev. 997, 1004, 946 P.2d 148, 152
(1997) (internal quotations omitted).
In determining whether habitual criminal adjudication is
proper, "Kilns court looks to the record as a whole to determine whether
the sentencing court actually exercised its discretion." O'Neill v. State,
3 Whether the court's adjudication of Clark as a habitual criminal is
properly before this court on appeal is disputed. The court filed its
amended judgment of conviction, in which it memorialized that it
sentenced Clark under the small habitual criminal statute, on June 5,
2014. Clark's notice of appeal states that he intended to appeal the
district court's February 20, 2014 judgment—the original judgment of
conviction—which does not reference adjudication as a habitual criminal.
Clark did not file a notice of appeal for the amended judgment of
conviction or second amended judgment of conviction in which the
habitual criminal adjudication, announced at the sentencing hearing, is
recorded. See NRAP 3(a)(1)-(2). To promote judicial economy, we will
address the merits of Clark's arguments while still noting that we could
dispose of this issue on procedural grounds.
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123 Nev. 9, 16, 153 P.3d 38, 43 (2007) (internal quotations omitted). So
long as "the sentencing court was not operating under a misconception of
the law regarding the discretionary nature of a habitual criminal
adjudication . . . the sentencing court has met its obligation under Nevada
law." Id. (internal quotations omitted). "[A] district court may consider
facts such as a defendant's criminal history, mitigation evidence, victim
impact statements and the like in determining whether to dismiss such a
count." Id.NRS 207.010 allows the sentencing court to dismiss the
habitual criminal count "when the prior offenses are stale or trivial, or in
other circumstances where an adjudication of habitual criminality would
not serve the purposes of the statute or the interests of justice." French v.
State, 98 Nev. 235, 237 645 P.2d 440, 441 (1982). "NRS 207.010 makes no
special allowance for non-violent crimes or for the remoteness of
convictions; instead, these are considerations within the discretion of the
district court." Arajakis v. State, 108 Nev. 976, 983, 843 P.2d 800, 805
(1992). Nonetheless, this court has reversed a district court's adjudication
when the supporting felony convictions are too stale or too remote. See
Sessions v. State, 106 Nev. at 191, 789 P.2d at 1244-45 (reversing a district
court's decision to adjudicate the defendant as a habitual criminal based
on a 31-year-old "conviction for theft of property valued at over fifty
dollars," a 27-year-old conviction for grand theft, and a 25-year-old
"conviction for escape without the use of force").
Despite its failure to make particularized findings, the record
reflects that the court exercised its discretion. At sentencing, the State
presented evidence that Clark had, prior to the instant case, been
convicted of five felonies. Clark also personally addressed the court
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regarding his criminal history and, after entertaining oral argument, the
court adjudicated Clark under the small habitual criminal statute, NRS
207.010(1)(a). Had the court misunderstood "the discretionary nature of a
habitual criminal adjudication," Hughes v. State, 116 Nev. 327, 333, 996
P.2d 890, 894 (2000), the court would likely have adjudicated Clark under
the large habitual criminal statute, NRS 207.010(1)(b). Thus, the court's
determination to sentence Clark under the small habitual criminal statute
shows that it exercised its discretion and did not simply count the number
of felonies in Clark's criminal history record.
The district court also did not abuse its discretion in
adjudicating Clark as a habitual criminal because his prior convictions are
neither too stale nor too remote. Clark's convictions occurred only five
years after his last felony convictions. Moreover, his criminal history
spans approximately 20 years, unlike the defendant's criminal history in
Sessions, in which the most recent prior felony conviction occurred 25
years ago. Sessions, 106 Nev. at 191, 789 P.2d at 1245. Equally
important, the district court heard argument from the State, to which the
defense did not object, that whenever Clark received probation or parole
he violated the terms of his probation or parole and was re-incarcerated.
Besides the felony convictions, the State informed the court that Clark
was convicted for three gross misdemeanors and six misdemeanors.
Accordingly, Clark's criminal history record is not too remote to support
habitual criminal adjudication.
Likewise, Clark's convictions are not too trivial to support
habitual criminal adjudication. Clark attempts to portray himself to this
court as a non-violent victim of an unfortunate drug addiction. This
assertion is untenable, and Clark has not presented any evidence to
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support his claim that he suffers from drug addiction. While three of his
convictions were for drug-related crimes, he was only once convicted for
being under the influence of a controlled substance. HisS remaining two
drug offenses were for trafficking, and trafficking does not indisputably
indicate that he is an addict. Further, his convictions for coercion and
larceny from the person both arose from theft-related incidences. Thus,
the court did not abuse its discretion.
Amending the judgment of conviction
The district court's judgment of conviction erroneously omitted
that the court sentenced Clark under the small habitual criminal statute.
Consequently, the Nevada Department of Corrections contacted the court
to clarify the sentencing statute, because the sentence the court ordered,
without indicating that Clark was sentenced as a habitual criminal,
exceeded the statutory maximums. Upon learning of this omission, the
district court filed an amended judgment of conviction. The amended
judgment reflected that Clark was sentenced under the small habitual
criminal statute and, in handwriting initialed by the judge, referenced the
transcript of the sentencing hearing where the court announced its order.
The court subsequently filed a second amended judgment of conviction.
The content of the second amended judgment is identical to that of the
first amended judgment, except that the handwritten material is typed.
Clark claims that the district court essentially resentenced
him as a habitual criminal when it amended the judgment of conviction.
He further claims that the court punished him more harshly in the
amended judgment. He asserts that the court did not merely correct a
clerical error but that the court exercised its discretion and sentenced him
under "an entirely different" statute. However, the State claims that the
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judgment of conviction inadvertently failed to reflect that the district court
sentenced Clark pursuant to the small habitual criminal statute and
simply corrected a clerical error.
Illegal sentence
Nevada's general rule regarding jurisdiction over a criminal
case on appeal is provided by NRS 177.155, which states that "[t]he
supervision and control of the proceedings on appeal shall be in the
appellate court from the time the notice of appeal is filed with its clerk."
After a notice of appeal is filed, jurisdiction "is vested solely in the
supreme court until the remittitur issues to the district court." Buffington
v. State, 110 Nev. 124, 126, 868 P.2d 643, 644 (1994). Nevada's statutory
scheme therefore provides that a district court lacks jurisdiction over a
case from the filing of the notice of appeal until the remittitur is issued.
The State incorrectly contends that Nevada's general rule that
district courts are divested of jurisdiction once a notice of appeal is filed
does not divest a district court of its authority to correct a clerical error
pursuant to NRS 176.565, which allows the district court to correct
"Hlerical mistakes in judgments. . . at any time." In Medina v. State, 122
Nev. 346, 356 n.25, 143 P.3d 471, 477 n.25 (2006), this court stated the
following:
We note that there is a clerical error in the
judgment of conviction. The judgment incorrectly
states that appellant was convicted pursuant to a
guilty plea. In fact, appellant was convicted
pursuant to a jury verdict. Following this court's
issuance of its remittitur, the district court shall
correct this error in the judgment of conviction.
See NRS 176.565 (providing that clerical error in
judgments may be corrected at any time);
Buffington v. State, 110 Nev. 124, 126, 868 P.2d
643, 644 (1994) (explaining that district court does
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not regain jurisdiction following an appeal until
supreme court issues its remittitur).
Here, the district court twice amended Clark's judgment of
conviction after Clark had filed his notice of appeal. Even considering the
court's omission of NRS 207.010 to be a clerical error, the district court
exceeded its jurisdiction when it filed the amended judgment and the
second amended judgment.
However, this court has explained that "it is the sentencing
court that has the inherent authority to correct its sentence." Passanisi v.
State, 108 Nev. 318, 321, 831 P.2d 1371, 1372 (1992), overruled on other
grounds by Harris v. State, 130 Nev., Adv. Op. 47, 329 P.3d 619 (2014).
This court has also explained that "[a] motion to correct an illegal sentence
is an appropriate vehicle for raising the claim that a sentence is facially
illegal at any time." Edwards v. State, 112 Nev. 704, 708, 918 P.2d 321,
324 (1996). "An illegal sentence . . . [is] one at variance with the
controlling sentencing statute, or illegal in the sense that the court goes
beyond its authority by acting without jurisdiction or imposing a sentence
in excess of the statutory maximum provided." Id. (internal quotations
omitted). Therefore, Clark should have contested his sentence in a motion
before the district court. See id. Because the sentencing court has "the
inherent authority to correct its sentence," see Passanisi, 108 Nev. at 321,
831 P.2d at 1372, Clark has incorrectly raised the issue for the first time
on appeal to this court. Besides Clark's procedural error, we also conclude
that Clark's argument that his sentence was illegal is meritless. The
district court, in its original judgment of conviction, omitted that it
sentenced Clark as a habitual criminal and instead cited to the burglary
and home invasion statutes— both category B felonies providing for prison
terms of 1-10 years. See NRS 205.060(2); NRS 205.067(2); see also NRS
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207.010(1)(a) (providing that punishment pursuant to "small" habitual
criminal adjudication requires a prison term of 5-20 years). Therefore, the
imposition of a 5-15 year prison term for burglary and home invasion
would have exceeded that allowed by statute. Regardless, the transcript
of the sentencing hearing reflects that the district court sentenced Clark
under the small habitual criminal statute. Because the court clearly
intended to sentence Clark under NRS 207.010(1)(a), the sentence is not
illegal. Had Clark filed a motion to modify the judgment of conviction
instead of needlessly pursuing this issue on appeal, the district court could
have promptly and expeditiously corrected the judgment to include
adjudication as a habitual criminal. Such a procedure also would not have
prevented Clark from arguing on appeal that the district court abused its
discretion in adjudicating,him as a habitual criminal.
Clerical error
Clark argues that when the district court amended the
judgment of conviction to include that he was sentenced under the small
habitual criminal statute, the court exercised judicial discretion and
essentially resentenced him without notice. Interestingly, Clark does not
explain how an amended judgment of conviction, which reflects the
sentence that the court pronounced at the sentencing hearing, constitutes
resentencing. Moreover, Clark did not contest the legality of his sentence
at the sentencing hearing. Indeed, he would not have had any grounds to
do so because the sentence fully comports with NRS 207.010(1)(a).
This court has distinguished between judicial errors and
clerical errors. Robertson v. State, 109 Nev. 1086, 1088 n.1, 863 P.2d 1040,
1041 n.1 (1993), overruled on other grounds by Krauss v. State, 116 Nev.
307, 310, 998 P.2d 163, 165 (2000). A clerical error is the result of "a
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minor mistake or inadvertence and not from judicial reasoning or
determination; esp., a drafter's or typist's technical error that can be
rectified without serious doubt about the correct reading." Error (2.
clerical error), Black's Law Dictionary (10th ed. 2014). This court has
specifically concluded that an error involving a failure to "make the record
speak the truth concerning acts done" was a clerical error, not a judicial
error. Robertson, 109 Nev. at 1088 n.1, 863 P.2d at 1041 n.1.
Here, the judgment of conviction did not "speak the
determination," Channel 13 of Las Vegas, Inc. v. Ettlinger, 94 Nev. 578,
580, 583 P.2d 1085, 1086 (1978), that the court made during the
sentencing hearing. The written judgment states that Clark was
sentenced to a maximum prison term of 180 months with parole eligibility
after 60 months pursuant to NRS 205.067 and NRS 205.060. However,
the sentencing transcript reveals that the court pronounced the same term
of imprisonment but adjudicated Clark under the small habitual criminal
statute.
In the amended judgments of conviction, the court attempted
to correct its prior error by including the small habitual criminal statute.
The amended judgments did not increase Clark's term of imprisonment, so
he was not punished more harshly. Moreover, the record does not contain
any indication that the court reconsidered its sentence, because the term
of imprisonment in all three judgments is the same as the term the judge
announced at the hearing. Cf., Ledbetter v. State, 122 Nev. 252, 266, 129
P.3d 671, 681 (2006) (concluding that lallthough a district court may
modify an oral pronouncement of a defendant's sentence in a subsequent
written judgment, there is no indication in the record before us that the
district court intended to do so in this case" (internal footnote omitted)).
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Because we conclude that the district court did not have
jurisdiction to enter the amended judgments of conviction, the matter
must be remanded to the district court for the vacating of the amended
judgments. Further, on remand, we instruct the district court to enter a
third amended judgment of conviction correcting its clerical error and
again making clear that Clark was adjudicated as a habitual criminal and
sentenced pursuant to NRS 207.010(1)(a).
Accordingly, we ORDER the judgment of conviction
AFFIRMED IN PART and VACATED IN PART and we REMAND this
matter to the district court with instructions as noted above.
J.
Parraguirre
J.
Douglas
J.
cc: Hon. Valorie J. Vega, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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