Marks (Devohn) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
DEVOHN MARKS, No. 80469
Appellant,
VS.
THE STATE OF NEVADA,
Respondent.
P PILE
MAR 1 7 2022
A_ BROWN
CLERK OF REPtf COLIfti
BY
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict of conspiracy to commit burglary; conspiracy to commit robbery;
burglary while in possession of a deadly weapon; robbery with the use of a
deadly weapon, victim 60 years of age or older; two counts of robbery with
the use of a deadly weapon; battery with the use of a deadly weapon, victim
60 years of age or older; and battery with the use of a deadly weapon.
Eighth Judicial District Court, Clark County; Eric Johnson, Judge.
Appellant raises four contentions on appeal.'
First, appellant argues that insufficient evidence supports the
jury's verdict. When reviewing a challenge to the sufficiency of the evidence
supporting a criminal conviction, this court considers "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." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571,
'Pursuant to NRAP 34(0(1), we have determined that oral argument
is not warranted.
2 2- -oSLVN
573 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This
court will not disturb a verdict supported by substantial evidence. Id. A
conviction may not rest solely on the testimony of an alleged accomplice
unless that testimony "is corroborated by other evidence which in itself, and
without the aid of the testimony of the accomplice, tends to connect the
defendant with the commission of the offense." NRS 175.291(1)
We conclude that sufficient evidence supports the convictions.
An accomplice, Antwaine Johnson, testified that appellant helped plan the
crime, communicated with Johnson in the time leading up to the robbery,
and was one of the armed and masked assailants that committed the
burglary and robberies. The victims, one of whom was 69 years old, testified
that the two masked assailants battered them, took their property, and took
money from the register. Surveillance video and cell phone records were
consistent with the accounts of the robbery and Johnson's testimony. The
cell phone records showed that appellant and Johnson communicated
routinely in the month before the robbery, including minutes before the
crime. While it is unclear whether appellant personally battered and
robbed two patrons, he is nonetheless liable for those offenses as they were
a "reasonably foreseeable consequence of the object of the conspiracy."
Bolden v. State, 121 Nev. 908, 923, 124 P.3d 191, 201 (2005) (internal
quotation marks omitted), receded from on other grounds by Cortinas v.
State, 124 Nev. 1013, 1026-27, 195 P.3d 315, 324 (2008). In addition,
appellant and several others participated in an armed robbery of a bar
seven years earlier. Based on this evidence, we reject appellant's assertion
that Johnson's testimony was not sufficiently corroborated, see Heglemeier
v. State, 111 Nev. 1244, 1250, 903 P.2d 799, 803 (1995) (providing that
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corroborating evidence is that which "independently connect[s] the
defendant with the offense," and may be direct or circumstantial), and
conclude that the State put forth sufficient evidence for a rational juror to
find beyond a reasonable doubt that appellant committed the charged
offenses, see NRS 193.165 (providing additional penalty for crimes
committed with the use of a deadly weapon); NRS 193.167 (providing
additional penalty for batteries and robberies committed against persons 60
years of age or older); NRS 200.380(1) (defining robbery); NRS 200.400(1)(a)
(defining battery); NRS 205.060(1) (defining burglary).
Second, appellant argues that the district court abused its
discretion in admitting evidence of his participation in a burglary and
robbery of another bar seven years before the instant crime. See Rhymes v.
State, 121 Nev. 17, 21-22, 107 P.3d 1278, 1281 (2005) (reviewing the
decision to admit evidence of prior bad acts for abuse of discretion).
Evidence of other bad acts is inadmissible to prove the defendant acted in
conformity therewith. NRS 48.045(2). However, it may be admissible to
prove identity, id., when additional evidence is necessary to establish the
identity of the perpetrator, Reed v. State, 95 Nev. 190, 193, 591 P.2d 274,
276 (1979).
While Johnson identified appellant at trial, he was an admitted
coconspirator and therefore his testimony alone, including his
identification, was not sufficient to identify appellant. NRS 175.291(1).
Accordingly, prior bad act evidence establishing the identity of the
perpetrator became more probative. See Reed, 95 Nev. at 193, 591 P.2d at
276. "Evidence of other crimes has strong probative value when there is
sufficient evidence of similar characteristics of conduct in each crime to
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show the perpetrator of the other crime and the perpetrator of the crime for
which the defendant has been charged is one and the same person." Mayes
v. State, 95 Nev. 140, 142, 591 P.2d 250, 251 (1979). The less similar the
charged conduct is with the proffered uncharged conduct, the less probative
it is to establishing identity. Cf. id. As "similarities can be shown between
many acts," Meek v. State, 112 Nev. 1288, 1294, 930 P.2d 1104, 1108 (1996),
admissible prior uncharged offenses must have "unique features common to
the charged and uncharged offenses," or a combination of common factors
that appear distinct when considered cumulatively, Mayes, 95 Nev. at 142,
591 P.2d 251-52 (quoting People v. Halston, 444 P.2d 91, 99-100 (Cal. 1968)).
"The question is whether significant similarities remain after the acts are
considered in some detail." Meek, 112 Nev. at 1294, 930 P.2d at 1108. For
example, in Canada v. State, two bar robberies were considered sufficiently
similar because both robberies occurred in deserted bars late at night after
one of the perpetrators purchased a beer to case the location, and the bars
were subsequently robbed by two perpetrators armed with shotguns, at
least one of whom was masked, who violently battered the victims. 104 Nev.
288, 293, 756 P.2d 552, 554-55 (1988).
Here, the 2011 robbery was probative as to the identity of the
perpetrator of the charged offenses. Both robberies involved multiple
assailants robbing bars that they had cased for days before each robbery,
both robberies were conducted when there were very few people in the bars,
and during each robbery an assailant jumped over the bar and also robbed
4
the patrons.2 The factors upon which the district court relied to conclude
that the robberies were sufficiently similar, though not, in and of
themselves, rare. Bar robberies commonly involve casing locations, see, e.g.,
Johnson v. People, 384 P.2d 454, 458 (Colo. 1963); People v. Flint, 490
N.E.2d 1025, 1026-27 (Ill. Ct. App. 1986); conducting the robbery when
there are few witnesses, see, e.g., Johnson, 384 P.2d at 458; Flint, 490
N.E.2d at 1026-27; Randolph v. State, 117 Nev. 970, 974-75, 36 P.3d 424,
427-28 (2001); and an assailant jumping over the bar to access the register,
see, e.g., People v. Cato, 56 P.2d 1245, 1246 (Cal. Dist. Ct. App. 1936); State
v. Sam, 761 So. 2d 72, 75 (La. Ct. App. 2000); Randolph, 117 Nev. at 974-
75, 36 P.3d at 427-28; State v. Jenkins, 969 P.2d 1048, 1049 (Or. Ct. App.
1998). But when considered cumulatively, these factors are sufficient to
support the district court's conclusion that the robberies were similar
enough to be probative of appellant's identity. See Mayes, 95 Nev. at 142,
591 P.2d 251-52. The witness testimony, police reports, and judgment of
conviction proved the prior bad act by clear and convincing evidence. The
probative value of the evidence was not substantially outweighed by the
danger of unfair prejudice. See NRS 48.035(1). As discussed, there was
overwhelming evidence linking appellant with the prior similar robbery.
Although the offenses were committed seven years apart, the instant
offense was committed only seven months after appellant was released from
custody. The prior robbery was not substantially violent or offensive as to
2As it was not included in the appendices filed on appeal, we presume
that the surveillance video of the Torrey Pines robbery supports the district
court's conclusions. See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688
(1980) (The burden to make a proper appellate record rests on appellant.").
5
"rouse the jury to overmasting hostility." Randolph v. State, 136 Nev. 659,
665, 477 P.3d 342, 349 (2020) (quoting State v. Castro, 756 P.2d 1033, 1041
(Haw. 1988)); see also Old Chief v. United States, 519 U.S. 172, 180 (1997)
("[U]nfair prejudice, as to a criminal defendant, speaks to the capacity of
some concededly relevant evidence to lure the factfinder into declaring guilt
on a ground different from proof specific to the offense charged.").
Accordingly, the district court did not abuse its discretion in admitting the
evidence of the prior robbery.3 Additionally, considering Johnson's
testimony and the cell phone tower evidence any error in admitting the prior
bad act evidence was harmless. See NRS 178.598.
Third, appellant argues that the district court abused its
discretion in denying his motion for new counsel. See Anderson v. State,
135 Nev. 417, 424, 453 P.3d 380, 386 (2019) (reviewing denial of motion for
substitute counsel for abuse of discretion). Appellant did not demonstrate
that the disagreement between counsel and appellant over the decision to
litigate pretrial motions rose to the level of a "complete collapse of the
attorney-client relationship." Young v. State, 120 Nev. 963, 969, 102 P.3d
572, 576 (2004); see also Gallego v. State, 117 Nev. 348, 363, 23 P.3d 227,
238 (2001) (recognizing that a dispute over trial strategy alone does not
amount to a conflict of interest), abrogated on other grounds by Nunnery v.
State, 127 Nev. 749, 263 P.3d 235 (2011). The district court's inquiry was
sufficient to address the concerns raised by appellant and counsel. The
3To the extent appellant argues that the district court failed to provide
a limiting instruction before admitting evidence of the prior robbery, he did
not object below and has not shown plain error affecting his substantial
rights. Tavares v. State, 117 Nev. 725, 729, 30 P.3d 1128, 1130-31 (2001).
6
court addressed appellant's concerns over several hearings while providing
counsel and appellant repeated opportunities to discuss appellant's
concerns and trial strategy. Therefore, we conclude that the district court
adequately inquired into the grounds for the motion to withdraw,
appellant's reason for seeking withdrawal lacked merit, and the conflict did
not prevent counsel from presenting an adequate defense or result in an
unjust verdict. See Young, 120 Nev. at 968, 102 P.3d at 576 (noting that
this court considers "(1) the extent of the conflict; (2) the adequacy of the
inquiry; and (3) the timeliness of the motion" when reviewing a district
court decision (quoting United States v. Moore, 159 F.3d 1154, 1158-59 (9th
Cir. 1998))).
Fourth, appellant argues that the district court should have
instructed the jury that accomplice testimony must be corroborated. We
discern no plain error. See Flanagan v. State, 112 Nev. 1409, 1423, 930 P.2d
691, 700 (1996) (Failure to object or to request an instruction precludes
appellate review, unless the error is patently prejudicial and requires the
court to act sua sponte to protect a defendant's right to a fair trial."). The
given instruction, which exhaustively defined corroborating evidence,
contained language that implicitly required that the testimony be
corroborated. Thus, appellant did not demonstrate that the failure to
include this language in the instruction was patently prejudicial. See
Gerbert v. State, 85 Nev. 331, 333-34, 454 P.2d 897, 898-99 (1969)
(recognizing that instruction that accomplice testimony must be
corroborated was not so necessary that the failure to give it is patently
prejudicial). Further, as discussed above, there was sufficient evidence
introduced at trial to corroborate Johnson's testimony.
7
Having considered appellant's contentions and concluding that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.4
P4)4"SI
arraguirre V21161"
,J Sr.J.
Stiglich
cc: Hon. Eric Johnson, District Judge
Mario D. Valencia
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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