Sencion (Edward) v. State C/W 65145

 information alleged that Sencion entered a residence with the intent to
commit larceny. The amended information alleged that Sencion conspired
with an unknown person or aided and abetted that person by (1) providing
counsel, (2) providing encouragement, (3) removing a dog door, (4)
carrying away property, and/or (5) acting as a lookout, with the intent that
the person enter a residence with the intent to commit larceny. We must
decide whether the late notice prejudiced Sencion's substantial rights. See
NRS 173.095 (allowing the State to amend an information to include
another theory of liability at any time before the verdict so long as the
substantial rights of the defendant are not prejudiced); Green, 94 Nev. at
177, 576 P.2d at 1123 (explaining that such prejudice amounts to an abuse
of discretion).
Before deciding whether the district court abused its
discretion, we note that, contrary to the argument in the State's written
motion and during a subsequent hearing that "[it has always been
evident since the preliminary hearing that Sencion acted in concert with
another unidentified person and as a team in burglarizing the victim's
home," there was no indication from the preliminary hearing testimony
that anyone other than Sencion participated in the burglary. For this
reason, we are not confident that we should give the district court's
decision the deference ordinarily due under an abuse-of-discretion
standard. See generally Burke v. Town Of Walpole, 405 F.3d 66, 82 (1st
Cir. 2005) (explaining that a court owes no deference to a magistrate's
decision where magistrate was misled about relevant information).
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The State argued that Sencion would not be prejudiced
because the evidence had not changed since the preliminary hearing. This
argument only assisted the State with satisfying its burden under NRS
173.095 if evidence of a conspirator had been introduced during the
preliminary hearing and thereby placed Sencion on notice that the State
believed such a person existed. Without such evidence, the State's
argument supports Sencion's contention that he was completely
unprepared to defend against the new theories of liability. If new evidence
had not been uncovered since the preliminary hearing, and the
preliminary hearing did not provide notice, the State's motion to amend
provided the first notice of the new theories of liability to Sencion. Thus,
this argument did not support the district court's decision to grant the
State's motion to amend.
The only other stated basis for the district court's decision is
the district court's interpretation of State v. Eighth Judicial Dist. Court
(Taylor), 116 Nev. 374, 378, 997 P.2d 126, 129 (2000), which the court
concluded was "analogous." The court specifically noted that our opinion
in Taylor requires a defendant's substantial rights to be prejudiced by an
amendment alleging an aiding and abetting theory of liability, and then
noted that it agreed with the State that Sencion was not prejudiced by
such an amendment because "he's not looking at any additional time."
This reasoning is flawed and is at odds with Taylor, where we concluded
that the district court did not abuse its discretion in determining that the
defendant's substantial rights were effectively prejudiced by the State's
delay in amending the information to include a theory of aiding and
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abetting because "there is no indication from the documents before this
court that prior to the morning of trial [defendant] received adequate
actual notice of the State's theory." Taylor, 116 Nev. at 378, 997 P.2d at
129. If this court followed the district court's reasoning, correlating
"additional time" with prejudice, a defendant would never face prejudice
when an information is amended to include a theory of aiding abetting
because the underlying charges, and thus the sentence, always remain the
same. Taylor does not stand for this proposition.
Although the amendment here occurred on Friday, rather
than just before the trial began the following Monday, we conclude that
the district court abused its discretion by granting the State's motion to
amend. Under the facts of this case, a weekend was not a sufficient
amount of time for Sencion to prepare to defend against the new theories
of liability. Because of the amendment, Sencion not only had to defend
against the allegation that he intended to commit larceny when he entered
the residence, he now had to defend against the allegation that he
intended another person to enter the residence with the intent to commit
larceny and knowingly aided and abetted that person in five different
ways. See Sharma v. State, 118 Nev. 648, 655, 56 P.3d 868, 872 (2002)
(requiring aider and abettor to have the specific intent "that the other
person commit the charged crime"). This prejudiced his substantial rights.
By definition, such an error cannot be harmless. See NRS 178.598.
Moreover, we do not believe Sencion should have been forced to choose
between waiving his right to a speedy trial and requesting a continuance
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after this right had been previously invoked, and proceeding to trial
unprepared. Accordingly, we"
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Saitta
cc: Hon. David B. Barker, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'Because we are reversing and remanding for a new trial, we need
not consider Sencion's other claims of error.
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PICKERING, J., dissenting:
A district judge may allow the prosecution to amend the
charging document in a criminal case any time before verdict so long as
"no additional or different offense is charged and [the] substantial rights of
the defendant are not prejudiced." NRS 173.095(1). Our review is
deferential; we will not second guess the district court except when it
"manifestly abuses" its considerable discretion. State v. Eighth Judicial
Dist. Court (Taylor), 116 Nev. 374, 379, 997 P.2d 126, 129 (2000). Because
I do not agree that a manifest abuse of discretion occurred in this case, I
respectfully dissent.
The Friday before a Monday trial, Judge Barker permitted the
prosecution to amend its information charging Sencion with burglary to
state that it sought to hold him liable for the acts he directly committed
and/or those he aided and abetted. 1 NRS 195.020 states that anyone who
aids and abets the commission of a crime is liable as a principal. Despite
this statute, Nevada has case law requiring that accomplice liability be
specifically alleged in the information for a defendant to be convicted of a
charged offense on an aiding and abetting theory. E.g., Barren v. State, 99
Nev. 661, 668, 669 P.2d 725, 729 (1983); but see State v. Gonzales, 56 P.3d
969, 972 n.2 (Utah App. 2002) (noting that "[t]he Nevada rule" articulated
in Barren and its progeny "comprises a single-state minority position").
But this due-process-based rule does not inhibit amendment to state an
accomplice liability theory unless the prosecution has "conceal[ed] or
vacillat[ed] in its theory of the case to gain an unfair advantage over the
'The focus in the brief and by the majority is on aiding and abetting
rather than conspiracy, so this dissent does the same.
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defendant." Randolph v. State, 117 Nev. 970, 978, 36 P.3d 424, 429 (2001).
Thus, in Randolph, we upheld the district court's decision to instruct the
jury on aiding and abetting even though this theory of liability was not
alleged in the indictment. We distinguished Barren as follows:
Randolph argues that the State was precluded
from the benefit of such instructions because it did
not originally charge aiding and abetting. We
disagree. Randolph's argument, carried to its
logical end, would allow a defendant, in any case
where the State did not allege aiding and abetting
in the charging document, to escape liability for a
crime by proving that he actually aided and
abetted the crime. Our holding in Barren was not
intended to produce such a perverse result. Nor is
such a result acceptable under Nevada statutory
law: pursuant to NRS 195.020, anyone who aids
and abets in the commission of a crime is liable as
a principal.
Id. at 978, 36 P.3d at 429-30 (footnote omitted; emphasis added); see also
Ewish v. State, 110 Nev. 221, 236, 871 P.2d 306, 316 (1994).
Barren does not apply to this case because nothing suggests
the prosecution vacillated or concealed its theory. On the contrary, the
aiding and abetting charge grew out of the prosecution obtaining, at the
defense's suggestion, documents from the victim's insurance company,
including the insurance adjuster's lengthy examination under oath of the
victim that made clear that, to move the sizeable objects reported missing,
more than one person likely was involved. These documents were
obtained shortly before trial; they were provided to the defense when the
prosecution obtained them.
The only question before the district court, then, was whether
the amendment comported with NRS 173.095(1). I submit that it did.
The amendment did not charge Sencion with "an additional or different
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offense"; the charge remained burglary. Nor did the district court abuse
its discretion in finding that the amendment did not prejudice Sencion's
substantial rights.
Respecting prejudice, Sencion argues that allowing the
prosecution to amend on the eve of trial forced him to a Hobson's choice
between his speedy trial rights and an adequately prepared defense. But
this alone cannot be enough because this argument obtains any time leave
to amend is sought close to or during trial to conform to the evidence and
the proof, yet NRS 173.095(1) specifically allows the charging document
"to be amended at any time before verdict or finding if no additional or
different offense is charged and if substantial rights of the defendant are
not prejudiced." (Emphasis added.)
The prosecution argues that its aiding and abetting theory did
not unfairly surprise Sencion, since the preliminary hearing transcript
suggested more than one person may have been involved in the burglary.
The majority suggests that the district court was misled by this argument.
I respectfully disagree. The victim testified at the preliminary hearing
that he came home to find his house ransacked, upstairs and down. A
police report referenced an insurance company to whom the victim
submitted a claim. Both sides had this report but neither side pursued
claim documentation from the insurance company until shortly before
trial. From the insured victim's examination under oath by the insurance
adjuster it became clear that more than one person had to have been
involved in the burglary; hence, the formal amendment. But the
preliminary hearing transcript also supports the aiding and abetting
charge from the extent of the ransacking the victim described and the
short time between the victim leaving to go to work and returning at the
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noon hour. The district court's comment about amendment not affecting
the number of years Sencion faced was in the context of a discussion about
whether, given the new insurance documents, the prosecution was
amending to add a grand larceny charge, which it confirmed it was not.
Sencion does not tie his claim of prejudice to the facts of the
case. The evidence at trial showed that Sencion's fingerprints were on
both sides of the dog door in the victim's house and that the victim did not
know Sencion or authorize him to come inside his house. Sencion's
defense was that a stranger hired him as a day laborer to help move the
stranger's belongings from what the stranger told Sencion was his current
residence to his new residence. This defense applies equally to accomplice
as well as to direct-actor liability; it seems unaffected by the theory of
liability alleged. Given that the charge did not change, that the
prosecution did not spring a surprising new theory on the eve of trial, and
the lack of demonstrable prejudice, I do not find an abuse of discretion in
the amendment allowed. For these reasons, I would affirm and therefore
respectfully dissent.
Pickering
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