Ellis (Dustin) v. State

 to display photographs during voir dire violated his right to a fair trial, he
fails to show that the seated jury was not impartial, and thus fails to
demonstrate prejudice or a violation of his right to an impartial jury. See
Ross v. Oklahoma, 487 U.S. 81, 88-89 (1988) (providing that a claim of
prejudice must focus on whether a member of the jury was unfair or
partial); Wesley v. State, 112 Nev. 503, 511, 916 P.2d 793, 799 (1996)
(stating that "WI' the impaneled jury is impartial, the defendant cannot
prove prejudice" resulting from district court's limitation of voir dire).
Next, Ellis contends that insufficient evidence was adduced at
trial to support his conviction because the evidence did not demonstrate
that he engaged in a "course of conduct" causing the victim to feel
terrorized, frightened, intimidated, or harassed. Ellis contends that the
victim did not feel scared until the incident that occurred on August 20,
2013, at which time she contacted the police. We disagree. Our review of
the record on appeal reveals sufficient evidence to establish guilt beyond a
reasonable doubt as determined by any rational trier of fact. See Origel-
Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998); Jackson
v. Virginia, 443 U.S. 307, 319 (1979).
At trial, the victim testified that she and Ellis broke up in
October 2012 but maintained contact. In March or April 2013, Ellis began
sending her numerous threatening and hateful texts, emails, and
voicemails. In July and August of 2013, those messages escalated and the
victim testified that she became scared at that point because his threats
were becoming more specific and irrational. The victim expressed her fear
to Ellis, asked him to stop, and blocked his phone number, but Ellis
continued to send messages threatening her with death and bodily injury,
including pictures of him holding a gun with the caption, "Die." On
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August 20, 2013, the victim received numerous sexually explicit texts from
strangers who were responding to a Craigslist post, in which Ellis had
advertised sex with the victim and listed the victim's picture, name,
address, and phone number. At that point, the victim contacted the police
and then obtained a temporary protection order against Ellis the next day.
When she returned home from meeting with the police, she was confronted
by Ellis who pounded on her car windows, cursed at her, and threatened to
kill her.
Based on the evidence presented at trial, we conclude that the
jury could reasonably find that Ellis engaged in a course of conduct that
caused the victim to be reasonably in fear of death or substantial bodily
harm. See NRS 200.575(1), (2); see also NRS 200.575(6)(a) (defining
"course of conduct" as "a pattern of conduct which consists of a series of
acts over time that evidences a continuity of purpose directed at a specific
person"). It is for the jury to determine the weight and credibility to give
testimony, and the jury's verdict will not be disturbed on appeal where, as
here, sufficient evidence supports the verdict. See Bolden v. State, 97 Nev.
71, 73, 624 P.2d 20, 20 (1981); see also McNair v. State, 108 Nev. 53, 56,
825 P.2d 571, 573 (1992).
Next, Ellis claims that the district court erred in declining to
provide the jury with several instructions proffered by the defense. "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." Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585
(2005). While a defendant is entitled to a jury instruction on his theory of
the case if some evidence supports it, Harris v. State, 106 Nev. 667, 670,
799 P.2d 1104, 1105-06 (1990), a defendant is not entitled to instructions
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that are "misleading, inaccurate or duplicitous," Carter v. State, 121 Nev.
759, 765, 121 P.3d 592, 596 (2005).
First, Ellis contends that the district court should have
instructed the jury that a single instance of fear by the victim was not
sufficient to constitute a "course of conduct," that the victim in this case
claimed that she was in fear on August 20, and that the jury had to acquit
Ellis unless the State could prove another instance of fear beyond a
reasonable doubt. We conclude that the district court did not err in
refusing this instruction because the district court correctly instructed the
jury on the statutory definition of "course of conduct," the State's burden of
proof, and the elements of the offense, and much of the proffered
instruction improperly provided argument on the evidence adduced at
trial.
Second, Ellis contends that the district court erred in failing to
instruct the jury on the definition of a "dating relationship" and that they
must acquit Ellis if they determine that he 'mistakenly believed,
reasonably or unreasonably, that he was in a continuing dating
relationship with [the victim], and that the conduct at issue was within
the normal range of behavior for that relationship, or was otherwise
tolerated or permitted within the context of that relationship." This
proffered instruction was not an accurate statement of law, see NRS
200.575(1)(6)(g), and thus there was no error by the district court in
refusing to provide it to the jury.
Third, Ellis contends that the district court erred by refusing
to give his entire proffered instructions on specific intent and the meaning
of "true threats." We conclude that there was no error because these
instructions were substantially covered by the other instructions.
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Accordingly, having considered Ellis's contentions on appeal
and concluded that he is not entitled to relief, we
ORDER the judgment of conviction AFFIRMED.
Gibbons
A dam/tar`
Pickering
, J.
cc: Hon. David A. Hardy, District Judge
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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