Urenda-Bustos (Luis) v. State

 319 (1979); McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). It
is for the jury to determine the weight and credibility to give conflicting
testimony, and a reviewing court will not disturb a verdict if it is
supported by substantial evidence. See Bolden v. State, 97 Nev. 71, 73
624 P.2d 20, 20 (1981).
In order to demonstrate use of a deadly weapon for the
purpose of enhancement, 'there need not be conduct which actually
produces harm but only conduct which produces a fear of harm or force by
means or display of a [deadly weapon] in aiding the commission of [a
crime]." CuIverson v. State, 95 Nev. 433, 435, 596 P.2d 220, 221 (1979)
(alterations in original) (quoting People v. Chambers, 498 P.2d 1024, 1027
(Cal. 1972)). In the instant case, the victim testified that a gun was
brought out and used to hit him over the head twice. The victim testified
that during the subsequent events, when he was forced into a van, driven
to another location, tied to a chair, and robbed of his property, he was
afraid he would be killed. A juror could reasonably infer from the evidence
presented that there was conduct which produced fear of harm or force by
the presence of the gun and that appellant used a deadly weapon in the
commission of the crimes. 1
'To the extent that appellant argues the BB gun does not qualify as
a deadly weapon, we conclude this argument is without merit. Under
NRS 193.165(6)(c), a deadly weapon means "[a] dangerous or deadly
weapon specifically described in NRS . . . 202.265." NRS 202.265(5)(b)
defines a firearm, in part, as any device from which a metal projectile may
be expelled by means of a spring or gas; therefore, a BB gun, even if used
in a manner not contemplated by its design and construction, constitutes a
deadly weapon. See Barnhart v. State, 122 Nev. 301, 304-05, 130 P.3d
650, 652 (2006).
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Lastly, the jury heard testimony that appellant admitted he
initially had the gun concealed in his waist band right behind his back and
that he gave the gun to the co-offender. Appellant also admitted to hitting
the victim with the gun before his co-offender did. From this evidence a
juror could reasonably infer that appellant knew of the use of the gun and
was thus subject to the deadly weapon enhancement. See Brooks v. State,
124 Nev. 203, 210, 180 P.3d 657, 661 (2008); NRS 193.165(1). Accordingly,
we
ORDER the judgment of conviction AFFIRMED.
A6--t J.
Hardesty
J.
cc: Hon. James M. Bixler, District Judge
Carl E. G. Arnold
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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