134 Nev. 46, 50,
412 P.3d
43, 48 (2018). Bolden's claims of error under NRS 173.035(2) potentially
affect his substantial rights; this court has reversed a defendant's conviction
upon finding that the district court erred in allowing the State to proceed
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by information after the justice court dismissed the charges. See, e.g.,
Parsons v. State,
116 Nev. 928, 938,
10 P.3d 836, 842 (2000); Feole v. State,
113 Nev. 628, 632,
939 P.2d 1061, 1064 (1997), overruled on other grounds
by State v. Sixth Judicial Dist. Court (Warren),
114 Nev. 739, 743,
964 P.2d
48, 50-51 (1998). We therefore undertake plain error review of Bolden's
challenges to the order granting the States NRS 173.035(2) motion to
determine whether it involved error and, if so, whether the error was plain.
Cf. Jeremias, 134 Nev. at 52, 412 P.3d at 49 (holding that this coures review
of forfeited errors is discretionary and not appropriate where the error
asserted is trivial or of no consequence).
1.
In interpreting a statutory provision, this court starts with the
statute's text. See Bigpond v. State,
128 Nev. 108, 114,
270 P.3d 1244, 1248
(2012). Enacted in 1913 and amended in 1915, the text of NRS 173.035(2)
has changed little over the years. It provides this:
If.. . . upon the preliminary examination the
accused has been discharged . . . the district
attorney may, upon affidavit of any person who has
knowledge of the commission of an offense, and who
is a competent witness to testify in the case, setting
forth the offense and the name of the person or
persons charged with the commission thereof, upon
being furnished with the names of the witnesses for
the prosecution, by leave of the court first had, file
an information, and process must forthwith be
issued thereon.
NRS 173.035(2) (originally enacted as 1913 Nev. Stat., ch. 209, § 9, at 295
and amended by 1915 Nev. Stat., ch. 17, § 1, at 16).
Procedurally, this case tracks NRS 173.035(2) except as to the
statutes affidavit requirement. The justice court "discharged" Bolden
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when, after the "preliminary [hearing] examination," it dismissed the
charges against him. The district attorney, "by leave of court first had,"
proceeded to "file an informatioe against Bolden in district court. The
district attorney obtained such leave by motion. But instead of the
"affidavit" NRS 173.035(2) references, the State supported its motion by
attaching a copy of the preliminary hearing transcript.
An affidavit resembles a hearing transcript in that both
memorialize a declarant's statement under oath after being sworn to tell
the truth. But an affidavit is a "voluntary declaration of facts written down
and sworn to by a declarant, usu. before an officer authorized to administer
oaths." Affidavit, Black's Law Dictionary (11th ed. 2019); see Affidavit, 1
Bouvier's Law Dictionary 158 (Rawle 3d rev. 1914) (defining "affidavit" as
"[a] statement or declaration reduced to writing, and sworn or affirmed to
before some officer who has authority to administer an oath or affirmation").
A hearing transcript, by contrast, reports a witness's oral testimony,
whether voluntary or compelled by subpoena. And unlike an affidavit,
which the declarant normally reviews and then signs, see Bouvier's, supra
("The deponent must sign the affidavit at the end."), a witness does not sign
off on the hearing transcript; rather, the court reporter certifies that the
transcript accurately reports what the witness orally said. See NRS 3.360
("The transcript of the official reporter.. . . of any court, duly appointed and
sworn, when transcribed and certified as being a correct transcript of the
testimony and proceedings in the case, is prima facie evidence of such
testimony and proceedings.").
Bolden takes a literalist's approach. He argues that, by its plain
terms, NRS 173.035(2) requires an affidavit. Because an affidavit and a
hearing transcript are two different things, Bolden contends, the district
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court should have rejected the State's motion as rogue. Granted, NRS
173.035(2) refers only to an affidavit and does not expressly provide for
affidavit equivalents. Yet, a separate statute, NRS 53.045, allows a court
to consider, in lieu of an affidavit, certain unsworn written declarations. To
qualify as an alternative to an affidavit, such a declaration must recite that
its statements are true and correct and be signed by the declarant under
penalty of perjury. See NRS 53.045; see also MountainView Hosp. v. Eighth
Judicial Dist. Court, 128 Nev. 180, 185-86,
273 P.3d 861, 865 (2012)
(allowing extrinsic evidence to cure a defective jurat). A declaration that
complies with NRS 53.045 can satisfy a separate statute's affidavit
requirement even though the declaration is not sworn as an affidavit, by
definition, would be. See Buckwalter v. Eighth Judicial Dist. Court,
126
Nev. 200, 202,
234 P.3d 920, 921 (2010) (reading NRS 41A.071 and NRS
53.045 harmoniously and holding that, while NRS 41A.071 "imposes an
affidavit requirement," a litigant can meet that requirement "either by
sworn affidavit or unsworn declaration made under penalty of perjury" that
complies with NRS 53.045); State, Dep't of Motor Vehicles v. Bremer,
113
Nev. 805, 811-13,
942 P.2d 145, 149-50 (1997) (concluding in an
administrative matter that an unsworn declaration that complied with NRS
53.045 satisfied a statute requiring affidavits from persons who had
conducted breath analyzer tests).
The California Supreme Court confronted an analogous
statutory construction issue in Sweetwater Union High School District v.
Gilbane Building Co.,
434 P.3d 1152 (2019). At issue in Sweetwater was
California's anti-SLAPP statute, specifically, its provision that, in ruling on
a special motion to dismiss, a court may consider the pleadings and
"supporting and opposing affidavits stating the facts upon which the
7
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liability or defense is based."
Cal. Civ. Proc. Code § 425.16(b)(2) (West 2016)
(emphasis added). The question was whether a grand jury transcript could
meet the anti-SLAPP statutes affidavit requirement, and the court held
that it could. Sweetwater,
434 P.3d at 1158-59.
Like Nevada, California has a statute permitting courts to
accept certain unsworn declarations as affidavit equivalents.
Cal. Civ. Proc.
Code § 2015.5 (West 1983); see NRS 53.045. The purpose of these statutes
requiring a sworn statement or declaration under penalty of perjury before
a court may consider a written statement as evidence on a motion is "to
enhance reliability." Sweetwater,
434 P.3d at 1158. "Sworn testimony made
before a grand jury . . . is made under penalty of perjury . . [so] a transcript
of this testimony is the equivalent of a testifying witness's declaration under
penalty of perjury, assuming the authenticity of the transcript can be
established."
Id. at 1159 (citation omitted). Because "[t] he statutory
scheme already permits consideration of [declarations as] affidavit
equivalente and a grand jury transcript is "at least as reliable as an
affidavit or declaration," the Sweetwater court held that the district court
properly considered the grand jury transcript in ruling on the special motion
to dismiss.
Id. Given the early stage of the proceedings, an affidavit or
declaration "would have added little to the evidence that the grand jury
transcript provided, and it seemed to the court "doubtful that the
Legislature contemplated dismissal of a potentially meritorious suit for
want of [affidavits or] declarations largely duplicating available evidence."
Id.
Sweetwater's approach aligns with Nevada's caselaw
addressing strict v. substantial compliance with statutes. To determine
whether a statutory provision requires "strict compliance or substantial
8
compliance, this court looks at the language used and policy and equity
consideration? and "examine [sl whether the purpose of the statute . . . can
be adequately served in a manner other than by technical compliance."
Leyva v. Nat'l Default Servicing Corp.,
127 Nev. 470, 476,
255 P.3d 1275,
1278 (2011). Given that an unsworn declaration can satisfy a statutes
stated affidavit requirement, we see no reason to hold, as Bolden presses us
to do, that NRS 173.035(2) requires strict compliance with its affidavit
requirement. Instead, we hold that a certified preliminary hearing
transcript can—and in this case did—substantially comply with the
statutes affidavit requirement.
Bolden does not contest that the preliminary hearing transcript
was certified or that it accurately reports the witnesses testimony. The
witnesses who testified did so under oath. See NRS 50.035(1) (requiring
every witness, before testifying, "to declare that he or she will testify
truthfully, by oath or affirmation"). Similar to the grand jury transcript in
Sweetwater,
434 P.3d at 1159, the preliminary hearing transcript is at least
as accurate as a declaration or affidavit would be.
Substantively, NRS 173.035(2) requires the State to support its
motion with evidence consisting of a written statement from a competent
witness with personal knowledge of the crime and who committed it. See
NRS 173.035(2) (specifying that the affidavit may be from "any person who
has knowledge of the commission of an offense, and who is a competent
witness to testify in the case, setting forth the offense and the name of the
person or persons charged with the commission thereor); cf. Cipriano v.
State,
111 Nev. 534, 540,
894 P.2d 347, 351 (1995) (holding that an affidavit
from the prosecutor did not satisfy the statute, since the prosecutor "only
had knowledge of the alleged crimes because of his fortuitous presence at
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the preliminary hearing," rather than personal knowledge of the alleged
crimes commission), overruled on other grounds by Warren, 114 Nev. at 743,
964 P.2d at 50-51. NRS 173.035(2) does not license the State to present new
evidence on motion to the district court that it did not present to the justice
court. Warren, 114 Nev. at 741,
964 P.2d at 49. Rather, it "contemplates a
safeguard against egregious error by a [justice of the peace] in determining
probable cause, not a device to be used by a prosecutor to satisfy deficiencies
in evidence at a preliminary examination, through affidavit." Cranford v.
Smart,
92 Nev. 89, 91,
545 P.2d 1162, 1163 (1976). The preliminary hearing
transcript serves these policies as well as, if not better than, one or more
affidavits would. The district court thus did not err, much less plainly err,
in considering the States motion for leave to proceed by information as
substantially compliant with NRS 173.035(2).
2.
Bolden next argues that the district court erred in granting the
States motion for leave to file an information by affidavit because the
justice court properly dismissed the charges against him. The State
contends that the justice court improperly based its dismissal on the
brothers' purported lack of credibility. It argues that such credibility
determinations belong to the trier of fact.
At the preliminary hearing, the justice court's role "is to
determine whether there is probable cause to find that the offense has been
committed and the defendant has committed it." State v. Justice Court of
Las Vegas Twp. ,
112 Nev. 803, 806,
919 P.2d 401, 402 (1996); see also NRS
171.206 (addressing the role of the justice of the peace in determining
probable cause after a preliminary hearing). Thus, "[Ole preliminary
hearing is not a trial and the issue of the defendant's guilt or innocence is
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not a matter before the court." Las Vegas Twp., 112 Nev. at 806,
919 P.2d
at 402; see also DuFrane v. Sheriff,
88 Nev. 52, 54,
495 P.2d 611, 613 (1972)
(recognizing the lower standard of proof needed to establish probable cause
at a preliminary hearing versus the beyond-a-reasonable-doubt standard
that must be met at trial). Slight, or even marginal, evidence can support
a probable cause finding. Sheriff v. Potter,
99 Nev. 389, 391,
663 P.2d 350,
352 (1983).
If the justice court dismisses criminal charges for lack of
probable cause, the district court may permit the State to file an information
if the district court finds that the justice court committed egregious error.
Warren, 114 Nev. at 741-42,
964 P.2d at 49. Egregious error occurs when
the justice of the peace "commits plain error that affects the outcome of the
proceedings." Moultrie v. State,
131 Nev. 924, 930,
364 P.3d 606, 611 (Ct.
App. 2015).
Citing Wrenn v. Sheriff,
87 Nev. 85,
482 P.2d 289 (1971), Bolden
argues that the justice court is permitted to weigh witness credibility at a
preliminary hearing. But this argument overreads Wrenn. What Wrenn
holds is that "if an inference of criminal agency can be drawn from the
evidence it is proper for the [justice of the peace] to draw it, thereby leaving
to the jury at the trial the ultimate determination of which of the witnesses
are more credible." Id. at 87,
482 P.2d at 290. Thus, Wrenn implicitly
recognizes the slight-or-marginal-evidence standard and does not license
the justice court to dismiss charges based on conflicting evidence where the
evidence permits the finder of fact to draw "an inference of criminal agency."
Id.; see also Miner v. Lamb,
86 Nev. 54, 58,
464 P.2d 451, 453 (1970)
(concluding that an inference of criminal agency, despite an "equally
plausible" noncriminal inference, was sufficient to establish probable
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cause); Bryant v. Sheriff,
86 Nev. 622, 624,
472 P.2d 345, 346 (1970) (holding
that, in the face of conflicting evidence, the justice of the peace should draw
an inference of criminal agency if the evidence supports it).
In this case, despite the credibility issues that troubled the
justice court, the State satisfied its burden of demonstrating probable cause
at the preliminary hearing. A picture of Bolden given to police when they
arrived on scene was entered into evidence, and an officer testified that
Brenton confirmed that the person in the picture was the shooter. A police
detective and Bryston also testified to the description of the shooter Bryston
gave on the scene, with the detective confirming that the description
matched Bolden. The justice court committed egregious error in sua sponte
determining that this evidence did not adequately demonstrate probable
cause to believe Bolden committed the crime charged, thereby preventing a
jury from making the ultimate credibility determination at trial. See
Wrenn, 87 Nev. at 87,
482 P.2d at 290. The district court correctly granted
the States motion for leave to proceed by information filed in district court.
B.
Bolden's final argument is that insufficient evidence supports
his convictions because Brenton's failure to identify him as the shooter at
the preliminary hearing made Brenton's trial identification of Bolden
incredible. We "view [ ] the evidence in the light most favorable to the
prosecution" to determine whether "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, 573 (1992) (quoting Jackson
v. Virginia,
443 U.S. 307, 319 (1979)). Brenton explained at trial that he
lied at the preliminary hearing because he did not want to aid in the
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investigation but later decided to "deal with the situation" after receiving
numerous subpoenas. And other evidence identified Bolden as the
perpetrator, including Bryston's girlfriend's 911 call and Brenton's photo
identification, both made shortly after the shooting. "[I]t is the jury's
function, not that of the court, to assess the weight of the evidence and
determine the credibility of witnesses."
Id. Based on the evidence
presented, a rational juror could have found beyond a reasonable doubt that
Bolden was the perpetrator.
The State's motion for leave to proceed by information in
district court substantially complied with NRS 173.035(2) and
demonstrated that the justice court committed egregious error in dismissing
the charges against Bolden. Further, substantial evidence supports the
jury's verdict. We therefore affirm.
We concur:
J.
Cadish
J.
Herndon
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