Truesdell v. State

129 Nev., Advance Opinion 20
IN THE SUPREME COURT OF THE STATE OF NEVADA
JOSEPH TRUESDELL, No. 58628
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. APR 0 4 2013
Appeal from a judgment of conviction, piirsu-a-iii --fira jury
verdict, of invasion of the home in violation of a temporary protection
order. Eighth Judicial District Court, Clark County; Douglas W. Herndon,
Judge.
Affirmed.
Philip J. Kohn, Public Defender, and Howard Brooks and Sharon G.
Dickinson, Deputy Public Defenders, Clark County,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District
Attorney,
for Respondent.
BEFORE GIBBONS, PARRAGUIRRE and DOUGLAS, JJ.
OPINION
By the Court, GIBBONS, J.:
In this appeal, we consider whether a party may collaterally
attack a temporary protective order in a separate criminal proceeding for
violation of that order. We conclude that a party must initially challenge
the validity of a temporary protective order under NRS 33.080(2) before
the court that issued the order. Further, the party may not collaterally
5/sibs : Correrai.4 oria. / 3- o.9437
attack the order's validity in a separate proceeding. In light of this, and
because all of appellant's other arguments on appeal lack merit, we affirm
the district court's judgment of conviction.
FACTS AND PROCEDURAL HISTORY
Appellant Joseph Truesdell lived in an apartment with Mika
Bennett and her two children in Las Vegas. The apartment lease did not
list Truesdell as a resident of the address. On October 26, 2010, Truesdell
struck Bennett during an argument. He was arrested and jailed and then
later pleaded no contest to the domestic violence charges against him.
On October 28, 2010, Bennett contacted SafeNest, a domestic
violence advocate organization, to obtain a temporary protective order
(TPO) against Truesdell. The same day, the district court granted a five-
day TPO against Truesdell based on a typed application that contained
the details Bennett relayed to SafeNest but did not state who filled out the
application or how the district court received it. The TPO required
Truesdell to stay at least 100 yards away from Bennett's apartment but
allowed him to return a single time with a police officer to collect his
personal belongings.
Corrections Officer Theodore Wylupski served Truesdell with
the TPO at the Clark County Detention Center the same day. On
November 1, 2010, while the TPO was still valid, Truesdell was released
from jail and went back to the apartment without a police officer. Despite
the TPO, Bennett allowed Truesdell to enter the apartment, where they
argued for an hour and a half. Truesdell then left at Bennett's request.
On November 2, 2010, Truesdell returned to the apartment
and started knocking on the door. Bennett called 911. Truesdell then
began kicking the door. Bennett never gave Truesdell permission to enter
the apartment and did not unlock the door. Eventually, he kicked in the
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door and walked Bennett into the bedroom where her two children slept,
but hastily left a few minutes later after several neighbors approached the
apartment. Thereafter, police officers found and arrested Truesdell.
On November 4, 2010, the State filed a complaint against
Truesdell, alleging he committed one count of invasion of the home. After
the preliminary hearing, where Bennett testified that she called SafeNest
to obtain the TPO against Truesdell, the State filed an information
against Truesdell alleging he committed invasion of the home in violation
of a TPO.
On the first day of Truesdell's three-day trial, he requested a
continuance in order to litigate the validity of the TPO. Truesdell claimed
that he was unawareit4arthe TPOA
54ze4iorwitki in't6W
ot-ter a day or two before trial,
until
whenA---44.sewee a copy,e
- ,. -= • e ; ; • • ; Based on that
application, Truesdell argued the procedure for obtaining a TPO by phone
violated his due process rights. The district court denied his motion, but
told the parties they could address the issue prior to sentencing, as the
constitutionality of a TPO was a question of law.
During the trial, Bennett testified about the events of
November 2, 2010, and identified Truesdell as the one who kicked down
her door. Officer Wylupski also testified that he did not specifically recall
serving Truesdell with the TPO, but was able to identify his signature on a
proof of service that also contained Truesdell's signature and fingerprint.
Officer Wylupski also testified to the general procedure he follows when
serving a person with a TPO. In its closing argument, the State argued
that the jury did not have to find that Truesdell understood the TPO in
order to determine whether he committed home invasion in violation of a
TPO. Instead, the State asserted that the jury only had to find that
Truesdell willfully violated the TPO. The district court allowed these
comments over Truesdell's objections. Following the closing arguments,
the jury found by special verdict that Truesdell was guilty of invasion of
the home in violation of a TPO.
After the trial, Truesdell did not file a motion with the district
court regarding the TPO's validity and did not address the issue during
his sentencing. The district court imposed a 12- to 48-month sentence on
Truesdell for the home invasion charge and a concurrent 12- to 36-month
sentence for the violation of the TPO. The district court also ordered
Truesdell to pay $500 to the Indigent Defense Fund. He now appeals.
DISCUSSION
Because a party cannot collaterally attack a TPO in a separate
criminal proceeding and because the other issues raised by Truesdell lack
merit, we affirm his conviction.
Truesdell may not collaterally attack the TPO's validity in a subsequent
prosecution for violating the TPO
Truesdell argues that SafeNest's procurement of the TPO on
Bennett's behalf, after speaking with her by telephone, violates the
procedure set forth in NRS 33.020(5) and violates his due process rights.
The interpretation of a statute is a question of law that we review de novo.
Mendoza-Lobos v. State, 125 Nev. 634, 642, 218 P.3d 501, 506 (2009). We
also review issues relating to the constitutionality of a statute de novo.
State v. Hughes, 127 Nev. „ 261 P.3d 1067, 1069 (2011).
Whether a party may collaterally attack the validity of a TPO
in a subsequent criminal proceeding for violation of that TPO is a question
of first impression in Nevada. We take this opportunity to clarify that a
party may not collaterally attack the validity of a TPO in a subsequent
criminal proceeding based on violation of the TPO.
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Many jurisdictions follow the collateral bar rule, which
precludes a party from collaterally attacking a protection order in a later
proceeding for violating the order, even to question the constitutionality of
the statute that authorized the protection order. See State v. Chavez, 601
P.2d 301, 302 (Ariz. Ct. App. 1979) (indicating that parties could not
collaterally attack the constitutionality of an injunction by an appeal from
their convictions of criminal contempt for violating that injunction); State
v. Grindling, 31 P.3d 915, 919 (Haw. 2001) (concluding that the defendant
could not collaterally attack the underlying factual basis of a temporary
restraining order in a later criminal proceeding for violating the order);
Wood v. Com ., 178 S.W.3d 500, 512-13 (Ky. 2005) (concluding that
appellant could not collaterally attack the validity of an emergency
protective order in a later proceeding for violating that order and this
preclusion did not violate appellant's due process rights because a statute
allowed appellant to directly challenge the order); State v. Small, 843 A.2d
932, 935 (N.H. 2004) ("The general underlying premise [against collateral
attacks] is that a person subject to an injunctive order. . . should be bound
to pursue any objection to the order through the constituted judicial
process available for that purpose." (quoting State v. Grondin, 563 A.2d
435 (N.H. 1989))); City of Seattle v. May, 256 P.3d 1161, 1163-64 (Wash.
2011) (concluding that the collateral bar rule prohibited a defendant from
challenging the validity of permanent domestic violence order in a later
prosecution for violation of that order, unless the defendant could show
that the order was void).
Other courts, however, have concluded that such collateral
attacks on a court order are permitted in certain circumstances. See
People v. Gonzalez, 910 P.2d 1366, 1373-76 (Cal. 1996) (interpreting
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California's criminal contempt statute and determining that a person may
challenge the constitutional validity of a court order in a later contempt
proceeding); Gilbert v. State, 765 P.2d 1208, 1209-11 (Okla. Crim. App.
1988) (addressing the defendant's vagueness arguments on a domestic
violence statute and due process claims relating to the issuance of an
emergency protective order in an appeal from an order revoking the
defendant's suspended sentences based on continued violations of the
order); State v. Orton, 904 P.2d 179, 182 (Or. Ct. App. 1995) (concluding
that the collateral bar doctrine could not preclude the defendant from
raising issue of whether statute pertaining to a violation of a protection
order was unconstitutionally vague because the issue was not susceptible
to litigation during the proceeding when the order was issued).
Although Nevada law allows a party to collaterally attack
prior convictions that are offered by the State to prove the defendant is a
habitual criminal or to enhance a charge to a felony, see Hobbs v. State,
127 Nev. 251 P.3d 177, 181-82 (2011) (reviewing validity of
defendant's prior misdemeanor convictions that were used to enhance
charged offense to a felony under NRS 200.485); Arajakis v. State, 108
Nev. 976, 982-83, 843 P.2d 800, 804 (1992) (examining defendant's claims
relating to the validity of prior convictions used to adjudicate and sentence
defendant as habitual criminal), a collateral attack on a court order in a
later proceeding that involves a violation of that order presents a different
set of circumstances.
First, in certain circumstances involving an offense
enhancement, the validity of the prior conviction is a necessary element
that the State had to prove in order to enhance an offense. See, e.g., NRS
200.485(4) (requiring the State to prove facts of a prior offense for battery
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constituting domestic violence in order for offense enhancement to be
imposed). In contrast, the validity of a TPO is not an element that the
State must prove for the crime of home invasion or for a sentence
enhancement for the violation of a TPO. See NRS 193.166(1)(a); NRS
205.067(1).
Second, the enhancement cases do not implicate the policy
behind the collateral bar rule—that a court order must be obeyed so long
as it remains in effect, and therefore, disobedience results in a violation of
the order. See Wood, 178 S.W.3d at 512-13; Small, 843 A.2d at 935.
Nevada law provides a means for a party to challenge a TPO issued
against him or her in the court that issued the order. See NRS 33.080(2)
("On 2 days' notice to the party who obtained the temporary order, the
adverse party may appear and move its dissolution or modification, and in
that event the court shall proceed to hear and determine such motion as
expeditiously as the ends of justice require."). Until the order is dissolved
or modified or expires by its terms, it must be obeyed.
Therefore, we conclude a party must challenge a TPO's
validity before the court that issued the order and may not collaterally
attack the TPO's validity in a subsequent prosecution for its violation. As
Truesdell did not challenge the TPO in the issuing court, we cannot
consider his arguments pertaining to the TPO's validity in this appea1. 1
'Truesdell alleges that the district court abused its discretion in
refusing to grant a continuance. He requested the continuance in order to
investigate the constitutional issues that the TPO raised. However,
because the issue of the TPO's validity was a question of law, we conclude
Truesdell was not prejudiced by this action. See Higgs v. State, 126 Nev.
222 P.3d 648, 653 (2010) (explaining that in order to demonstrate
a district court's abuse of discretion when denying a continuance, the
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The other issues Truesdell raises on appeal also lack merit
Sufficient evidence existed to convict Truesdell of home invasion in
violation of a TPO
Truesdell claims that the State failed to prove beyond a
reasonable doubt that he committed home invasion in violation of a TPO
because (1) the TPO was invalid, (2) Bennett waived any claim of a TPO
violation by allowing him to enter the apartment the previous night, and
(3) the evidence does not support that Officer Wylupski served Truesdell
with the TPO or that Truesdell understood the TPO's contents. We
disagree and conclude that, viewing the evidence in the light most
favorable to the prosecution, a rational juror could have been convinced of
Truesdell's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979); Middleton v. State, 114 Nev. 1089, 1102, 968 P.2d 296,
306 (1998).
NRS 205.067(1) states, "A person who, by day or night,
forcibly enters an inhabited dwelling without permission of the owner,
resident or lawful occupant, whether or not a person is present at the time
of the entry, is guilty of invasion of the home." A district court may
impose a sentence enhancement for a TPO violation when an individual
commits a felony in violation of a TPO "against domestic violence issued
pursuant to NRS 33.020." NRS 193.166(1)(a).
Bennett obtained a five-day TPO against Truesdell on October
28, 2010, that prohibited him from being within 100 yards of the
apartment. The proof of service, which contains Officer Wylupski's
...continued
challenging party must demonstrate the denial had a prejudicial effect on
the case).
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signature, as well as Truesdell's signature and fingerprint, demonstrates
that an officer served Truesdell with the TPO. Officer Wylupski also
testified as to the procedures that he generally follows when serving a
person with a TPO. Truesdell did not challenge the validity of the TPO in
the issuing court; and on November 2, 2010, prior to the TPO's expiration,
he went to the apartment where Bennett was living and forcibly entered
the apartment without permission in violation of the TPO. Based on this
evidence, a rational trier of fact could have found the essential elements of
home invasion in violation of a TPO beyond a reasonable doubt. See
Middleton, 114 Nev. at 1102, 968 P.2d at 306.
Nevada's home invasion statute is constitutional
Truesdell also argues that NRS 205.067(1), the home invasion
statute, is unconstitutionally vague because it does not contain an intent
requirement and fails to state that a person must enter the home of
another. We disagree and review for plain or constitutional error because
Truesdell failed to object below. See Grey v. State, 124 Nev. 110, 120, 178
P.3d 154, 161 (2008). We will only find a criminal law void for vagueness
when the statute fails to provide sufficient notice of the conduct that is
prohibited or when the statute fails to provide definitive standards and
results in arbitrary enforcement. State v. Hughes, 127 Nev. „ 261
P.3d 1067, 1069 (2011).
We have previously stated that invasion of the home is a
general intent crime. Bolden v. State, 121 Nev. 908, 923, 124 P.3d 191,
201 (2005) (referring to home invasion as a general intent crime), receded
from on other grounds by Cortinas v. State, 124 Nev. 1013, 1016, 195 P.3d
315, 317 (2008). Therefore, the statute contains an intent requirement.
Furthermore, the plain language of NRS 205.067(1) requires that a person
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"forcibly enters an inhabited dwelling without permission of the owner,
resident or lawful occupant." Therefore, a person cannot commit the crime
of home invasion by forcibly entering his or her own home if that person is
a lawful occupant or resident of the home. NRS 205.067(1) consequently
provides sufficient notice of the conduct that it prohibits and does not
encourage arbitrary enforcement. 2
The district court did not abuse its discretion by refusing to approve
Truesdell's jury instructions
Truesdell argues that the district court abused its discretion
by denying his proposed jury instructions for trespass and malicious
destruction of private property as lesser included offenses of home
invasion. We disagree because trespass and malicious destruction of
property are not lesser included offenses of home invasion. See Peck v.
State, 116 Nev. 840, 845, 7 P.3d 470, 473 (2000), overruled on other
grounds by Rosas v. State, 122 Nev. 1258, 1266 n.22 & 1269, 147 P.3d
1101, 1107 n.22 & 1109 (2006). Although we characterized trespass as a
"lesser offense" to invasion of the home in Knight v. State, we did not
2Truesdell claims the district court committed plain error by failing
to sua sponte bifurcate the trial because the evidence relating to the TPO
created substantial prejudice against him by implying prior criminal
misconduct. We disagree and conclude that Truesdell has not
demonstrated that the failure to bifurcate the trial based on the TPO
violation affected his substantial rights, as the evidence was sufficient to
convict him of home invasion without the TPO. See Mclellan v. State, 124
Nev. 263, 269, 182 P.3d 106, 110 (2008) (when a defendant fails to raise
the issue below, this court reviews for plain error and will only reverse
when clear error affects the defendant's substantial rights).
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specifically state whether it was a lesser included or lesser related offense
of home invasion. 116 Nev. 140, 142-43, 993 P.2d 67, 69-70 (2000).
Trespass contains an element that is not part of the home invasion
statute: that a person goes into any building of another with the specific
intent to "vex or annoy the owner or occupant thereof, or to commit any
unlawful act." NRS 207.200(1)(a). Home invasion does not require
forcible entry into the dwelling of another, only that the forcible entry
occurs without permission. NRS 205.067(1). Therefore, we conclude
trespass is not a lesser included offense of home invasion. Likewise,
malicious injury to property contains an element that home invasion does
not: that the property belongs to another. NRS 206.310. Home invasion
only requires a forcible entry of an inhabited dwelling, not necessarily of
another.
The majority of the prosecutor's statements were proper and any
comments that were improper did not affect Truesdell's conviction
Truesdell contends that the State committed prosecutorial
misconduct during closing arguments by mentioning facts not in evidence,
misstating the law, and disparaging the defense. We disagree. We
examine claims of prosecutorial misconduct by first determining whether
the prosecutor's behavior was improper. Valdez v. State, 124 Nev. 1172,
1188, 196 P.3d 465, 476 (2008). If the conduct was improper, we next
review the comments for harmless error. Id. When prosecutorial
misconduct does not involve constitutional error, we only determine
whether the error substantially affected the jury's verdict. Id. at 1189, 196
P.3d at 476.
While the evidence must support a prosecutor's statements
relating to the facts of the case, the prosecutor may also assert inferences
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from the evidence and argue conclusions on disputed issues. Miller v.
State, 121 Nev. 92, 100, 110 P.3d 53, 59 (2005). Here, the prosecutor's
arguments regarding the service of the TPO were reasonable inferences
from the evidence and do not amount to improper conduct. The
prosecutor's statement that the State only had to prove that Truesdell
received service of the TPO correctly reflected the law. NRS 193.166(1)(a)
does not require the State to prove that Truesdell understood the TPO,
only that he willfully violated the TPO. Therefore, these comments were
proper.
On the other hand, the prosecutor's statements that the
defense was attempting to confuse the jury amounted to misconduct, but
the comments did not substantially affect the verdict. See Browning v.
State, 124 Nev. 517, 534, 188 P.3d 60, 72 (2008) (a prosecutor's
disparagement of defense counsel or the legitimate tactics of defense
counsel is improper conduct). The State's comments on confusion were
very limited and after the district court sustained Truesdell's objection,
the State immediately moved on. Therefore, we conclude that while
improper, the State's remarks constitute harmless error and did not
substantially affect the jury's verdict.
The district court did not plainly err when imposing the sentence
enhancement for the TPO violation
Truesdell argues that his conviction violates due process, the
Double Jeopardy Clause, and constitutes cruel and unusual punishment
because the sentence enhancement for the TPO violation punishes the
same conduct that the State relied upon to prove that he committed home
invasion. We disagree and review this matter for plain error since
Truesdell failed to object to the district court's imposition of a sentence
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enhancement for the TPO violation. See Mclellan, 124 Nev. at 269, 182
P.3d at 110.
Under NRS 205.067(1), a person does not have to violate a
TPO in order to commit home invasion; instead, a person must forcibly
enter an inhabited dwelling without permission. Although a home
invasion may occur in the course of the defendant's violation of a TPO, a
defendant may also invade a home in a variety of different ways not
involving a TPO. See Cordova v. State, 116 Nev. 664, 667-68, 6 P.3d 481,
483-84 (2000) (determining that a defendant's sentence enhancement
pursuant to NRS 193.165(3) was not improper because use of a deadly
weapon is not a necessary element of second-degree murder because a
person could commit the crime in a variety of ways not involving a deadly
weapon). Therefore, the district court did not commit plain error by
applying the sentence enhancement under NRS 193.166(1)(a) for
commission of a felony in violation of a TPO against domestic violence.
The district court did not plainly err by ordering Truesdell to pay
$500 to the Indigent Defense Fund
Truesdell alleges the district court committed plain error by
ordering him to pay $500 to the Indigent Defense Fund without making
any findings regarding his ability to pay such an amount, or the reasons
why the amount was appropriate. We disagree and review for plain error
since Truesdell failed to object to the district court's imposition of the fee.
See Mclellan, 124 Nev. at 269, 182 P.3d at 110.
A district court may order a defendant to pay all or part of the
expenses that the state incurred by providing the defendant with an
attorney, but must consider the defendant's financial resources and the
burden the payment will cause. NRS 178.3975(1). While the district court
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in this case did not make specific findings when ordering Truesdell to pay
the Indigent Defense Fund, he does not demonstrate how this payment
affects his substantial rights. 3 Therefore, we conclude the district court
did not commit plain error by requiring Truesdell to pay $500 to the
Indigent Defense Fund. 4
We have considered Truesdell's remaining arguments and
conclude they are without merit. Accordingly, we affirm the district
court's judgment of conviction.
We concur:
Parraguirre
3 NRS 178.3975(3) allows Truesdell to petition the district court for
relief from this reimbursement obligation at any time. See Taylor v.
State, 111 Nev. 1253, 1259, 903 P.2d 805, 809 (1995) (noting that NRS
178.3975 provides adequate safeguards to prevent an indigent defendant
from being required to pay for his defense), overruled on other grounds by
Gama v. State, 112 Nev. 833, 836, 920 P.2d 1010, 1013 (1996).
4 We reject Truesdell's claim that cumulative error warrants
reversal. See Rose v. State, 123 Nev. 194, 211, 163 P.3d 408, 419 (2007)
(outlining factors for cumulative error).
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