Donald v. State

¶1*349OPINION

¶2This is an appeal from a judgment of conviction, entered pursuant to a jury verdict, of one count of possession of a controlled substance with intent to sell. NRS 453.337. Between 8:00 p.m. and 11:30 p.m. on April 10, 1989, a police officer observed appellant ride a bicycle in a known drug trafficking area of North Las Vegas and engage in conversation and exchange handshakes with two groups of pedestrians and the occupants of a vehicle. The officer approached appellant and questioned him regarding his identity. Appellant attempted to flee by bicycle. The officer stopped appellant and, fearing appellant was armed, conducted a “pat down” search of appellant for weapons. Appellant attempted to elbow the officer, and a struggle ensued. During the struggle, the officer saw appellant make a throwing motion, and a small packet flew from the area of appellant’s hand and landed on the ground. The packet contained fifteen “rocks” of cocaine, weighing a total of 2.3 grams.

¶3Following a jury trial, appellant was convicted of one count of possession of a controlled substance with intent to sell pursuant to NRS 453.337. The district court sentenced appellant to serve twelve years in the Nevada State Prison, but suspended the sentence and placed appellant on probation for an indeterminate amount of time not to exceed five years.1 Further, the district court sentenced appellant to pay $2,368.59 in restitution, to be paid within the first eighteen months of probation, and to pay a $25 administrative fee and a $60 drug analysis fee.

¶4Appellant contends that he was denied a fair trial because a jury instruction expanded the definition of his crime beyond the statutory definition. Specifically, the district court instructed the jury that it should find appellant guilty if it found that appellant intended to sell or distribute a controlled substance. NRS *350453.337, under which appellant was convicted, prohibits possession of a controlled substance with intent to sell, but does not mention distribution. Appellant did not object to the instruction at the time of trial.2 Appellant’s entire defense was premised on the argument that he was merely present and never possessed the cocaine. Appellant never argued that he intended to distribute, but not sell, the cocaine, and such argument would have been inconsistent with his chosen defense theory. Therefore, appellant was not prejudiced, and any error in the jury instruction was harmless beyond a reasonable doubt. See Guy v. State, 108 Nev. 770, 777-78, 839 P.2d 578, 583 (1992), cert. denied, 507 U.S. 1009, 113 S. Ct. 1656 (1993).

¶5Appellant also contends that the erroneous instruction amounted to an untimely and improper new prosecution theory of the case beyond what was alleged in the information. See Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983); see also Ikie v. State, 107 Nev. 916, 823 P.2d 258 (1991). The state did not argue, however, that appellant intended to distribute the cocaine. The state’s theory of the case consistently was that appellant possessed the cocaine with the intent to sell it. Therefore, the improper instruction did not amount to a change in the prosecution’s theory of the case under Barren.

¶6Further, appellant contends that the prosecutor inflamed the passions of the jury and committed misconduct warranting reversal, even absent a contemporaneous objection, by referring to cocaine as poison. This remark, however, does not constitute prosecutorial misconduct. See generally Klein v. State, 105 Nev. 880, 784 P.2d 970 (1989); cf. Sipsas v. State, 102 Nev. 119, 125, 716 P.2d 231, 235 (1986). Accordingly, we affirm the judgment of conviction entered in the district court.