132 Nev., Advance Opinion 690
IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES MCNAMARA, No. 64403
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. AUG 1 2 2016
nrlfR IE K. LINDEMAN
Be:( WZUIR
FUER DErt \TY CLERK
Appeal from a judgment of conviction, pursuanto a jury
verdict, of first-degree kidnapping with substantial bodily harm and
possession of a controlled substance. Eighth Judicial District Court, Clark
County; Jessie Elizabeth Walsh, Judge.
Affirmed.
Philip J Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public
Defender, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
Clark County,
for Respondent.
BEFORE HARDESTY, SAITTA and PICKERING, JJ.
OPINION
By the Court, PICKERING, J.:
NRS 171.020 governs Nevada's jurisdiction over crimes that
straddle state lines. Here, we are asked to address whether Nevada had
territorial jurisdiction over the crime of kidnapping with substantial
bodily harm when the kidnapping and bodily harm originated in Illinois
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We hold that Nevada had territorial jurisdiction over both the kidnapping
charge and the substantial bodily harm enhancement. While the
kidnapping began in Illinois, it continued into Nevada, where the
kidnapper impeded the victim from seeking medical treatment for her
injuries. Appellant's other assignments of error either lack merit or
amount to harmless error.' We therefore affirm.
FACTS
From December 2010 to February 2011, in the suburbs outside
of Chicago, Kathryn Sharp resided with appellant James McNamara. The
once-friendly and platonic relationship turned into an abusive one as
McNamara began physically beating Sharp, isolating her from her friends
and family, and threatening to torture and kill her family if she tried to
leave. Beyond punches and kicks, McNamara beat Sharp with a metal
baseball bat, a hammer, and other tools and household items—he even
stabbed her with knives. The beatings with the metal baseball bat left
open wounds on Sharp's legs, which became badly infected. McNamara
would not let Sharp go to the hospital, nor did he allow her to freely
shower. When she stated that she needed medical treatment, he grew
angry and beat her. Without medical treatment, Sharp wrapped her legs
with paper towels and duct-taped them to prevent the pus from the
'McNamara raises several other issues on appeal, challenging the
sufficiency of the evidence, the admission of prior bad act evidence, denials
of his motions for mistrial, the failure to gather evidence, refusal of his
proposed jury instructions, the admission of Sharp's driver's license photo
and McNamara's mug shot photo, the exclusion from evidence of Sharp's
prior domestic abuse relationship, prosecutorial misconduct, violation of
his speedy trial rights, the admission of bad act testimony during
sentencing, and any cumulative error. We conclude McNamara's
arguments are without merit and do not warrant discussion.
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infections from leaking. The denial of medical treatment and the inability
to shower exacerbated the infection in Sharp's legs—she testified, "my legs
were so bad. I couldn't even put any weight on them the pain was so
excruciating."
On February 13, 2011, Sharp and McNamara flew from
Chicago to Las Vegas, where McNamara planned to visit his father.
Sharp and McNamara stayed at the Circus Circus Hotel and Casino.
Sharp was alone part of the time in Las Vegas—she went to the gift shop
and buffet, and spent time in the room by herself. She testified, however,
that she felt she could not safely escape without endangering herself and
her family, whose lives McNamara had threatened. Although Sharp
acknowledged at trial that McNamara was not physically violent with her
in Las Vegas, McNamara continued to threaten her. While in Las Vegas,
Sharp told McNamara she was in an enormous amount of pain because
she did not have her normal painkillers with her and asked him if she
could get medical treatment. McNamara became visibly upset when
Sharp asked to go to the hospital and threatened to hurt her. Sharp
retreated, saying that she was fine with Ibuprofen and did not need
medical attention. However, McNamara told Sharp that he was going to
-beat her when he woke up from his nap. Knowing she needed medical
treatment and in fear of another beating, Sharp escaped the hotel room
and solicited help from hotel security who summoned an ambulance to
take her to the hospital.
Once at the hospital, Sharp underwent extensive surgery on
her legs. The surgeon at University Medical Center testified that her
lower extremities evidenced repeated assaults over a long period of time
and that the failure to seek medical treatment greatly exacerbated the
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injuries and infection, which had to have caused "excruciating" pain.
Sharp's infection was so extreme that she was lucky to be alive, much less
save her legs from amputation. After surgery, Sharp had to get her
dressings changed every day, which was a very painful experience.
While Sharp was at the hospital, the police arrested
McNamara. On April 15, 2011, the State charged McNamara by way of
information with kidnapping with substantial bodily harm, coercion, and
possession of a controlled substance. After McNamara filed a pretrial
petition for a writ of habeas corpus challenging the substantial bodily
harm enhancement, the district court dismissed the enhancement,
concluding that Nevada did not have territorial jurisdiction as all the
physical violence occurred outside Nevada. Thereafter, the State obtained
a grand jury indictment using different wording to support the substantial
bodily harm enhancement. The grand jury indicted McNamara on one
count each of first-degree kidnapping with substantial bodily harm and
possession of a controlled substance. On May 31, 2013, the jury returned
a guilty verdict on both counts. McNamara was sentenced to life without
the possibility of parole.
DISCUSSION
Territorial jurisdiction
McNamara argues that Nevada lacked territorial jurisdiction
to prosecute him for first-degree kidnapping with substantial bodily harm.
McNamara's argument is three-fold. First, McNamara claims that he did
not form any intent to kidnap in Nevada, which he contends NRS 171.020
requires. "By arguing the kidnapping was an on-going event beginning in
Illinois," McNamara posits, the "State admitted [McNamara] did not form
intent in Nevada." Second, McNamara argues that the aggravated charge
of first-degree kidnapping with substantial bodily harm cannot be
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sustained because Sharp conceded that McNamara never physically hurt
her in Las Vegas, only in Illinois, which he claims vitiates the substantial
bodily harm enhancement. Third, McNamara argues that the district
court erred in failing to submit the issue of territorial jurisdiction to the
jury.
Proving territorial jurisdiction underNRS 171.020
Territorial jurisdiction has long been required in criminal
cases. First, territorial jurisdiction was a creature of common law and the
prosecution had the burden to affirmatively prove that the crime "was
committed within the territorial jurisdiction of the court and grand jury
where the indictment was found." People v. Gleason, 1 Nev. 173, 178
(1865); see also People v. Betts, 103 P.3d 883, 886-86 (Cal. 2005) ("At
common law, courts applied a narrow principle of territorial jurisdiction in
criminal cases and, with some exceptions, a particular crime was viewed
as occurring for purposes of jurisdiction in only one location, conferring
jurisdiction over the offense upon only a single state. . . . Like most other
states, California has addressed the problem of criminal activity that
spans more than one state by adopting statutes that provide our state
with broader jurisdiction over interstate crimes than existed at common
law."). However, the Nevada Legislature modified the common-law rule
by enacting NRS 171.020 to address territorial jurisdiction in the context
of interstate crimes.
NRS 171.020 provides:
Whenever a person, with intent to commit a crime,
does any act within this State in execution or part
execution of such intent, which culminates in the
commission of a crime, either within or without
this State, such person is punishable for such
crime in this State in the same manner as if the
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tkaBar,
same had been committed entirely within this
State.
"The language of the statute gives jurisdiction to Nevada courts whenever
the criminal intent is formed and any act is accomplished in this state in
pursuance or partial pursuance of the intent." Shannon v. State, 105 Nev.
782, 792,
783 P.2d 942, 948 (1989). Prior to Shannon, this court had
interpreted NRS 171.020 narrowly because it worried that a broad
interpretation would impose "upon the sovereignty of a sister state." Id. at
791,
783 P.2d at 947. However, after "the United States Supreme Court
ha [di ruled, under the dual sovereignty doctrine, that successive
prosecutions by two states for the same conduct are not barred by the
double jeopardy clause of the Fifth Amendment," this court reversed
course and held "that NRS 171.020 should be given the full interpretation
intended by the Nevada Legislature." Id. at 791,
783 P.2d at 948. Thus,
this court interpreted NRS 171.020 "not [to] require that there be partial
execution of the actual crime" within Nevada, but rather that NRS
171.020 "only requires some carrying out of the criminal intent" within
Nevada. Id. at 792,
783 P.2d at 948.
McNamara interprets NRS 171.020 and Shannon to require
that a defendant form his or her criminal intent in Nevada plus
accomplish any act in furtherance of that intent in Nevada. Nothing in
the plain language of NRS 171.020 or the holding in Shannon requires
that the intent be Mimed in Nevada. Rather, Nevada courts obtain
territorial jurisdiction whenever (1) a defendant has criminal intent
(irrespective of where it was formed) and (2) he or she performs any act in
this state in furtherance of that criminal intent. The broad language of
NRS 171.020 demonstrates a legislative objective to confer territorial
jurisdiction over crimes having a sufficient connection to Nevada. Cf.
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People v. Renteria, 82 Cal. Rptr. 3d 11,17 (Ct. App. 2008) (discussing Cal.
Penal Code § 778a(a) (West 2008), which is similar to NRS 171.020, and
concluding that "Wile ultimate question is whether given the crime
charged there is a sufficient connection between that crime and the
interests of the State of California such that it is reasonable and
appropriate for California to prosecute the offense" (emphasis added));
State v. Legg, 9 S.W.3d 111, 112 (Tenn 1999) (holding that Tennessee had
territorial jurisdiction over an aggravated kidnapping charge even though
the kidnapping and physical violence took place in Alabama).
As kidnapping is a continuing crime, see 51 C.J.S. Kidnapping
§ 3 (2010) ("Kidnapping, which involves the detention of another, is, by its
nature, a continuing crime. . . . The span of the kidnapping or confinement
begins when the unlawful detention is initiated and ends only when the
victim both feels and is, in fact, free from detention."); see also Smith v.
State, 101 Nev. 167, 169,
697 P.2d 113, 115 (1985) (holding that "when a
defendant commits criminal acts in Nevada which are a substantial and
integral part of an overall continuing crime plan," Nevada courts have
jurisdiction under NRS 171.020), jurisdiction over McNamara was proper
for the charge of kidnapping because, when McNamara forced Sharp to
remain with him against her will, the kidnapping continued into Nevada's
territorial jurisdiction until such time that Sharp felt and was, in fact, free
from detention. 2
2McNamara's reliance on Fortner v. Superior Court, 159 Cal. Rptr.
3d 128 (Ct. App. 2013), is misplaced. Fortner involved a domestic battery
that took place while a couple was on vacation in Hawaii—specifically a
"single punch to [the victim]'s face." Id. at 131-32. Once home in
California, the prosecution charged the defendant for said offense. Id. at
131. The California Court of Appeal granted the defendant's motion to
continued on next page...
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Substantial bodily harm enhancement
McNamara argues that Sharp's concession that McNamara
"never hit her and never forced her to have sex while in Nevada"
demonstrates that Nevada lacked territorial jurisdiction over the
substantial bodily harm enhancement. The substantial bodily harm
enhancement rendered McNamara eligible for life without the possibility
of parole, whereas first-degree kidnapping without substantial bodily
harm carries the possibility of parole. NRS 200.320. The State counters
that McNamara prevented Sharp from receiving medical treatment while
in Las Vegas, which constitutes substantial bodily harm because it made
her endure prolonged physical pain.
"Substantial bodily harm" is defined as "(1) Bodily injury
which creates a substantial risk of death or which causes serious,
permanent disfigurement or protracted loss or impairment of the function
of any bodily member or organ; or (2) Prolonged physical pain" NRS
0.060. Delayed medical treatment can cause "prolonged physical pain,
thereby falling within the definition of substantial bodily harm." Rice v.
State, 113 Nev. 1300, 1310,
949 P.2d 262, 268 (1997), abrogated on other
...continued
dismiss the Hawaii-related offense for lack of territorial jurisdiction
because the prosecution failed to present any evidence that tied the
offense to California. Id. at 134. We are presented with a different
situation here. Not only is the continuing nature of kidnapping distinct
from a single punch to one's face, but our statutes provide different
jurisdictional rules for kidnapping than battery or domestic violence.
Compare NRS 200.350(1) ("Any proceedings for kidnapping may be
instituted either in the county where the offense was committed or in any
county through or in which the person kidnapped or confined was taken or
kept while under confinement or restraint "), with NRS 200.485, and NRS
200.481(1).
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grounds by Rosas v. State, 122 Nev. 1258,
147 P.3d 1101 (2006); see
Collins v. State, 125 Nev. 60, 64,
203 P.3d 90, 92-93 (2009) (defining
"prolonged physical pain" in broad terms to "encompass some physical
suffering or injury that lasts longer than the pain immediately resulting
from the wrongful act," but noting that "by its very nature, the term 'pain'
is necessarily subjective and cannot be defined further"); see also
LaChance v. State, 130 Nev., Adv. Op. 29, 321 P.3d 919, 925 (2014)
(upholding substantial bodily harm enhancement for battery charge
"based on prolonged physical pain" where the victim "testified that she
was immobile for a few days afterward and that her injuries have resulted
in permanent shin splints, which prevent her from running . . . [and her]
injuries to her tailbone hinder her ability to sit for long periods").
In this case, McNamara restricted Sharp from seeking medical
treatment, both before and after they came to Las Vegas. The forced delay
in obtaining medical attention caused the infections in Sharp's legs to
worsen, creating excruciating pain and hindering her ability to put weight
on her legs. These untreated injuries required Sharp to undergo extensive
surgery, necessitating several weeks of painful follow-up at the hospital.
Because McNamara's prevention of Sharp seeking medical treatment in
Nevada caused prolonged physical pain, Nevada had jurisdiction over the
substantial bodily harm enhancement.
Procedure for establishing territorial jurisdiction
Citing Gleason, 1 Nev. 173, McNamara argues that the district
court was required to instruct the jury on territorial jurisdiction and the
State needed to prove jurisdiction beyond a reasonable doubt. McNamara
points out that "Shannon did not overrule Gleason," rendering Gleason's
reasonable doubt standard of proof for territorial jurisdiction controlling.
We disagree. While McNamara is correct that Shannon did not overrule
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Gleason, Gleason is inapplicable because it interpreted the common law,
which the Legislature abrogated with the passage of NRS 171.020 in 1911
and subsequent amendment in 1927. See 1927 Nev. Stat., ch. 64, § 59a, at
87.
Our prior decisions make clear that territorial jurisdiction is a
question of law reserved for the court. See Shannon, 105 Nev. at 791,
783
P.2d at 948 (concluding that territorial jurisdiction involves "a question of
law to be decided by the court, not to be submitted to a jury"). Yet, this
court has not expressly articulated the burden of proof to establish
territorial jurisdiction and there is a split of authority on this issue.
Some jurisdictions require proof beyond a reasonable doubt
when determining territorial jurisdiction. Typically, these courts reason
that territorial jurisdiction is an essential element of the crime charged,
invoking the State's burden to prove each element beyond a reasonable
doubt. See, e.g., Ortiz v. State, 766 N.E.2d 370, 374 (Ind. 2002)
("Territorial jurisdiction. . . is not necessarily thought of as an element of
the offense. Nonetheless, we have determined that the State is required to
prove territorial jurisdiction beyond a reasonable doubt. This is so
because where the law has established the necessity of a certain fact for
an accused to be guilty of an offense, the existence of that fact is treated
much like an element of the offense." (citation and internal quotation
marks omitted)); State v. Rimmer, 877 N.W.2d 652, 661 (Iowa 2016)
(stating that "territorial jurisdiction is an essential element of the crime"
(internal quotation marks omitted)). Other courts that have required
proof beyond a reasonable doubt to prove territorial jurisdiction have
reasoned that the question of jurisdiction involves factual disputes best
suited for the jury. See, e.g., Khalifa v. State, 855 A.2d 1175, 1185 (Md.
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2004) ("Territorial jurisdiction is a factual issue for the trier of fact. When
the issue is in dispute, the State has the burden to prove 'beyond a
reasonable doubt' that the crime was committed within the geographic
limits of Maryland." (citation omitted)); State v. Batdorf, 238 S.E.2d 497,
502-03 (N.C. 1977) ("[W hen jurisdiction is challenged, as here, the State
must carry the burden and show beyond a reasonable doubt that North
Carolina has jurisdiction to try the accused.").
Nevertheless, albeit in a roundabout way, our prior decisions
indicate that the preponderance of the evidence standard applies when
pleading and proving territorial jurisdiction in criminal cases. The
analysis begins with Walstrom v. State, where this court held that the
State's burden of proof for an exception to the statutes of limitation was
the preponderance of the evidence standard and reasoned:
The lesser standard is appropriate because
proving the application of the exception to the
statute is not the same as proving an element of
the crime. Proving the exception to the statute of
limitations addresses the issue of the court's
jurisdiction; proving an element of the crime
concerns the issue of a defendant's guilt or
innocence. The considerations that require proof
beyond a reasonable doubt do not apply when the
State is merely attempting to prove jurisdiction.
Given the difficulty of proving the secret manner
exception long after the commission of an offense,
we see no sound reason to compound the difficulty
by imposing a higher standard upon the State.
104 Nev. 51, 54-55,
752 P.2d 225, 227-28 (1988) (emphasis added),
overruled in part by Hubbard v. State, 112 Nev. 946,
920 P.2d 991 (1996).
Hubbard retreated from Walstrom, concluding that Walstrom's holding
"that statutes of limitation are jurisdictional and that they may be raised
as a bar to prosecution at any time" went against the weight of authority
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of other jurisdictions and, thus, because "statutes of limitation in criminal
cases are non-jurisdictional, affirmative defenses[, they] must be raised in
the trial court or they are waived." 112 Nev. at 948, 902 P.2d at 992. In
Dozier v. State, though, this court recognized that Hubbard focused on the
issue of waiver, but did not discuss Walstrom's holding that the State's
burden of proof for statutes of limitation is preponderance of the evidence
and was confronted with addressing the appropriate burden of proof. 124
Nev. 125, 129,
178 P.3d 149, 152 (2008). This court held:
We now clarify that despite our holding in
Hubbard II that the statute of limitations is an
affirmative, non-jurisdictional defense, the State's
burden of proof is still governed by the
preponderance of the evidence standard .. . . In
addressing the State's burden to disprove an
affirmative defense that negates an element of a
criminal offense, this court has held that the State
has the burden to disprove the defense beyond a
reasonable doubt. As we explained in Walstrom,
however, an affirmative defense asserting that the
prosecution is barred by the statute of limitations
does not involve an element of the offense
implicating the defendant's guilt or innocence.
Id. at 129-30,
178 P.3d at 152-53 (footnote omitted). After reviewing
jurisdictions that apply proof beyond a reasonable doubt to statutes of
limitation, this court rejected that reasoning because "[Ole statute of
limitations is not an element of the offense that the State should be
required to prove beyond a reasonable doubt." Id. at 131,
178 P.3d at 154.
Thus, Dozier revived the reasoning in Walstrom that a preponderance of
the evidence standard applies to issues not involving the defendant's guilt
or innocence or an element of the criminal offense. Id.
After reviewing these cases in light of Shannon, we hold that
the State need only prove territorial jurisdiction by a preponderance of the
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evidence. Shannon made clear, "whether NRS 171.020 allows Nevada
jurisdiction over crimes occurring in another state is a question of
jurisdiction, not an element of the crime charged." 105 Nev. at 791,
783
P.2d at 948 (emphasis added). As such, because jurisdiction does not
involve an element of the crime charged or relate to the defendant's guilt
or innocence, under the reasoning in Walstrom and Dozier, territorial
,
jurisdiction need not be proven beyond a reasonable doubt. See, e.g.,
United States v. White, 611 F.2d 531, 535 (5th Cir. 1980) ("If the
Government shows by a preponderance of the evidence that the crime was
committed in the trial district, both territorial jurisdiction and proper
venue are established,"); Betts, 103 P.3d at 893 ("The prosecution has the
burden of proving the facts necessary to establish territorial jurisdiction
by a preponderance of the evidence."); State v. Holm, 137 P.34 726, 749-50
(Utah 2006) (discussing Utah Code Ann. § 76-1-501(3) (LexisNexis 2012)
and concluding that It] he jurisdiction determination is a matter for the
trial court, not the jury, and the court itself must resolve any associated
factual disputes by a preponderance of the evidence").
For much the same reason, we also reject McNamara's
argument that the failure to submit the question of territorial jurisdiction
to the jury violated his Sixth Amendment rights as articulated in
Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme
Court invalidated a hate-crime sentence enhancement because the statute
allowed the trial judge to effectively increase a defendant's sentence if, by
a preponderance of the evidence, the trial judge found that the defendant's
possession of a firearm was "with a purpose to intimidate an individual or
group of individuals because of race, color, gender, handicap, religion,
sexual orientation or ethnicity." Id. at 469 (quoting former N.J. Stat. Ann
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§ 2C:44-3(e) (West 1999)). Recognizing the "with a purpose" requirement
inherently involved a determination of the defendant's mens rea, the
Court stated that "[t]he defendant's intent in committing a crime is
perhaps as close as one might hope to come to a core criminal offense
'element." Id. at 493. This led the Court to ask, "Despite what appears to
us the clear 'elemental' nature of the factor here, the relevant inquiry is
one not of form, but of effect—does the required finding expose the
defendant to a greater punishment than that authorized by the jury's
guilty verdict?" Id. at 494 Answering that question in the affirmative,
the Court observed that a trial judge's finding of a hate crime by a
preponderance of the evidence had the potential to increase the
defendant's sentence from 10 to 20 years. Id. at 495. Thus, the Court
held, "[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt." Id. at 490.
Notably, the Supreme Court did not discuss procedural issues,
such as jurisdiction. And courts deciding issues of territorial jurisdiction
post-Apprendi have found Apprendi inapplicable to territorial jurisdiction
challenges. See, e.g., Betts, 103 P.3d at 892 (distinguishing Apprendi and
noting that "territorial jurisdiction is a procedural matter that relates to
the authority of California courts to adjudicate the case and not to the
guilt of the accused or the limit of authorized punishment, [and thus] a
jury trial on the factual questions that establish jurisdiction is not
required by the federal Constitution"); see also United States v. Miguel,
338 F.3d 995, 1004 (9th Cir. 2003) ("Apprendi does not require a jury find
the facts that allow the transfer to district court. The transfer proceeding
establishes the district court's jurisdiction over a defendant."); United
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States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) ("Apprendi claims are
not jurisdictional."). Thus, the district court is not required to submit
territorial jurisdiction to the jury and it may decide any factual disputes
concerning jurisdiction by a preponderance of the evidence.
In this case, the parties disputed factually whether territorial
jurisdiction was proper. McNamara argues that the issue of territorial
jurisdiction should have been submitted to the jury under the reasonable
doubt standard. However, the issue of territorial jurisdiction in this case
was submitted to the jury to determine beyond a reasonable doubt. The
district court instructed the jury on territorial jurisdiction using the
language of NRS 171.020:
Whenever a person, with intent to commit a
crime, does any act within this State in execution
or part execution of such intent, which culminates
in the commission of a crime, either within or
without this State, such person is punishable for
such crime in this State in the same manner as if
the same had been committed entirely within this
State. Nevada has jurisdiction over such a
continuing offense only when the criminal intent
is formed and any act is accomplished in this state
in pursuance or partial pursuance of the intent. It
is not required that there be partial execution of
the actual crime; it only requires some carrying
out of the criminal intent.
The jury was not told that it need only find territorial jurisdiction proper
by a preponderance of the evidence. Instead, the jury was instructed
solely on the reasonable doubt standard. Thus, in finding McNamara
guilty of first-degree kidnapping with substantial bodily harm, the jury
resolved the factual disputes regarding territorial jurisdiction by a
standard higher than this court requires today. And although the district
court failed to formally acknowledge, as a matter of law, that territorial
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jurisdiction was proper, any such error was harmless because the State
proffered extensive testimony that the kidnapping continued into Nevada
and, while McNamara did not physically abuse Sharp in Nevada, he
impeded her from seeking medical treatment, which exacerbated her
injuries and caused her excruciating and prolonged pain. Therefore,
Nevada had territorial jurisdiction over McNamara with regard to the
charge of first-degree kidnapping with substantial bodily harm.
Notice of grand jury proceedings
McNamara argues that the State failed to give him proper
notice of the grand jury proceedings because the amount of time was not
reasonable as he had less than one-day's notice of the actual time, date,
and place of the grand jury proceedings. The dates of the notice are as
follow:
o Nov. 8, 2011: State sent defense counsel notice of
intent to seek indictment via fax to the public
defender's office.
O Nov. 14, 2011: Defense counsel sent letter to State,
indicating he received notice and requesting
notification of date, time, and place of the
proceedings.
O Nov. 16, 2011: Unaware of defense counsel's letter,
State sent defense counsel an email following up to
ask whether McNamara planned to testify or defense
counsel had any exculpatory evidence for it to
present.
O Nov. 16, 2011: Defense counsel responded via email,
explaining that he already sent a letter requesting
the date, time, and place of the grand jury
proceedings.
• Nov. 16, 2011, 3:49 p.m.: State faxed defense counsel
a letter with the date, time, and place of the
proceedings, and requested any exculpatory evidence.
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• Nov. 17, 2011: Grand jury proceedings were
scheduled to be held, in which the State allotted a
testify-time for McNamara at 4:30 p.m.
* Nov. 17, 2011, 3:57 p.m.: After receiving no response
after State's notice of date, time, and place, State
emailed defense counsel, asking whether he planned
to come to grand jury proceedings.
• Nov. 17, 2011, 5:07 p.m.: After the grand jury
proceedings, State emailed defense counsel stating,
"You and your client did not appear. The grand jury
deliberated and returned a true bill. The indictment
will be returned tomorrow at 11:45 in DC 7."
MRS 172.241 provides in part that a district attorney need
only provide notice of its intent to seek indictment at least five judicial
days before the grand jury:
1. A person whose indictment the district
attorney intends to seek or the grand jury on its
own motion intends to return, but who has not
been subpoenaed to appear before the grand jury,
may testify before the grand jury if the person
requests to do so and executes a valid waiver in
writing of the person's constitutional privilege
against self-incrimination.
2. A district attorney or a peace officer shall
serve reasonable notice upon a person whose
indictment is being considered by a grand jury
unless the court determines that adequate cause
exists to withhold notice. The notice is adequate if
it:
(a) Is given to the person, the person's
attorney of record or an attorney who claims to
represent the person and gives the person not less
than 5 judicial days to submit a request to testify to
the district attorney; and
(b) Advises the person that the person may
testify before the grand jury only if the person
submits a written request to the district attorney
and includes an address where the district
attorney may send a notice of the date, time and
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place of the scheduled proceeding of the grand
jury.
(Emphases added.)
Here, the district attorney complied with NRS 172.241(2)
because it faxed its grand jury notice to the public defender's office on
November 8, which gave McNamara over five judicial days to submit a
written request. See Davis v. Eighth Judicial Dist. Court, 129 Nev. 116,
120,
294 P.3d 415, 418 (2013) (holding that fax notice of intent to seek
indictment was sufficient and such notice need not include the date, time,
and place of the grand jury hearing). Though defense counsel sent a letter
to the State, it was not received until the next day. The following day, the
State provided defense counsel with the statutorily required information,
including date, time, and place of the scheduled grand jury proceedings.
McNamara argues that a one-day notice of the date, time, and
place of the grand jury proceedings is unreasonable, citing Sheriff v.
Marcum, 105 Nev. 824,
783 P.2d 1389 (1989). However, Marcum held
that a one-day notice was unreasonable regarding notice of whether the
State intended to seek an indictment, not necessarily notice of the date,
time, and place of the grand jury proceedings. Id. at 827, 783 P.2d at
1391. Marcum analyzed then-NRS 172.241, which did not include the
five-day notice provision as exists today. Id. at 826, 783 P.2d at 1390 ("We
note that although both NRS 172.095(1)(d) and NRS 172.241 give a
defendant the right to testify before a grand jury, both statutes are silent
regarding a defendant's right to have notice of the grand jury proceedings
at which he may be indicted." (footnotes omitted)). In response to
Marcum, the Legislature amended NRS 172.241 to include a five-day
notice provision of the State's intent to seek an indictment, requiring the
defense to submit a written request for the date, time, and place. See
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Hearing on S.B. 82 Before the Assembly Judiciary Comm., 66th Leg.
(Nev., May 30, 1991); see also 1997 Nev. Stat., ch. 99, § 1, at 188. Thus,
the State complied with NRS 172.241 and McNamara failed to show how
the State's notice was unreasonable.
Verdict form did not include second-degree kidnapping
McNamara argues that his conviction must be reversed
because the district court failed to include the lesser offense of second-degree kidnapping on the verdict form. Both parties and the district court
agreed to include second-degree kidnapping on the verdict form. The
district court instructed the jury on second-degree kidnapping:
INSTRUCTION NO. 11
You are instructed that if you find that the
State has established that the defendant has
committed first degree kidnapping you shall select
first degree kidnapping as your verdict. The crime
of first degree kidnapping may include the crimes
of second degree kidnapping. You shall find the
defendant guilty of second degree kidnapping if:
(1) You have not found, beyond a reasonable
doubt, that the defendant is guilty of first degree
kidnapping, and
(2) All twelve of you are convinced beyond a
reasonable doubt the defendant is guilty of the
crime of second degree kidnapping.
If you are convinced beyond a reasonable
doubt that the crime of kidnapping has been
committed by the defendant, but you have a
reasonable doubt whether such kidnapping was of
the first or of the second degree, you must give the
defendant the benefit of that doubt and return a
verdict of kidnapping of the second degree.
INSTRUCTION NO. 12
A person who willfully and without
authority of law seizes, inveigles, takes, carries
away or kidnaps another person with the intent to
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keep the person secretly imprisoned within the
State, or for the purpose of conveying the person
out of the State without authority of law, or in any
manner held to service or detained against the
person's will, is guilty of kidnapping in the second
degree.
Despite the agreement to include second-degree kidnapping on the verdict
form and the instructions allowing the jury to consider second-degree
kidnapping as a lesser offense, the district court mistakenly gave the jury
a verdict form that did not include second-degree kidnapping. McNamara
did not review the verdict form before it was given to the jury because he
claims that the district court "is the last person handling jury instructions
and verdict forms." Neither party disputes that McNamara was entitled
to an instruction on second-degree kidnapping. Rather, the issue is
whether the district court's mistake in failing to include second-degree
kidnapping on the verdict form is reversible error. We conclude that it is
not reversible error.
If a district court properly instructs the jury on the lesser-included offenses, it is not reversible error if the lesser-included offenses
are omitted from the verdict form. See State v. St. Clair, 16 Nev. 207, 212
(1881); People v. Osband, 919 P.2d 640, 683-84 (Cal. 1996). In St. Clair,
the district court gave the jury a verdict form that included only first- and
second-degree murder but omitted the lesser-included offenses of
manslaughter and justifiable homicide. 16 Nev. at 212. As here, the
district court did instruct the jury on all of the lesser-included offenses.
Id. The court found no reversible error occurred:
Upon these facts it is clear, to our minds, that the
jurors were not misled, as claimed by appellant's
counsel, into the belief that if they found
defendant guilty they were confined in their
deliberations, as to the degree of guilt, to the two
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degrees of murder. It was their duty, if they
believed, from the evidence, that the defendant
was guilty of any offense (and they were so
instructed), to determine the degree of guilt from
the evidence adduced at trial. The forms were
merely given as a guide to the jury in framing
their verdict, and were not intended, and could not
have been considered, to limit the right of the jury
to a consideration of the defendant's guilt to the
two degrees of murder.
Id. The California Supreme Court came to the same conclusion: "any
failure to provide a form, if error it is, results in no prejudice when the
jury has been properly instructed on the legal issue the trial presented."
Osband, 919 P.2d at 683-84. The court in Osband relied on People v. Hill,
48 P. 711, 713 (Cal. 1897), for the following statement:
Where, therefore, the jury has been properly
instructed as to the different degrees of the
offense, it must be presumed that, if their
conclusion called for a form of verdict with which
they were not furnished, they would either ask for
it, or write one for themselves. It certainly could
have no necessary tendency to preclude them from
finding such verdict.
Thus, the court in Hill concluded that there was "no reversible error in the
record." Id. But see Wilson v. State,
566 So. 2d 36, 37 (Fla. Dist. Ct. App.
1990) (concluding that "[a] verdict that is not in conformance with the jury
instructions is clearly defective," and reversing the conviction because the
district court did not include the lesser charge of "robbery" and only
included "robbery with a firearm" on the verdict form, even though both
offenses were in the jury instructions). While we recognize McNamara's
citation to Wilson, which is equally as analogous to this case as St. Clair,
we are not bound by the Florida District Court of Appeal. Thus, under
Nevada precedent, the district court did not commit reversible error.
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Here, like St. Clair, the district court properly instructed the
jury on first- and second-degree kidnapping but failed to include second-degree kidnapping in the verdict form. Although this omission was an
error, it does not constitute a reversible error as per the reasoning in St.
Clair, but is rather a harmless error, to which McNamara did not object.
Jurors are presumed to follow the instructions they are given.
See Leonard v. State, 117 Nev. 53, 66,
17 P.3d 397, 405 (2001). Here, the
jury was instructed that they must find the defendant guilty of each
element of first-degree kidnapping to convict him of this offense. The jury
made an affirmative finding that the defendant was guilty of first-degree
kidnapping when they signed and returned their verdict to that effect.
Had they not found McNamara guilty of first-degree kidnapping, their
choice was to sign and return the not guilty form, to question the verdict
form, or to amend it to find him guilty of second-degree kidnapping.
Finally, the evidence supporting the first-degree kidnapping conviction
was overwhelming and the district court individually polled the jurors.
See People v. Jimenez, 217 P.3d 841, 869-70 (Colo. App. 2008) (rejecting
defendant's claim that error on verdict form, which did not include a "not
guilty" box for the lesser-included offense of second-degree murder,
required reversal, observing "that the court polled the jurors after they
returned their verdicts, and all of them affirmatively indicated that they
had found defendant guilty of second-degree murder. Thus, we need not
guess whether the jury's verdict accurately reflected its collective
conclusion concerning defendant's guilt or innocence of second-degree
murder."). Cf. Bohrer v. DeHart, 961 P.2d 472, 477 (Colo. 1998) ("We defer
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to jury verdicts when jurors have been properly instructed and the record
contains evidence to support the jury's findings."). Therefore, while the
omission of the lesser-included offense of second-degree kidnapping was in
error, it did not constitute reversible error.
CONCLUSION
We hold that territorial jurisdiction is proper when a
defendant has criminal intent and he or she performs any act in this state
in furtherance of that criminal intent. Territorial jurisdiction is a
question of law for the court to decide, not the jury. The State bears the
burden of proving territorial jurisdiction by a preponderance of the
evidence. In this case, territorial jurisdiction was proper as the State
proved by a preponderance of the evidence that McNamara continued the
crime of first-degree kidnapping into Nevada and his prevention of Sharp
from receiving medical treatment caused her prolonged physical pain,
warranting the substantial bodily harm enhancement to his kidnapping
charge. Although the district court committed two errors—the failure to
conclude as a matter of law whether it had territorial jurisdiction and the
inadvertent use of the incorrect verdict form, we conclude such errors were
harmless. McNamara's other claims on appeal are meritless and do not
warrant a new trial. Thus, we affirm the judgment of conviction.
We concur:
71 ( J.
Hardest
J.
Saitta
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