132 Net, Advance Opinion to5
IN THE SUPREME COURT OF THE STATE OF NEVADA
MATTHEW WASHINGTON, No. 65998
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. AUG 12 2016
T CIE K. LINDEMAN
CLE RTj
I. DEP if
Appeal from a judgment of conviction, pursuant to a jury
verdict, of conspiracy to commit murder, murder with the use of a deadly
weapon, three counts of attempted murder with the use of a deadly
weapon, two counts of battery with the use of a deadly weapon, ten counts
of discharging a firearm at or into a structure, and possession of a firearm
by a felon. Eighth Judicial District Court, Clark County; Kenneth C.
Cory, 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 Ryan J. MacDonald, Deputy District Attorney,
Clark County,
for Respondent.
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rsr,-
BEFORE HARDESTY, SAITTA and PICKERING, JJ.
OPINION
By the Court, HARDESTY, J.:
A jury convicted appellant Matthew Washington of ten counts
of discharging a firearm at or into a structure pursuant to NRS 202.285(1).
In this appeal, we are asked to determine whether multiple convictions
under this statute are permissible based on multiple discharges that
occurred in quick succession. Because the word "discharges," as used in
NRS 202.285(1), unambiguously allows for a separate conviction for each
discrete shot, we conclude that Washington's ten convictions for
discharging a firearm are not redundant.
Washington also challenges the sufficiency of the evidence to
convict him of first-degree murder, attempted murder, conspiracy to
commit murder, and discharging a firearm into an occupied structure.
Having carefully reviewed the evidence in the record before us, we
conclude that the State presented sufficient evidence to convict
Washington of these charges) Finally, we consider Washington's
challenge to the criminal information. Because the State is not required to
prove the identity of unknown conspiracy members, we conclude that the
State's use of the language "unnamed coconspirator" in the second
amended criminal information did not render the document defective. As
'Because Washington does not contest the sufficiency of the evidence
with regard to his convictions for battery with use of a deadly weapon and
possession of a firearm by a felon, we affirm these convictions as well.
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a result, Washington has failed to demonstrate substantial prejudice, and
reversal is therefore not warranted on this basis.
FACTS AND PROCEDURAL HISTORY
In the early morning hours on November 5, 2013, Marque Hill,
LaRoy Thomas, Nathan Rawls, and Ashely Scott were asleep in an
apartment in Las Vegas when they were awakened by gunshots being
fired into the apartment in rapid succession. Scott was shot in the foot,
Thomas was shot in the ankle, and Rawls was killed Darren and
Lorraine DeSoto, who resided in a neighboring apartment, were also
awakened by the sound of the gunshots. The DeSotos observed a silver
Dodge Magnum drive slowly past their window and called 911.
An officer with the Las Vegas Metropolitan Police Department
(LVMPD) was on patrol when he received notification of the shooting.
Within minutes, the officer observed a vehicle matching the description
given by the DeSotos. The officer pulled the vehicle over and conducted a
felony vehicle stop. Washington was the driver, and Martell Moten was a
passenger in the rear driver-side seat. Washington told the officer that
"he was by the Stratosphere and he just picked up his friend and they
were going home." An officer testified that the Stratosphere is "fairly
close" to the apartment where the shooting occurred.
The DeSotos were brought to the scene and identified the
silver Dodge Magnum as the one they observed drive slowly past their
window. Washington and Moten were then taken into custody. Because
the vehicle doors had been left open, an officer observed a handgun
underneath the front passenger seat. The gun was later determined to be
a Smith & Wesson 9 millimeter. The vehicle was towed to a crime lab,
and a search warrant was obtained. After the vehicle was processed by
the crime lab but while it was still in the possession of the crime lab, a
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detective learned that another handgun was still in the vehicle. The
detective searched for and found a handgun concealed in the vehicle's
steering column. This gun was later determined to be a .40 caliber Glock.
An LVMPD crime scene analyst testified that seven .40 caliber
and six 9 millimeter cartridge casings were found outside the apartment.
The seven .40 caliber cartridge casings were determined to have been fired
from the Glock found in the steering column of Washington's vehicle, and
the six 9 millimeter cartridge casings were determined to have been fired
from the Smith & Wesson found under the front passenger seat of the
vehicle.
Washington was charged with conspiracy to commit murder,
murder with the use of a deadly weapon, three counts of attempted
murder with the use of a deadly weapon, two counts of battery with the
use of a deadly weapon, ten counts of discharging a firearm at or into a
structure, and possession of a firearm by a felon. A jury found
Washington guilty of all counts, and Washington now appeals.
DISCUSSION
On appeal, Washington argues: (1) double jeopardy precludes
multiple convictions for discharging a firearm; (2) there was insufficient
evidence to support his convictions for first-degree murder, attempted
murder, conspiracy to commit murder, and discharging a firearm into an
occupied structure; and (3) the criminal information was defective because
the identity of an unnamed coconspirator needed to be proven. 2
2Washington also challenges his conviction on several other grounds:
(1) a jury instruction improperly informed the jury that the charges
against him were felonies, (2) the district court erred in rejecting his
proffered jury instruction on motive, (3) the State committed prosecutorial
continued on next page . . .
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Washington's convictions for discharging a firearm at or into a structure
Washington argues that double jeopardy prevents the State
from charging one count for each discharge of a firearm because firing a
gun multiple times in quick succession amounts to a single violation of
NRS 202.285(1). Washington argues that the unit of prosecution is the
"firearm." Based on the substance of Washington's argument, which
involves a question about the "unit of prosecution," we conclude that
Washington's argument actually raises an issue of redundancy, not double
jeopardy. See Jackson v. State, 128 Nev. 598, 612,
291 P.3d 1274, 1283
(2012) ("Nevada's redundancy case law has. . . captured 'unit of
prosecution' . . . within its sweep."); Firestone v. State, 120 Nev. 13, 16,
83
P.3d 279, 281 (2004) (disagreeing with the defendant's classification of the
issue raised on appeal as a double jeopardy concern when the defendant's
argument stemmed from his conviction "of three counts of leaving the
. . . continued
misconduct during its closing argument by stating that the jury could find
that Washington acted with specific intent if it found that he discharged a
firearm, (4) the State was required to obtain a new search warrant before
conducting a second search of his vehicle, (5) the State's forensic scientist
improperly testified that she and three of her colleagues had come to the
same conclusion regarding bullets and shell casings found at the scene,
(6) the district court erred in allowing evidence of field interview stops to
be admitted during the penalty phase without sua sponte conducting an
evidentiary hearing to determine whether the stops were constitutional,
and (7) he was prejudiced when the State introduced evidence of his
tattoos during the penalty hearing.
We decline to consider arguments (1), (5), and (6) because
Washington failed to object or preserve these arguments below. Green v.
State, 119 Nev. 542, 545,
80 P.3d 93, 95 (2003). And after careful
consideration, we conclude that the remaining arguments lack merit.
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scene of the accident"). Thus, we analyze Washington's argument in the
context of redundancy.
"[Al claim that convictions are redundant stems from the
legislation itself and the conclusion that it was not the legislative intent to
separately punish multiple acts that occur close in time and make up one
course of criminal conduct." Wilson v. State, 121 Nev. 345, 355,
114 P.3d
285, 292 (2005). Determining the unit of prosecution under a criminal
statute thus involves a matter of statutory interpretation. Jackson, 128
Nev. at 612,
291 P.3d at 1278. "Statutory interpretation is a question of
law subject to de novo review." State v. Catanio, 120 Nev. 1030, 1033,
102
P.3d 588, 590 (2004). "We must attribute the plain meaning to a statute
that is not ambiguous." Id. "An ambiguity arises where the statutory
language lends itself to two or more reasonable interpretations." Id.
The legislation at issue here is NRS 202.285(1), which
provides that "[a] person who willfully and maliciously discharges a
firearm at or into any house, room, for] apartment" is guilty of either a
misdemeanor or felony depending on whether the structure is abandoned
or occupied. The unit of prosecution in NRS 202.285 does not turn on the
word "firearm" but instead on the meaning of the verb "discharges." See
State v. Rasabout, 356 P.3d 1258, 1263 (Utah 2015) (determining that the
unit of prosecution for Utah's statute that prohibits the "discharge [of] any
kind of dangerous weapon or firearm" is the term "discharge"). NRS
Chapter 202 does not define the term discharge. However, the commonly
understood meaning, in the context of a firearm, is the act of the bullet
leaving the weapon. See Discharge, Merriam-Webster's Collegiate
Dictionary (11th ed. 2011) (defining "discharge" as "go off, fire").
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Our conclusion that the unit of prosecution is the act of the
bullet leaving the weapon is supported by a similar statute, NRS
476.070(1), and by the statutory definition of a "firearm." NRS 476.070(1)
provides that "fairly person who discharges any bullet, projectile or
ammunition of any kind which is tracer or incendiary in nature on any
grass, brush, forest or crop-covered land is guilty of a misdemeanor."
Similarly, NRS 202.253(2) defines "[f]irearm" as "any device designed to
be used as a weapon from which a projectile may be expelled through the
barrel by the force of any explosion or other form of combustion." The use
of single nouns—"bullet," "projectile," and "ammunition" in NRS
476.070(1) and "a projectile" in NRS 202.253(2)—demonstrates the fact
that "discharges," as used in NRS 202.285(1), "contemplates a discrete
shot or explosion." Rasabout, 356 P.3d at 1263-64 (examining Utah's
statutory definition of a firearm and a handgun, which are defined,
respectively, as "any device. . . from which is expelled a projectile by
action of an explosive" and "a firearm of any description ... from which
any shot, bullet, or other missile can be discharged" (alterations in
original) (internal quotation marks omitted)).
Therefore, we conclude that "discharges," as used in NRS
202.285(1), is not ambiguous, see Catanio, 120 Nev. at 1033,
102 P.3d at
590, and that it is the Legislature's intent to separately punish each time
a bullet leaves the gun under NRS 202.285(1), see Wilson, 121 Nev. at 355,
114 P.3d at 292. 3 Accordingly, we further conclude that Washington's ten
convictions for discharging a firearm are not redundant.
3 We are not asked in this case to determine the unit of prosecution
under NRS 202.285(1) where a fully automatic firearm is used. See
generally State v. Rasabout, 356 P.3d 1258, 1264 n.25 (Utah 2015)
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Sufficiency of the evidence
When reviewing a challenge to the sufficiency of the evidence,
we must determine "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Rose v. State,
123 Nev. 194, 202,
163 P.3d 408, 414 (2007) (internal quotation marks
omitted). "Where. . . there is substantial evidence to support the jury's
verdict, it will not be disturbed on appeal." Bolden v. State, 97 Nev. 71,
73,
624 P.2d 20, 20 (1981).
The jury is tasked with "assess [ing] the weight of the evidence
and determin[ing] the credibility of witnesses." Rose, 123 Nev. at 202-03,
163 P.3d at 414 (internal quotation marks omitted). And a jury is free to
rely on both direct and circumstantial evidence in returning its verdict.
Wilkins v. State, 96 Nev. 367, 374,
609 P.2d 309, 313 (1980). This court
has consistently held that "circumstantial evidence may constitute the sole
basis for a conviction." Canape v. State, 109 Nev. 864, 869,
859 P.2d 1023,
1026 (1993).
First-degree murder
"Murder is the unlawful killing of a human being [w]ith
malice aforethought, either express or implied." NRS 200.010(1); see also
Collman v. State, 116 Nev. 687, 719-20,
7 P.3d 426, 447 (2000) ("[T]o
. . • continued
(describing "fully automatic weapon" based on definition in Utah statute
as a firearm that is designed or modified to shoot automatically more than
one shot, without manually reloading, by a single function of the trigger
and suggesting that for purpose of unlawful-discharge-of-a-firearm
statute, it does not matter how many times the trigger is pulled but
instead how many "explosion [s]" there are).
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establish that a killing is [first-degree] murder. . . , the State must prove
that the killer acted with malice aforethought, i.e., with the deliberate
intention unlawfully to take life or with an abandoned and malignant
heart ") Express malice is defined as the "deliberate intention unlawfully
to take away the life of a fellow creature, which is manifested by external
circumstances capable of proof." NRS 200.020(1). Whereas "Emlalice shall
be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart."
NRS 200.020(2). "Malice may be inferred from an act done in willful
disregard of the rights of another, or an act wrongfully done without just
cause or excuse, or an act or omission of duty betraying a willful disregard
of social duty." NRS 193.0175. "Malice aforethought may be inferred from
the intentional use of a deadly weapon in a deadly and dangerous
manner." Moser v. State, 91 Nev. 809, 812,
544 P.2d 424, 426 (1975).
Based on how Washington was charged, the jury was also
required to find that he committed a "willful, deliberate and premeditated
killing." NRS 200.030(1)(a). "[Willful first-degree murder requires that
the killer actually intend to kill." Byford v. State, 116 Nev. 215, 234,
994
P.2d 700, 713 (2000). "Deliberation requires a thought process and a
weighing of the consequences [, and p]remeditation is a design, a
determination to kill, distinctly formed in the mind by the time of the
killing." Valdez v. State, 124 Nev. 1172, 1196,
196 P.3d 465, 481 (2008)
(internal quotation marks and footnotes omitted). "Evidence of
premeditation and deliberation is seldom direct." Brian° v. State, 94 Nev.
422, 425,
581 P.2d 5, 7 (1978). Intent "is manifested by the circumstances
connected with the perpetration of the offense." NRS 193.200; see also
Valdez, 124 Nev. at 1197,
196 P.3d at 481 ("[I]ntent can rarely be proven
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by direct evidence of a defendant's state of mind, but instead is inferred by
the jury from the individualized, external circumstances of the crime."
(internal quotation marks omitted)). "[Me intention to kill may be
ascertained or deduced from the facts and circumstances of the killing,
such as the use of a weapon calculated to produce death, the manner of the
use, and the attendant circumstances characterizing the act." Moser, 91
Nev. at 812,
544 P.2d at 426.
Based on the theory pursued by the State in this case, it could
not rely on implied malice and, instead, had to prove that Washington
actually intended to kill someone. Washington argues that the State
failed to prove he acted willfully, deliberately, with malice, or with
premeditation because he had no plan to kill or harm the victims, he did
not know the victims, and he did not know there were people inside the
apartment. 4 We disagree.
Intent to kill can be inferred from the circumstances
surrounding the killing. Due to the nature of the structure, a residential
building in a populated area of town, and the time of day, 4:35 a.m., the
jury could infer that Washington knew or reasonably should have known
that the apartment was occupied. We conclude that firing multiple bullets
into an occupied structure demonstrates intent to kill such that any
rational juror could reasonably infer that Washington acted with express
malice and that his actions were willful. With regard to deliberation and
4 Thomas and Hill both testified that during their time at the
apartment, they did not fight with anyone and did not observe the others
in the apartment having problems with anyone. Additionally, Thomas,
Scott, and Hill all testified that they did not know Washington.
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premeditation, the State presented circumstantial evidence at trial
showing that Washington drove to the apartment complex with a handgun
in the vehicle and that the handgun was discharged numerous times into
the inhabited apartment without provocation. Based on this evidence, we
conclude that the jury could reasonably infer that Washington's actions
were deliberate and premeditated. Accordingly, we conclude that the
State sufficiently proved the elements of first-degree murder such that any
rational juror could have found Washington guilty beyond a reasonable
doubt. See Rose, 123 Nev. at 202,
163 P.3d at 414.
Attempted murder
In order to prove attempted murder, the State is required to
prove "the performance of an act or acts which tend, but fail, to kill a
human being, when such acts are done with express malice, namely, with
the deliberate intention unlawfully to kill." Keys v. State, 104 Nev. 736,
740,
766 P.2d 270, 273 (1988) ("An attempt, by nature, is a failure to
accomplish what one intended to do."). Based on our previous conclusion
that the jury could infer that Washington acted with express malice and
the fact that Washington fired multiple bullets that failed to kill Hill,
Thomas, and Scott, we conclude that the State sufficiently proved the
elements of attempted murder such that any rational juror could have
found Washington guilty beyond a reasonable doubt. See Rose, 123 Nev.
at 202,
163 P.3d at 414.
Conspiracy to commit murder
"A conspiracy is an agreement between two or more persons
for an unlawful purpose." Doyle v. State, 112 Nev. 879, 894,
921 P.2d 901,
911 (1996), overruled on other grounds by Kaczmarek v. State,
120 Nev.
314, 333,
91 P.3d 16, 29 (2004). "A person who knowingly does any act to
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further the object of a conspiracy, or otherwise participates therein, is
criminally liable as a conspirator. . . ." Id. Even though "mere association
is insufficient to support a charge of conspiracy," Sanders v. State, 110
Nev. 434, 436,
874 P.2d 1239, 1240 (1994), "proof of even a single overt act
may be sufficient to corroborate a defendant's statement and support a
conspiracy conviction," Doyle, 112 Nev. at 894,
921 P.2d at 911.
"[C]onspiracy is usually established by inference from the conduct of the
parties." Rowland v. State, 118 Nev. 31, 46,
39 P.3d 114, 123 (2002).
Shortly after the shooting, the police conducted a vehicle stop.
Washington was the driver of the vehicle, and Moten was a passenger.
The witnesses who saw the vehicle, a silver Dodge Magnum, leaving the
scene of the shooting were brought to the vehicle stop and identified the
vehicle as the silver Dodge Magnum they observed leaving the area of the
shooting. The shell casings found at the crime scene matched the two
handguns found in the vehicle. Based on this evidence, we conclude that
the State sufficiently proved the existence of a conspiracy.
Because "conspiracy is a specific intent crime," the State was
also required to prove that Washington had "the intent to agree or
conspire and the intent to commit the offense that is [the] object of the
conspiracy." 15A C.J.S. Conspiracy § 126 (2012). Accordingly, the State
was required to prove that Washington had the intent to kill. Based on
our previous conclusion that the jury could infer that Washington acted
with intent to kill and the fact that the parties' intent to conspire is
demonstrated by the existence of a conspiracy, we conclude that the State
sufficiently proved the elements of conspiracy to commit murder such that
any rational juror could have found Washington guilty beyond a
reasonable doubt. See Rose, 123 Nev. at 202,
163 P.3d at 414.
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Discharging a firearm
"A person who willfully and maliciously discharges a firearm
at or into any [structure] . . . is guilty of a category B felony" if the
structure is occupied or a misdemeanor if the structure is abandoned.
NRS 202.285(1)(a), (b). Because NRS 202.285(1)'s penalties are based on
whether the structure is occupied, Washington argues that the State was
required to prove that he knew or had reason to know that the apartment
was inhabited. Even assuming that is what the State had to prove, the
circumstantial evidence is sufficient to prove that Washington knew or
should have known that the structure was occupied. The evidence at trial
established that two firearms were willfully and maliciously discharged
into the apartment. Moreover, there was sufficient evidence presented to
show that the apartment was not abandoned. Thomas testified that the
television was left on, and the apartment was located in a populated
complex. This evidence shows that Washington should have known that
the apartment may have been occupied. Further, an LVMPD forensic
analyst testified that seven shell casings found outside the apartment and
seven bullet fragments found inside the apartment matched the Glock
handgun found in the steering column of the vehicle, and six shell casings
found outside the apartment matched the Smith & Wesson found under
the front passenger seat of the vehicle. Based on the evidence adduced at
trial, we conclude that the State sufficiently proved the elements of
discharging a firearm into a structure such that any rational juror could
have found Washington guilty beyond a reasonable doubt. See Rose, 123
Nev. at 202,
163 P.3d at 414.
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The criminal information
Washington argues that reversal is required because the
criminal information was defective in referring to an unnamed
coconspirator whose existence the State never proved. Because the
sufficiency of the indictment was challenged only after all the evidence
was presented at trial, we apply a reduced standard such that Washington
must demonstrate that his substantial rights were affected. See State v.
Jones, 96 Nev. 71, 74,
605 P.2d 202, 204 (1980).
In count 1 of the second amended criminal information, the
State alleged as follows: "Defendant MATTHEW WASHINGTON and
MARTELL MOTEN along with an unnamed coconspirator, did then and
there meet with each other and between themselves and each of them with
the other, willfully, unlawfully and feloniously conspire and agree to
commit a crime." (Emphasis added.) The State alleged the same alternate
theories of liability in each of counts 2 through 7 of the second amended
information: "(1) by directly committing said act, and/or (2) by Defendant
MATTHEW WASHINGTON and MARTELL MOTEN and/or unnamed
coconspirator, aiding or abetting each other. . . and/or (3) Defendant
MATTHEW WASHINGTON and MARTELL MOTEN and an unnamed
coconspirator, conspiring with each. ." 5 (Emphases added.) Similarly,
the theories of liability for counts 8 through 17, discharging a firearm,
alleged as follows: "(1) by directly committing said act, and/or (2) by
Defendant MATTHEW WASHINGTON and MARTELL MOTEN and/or
5 Counts 2 through 7 include 1 count of murder with use of a deadly
weapon, 3 counts of attempted murder with use of a deadly weapon, and 2
counts of battery with use of a deadly weapon.
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unnamed coconspirator, aiding or abetting each other. . . , and/or (3)
pursuant to a conspiracy to commit this crime." (Emphasis added.)
The United States Supreme Court has stated that "at least
two persons are required to constitute a conspiracy, but the identity of the
other members of the conspiracy is not needed, inasmuch as one person
can be convicted of conspiring with persons whose names are unknown."
Rogers v. United States, 340 U.S. 367, 375 (1951). Because Rogers does
not require the identity of unknown conspiracy members to be proven, we
conclude that Washington's second amended criminal information was not
defective. As a result, Washington has failed to demonstrate substantial
prejudice and reversal is not warranted on this basis.
Accordingly, for the reasons set forth above, we affirm the
judgment of conviction. 6
divs-t-‘
Hardesty
We concur:
J.
Saitta
, J.
8 Washington also argues that cumulative error entitles him to a new
trial. However, because Washington has failed to demonstrate any error,
we conclude that he was not deprived of a fair trial due to cumulative
error.
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