132 Nev., Advance Opinion 41
IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES DAEVON MANNING, No. 65856
Appellant,
vs.
THE STATE OF NEVADA,
ALE
Respondent. SEP 1 5 2016
TRACIE K. LINDEMAN
CL F SPDREME COUR
BY
CHIEF DEP -
Appeal from a judgment of conviction, pursuant —to a jury
• verdict, of battery with intent to commit a crime. Eighth Judicial District
Court, Clark County; Douglas W. Herndon, Judge.
Reversed and remanded.
Philip J. Kohn, Public Defender, and William M. Waters, Deputy Public
Defender, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Ofelia L. Monje, Deputy District Attorney, Clark County,
for Respondent.
BEFORE THE COURT EN BANC.'
'The Honorable Nancy M. Saitta, Justice, having retired, this matter
was decided by a six-justice court.
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OPINION
By the Court, PARRAGUIRRE, C.J.:
In this case, we are asked to determine whether appellant
requested a lesser-included-offense instruction at trial and, if so, whether
the district court erred in failing to provide the jury with such an
instruction. We hold that appellant sufficiently requested an instruction
on battery as a lesser-included offense of battery with intent to commit a
crime and that the district court erred in denying appellant's request.
Therefore, we reverse the judgment of conviction and remand for a new
trial. Furthermore, although a district court may settle jury instructions
in chambers pursuant to NRS 175.161(6), we advise the district courts to
solicit written copies of proposed instructions in order to ensure a clear
record on appeal.
FACTS
On March 29, 2013, appellant James Manning caused 62-yearold Thor Berg to fall down on a crowded bus. The details of this incident
were disputed: Berg testified that he had felt a hand reach into his right
pocket, and that a knee was pushed against the back of his leg; Manning
admitted that he had walked past Berg "rough," which caused Berg to fall,
but claimed that he did not take anything from Berg or reach into Berg's
pocket. Nonetheless, the contents of Berg's pocket went missing, including
his identification, casino player's cards, and a small amount of cash. The
State charged Manning with robbery, victim 60 years of age or older, and
battery with intent to commit a crime (robbery).
In settling jury instructions, the district court asked defense
counsel if she had any instructions the court was declining to give to the
jury that she wanted marked as court exhibits. The following exchange
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took place:
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MS. PENSABENE: the last one your Honor,
the last issue is that we had asked for a lesser
included in this case. We are of the belief, based
on the testimony of Mr. Berg and Ms. Borley's
testimony it shows that the battery in this case is
the force required in the robbery. We'd like that
also included.
THE COURT: The previous discussion we
had on that was if I recall correctly I said that it
may be that you can argue if he gets convicted of
both crimes that the battery was subsumed into
the force necessary to commit the robbery. I don't
think that makes the battery a lesser included
offen[s]e. It just make[s] the defense apply the
alternative.
So they can only adjudicate him on one or the
other. So I'm very open to having that discussion if
they convict. I think the State is entitled to put
both charges forward. If the jury returns a verdict
as to both, we'll speak about sentencing and
adjudication. It may be he gets adjudicated on one.
After a three-day trial, the jury found Manning not guilty of
robbery and guilty of battery with intent to commit a crime (robbery).
Manning now appeals the judgment of conviction.
DISCUSSION
Manning argues, inter alia, that he requested an instruction on
battery as a lesser-included offense of battery with intent to commit a
crime, and that the district court erred when it failed to give the
instruction. We agree. "The district court has broad discretion to settle
jury instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error." Crawford v. State, 121 Nev. 744,
748,
121 P.3d 582, 585 (2005).
We take this opportunity to stress that a district court should
solicit written copies of a party's proposed instructions when settling jury
instructions. The above dialogue was the only information preserved
regarding Manning's attempt to receive a lesser-included-offense
instruction. The district court did ask for a written copy of some of
Manning's rejected instructions, and Manning filed a document titled
"Defendant's Proposed Jury Instructions Not Used At Trial." However, the
district court did not ask for a written copy of Manning's lesser-included-offense instruction, and Manning did not include the relevant instruction
in his filing with the district court. Therefore, we must attempt to identify
the nature of Manning's request from the context in which it was made.
Manning was charged with robbery and battery with intent to
commit a crime. It is clear from the record that Manning sought an
instruction on battery, and that Manning believed he was seeking a lesser-included-offense instruction. In addition, the parties concede that battery
is not a lesser-included offense of robbery. 2 Therefore, Manning's request
can reasonably be understood as a request for an instruction on battery as
a lesser-included offense of battery with intent to commit a crime, despite
the apparent confusion surrounding Manning's request. 3
2See Barton v. State, 117 Nev. 686, 694,
30 P.3d 1103, 1108 (2001)
(defining a lesser-included offense as an offense whose elements are "an
entirely included subset of the elements of the charged offense," such that
the charged offense cannot be committed without also committing the
lesser offense), overruled on other grounds by Rosas v. State, 122 Nev.
1258, 1266 & n.22, 1269,
147 P.3d 1101, 1107 & n.22, 1109 (2006); see also
NRS 200.380(1) (defining robbery in part as "the unlawful taking of
personal property from the person of another. . . by means of force or
violence or fear of injury, immediate or future, to his or her person or
property"); NRS 200.481(1)(a) (defining battery as "any willful and
unlawful use of force or violence upon the person of another").
3 It appears the district court understood Manning's concern as one
regarding the possibility of redundant convictions. We also note that
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Furthermore, we hold that the district court committed judicial
error in failing to provide the battery instruction. NRS 175.501 states in
part that a "defendant may be found guilty . . . of an offense necessarily
included in the offense charged." Accordingly, this court has held that "a
defendant is entitled to a jury instruction on a lesser-included offense if
there is any evidence at all, however slight, on any reasonable theory of the
case under which the defendant might be convicted of that offense." Rosas,
122 Nev. at 1264-65,
147 P.3d at 1106 (internal quotation marks omitted).
Although a defendant need not demonstrate that a requested
lesser-included-offense instruction would be consistent with his or her
testimony or theory of defense, id. at 1269,
147 P.3d at 1109, here, a
battery instruction would have been entirely consistent with Manning's
theory of defense. At trial, Manning admitted that he made physical
contact with Berg when he walked "past him rough," and that Berg fell as
a result. However, Manning denied attempting to take anything from
Berg's pocket. Likewise, defense counsel argued in closing that Manning
"pushed into the old man," and that doing so "was really rude," but that
Manning never attempted to take any of Berg's possessions. Given
Manning's testimony, there was some evidence, however slight, to support
the theory that Manning committed a simple battery. See Williams v.
State, 99 Nev. 530, 531,
665 P.2d 260, 261 (1983) ("Evidence from the
defendant alone need not be supported by other independent evidence.").
Therefore, we hold that Manning was entitled to an instruction
on battery as a lesser-included offense of battery with intent to commit a
...continued
defense counsel failed to correct the district court's•misapprehension.
Nonetheless, Manning clearly articulated a request for a lesser-included-offense instruction, and the district court should have addressed it as such.
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crime, and that the district court erred in declining to give such an
instruction. Furthermore, we reject the State's argument that the district
court's error was harmless. See McCraney v. State, 110 Nev. 250, 255,
871
P.2d 922, 925 (1994) ("Failure to instruct the jury on a theory of the case
supported by the evidence presented is reversible error."); see also
Williams, 99 Nev. at 531,
665 P.2d at 261 ("If a defense theory of the case
is supported by some evidence which, if believed, would support a
corresponding jury verdict, failure to instruct on that theory totally
removes it from the jury's consideration and constitutes reversible error.").
Accordingly, we reverse Manning's jud ment of conviction and remand the
matter for a new tria1. 4
, C.J.
Parraguirre
We concur:
Hardesty
Douglas
er
Gibbous
ickering
13P141214;l
Because we reverse Manning's conviction on this ground, we need
4
not address his remaining arguments. See Manuela H. v. Eighth Judicial
Dist. Court, 132 Nev., Adv. Op. 1, 365 P.3d 497, 502 n.4 (2016).
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