132 Nev., Advance Opinion /06
IN THE SUPREME COURT OF THE STATE OF NEVADA
STELLA LOUISE SINDELAR, No. 68789
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. SEP 29 2016
TRACE K. LINDEMAN
CL 0 SUPREME CO,LIRT
BY
CHI CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of driving while under the influence, a felony. Seventh Judicial
District Court, White Pine County; Steven Dobrescu, Judge.
Affirmed.
Sears Law Firm, Ltd., and Richard W. Sears, Ely,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Michael A. Wheable,
District Attorney, White Pine County,
for Respondent.
BEFORE CHERRY, DOUGLAS and GIBBONS, JJ.
OPINION
By the Court, CHERRY, J.:
Under Nevada law, a person's third conviction within seven
years for driving under the influence (DUI) is a category B felony. NRS
484C.400(1)(c). Once a person has been convicted of felony DUI under the
laws of this state or any other jurisdiction that prohibits the same or
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similar conduct, any subsequent DUI committed in Nevada is a category B
felony, regardless of how much time has passed since the prior felony
conviction. NRS 484C.410(1)(a), (d). The issue presented in this appeal is
whether a felony DUI under Utah's statute that makes a third DUI
conviction within ten years a felony can be used to make a subsequent
DUI offense in Nevada a category B felony under NRS 484C.410. We hold
that although the recidivism window is longer in Utah, the conduct
required to violate the law is "the same or similar" as the conduct required
in Nevada. Accordingly, a prior felony DUI in Utah satisfies NRS
484C.410(d) for the purposes of adjudicating any subsequent violation of
NRS 484C.110 or 484C.120 as a felony. Because this and appellant Stella
Sindelar's other claims lack merit, we affirm the judgment of conviction.
FACTS AND PROCEDURAL HISTORY
On December 28, 2002, Stella Sindelar was cited for driving
under the influence of alcohol in Utah. Because she had at least two prior
DUI convictions within the preceding ten years, the offense was a thirddegree felony under Utah law.' See Utah Code Ann. § 41-6-44(6)(a)(i)
(LexisNexis 1998). 2 On May 10, 2004, Sindelar pleaded guilty to the
felony charge, spent 62 days in a Utah jail, and had her prison sentence
suspended.
In March 2013, Sindelar was arrested for suspicion of driving
under the influence of alcohol in Ely. While in custody, police drew
"The record is unclear as to the exact dates of the two prior DUI
convictions; however, at least one such conviction occurred more than
seven years before the 2002 arrest, but less than ten years.
2Under current Utah law, the DUI recidivism statute has been
recodified as Utah Code § 41-6a-503(2)(b).
2
Sindelar's blood to test for alcohol; the test results were positive. The
State subsequently charged Sindelar with felony DUI because of her 2004
felony conviction in Utah. She was convicted after a two-day jury trial. At
sentencing, the district court determined that Sindelar's 2004 felony DUI
conviction in Utah was a violation involving "the same or similar conduct"
as Nevada's felony DUI statute and adjudicated the current offense as a
category B felony. The district court sentenced Sindelar to a term of 30 to
75 months in prison.
DISCUSSION
Sindelar makes only two arguments on appeal. First, she
argues that the 2004 DUI conviction would have only been a misdemeanor
had it occurred in Nevada, rather than Utah, and therefore the instant
offense should not have been adjudicated as a felony under NRS 484C.410.
Second, Sindelar argues that the State committed prosecutorial
misconduct during her trial.
Utah's DUI laws contain a longer recidivism window but punish the same
or similar conduct as Nevada's DUI laws
Sindelar argues that using her 2004 felony conviction to
enhance the instant DUI to a felony is improper because, despite the fact
that the 2004 conviction was a felony in Utah, it would have been a
misdemeanor under Nevada law. The State argues that although Nevada
has a shorter window to enhance a third DUI to a felony, the critical
inquiry is whether both statutes punish the same conduct, i.e., repeat DUI
offenses. We agree with the State.
To sustain a felony conviction for DUI in Nevada based on
Sindelar's Utah DUI conviction, the Utah statute must punish the same or
similar conduct as that proscribed by NRS 484C.110. That issue is a
question of law; therefore, we review it de novo. Nay v. State, 123 Nev.
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mitz
326, 330, 167 P.3d 430, 433 (2007). The criminalized conduct need not be
identical in order to satisfy NRS 484C.410(1)(d). Blume v. State,
112 Nev.
472, 475,
915 P.2d 282, 284 (1996). The conduct may merely be the same
"kind or species."
Id. In Blume, we considered whether California's DUI
statute punishing driving with a blood-alcohol concentration of 0.08 or
higher constitutes the same or similar conduct as Nevada's DUI laws,
even though Nevada's DUI statutes then utilized a higher minimum
blood-alcohol concentration of 0.10.
Id. at 474,
915 P.2d at 283. We
concluded that "driving under the influence of intoxicating liquor in
California, even though the blood alcohol weight in California [was] 0.02
percent lower than in Nevada constitute[d] the same or similar conduct'
as driving under the influence of intoxicating liquor in Nevada."
Id. at
475,
915 P.2d at 284 (quoting Jones v. State,
105 Nev. 124, 126-27,
771
P.2d 154, 155 (1989)).
Here, the prohibited conduct is essentially the same in
Nevada's law and Utah's law. Utah prohibits driving while incapable of
safely operating a vehicle due to alcohol consumption. Utah Code Ann.
§ 41-6-44(2)(a) (LexisNexis 1998). Nevada prohibits driving under the
influence of intoxicating liquor. NRS 484C.110(1). Both states prohibit
driving with a blood-alcohol concentration at or above 0.08. Id.;
Utah Code
Ann. § 41-6-44(2)(a) (LexisNexis 1998). Additionally, both states classify a
third offense within a statutorily prescribed recidivism window as a
felony, the only difference being that Nevada's recidivism window is seven
years, NRS 484C.400(1)(c), while Utah's recidivism window is ten years,
Utah Code Ann. § 41-6-44(6)(a)(i) (LexisNexis 1998). The length of the
recidivism window, however, does not change the offending conduct.
Because Utah's DUI recidivism statute prohibits the same or similar
4
conduct as NRS 484C.110(1) and NRS 484C.400(1)(c), Sindelar's Utah
felony conviction satisfies NRS 484C.410(1)'s mandate that the instant
offense be deemed a category B felony. Accordingly, the district court
correctly adjudicated Sindelar's instant offense as a felony.
Sindelar's prosecutorial misconduct claims are without merit
Sindelar argues that the prosecutor committed misconduct by
objecting to the defense's cross-examination of a prosecution witness
regarding Sindelar's liberty interests and by arguing that defense counsel
"leashed in" witnesses during cross-examination and wanted the jury to
focus on irrelevant facts, draw fancy inferences, and imagine doubt based
on speculation. We disagree.
Sindelar did not object to any of the alleged instances of
prosecutorial misconduct at trial. Accordingly, we review for plain error.
Valdez v. State, 124 Nev. 1172, 1190,
196 P.3d 465, 477 (2008) ("When an
error has not been preserved, this court employs plain-error review.").
Under plain-error review, "an error that is plain from a review of the
record does not require reversal unless the defendant demonstrates that
the error affected his or her substantial rights, by causing actual prejudice
or a miscarriage of justice." Id. (internal quotations omitted). We begin by
"determin[ing] whether the prosecutor's conduct was improper."
Id. at
1188,
196 P.3d at 476 (footnotes omitted).
The first challenged conduct—the State's objection to defense
counsel's line of questioning during cross-examination of the arresting
officer—was not improper. At trial, defense counsel asked the arresting
officer if he understood that the case was important because it affected
Sindelar's "liberty interests." The State objected, arguing that considering
the defendant's "liberty interests" was not within the jury's function. The
5
trial court sustained the objection. A jury is tasked with finding whether,
as a matter of fact, the State has proven each element of the charged
offense(s) beyond a reasonable doubt. Rose v. State, 123 Nev. 194, 202,
163 P.3d 408, 414 (2007). In doing so, a jury may "assess the weight of the
evidence and determine the credibility of witnesses." Id. at 202-03,
163
P.3d at 414 (internal quotation marks omitted). Discussion of Sindelar's
"liberty interests" is irrelevant to whether she committed the offense and
would only serve to confuse or inflame the jury. NRS 48.035. Therefore,
questions regarding Sindelar's "liberty interest" should not have been
asked in front of the jury. As such, the State was well within its right to
object to defense counsel's line of questioning regarding "liberty interests."
Moreover, Sindelar fails to demonstrate that her inability to question
witnesses regarding her "liberty interests" prejudiced her substantial
rights.
The challenged comments during closing argument also were
not improper. The State argued that certain witnesses were prevented
from giving full answers on cross-examination because defense counsel
prevented them from answering beyond the scope of his questions.
Although the State used the phrase "leashed in" when describing how
defense counsel handled the two witnesses, the State did not compare
defense counsel to a dog handler, as Sindelar alleges. Although the State
could have as easily said something like "prevented" or "reigned in," its
choice of words is not plainly prejudicial, nor does Sindelar indicate how
those words prejudiced her substantial rights.
Finally, Sindelar's allegation that the State committed
misconduct when it argued that the defense wanted the jury to focus on
the arresting officer's conduct, rather than the elements of the charged
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offense, is unpersuasive. Defense counsel sought to discredit the arresting
officer by arguing that he never had the requisite reasonable suspicion to
stop Sindelar, let alone probable cause to arrest her. Those issues of law
were decided before trial and were not for the jury to consider. See Rose,
123 Nev. at 202,
163 P.3d at 414. Because the issue of reasonable
suspicion to stop Sindelar was outside the jury's scope, the State was well
within its right to try to refocus the jury on the elements of the offense and
whether the State proved those elements beyond a reasonable doubt.
Therefore, Sindelar has not demonstrated plain error affecting her
OZr substantial rights. Accordingly we order the judgment of conviction
,.
affirmed.
Cherry
We concur:
Douglas
Gibbons
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