133 Nev., Advance Opinion 2.0
IN THE SUPREME COURT OF THE STATE OF NEVADA
TOMMY LAQUADE STEWART, No. 70069
Appellant,
vs. FILE
THE STATE OF NEVADA,
Respondent. MAY 0 4 2017
F DLPpli CLE
Appeal from a judgment of conviction, pursuant to (a jury
verdict, of conspiracy to commit robbery, burglary, robbery, and first-degree kidnapping. Eighth Judicial District Court, Clark County; Valerie
Adair, Judge.
Affirmed.
Marchese Law Offices, PC, and Jess R. Marchese, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, and Jonathan VanBoskerck, Chief Deputy District
Attorney, Clark County,
for Respondent.
BEFORE DOUGLAS, GIBBONS and PICKERING, JJ.
OPINION
By the Court, GIBBONS, J.:
In this appeal, we are asked to analyze issues related to dual
convictions for first-degree kidnapping and robbery, as well as the
sufficiency of the warning given pursuant to Miranda v. Arizona, 384 U.S.
436 (1966). Appellant Tommy Stewart, along with another unidentified
SUPREME COURT
OF
NEVADA
(0) I947A
- 1 42) 1 L
man, demanded entry into victim Natasha Lumba's apartment at
gunpoint, ordered Lumba to lie face down in her bedroom while being
guarded, and stole electronics, cash, and other personal items from the
apartment. After a three-day jury trial, Stewart was found guilty on all
counts and given a sentence of life with the possibility of parole. On
appeal, Stewart argues that (1) there was insufficient evidence to support
a conviction of both robbery and kidnapping and (2) the Miranda warning
given by police was legally insufficient.
We hold that (1) there was sufficient evidence to support
Stewart's convictions for kidnapping and robbery and (2) the Miranda
warning was legally sufficient. Accordingly, we affirm the district court's
judgment of conviction.
FACTS AND PROCEDURAL HISTORY
The crime
On January 20, 2015, Stewart and another unidentified man
approached Lumba as she entered her apartment, held her at gunpoint,
and told her to let them into the apartment. Once in the apartment, the
men told Lumba to lie face down on the ground in the back bedroom. The
men took turns guarding Lumba while ransacking her apartment and
looking for things to steal. While Lumba was on the floor, one of the
attackers put his hand under her bra and underwear to search for money
or items she might have concealed.
After approximately 10 or 15 minutes, the two men finished
their search of the apartment. Just before leaving, the two men told
Lumba not to call the police or they would come back to kill her. The two
men left Lumba's apartment, taking with them various electronics and
cash. Lumba later called 911, and Las Vegas Metropolitan Police
Department (LVMPD) personnel arrived on scene.
SUPREME COURT
OF
NEVADA
2
(0) 19474 ce
The investigation
During their investigation, LVMPD evidence technicians
found Stewart's fingerprints on Lumba's jewelry box. Additionally,
LVMPD detectives conducted a follow-up interview and photographic
lineup, wherein Lumba identified two potential suspects, one of whom was
Stewart. The LVMPD located Stewart and detained him for further
questioning.
The interrogation
Prior to questioning, an LVMPD detective read Stewart the
warning from the LVMPD Miranda card:
You have the right to remain silent. Anything you
say can be used against you in a court of law. You
have the right to have the presence of an attorney
during questioning. If you cannot afford an
attorney one will be appointed before questioning.
Do you understand these rights?
Stewart indicated that he understood his rights and agreed to talk with
the detective. Stewart initially denied being at Lumba's apartment but
later admitted to being there after being confronted with the fingerprint
evidence. Stewart admitted to being in Lumba's apartment on the night
in question with another man and admitted to stealing her personal
effects, but Stewart stated that he had not entered the bedroom.
The trial
The State charged Stewart with conspiracy to commit robbery,
burglary while in possession of a firearm, robbery with use of a deadly
weapon, and first-degree kidnapping with use of a deadly weapon.
Stewart filed two pretrial motions to suppress his statement to
LVMPD detectives, arguing that the LVMPD's Miranda warning was
legally insufficient. The district court denied both motions.
SUPREME COURT
OF
NEVADA
3
(0) 1947A
After a three-day trial, the jury found Stewart guilty on all
counts. Stewart was sentenced to life with the possibility of parole, and he
then filed the instant appeal.
ANALYSIS
Sufficient evidence exists to support Stewart's dual convictions of first-degree kidnapping and robbery
Stewart challenges the evidence underlying the first-degree
kidnapping conviction, arguing his conviction for first-degree kidnapping
is not supported by the evidence because the movement of Lumba was
incidental to the robbery, it did not substantially increase the risk of harm
to her, nor did it go beyond that contemplated for completion of the
robbery. We disagree.
In order to determine "whether a verdict was based on
sufficient evidence to meet due process requirements, this court will
inquire 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." Mitchell v. State, 124
Nev. 807, 816,
192 P.3d 721, 727 (2008) (internal quotation marks
omitted). "The jury's verdict will not be disturbed on appeal when there is
substantial evidence supporting it." Brass v. State, 128 Nev. 748, 754,
291
P.3d 145, 150 (2012).
The crime of first-degree kidnapping is described in NRS
200.310(1), while the crime of robbery is defined in NRS 200.380. A
conviction for first-degree kidnapping requires that a "person. .. willfully
seizes, confines, . . . conceals, kidnaps or carries away a person by any
means whatsoever . . . for the purpose of committing. . . robbery upon or
from the person." NRS 200.310(1). A conviction for robbery requires "the
unlawful taking of personal property from the person of
SUPREME COURT
OF
NEVADA
4
(0) I947A
another. . . against his or her will, by means of force or violence or fear of
injury, immediate or future, to his or her person or property." NRS
200.380. Dual convictions under both statutes are permitted based upon
the same conduct. Mendoza v. State, 122 Nev. 267, 274-75,
130 P.3d 176,
180 (2006). However, in such cases:
[Ti o sustain convictions for both robbery and
kidnapping arising from the same course of
conduct, any movement or restraint must stand
alone with independent significance from the act
of robbery itself, create a risk of danger to the
victim substantially exceeding that necessarily
present in the crime of robbery, or involve
movement, seizure or restraint substantially in
excess of that necessary to its completion.
Id. at 275,
130 P.3d at 181. In general, "[wthether the movement of the
victim is incidental to the associated offense and whether the risk of harm
is substantially increased thereby are questions of fact to be determined
by the trier of fact in all but the clearest cases." Curtis D. v. State, 98 Nev.
272, 274,
646 P.2d 547, 548 (1982); see also Gonzales v. State, 131 Nev.,
Adv. Op. 49, 354 P.3d 654, 666 (Ct. App. 2015).
Here, we conclude that there is sufficient evidence to support
Stewart's dual convictions for robbery and first-degree kidnapping. The
jury heard evidence that Stewart took Lumba's personal property against
her will by means of force, violence, or fear of injury. Further, the jury
heard evidence that Lumba's movement substantially exceeded the
movement necessary to complete the robbery and/or substantially
increased the harm to her. Indeed, Lumba was accosted as she entered
her residence, taken to the back bedroom, guarded at gunpoint, face down,
while Stewart and the other suspect rummaged through her house and
stole her belongings. Whether Lumba's movement was incidental to the
SUPREME COURT
OF
NEVADA
5
(0) 1947A e
robbery, and whether the risk of harm to her was substantially increased,
are questions of fact to be determined by the jury in "all but the clearest of
cases." Curtis D., 98 Nev. at 274,
646 P.2d at 548. This is not one of the
"clearest of cases" in which the jury's verdict must be deemed
unreasonable; indeed, a reasonable jury could conclude that Stewart
forcing Lumba from her front door into her back bedroom substantially
exceeded the movement necessary to complete the robbery and that
guarding Lumba at gunpoint substantially increased the harm to her. We
conclude that the evidence presented to the jury was sufficient to convict
Stewart of both robbery and first-degree kidnapping.
The district court did not err in denying Stewart's motion to suppress
statements made to police because the Miranda warning given to Stewart
was sufficient
Stewart argues the Miranda warnings given to him failed to
advise him that he could consult with an attorney before and during
interrogation. Stewart contends the warnings simply indicated that he
had the right to an attorney, while failing to convey directly or indirectly,
that he could actively consult with that attorney throughout the
questioning. We disagree.
Miranda establishes procedural safeguards "to secure and
protect the Fifth Amendment privilege against compulsory selfincrimination during the inherently coercive atmosphere of an in-custody
interrogation." Dewey v. State, 123 Nev. 483, 488,
169 P.3d 1149, 1152
(2007). Miranda prescribed the four now-familiar warnings:
[A suspect] must be warned prior to any
questioning [1] that he has the right to remain
silent, [2] that anything he says can be used
against him in a court of law, [31 that he has the
right to the presence of an attorney, and [4] that if
SUPREME COURT
OF
NEVADA
6
(0) 1947A e
he cannot afford an attorney one will be appointed
for him prior to any questioning if he so desires.
Florida v. Powell, 559 U.S. 50, 59-60 (2010) (alterations in original)
(quoting Miranda, 384 U.S. at 479). To be constitutionally adequate,
Miranda warnings must be "sufficiently comprehensive and
comprehensible when given a commonsense reading." Powell, 559 U.S. at
63.
Stewart first argues the Miranda warning given in this case
did not inform him that he could consult an attorney before and during
questioning. This argument is not supported by the record. The Miranda
warning given to Stewart stated, in part, "You have the right to have the
presence of an attorney during questioning. If you cannot afford an
attorney one will be appointed before questioning." Given a commonsense
reading, these two clauses provide a constitutionally adequate warning—
the warning informed Stewart he had the right to counsel before and
during questioning, as specifically required by Miranda. See Powell, 559
U.S. at 63. Although the warnings were perhaps not the clearest possible
formulation of Miranda's right-to-counsel advisement, they were
constitutionally sufficient. Id. Thus, we conclude Stewart's first Miranda
argument fails.
Additionally, Stewart argues that the warning only advised
him that he had the right to an attorney but not that he could actively
consult with that attorney throughout the questioning. We conclude this
argument is without merit. Indeed, the right to an attorney is the right to
consult with that attorney, and the argument to the contrary relies on an
absurd interpretation of the Miranda warning. See Powell, 559 U.S. at 62-
63. Thus, we conclude Stewart's second Miranda argument fails.
SUPREME COURT
OF
NEVADA
7
(0) I947A
Therefore, we hold that the district court did not err in
determining Stewart received an adequate Miranda warning prior to
making statements to police and, thus, did not err in denying Stewart's
motions to suppress those statements.
CONCLUSION
We conclude that there was sufficient evidence to support
Stewart's convictions for kidnapping and robbery and that the Miranda
warning was legally sufficient. Accordingly, we affirm the district court's
judgment of conviction.
Gibbons
We concur:
1 J.
Douglas
J.
Pickering
SUPREME COURT
OF
NEVADA
8
(0) 1947A e
