134 Nev., Advance Opinion 54
IN THE SUPREME COURT OF THE STATE OF NEVADA
CORY DEALVONE HUBBARD, No. 66185
Appellant,
VS.
THE STATE OF NEVADA,
Fl ED
Respondent. AUG 2018
Er1:51/ViTli 11R0 \e/±4
CLEJrN kff \;04:11,3i
Appeal from a judgment of conviction pursuant to a jury verdict
of conspiracy to commit robbery, burglary, seven counts of robbery with use
of a deadly weapon, assault, and discharge of a firearm within a structure.
Eighth Judicial District Court, Clark County; James M. Bixler, Judge.
Reversed and remanded.
Law Office of Patricia M. Erickson and Patricia M. Erickson, Las Vegas;
Brent D. Percival, Las Vegas,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens and Krista D. Barrie, Chief Deputy
District Attorneys, and Charles W. Thoman, Deputy District Attorney,
Clark County,
for Respondent.
BEFORE THE COURT EN BANG.
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OPINION
By the Court, CHERRY, J.:
Appellant was convicted after a jury trial of conspiracy to
commit robbery, burglary, seven counts of robbery with use of a deadly
weapon, assault, and discharge of a firearm within a structure. The district
court admitted evidence at trial concerning appellant's prior residential
burglary conviction to prove intent and absence of mistake under NRS
48.045(2). In this appeal, we decide whether the defense must place intent
or absence of mistake at issue before prior act evidence may be admitted.
We conclude that the defense need not place intent or absence
of mistake at issue before the State may seek admission of prior act evidence
if the evidence is relevant to prove an element of the offense such as intent
for the specific intent crime of burglary. Regardless, the evidence may still
be inadmissible if it is not relevant or its probative value is substantially
outweighed by the risk of unfair prejudice. Where, as here, the evidence
left little doubt as to the assailants' intent to commit a felony at the time of
entering the home, and appellant's defense was not based on a claimed lack
of intent or on mistake, but rather on a claim that he was not present and
had no involvement in the crime, the evidence of his prior residential
burglary conviction had little relevance or probative value as to his intent
or absence of mistake when compared to the danger of unfair prejudice
resulting from its propensity inference. Therefore, the district court
manifestly abused its discretion in admitting evidence of the prior
conviction, and because the error was not harmless, we reverse the
judgment of conviction and remand for further proceedings.
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rit
BACKGROUND
On the evening of August 22, 2013, several people were present
at a residence located at 657 Shirehampton Drive in Las Vegas, including
David Powers, Darny Van, Matthew Van, Thavin Van, Trinity Van, Asia
Van, Kenneth Flenory ("KY), and Anthony Roberts. When the doorbell
rang at about 8:45 p.m., Darny answered the door and a man asked for
someone by the name of "Darnell," and then two other men along with the
first barged their way into the house. The men were alleged to be appellant
Cory Dealvone Hubbard, Willie Carter, and Stelman Joseph. One of the
men pointed a gun at Darny's face, took an iPhone and iPad from Asia's
hands, and pointed the gun at Thavin and Trinity One of the men also
pointed a gun at Matthew, but Matthew escaped out a back door. When KJ
ran for the front door, one of the assailants, alleged to be Hubbard, pursued
and tackled him, and took his cell phone. David, who was in a bedroom
upstairs, grabbed a gun and ran toward the staircase as the assailant
alleged to be Hubbard was coming up with a gun in his hand, and David
fired two or three times, hitting the assailant in the left shoulder. One of
the other two assailants shot at David, and all three assailants fled the
residence.
At about 9 p.m. the same night, Hubbard entered a Short Line
Express Market located about four miles from the residence. He had blood
on his shirt and he had been shot in his left shoulder. In his statement to
the police, Hubbard indicated that he was randomly shot while walking
down the street. The surveillance videos from the market did not show any
vehicles dropping off a person that matched Hubbard's description. Except
for KJ, none of the victims could positively identify Hubbard as one of the
assailants based on a photo lineup. KJ was certain to an eight on a scale of
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Hubbard was indicted, along with Carter and Joseph, on
several charges stemming from the armed robbery of the residence and
several of its occupants. The indictment charged Hubbard, in relevant part,
with burglary while in possession of a firearm when he did willfully,
unlawfully, and feloniously enter the residence "while in possession of one
or more firearms, with intent to commit a Larceny and/or any felony, and/or
Robbery."
The State filed a pretrial motion in limine to admit evidence of
Hubbard's prior conviction for a residential burglary that occurred in the
state of Washington on July 27,2012, attaching the judgment of conviction
and a police report. The State argued the evidence was admissible under
NRS 48.045(2) to prove motive, intent, identity, and absence of mistake and
to rebut a claim that Hubbard was an innocent victim of an unrelated,
random drive-by shooting. Although the majority of the State's analysis
focused on identity, the State did argue as to intent specifically that the
prior conviction was relevant to prove that, at the time Hubbard entered
the residence, he intended to steal items inside. The State also argued that
the 2012 burglary conviction made it more likely that Hubbard was
participating in a burglary when he was shot as opposed to being the victim
of a random shooting. Hubbard did not file a written opposition, but he did
object at the hearing based on significant differences between the two cases
(the earlier one was a generic residential burglary and did not involve guns
or holding anyone at gunpoint) and the danger of undue prejudice. At the
hearing, the district court orally granted the motion to prove absence of
mistake, motive, and intent because Hubbard claimed he was not involved
in the robbery, but the court indicated it would continue to oversee how the
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evidence was presented in order to minimize the potential for undue
prejudice. The district court did not enter a written order as to its ruling.
At trial, all but one of the victims in the residence testified, as
did Carter, who pleaded guilty to robbery with a deadly weapon and
attempted murder but denied that Hubbard was involved in the crime.
Testimony from a crime scene analyst and a forensic scientist indicated that
none of Hubbard's DNA or fingerprints were found in the residence.
The victim of the 2012 burglary, Kimberly Davis, also testified
during the State's case-in-chief. Before this testimony, the district court
gave the jury a limiting instruction that the evidence may not be considered
to prove that Hubbard "is a person of bad character or to prove he has a
disposition to commit crimes" but may be considered "only for the limited
purpose of proving the defendant's intent and/or motive to commit the
crimes alleged or the absence of mistake or accident." Thereafter, Davis
testified that she was home alone in the house she shared with her parents
when the doorbell rang and she observed a Hispanic male standing on her
front porch and a white car on the street. He repeatedly rang the doorbell,
but she did not answer, and the man left. She saw the car return, heard the
doorbell ring again, and then heard footsteps in the gravel outside her
window. Davis locked herself in the bathroom, she heard people come into
the house and male voices in the bedroom, and someone attempted to force
open the bathroom door without success. After the intruders left, Davis
discovered jewelry and other items missing from the home. Davis never
actually saw any individuals in her home.
Hubbard was the only witness to testify in his defense. He
testified that he was shot during an unrelated drug deal that had been
arranged by Joseph. Hubbard testified that he drove to a parking lot near
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the Short Line Express Market and a person with the drugs entered the
vehicle, and while Hubbard was inspecting the merchandise, another
person came to the driver side window and shot him in the left shoulder.
Hubbard ran away and ended up at the market. Hubbard testified that he
had never been inside the residence where the robbery occurred, he did not
know any of the victims present on that evening, and he denied any
involvement in the robbery. On cross-examination, Hubbard admitted that
he had been convicted of the 2012 burglary and had sustained three other
felony convictions.
During closing argument, the State referenced the 2012
burglary conviction and stated that it could not be considered to prove
Hubbard has a disposition to commit crimes but could be used to prove his
intent as to the burglary and to prove that Hubbard was not shot
mistakenly or accidentally while walking down the street. Hubbard was
convicted of the burglary, as well as conspiracy to commit robbery, seven
counts of robbery with use of a deadly weapon, assault, and discharge of a
firearm within a structure. Hubbard was adjudicated a habitual criminal
and sentenced to serve 10 concurrent life sentences without the possibility
of parole, and credit for time served on the assault conviction.
Hubbard appealed from the judgment of conviction, and we
transferred the case to the court of appeals. See NRAP 17(b). The court of
appeals concluded that the district court manifestly abused its discretion in
admitting testimony of the 2012 burglary because it was not relevant for
any of the State's proffered nonpropensity uses and the marginal probative
value of the evidence was substantially outweighed by the danger of unfair
prejudice. In particular, the court concluded that Hubbard's defense that
he was not present and was shot at random did not place at issue his intent
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or raise any question about his mistake as to any material fact of the crimes
charged. The court of appeals further concluded that the evidence against
Hubbard was not overwhelming and the error in admitting the evidence
was not harmless, and the court reversed the judgment of conviction and
remanded the matter to the district court for further proceedings.' We
granted the State's petition for review under NRAP 40B and directed
supplemental briefing on the limited issue of whether the district court
abused its discretion in admitting the prior bad act evidence because the
defense did not put intent or absence of mistake at issue.
DISCUSSION
I. Admission of the 2012 burglary conviction
Evidence of other crimes, wrongs, or acts is not admissible to
prove a person's character and show the person acted in conformity
therewith, but may be admissible "as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident."
NRS 48.045(2). "A presumption of inadmissibility attaches to all prior bad
act evidence." Ledbetter v. State, 122 Nev. 252, 259, 129 P.3d 671, 677
(2006) (quoting Rosky v. State, 121 Nev. 184, 195, 111 P.3d 690, 697 (2005)).
To overcome the presumption of inadmissibility, the prosecution must
demonstrate that: "(1) the prior bad act is relevant to the crime charged and
for a purpose other than proving the defendant's propensity, (2) the act is
proven by clear and convincing evidence, and (3) the probative value of the
evidence is not substantially outweighed by the danger of unfair prejudice."
Bigpond v. State, 128 Nev. 108, 117, 270 P.3d 1244, 1250 (2012). The
1-The court of appeals also concluded that three of the robbery
convictions were not supported by sufficient evidence, but we did not grant
review as to that portion of the decision.
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the acts at all, evidence of prior bad acts may be inadmissible to prove
intent. See, e.g., United States v. Jemal, 26 F.3d 1267, 1273 (3d Cir. 1994)
("Where a defendant has claimed that he did not distribute drugs at all
rather than claiming that he distributed a substance that turned out to be
drugs without knowledge that the substance was drugs, the Second Circuit
has precluded the admission of prior crime evidence."); People v. Clark, 35
N.E.3d 1060, 1067-68 (Ill. App. Ct. 2015) (holding evidence that the
defendant had stolen a bicycle previously was inadmissible to show intent
because intent was not a contested issue where the eyewitness evidence left
no doubt that the perpetrator intended to steal the bicycle and the
defendant did not claim a lack of intent to steal (such as negligence or
recklessness in taking the bicycle) but that he was not the perpetrator at
all).
We are persuaded by an alternative approach taken in United
States v. Gomez, in which the United States Court of Appeals for the
Seventh Circuit held that although intent is at issue in specific intent
crimes, the rule is not one of automatic admission. 763 F.3d 845, 858-59
(7th Cir. 2014). In Gomez, the court explained that for general intent
crimes, the defendant's intent can be inferred from the act itself, so intent
is not necessarily at issue and "other-act evidence is not admissible to show
intent unless the defendant puts intent 'at issue' beyond a general denial of
guilt." Id. at 858 ("[Uhiless the government has reason to believe that the
defense will raise intent as an issue, evidence of other acts directed toward
this issue should not be used in the government's case-in-chief and should
not be admitted until the defendant raises the issue." (quoting United States
v. Shackleford, 738 F.2d 776, 781 (7th Cir. 1984), overruled on other grounds
by Huddleston v. United States, 485 U.S. 681 (1988))). But for specific intent
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crimes, intent is automatically at issue as a material element to be proven
by the government, and evidence of other acts may be admissible to prove
intent. Gomez, 763 F.3d at 858. The court cautioned that the rule is not
one of automatic admission; other-act evidence offered to prove intent "can
still be completely irrelevant to that issue, or relevant only in an
impermissible way." Id. at 859 (internal quotation marks omitted). In other
words, the other-act evidence "must be relevant without relying on a
propensity inference, and its probative value must not be substantially
outweighed by the risk of unfair prejudice." Id. Furthermore, the degree to
which the issue is actually contested may affect the probative value of the
other-act evidence. Id.
Here, the State charged Hubbard with burglary while in
possession of a firearm when he willfully, unlawfully, and feloniously
entered the residence while possessing a firearm with the intent to commit
a larceny, felony, and/or robbery. The prosecution had the burden of proving
a specific intent upon entering the residence. See NRS 205.060(1); Stowe v.
State, 109 Nev. 743, 745, 857 P.2d 15, 17 (1993) (discussing the specific
intent required for burglary). Under the facts of this case, however, we
conclude that evidence of the 2012 burglary had little relevance to the issue
of intent. See NRS 48.015 (defining "relevant evidence" as "evidence having
any tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without
the evidence").
The evidence showed that three unknown men barged into the
house at night and ordered the occupants about, property was taken by the
men at gunpoint, shots were fired, and the three men fled the residence.
This evidence left little doubt that at the time the perpetrators entered the
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777.
residence, they intended to commit a robbery, larceny, or other felony
therein. See Clifford S. Fishman & Anne T. McKenna, 3 Jones on Evidence
§ 17:64 (7th ed. 2016). This is because "[w]hen a person's conduct leaves no
real doubts as to the actor's intent, it is difficult to see much need or
justification for similar acts on that issue. When a man walks into a store,
draws a gun, and orders the store clerk to empty the cash register into a
sack, surely a jury needs no additional evidence as to the man's
intent. . . . [T]he only real issue is not, why did the actor do what he or she
did, but is the defendant in fact the person in question." Id. The evidence
did not suggest that the perpetrator alleged to be Hubbard entered the
residence for an innocent reason and then formed the intent to commit
robbery or another felony after entry. Moreover, Hubbard denied
participation in the act or being present at the scene in his statements to
the police and his testimony at trial. Under these facts, evidence of
Hubbard's 2012 burglary had little relevance to establishing Hubbard's
intent at the time he entered the residence, and the minimal probative
value was substantially outweighed by the risk of unfair prejudice.
B. Absence of mistake
Hubbard contends that mistake is not an element of the offense
and can only be at issue when the defendant raises it as a defense, such as
admitting to the act but claiming a genuine mistake in the belief that the
act was legal. Here, for example, mistake would have been at issue had
Hubbard's defense been that he entered the home believing that he was
attending a party or that he mistakenly went to the wrong home for dinner
with friends. The State asserts that NRS 48.045 permits prior act evidence
to prove absence of mistake or accident, and it is not necessary that the
absence of mistake or accident occur on the part of the defendant. The State
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argues that absence of mistake was relevant because Hubbard claimed he
was not present and was shot during an unrelated incident.
For the absence of mistake or accident exception under NRS
48.045(2), we have stated that it applies when "the evidence tends to show
the defendant's knowledge of a fact material to the specific crime charged,"
such as knowledge of the controlled nature of a substance when such
knowledge is an element of the charged offense. Cirillo v. State, 96 Nev.
489, 492, 611 P.2d 1093, 1095 (1980); cf. Estelle v. McGuire, 502 U.S. 62, 69-
70 (1991) (observing that evidence that the child had previously been
injured was probative on the question of the actor's intent because it showed
the child's death resulted from an intentional act by someone and not from
an accident regardless of whether the defendant raised the defense of
accidental death at trial). Prior act evidence can also be used to rebut a
defense of mistake or accident. See Newman v. State, 129 Nev. 222, 231,
298 P.3d 1171, 1178 (2013) (observing that proof of prior injuries or abuse
may tend to disprove accidental injury, a common defense to a child abuse
charge).
Thus, the absence of mistake or accident exception may be
relevant to proving either the mens rea (the defendant concedes performing
the act but claims to have done so mistakenly or with innocent intent) or
the actus rea (the defendant concedes harm or loss but argues it resulted
from an accident and not of his agency). See Edward J. Imwinkelried, An
Evidentiary Paradox: Defending the Character Evidence Prohibition by
Upholding a Non-Character Theory of Logical Relevance, the Doctrine of
Chances, 40 U. Rich. L. Rev. 419, 422 (2006). Absence of mistake or accident
is grounded in the law of probabilities. "Innocent persons sometimes
accidentally become enmeshed in suspicious circumstances, but it is
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(
objectively unlikely that will happen over and over again by random
chance." Id. at 423.
In this case, evidence of the 2012 burglary would be relevant to
proving that Hubbard entered the home with a felonious intent rather than
by mistake, under some misapprehension, or as an innocent victim of the
circumstances surrounding the robbery. But the State did not make that
argument for admission of the evidence under this exception, and instead
asserted that the evidence was relevant to prove Hubbard was the
perpetrator who was shot during the robbery and did not receive the wound
during some unrelated accident. 2 Used in this way, the State is essentially
trying to prove that Hubbard was correctly identified as the perpetrator.
See United States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir. 1996)
(concluding that absence of mistake "on behalf of the government" in
identifying the perpetrator is not a legitimate basis to admit other acts
evidence). Thus, as with intent, the prior act had little relevance on the
issue of absence of mistake or accident by Hubbard where he claims he was
not present.
2To support its argument, the State cites United States v. Woods, 484
F.2d 127, 135 (4th Cir. 1973) (allowing evidence that nine other infants in
the accused's custody had experienced 20 cyanotic episodes over a 25-year
period to rebut a claim that the child victim's suffocation was accidental
based on the remoteness of the possibility that so many infants would die
without wrongdoing and to prove the identity of the accused as the
wrongdoer), and People v. Spector, 128 Cal. Rptr. 3d 31, 62 (Ct. App. 2011)
(holding that evidence of the defendant's prior armed assaults against
women were admissible to prove the victim's death was neither an accident
nor a suicide). These cases are not dispositive of this issue because they
involve a mistake or accident as to the accused's criminal intent or the
criminal act.
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Given the lack of relevance that the 2012 burglary has to either
intent or lack of mistake, it becomes clear that the evidence was instead
being used for an impermissible propensity purpose, i.e., if Hubbard
committed a burglary before, he must have done so in this case. Thus, the
low probative value was substantially outweighed by the unfair prejudice,
and we conclude that the district court's admission of Davis' testimony
regarding the 2012 burglary for purposes of proving intent or absence of
mistake was a manifest abuse of discretion.
II. Harmless error
Because we conclude that the district court's decision to admit
evidence of the prior conviction was a manifest abuse of discretion, any error
in admitting the evidence under NRS 48.045(2) is subject to harmless error
review. Rosky v. State, 121 Nev. 184, 198, 111 P.3d 690, 699 (2005). An
error is harmless and not reversible if it did not have a substantial and
injurious effect or influence in determining the jury's verdict. Newman v.
State, 129 Nev. 222, 236, 298 P.3d 1171, 1181 (2013). The State argues that
any error in admitting evidence of the prior conviction was harmless
because the State could have used the prior conviction to impeach Hubbard
on cross-examination and because the evidence of guilt was overwhelming.
We reject both arguments.
First, when the State questioned Hubbard on cross-examination, he admitted to the 2012 Washington burglary conviction, as
well as three other felony convictions. This evidence of the prior felony
convictions was admissible for impeachment purposes only. NRS 50.095(1)
("For the purpose of attacking the credibility of a witness, evidence that the
witness has been convicted of a crime is admissible ") Impeachment
evidence cannot be used as substantive evidence of guilt or to show
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propensity. See Harris v. State, 106 Nev. 667, 670, 799 P.2d 1104, 1106
(1990) (holding that prior convictions could only be considered on the issue
of the defendant's credibility and not substantive proof of his guilt); 81 Am.
Jur. 2d Witnesses § 864 ("While it is improper to use prior convictions as
substantive evidence of guilt or a defendant's propensity to commit crimes,
it is permissible to use them to attack the defendant's truthfulness and
credibility in his or her. testimony."). In contrast, Davis' testimony
regarding the 2012 burglary was admitted for a substantive purpose, to
prove intent and absence of mistake under NRS 48.045, and the district
court so instructed the jury. See generally Yates v. State, 95 Nev. 446, 449
n.2, 596 P.2d 239, 241 n.2 (1979) (discussing the difference between felony
convictions used for impeachment under NRS 50.095 and prior bad acts
relevant to some purpose other than character under NRS 48.045).
Additionally, the quality of the impeachment evidence was
different and less prejudicial than Davis' live testimony about her
experience concerning the prior burglary. See Tomarchio v. State, 99 Nev.
572, 578, 665 P.2d 804, 808 (1983) (noting that "[Cho usual and proper
manner of establishing a prior conviction is to ask the witness if he had been
theretofore convicted of a felony, and if he denies the conviction, to produce
a copy of the judgment of conviction"); cf Jones v. State, 101 Nev. 573, 578,
707 P.2d 1128, 1132 (1985) (observing that details of prior crimes have a
greater impact on a jury than a bare record conviction). Most importantly,
if the district court had excluded Davis' testimony regarding the 2012
burglary, Hubbard might have chosen not to testify. See Robinson v. State,
35 So. 3d 501, 507 (Miss. 2010) (holding that erroneous admission of prior
bad act evidence was not harmless where the defendant was forced to take
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the stand to explain the evidence, which implicated the defendant's
constitutional right to refrain from testifying).
In concluding that any error in admitting the prior bad act
evidence was harmless, the dissent does not address these consequential
effects and what impact they may have had in determining the jury's
verdict. Davis' testimony cannot be said to be harmless where it provided
powerful details about the nature of an unrelated burglary in another state
for which Hubbard was convicted, and given the fact that Hubbard testified
in his own defense. In that regard, the dissent ignores that the introduction
of evidence concerning the nature of a prior conviction similar to the
substantive charges in the pending case carries a singular risk of
substantial unfair prejudice that can jeopardize the defendant's right to a
fair trial. See Old Chief v. United States, 519 U.S. 172, 180-81, 185 (1997)
(explaining that such propensity evidence "generally carries a risk of unfair
prejudice to the defendant" in that it may "lure a juror into a sequence of
bad character reasoning" including that the prior act "misted] the odds that
he did the later bad act now charged"). As recognized in Old Chief
"[a] lthough "propensity evidence" is relevant, the risk that a jury will
convict for crimes other than those charged—or that, uncertain of guilt, it
will convict anyway because a bad person deserves punishment—creates a
prejudicial effect that outweighs ordinary relevance." Id. at 181 (quoting
United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)). Thus, we cannot
conclude that the use of impeachment evidence rendered harmless the
erroneous admission of Davis' testimony.
Second, the evidence of guilt was not overwhelming. In
concluding otherwise, the dissent focuses only on the significance of certain
circumstantial evidence without addressing weaknesses in the State's case,
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including other evidence supporting Hubbard's defense, and whether it can
be said with assurance that, without stripping the erroneously admitted
prior bad act evidence from the whole, the jury's verdict was not
substantially influenced by the error. Kotteakos v. United States, 328 U.S.
750, 765 (1946) ("The inquiry cannot be merely whether there was enough
to support the result, apart from the phase affected by the error. It is rather,
even so, whether the error itself had substantial influence."); see Fields v.
State, 125 Nev. 776, 784, 220 P.3d 724, 729 (2009) (observing that the
standard set forth in Kotteakos applies in reviewing nonconstitutional error,
under which a conviction must be reversed unless the court is convinced
that the defendant suffered no prejudice as a result of the error). On this
record, we are not convinced that the prior bad act evidence did not
influence the jury's assessment of evidence favorable to Hubbard's defense.
None of the victims could identify Hubbard at trial or in a photo lineup,
aside from KJ who was only 80 percent certain on the photo lineup. Carter
pleaded guilty and testified that he did not know Hubbard and he did not
identify Hubbard as being present at the residence during the robbery.
None of Hubbard's DNA or fingerprints were found in the residence.
Moreover, even though the market was four miles from the residence and
Hubbard appeared there only ten minutes after the robbery, none of the
market surveillance cameras recorded a vehicle dropping him off. Hubbard
explained that he had called Joseph because they were friends, that
Joseph had arranged the drug deal but he never showed up, and that
Hubbard was not initially forthcoming with the police about his injury
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because of his previous negative experiences with the police. We, therefore,
cannot say with any confidence that the error in admitting evidence of the
prior burglary conviction was harmless. See Rosky, 121 Nev. at 198, 111
P.3d at 699.
For the reasons set forth above, we reverse the judgment of
conviction and remand for further proceedings consistent with this opinion.
ci
Cherry
We concur:
C.J.
Douglas
Gibbons
J.
Parraguirre
14/4,C4-.0 J.
Stiglich
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HARDESTY, J., with whom PICKERING, J., agrees, concurring in part and
dissenting in part:
I agree with the majority's adoption of the reasoning in United
States v. Gomez, that intent is automatically at issue for specific intent
crimes because it is an element of the offense and relevant evidence of other
acts may be admissible to prove intent without the defendant placing intent
"at issue." 763 F.3d 845, 858-59 (7th Cir. 2014). However, I do not agree
that the district judge manifestly abused his discretion by admitting
evidence of the 2012 burglary on the issue of Hubbard's intent to commit
the burglary in 2013 as charged. See Diomampo v. State, 124 Nev. 414, 429-
30, 185 P.3d 1031, 1041 (2008) (stating that "Mlle trial court's
determination to admit or exclude evidence of prior bad acts is a decision
within its discretionary authority and is to be given great deference"
(alteration in original) (internal quotation marks omitted)); Rhymes v.
State, 121 Nev. 17, 21-22, 107 P.3d 1278, 1281 (2005) (explaining that
reversal for admission of prior bad acts is warranted only upon "a showing
that the decision is manifestly incorrect").
But, even if the district court erred in admitting the bad acts
evidence here, the error was harmless. An error is harmless and not
reversible if it did not have "a substantial and injurious effect or influence
in determining the jury's verdict." Newman v. State, 129 Nev. 222, 236, 298
P.3d 1171, 1181 (2013) (internal quotation marks omitted). Contrary to the
majority's analysis, I view the circumstantial evidence of Hubbard's guilt as
overwhelming. See Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313
(1980) (stating that circumstantial evidence alone can uphold a conviction).
Hubbard admitted that he drove to Las Vegas in a red Chevy
Impala. An hour before the robbery, the surveillance photos from the
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Rhodes Ranch gated community show Hubbard arriving at the Rhodes
Ranch gate at 7:53 p.m. in a red Chevy Impala. Hubbard called Joseph at
his number while at the Rhodes Ranch gate at 7:54 p.m. and again at 7:58
p.m. Joseph resided within the Rhodes Ranch community.
At 8:43 p.m., the victim's neighbor's surveillance video showed
a dark colored SUV, later identified as belonging to Joseph, pulling up and
three men barging into the front door of the victim's house. The victims
testified that the men robbed them at gunpoint. KJ identified Hubbard to
an 80-percent certainty as one of the assailants. Other family members
identified one of the men as the darker, thicker, broader, and heavier black
male, which matched Hubbard's description. That man ran up the stairs
after entering the residence. David, who was upstairs, fired his gun at the
man when he reached the top of the stairs and hit him in the left shoulder.
After the shots were fired, the three men began to flee the residence. David
was able to identify Joseph as one of the perpetrators. At the end of the
neighbor's video, Hubbard and Joseph are shown running back to the SUV
and driving away. It then shows a flash where Carter shot into the house
and ran away on foot.
David called 911 at 8:51 p.m. to report the robbery. Five
minutes later, at 8:56 p.m., Joseph called 911, from the number 702-236-
4175, to report that his friend had been shot and was at the Chevron Station
at Durango and Windmill. Also at 8:56 p.m., the cell phone pings from that
number showed that Joseph was traveling northbound on Durango near
Windmill where the Short Line Express was located.
Shortly after, Hubbard stumbled into the Short Line Express at
8096 South Durango, which is approximately 4 miles and 7 minutes from
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657 Shirehampton Drive—the victim's address. Hubbard had a gunshot
wound in the left shoulder. At 8:58 p.m., the cashier at Short Line Express
called 911 to report Hubbard's gunshot wound. Hubbard refused to tell the
911 operator, the paramedics, the police officers, and the detectives how he
was shot. The surveillance video at Rhodes Ranch showed a SUV matching
the description of the vehicle used in the robbery. entering Rhodes Ranch on
8:59 p.m.
Hubbard was arrested the night of the crime. Upon being
booked at the Clark County Detention Center, Hubbard called Joseph at
702-236-4175, which is the same number that Joseph used to make the 911
call. Hubbard attempted to call Joseph a total of seven times at that
number while Hubbard was in jail. He also called three of the same
numbers that appeared on Joseph's phone records.
In resolving an appeal from a criminal conviction, we must view
the evidence in the light most favorable to the prosecution. See Koza v.
State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984). The circumstantial
evidence connecting Hubbard to the robbery was overwhelming. Because
"the result would have been the same if the trial court had not admitted the
[bad act] evidence," I would affirm. Ledbetter v. State, 122 Nev. 252, 259,
129 P.3d 671, 677 (2006) (internal quotation marks omitted).
tc—L-t Ceat
Hardesty
t
I concur:
gekm J.
Pickering
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