IN THE SUPREME COURT OF THE STATE OF NEVADA
DAMIEN ALEXANDER PHILLIPS, No. 78270
A/K/A TRAVIS ALEXANDER PHILLIPS,
Appellant,
vs.
THE STATE OF NEVADA, A 0 ';rn
Res • ondent.
ELIZ 'k. f:TICW-4
CLER -1:E2..18 COURT
ORDER OF AFFIRMANCE BY
CEPW CLEiRK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of conspiracy to commit burglary, conspiracy to commit
robbery, six counts of burglary while in possession of a deadly weapon, nine
counts of robbery with use of a deadly weapon, three counts of assault with
a deadly weapon, assault with a• deadly weapon of victim 60 years of age or
older, carrying a concealed pneumatic gun, and preventing or dissuading a
witness or victim from reporting a crime or commencing prosecution.
Eighth Judicial District Court, Clark County; Douglas Smith,2 Judge.
Damien Phillips and Anthony Barr robbed a string of Las Vegas
banks in July and August 2018. Phillips robbed the first bank—a U.S. Bank
on Paseo Verde in Henderson—alone, but Barr joined him for the
'The judgment of conviction states that Phillips was convicted of
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counts 1 and 2 — conspiracy to commit burglary," which appears to be a
clerical error as count 2 was conspiracy to commit robbery. We direct the
district court to enter a corrected judgment of conviction fixing this clerical
error.
2Judge Valerie Adair presided over the trial.
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subsequent four banks: a U.S. Bank on Eastern Avenue, a Bank of the West
on North Valley Verde, a U.S. Bank inside of a Smith's Food and Drug on
South Valley Verde, and a U.S. Bank on Charleston. During each of the
first four robberies, Phillips or Barr or both presented the bank tellers with
a note demanding money and threatening to use "a weapon," "a gun," and/or
"a bomb" in order to secure compliance. Officers began tracking Phillips
and Barr following the fourth robbery. Immediately prior to the fifth
robbery, officers observed Phillips and Barr briefly enter a busy Smith's
store that housed a U.S. Bank; there was a bulge in Barr's waistband that
suggested a firearm. The pair then proceeded to the U.S. Bank on
Charleston, where Phillips and Barr robbed the bank at gunpoint. Officers
apprehended them as they fled from the fifth robbery. A jury found Phillips
guilty on 21 counts, including burglary related to the Smith's he entered
immediately before the fifth robbery (count 14). The jury also found Phillips
guilty of using a deadly weapon in the commission of each of the crimes.
On appeal, Phillips contends that the evidence presented at
trial was insufficient to support the jury's finding of guilt on counts 3 and 4
regarding the robbery of the Paseo Verde branch, the deadly weapon
enhancement on counts 3-14 regarding the first four robberies, and the
burglary conviction on count 14 regarding the Smith's. We disagree.
Evidence is sufficient to support a verdict if, "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." Hager v. State, 135 Nev., Adv. Op 34, 447 P.3d 1063,
1070 (2019), quoting Middleton v. State,
114 Nev. 1089, 1103,
968 P.2d 296,
306 (1998) (internal quotation marks omitted). Circumstantial evidence
may support a conviction. Collman v. State, 116 Nev. 687, 711,
7 P.3d 426,
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441 (2000). "[I]t is the function of the jury, not the appellate court, to weigh
the evidence and pass upon the credibility of the witness." Walker v. State,
91 Nev. 724, 726,
542 P.2d 438, 439 (1975).
Here, the jury could reasonably infer from the evidence
presented at trial that Phillips committed these crimes. See NRS
193.165(1); NRS 200.380(1); NRS 205.060(1). As to counts 3 and 4, U.S.
Bank provided video surveillance of the robbery at the Paseo Verde branch,
and witnesses identified Phillips as the suspect who robbed that bank.a
Moreover, officers tied the suspect in the first robbery to one suspect in the
second robbery based upon his clothing, notably his glasses, and a witness
testified that those glasses belonged to Phillips. It was for the jury to weigh
that evidence, which we conclude provided sufficient grounds for the verdict
on those counts.
As to the deadly weapon enhancement on counts 3-14, this court
has broadly construed NRS 193.165(1), see State v. Dunckhurst, 99 Nev.
696, 697,
669 P.2d 243, 243 (1983), and explained that a defendant need not
activate a weapon during the crime to receive a deadly weapon
enhancement, see Culverson v. State, 95 Nev. 433, 435,
596 P.2d 220, 221
(1979). Even where the victim does not actually see the weapon, a deadly
weapon enhancement will be warranted if the evidence overall suggests the
defendant used a deadly weapon to facilitate the crime. See Bartle v.
Sheriff, 92 Nev. 459, 460,
552 P.2d 1099, 1099 (1976). Here, although the
victims in the first four robberies did not observe a weapon, the evidence as
3We have carefully reviewed the record and considered Phillips'
arguments regarding the video surveillance, and conclude that the evidence
as a whole supports that the witnesses identified Phillips as the suspect
who robbed the Paseo Verde branch.
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a whole supports the deadly weapon enhancement. Phillips and Barr
threatened the bank tellers with use of a weapon, generally a gun, to
facilitate those robberies, and during one robbery, Phillips placed a bag on
the counter and indicated it contained a bomb. During the burglary at the
Smith's, officers observed that Barr had a bulge in his waistband, and
immediately after leaving the Smith's, Phillips and Barr robbed a bank at
gunpoint. Officers found guns in the getaway car and in another car owned
by Phillips. This is sufficient evidence by which the jury could determine
that Phillips used a gun or other deadly weapon during each of the
robberies.
Finally, as to count 14 regarding the Smith's burglary, the
evidence established that Phillips and Barr parked in an apartment
complex behind a Smith's that contained a U.S. Bank, observed the busy
area before entering, and were inside only a short time. As noted above,
officers observed a bulge in Barr's waistband indicating the presence of a
firearm. Phillips and Barr proceeded to rob a U.S. Bank at gunpoint
immediately after leaving the Smith's. This evidence, although
circumstantial, supports an inference that Phillips and Barr entered the
Smith's with intent to commit a robbery, see NRS 205.060(1), and no
evidence was adduced at trial to demonstrate that Phillips and Barr entered
the store for another purpose. Accordingly, there was sufficient evidence by
which a rational juror could find Phillips guilty of burglary on count 14. See
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Sheriff v. Stevens, 97 Nev. 316, 317-18,
630 P.2d 256, 257 (1981) (explaining
the crime of burglary is complete once the defendant enters the building
with the intent to commit a felony).
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Gibbons
As-rikt-;L_C J.
Stiglich
J.
cc: Chief Judge, Eighth Judicial District Court
Hon. Valerie Adair, District Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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