IN THE SUPREME COURT OF THE STATE OF NEVADA
ANTHONY TERRELL BARR, No, 78295
Appellant,
vs.
THE STATE OF NEVADA,
FILE
Respondent. SEP 1 8 2020
ELIZABETH A. BROWN
CLERK OF SUPREME COURT
ORDER OF AFFIRMANCE BY 6-Y
DEPUTY CLERK eí
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of conspiracy to commit burglary, conspiracy to commit
robbery, five counts of burglary while in possession of a deadly weapon,
eight counts of robbery with the use of a deadly weapon, three counts of
assault with a deadly weapon, assault with a deadly weapon of a victim 60
years of age or older, and carrying a concealed pneumatic gun. The district
court adjudicated appellant Anthony Barr as a habitual criminal with
respect to the burglary while in possession of a deadly weapon and robbery
with the use of a deadly weapon counts, imposing an aggregate sentence of
life without the possibility of parole. Eighth Judicial District Court, Clark
County; Douglas Smith, I Judge. Barr raises seven main contentions on
appeal.2
First, Barr contends that the evidence presented at trial was
insufficient to support deadly weapon enhancements because no weapon
was either seen by a witness or found at the crime scenes. But the totality
of the evidence supports the deadly weapon enhancements because it
showed Barr and/or his codefendant threatened the victims with the use of
1Judge Valerie Adair presided over the trial.
SUPREME COURT 2 Pursuant to NRAP 34(f)(1), we have determined that oral argument
OP
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a weapon, see NRS 193.165(6)(b) (including in the deadly weapon definition
weapons "threatened to be usecr); Bartle u. Sheriff, 92 Nev. 459, 460,
552
P.2d 1099, 1099 (1976) (explaining that a deadly weapon enhancement is
warranted if the evidence suggests the defendant used a deadly weapon to
facilitate the crime, even if witnesses never actually saw a weapon), and
guns were found in Barr's and his codefendant's cars. Additionally, an
officer observed a bulge at Barr's waistline immediately preceding the final
set of crimes and surveillance video thereafter captured Barr pulling a gun
from his waistband while committing the final bank heist. Accordingly,
there was sufficient evidence by which a rational juror could find Barr guilty
beyond a reasonable doubt on the deadly weapon enhancements. See
McNair u. State,
108 Nev. 53, 56,
825 P.2d 571, 573 (1992) (recognizing that
it is for the jury to weigh evidence and determine witness credibility, and
when reviewing a challenge to the sufficiency of the evidence this court will
consider "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" (quoting Jackson v.
Virginia,
443 U.S. 307, 319 (1979))); Wilkins v. State,
96 Nev. 367, 374-75,
609 P.2d 309, 313-14 (1980) (providing that a jury can rely on both direct
and circumstantial evidence in returning its verdict).
Second, Barr argues that the district court erred by not severing
the four robbery charges. After reviewing for plain error, we disagree. See
Valdez v. State, 124 Nev. 1172, 1190,
196 P.3d 465, 477 (2008) (reviewing
unpreserved claims for plain error, defined as one affecting a defendant's
substantial rights by causing actual prejudice, a miscarriage of justice, or a
grossly unfair outcome). The crimes occurred over the span of a few months,
involved Barr or his codefendant entering banks while disguised, and
involved threats of using a weapon against the tellers when demanding
2
money. Thus, the offenses were connected together and joinder was
appropriate. See NRS 173.115(1)(1)) (allowing for joinder of charges that are
"connected togethee or "constituting parts of a common scheme or plan");
Farmer v. State, 133 Nev, 693, 699-700, 405 P.3d 114, 120-21 (2017)
(defining common scheme and explaining that the offenses are not required
to be identical to be joined under NRS 173.115). The evidence relating to
the robberies also would have been admissible for relevant, nonpropensity
purposes in separate trials, negating that any prejudice resulted from the
joinder. See NRS 48.045(2) (providing that evidence of other crimes may be
admissible for nonpropensity purposes such as proof of opportunity,
preparation, plan, or identity); Middleton v. State, 114 Nev. 1089, 1108,
968
P.2d 296, 309 (1998) (pointing to the cross-admissibility of evidence as
indicative of the lack of undue prejudice resulting from joinder). Further,
the issue of guilt was not close—victim eyewitness testimony, testimony
from witnesses who knew Barr and identified him as one of the
perpetrators, and video surveillance all supported the jury's verdict. Cf.
Weber v. State, 121 Nev. 554, 575,
119 P.3d 107, 122 (2005) (explaining that
close cases are "more likely" to require reversal "because [joinder] may
prevent jurors from making a reliable judgment about guilt"), ouerruled on
other grounds by Farmer, 133 Nev. 693,
405 P.3d 114.
Third, Barr argues that the district court erred in not severing
his case from his codefendant's, whose defense was antagonistic to his and
against whom there was more evidence. We disagree as Barr has not
demonstrated plain error because he offers no argurnent as to how the
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codefendant's tria13 defenses were antagonistic to his. See Valdez, 124 Nev.
at 1190,
196 P.3d at 477 (addressing plain error); see also NRS 173.135
(providing that defendants may be charged in the same charging document
when they participated in the same criminal conduct); NRS 174.165
(providing discretion to the district court to sever where prejudice results
from joining defendants). And a defendant is not entitled to severance
merely because the evidence against a codefendant is more damaging. Lisle
v. State,
113 Nev. 679, 690,
941 P.2d 459, 466 (1997), limited on other
grounds by Middleton,
114 Nev. 1089,
968 P.2d 296.
Fourth, Barr argues that the district court committed plain
error by admitting character evidence—several previous traffic stops—and
by doing so without first conducting a Petrocelli hearing. We conclude that
Barr has not demonstrated plain error because the detective had to explain
the circumstances surrounding the traffic stops in order to explain how he
identified Barr as the perpetrator (the robbery perpetrators were seen
getting into the same vehicle) and ultimately apprehended him after having
placed a tracker on Barr's vehicle. See NRS 48.035(3) (Evidence of another
act or crime which is so closely related to an act in controversy or a crime
charged that an ordinary witness cannot describe the act in controversy or
the crime charged without referring to the other act or crime shall not be
excluded."); State v. Shade, 111 Nev. 887, 894,
900 P.2d 327, 331 (1995)
38arr only references antagonistic defenses that he claims affected
him at sentencing, which the jury would not have been privy to and is
irrelevant to a codefendant-severance analysis. See Marshall v. State, 118
Nev. 642, 646,
56 P.3d 376, 378 (2002) (explaining that antagonistic
defenses only require severance when the defenses are so irreconcilable that
the jury accepting the codefendant's theory would prohibit the defendant's
acquittal).
4
(determining "whether witnesses can describe the crime charged without
referring to related uncharged acts" to decide whether to admit evidence
under NRS 48.035(3)); see also Bellon v. State, 121 Nev. 436, 444,
117 P.3d
176, 180 (2005) (indicating that the district court is not required to hold a
Petrocelli hearing when it admits evidence under NRS 48.035(3)).
Fifth, Barr argues that the district court violated his right to
confrontation when it limited his cross-examination of detectives regarding
the aforementioned tracking device.4 We disagree, as the district court
properly excluded irrelevant questions regarding the tracker's size or
location on the vehicle, but allowed all other questions about the tracker's
accuracy and how it ultimately led detectives to Barr.5 See NRS 48.015
4 Relatedly, Barr argues that the district court erred in admitting
unqualified and unnoticed expert testimony regarding the car tracker and
Google maps. But Barr neither identifies which State witness(es) his
argument applies to nor cites to the record to support his argument. See
NRAP 28(e)(1) (requiring citations to the record to support assertions in
briefs); Skinner v. State, 83 Nev. 380, 384,
432 P.2d 675, 677 (1967)
(recognizing that this court can decline to consider assertions that are not
supported by record citations). And State law enforcement witnesses did
not testify as experts because their testimony did not go beyond relaying
facts regarding their use of the tracker and Google maps to locate Barr. See
Abbott v. State, 122 Nev. 715, 728,
138 P.3d 462, 471 (2006) (explaining
when a witness's testimony constitutes expert testimony).
5To the extent Barr argues that the information outputted from the
tracker amounted to an improper testimonial statement of an unavailable
witness in violation of hearsay rules, we conclude that he has not
demonstrated plain error where the data retrieved was machine-based and
was not a "statemene that could be considered hearsay. See NRS 51.045
(defining a statement for hearsay purposes as lain oral or written
assertion" or "[n]onverbal conduct of a person, if it is intended as an
assertion" (emphasis added)); Valdez, 124 Nev. at 1190,
196 P.3d at 477
(reviewing unpreserved errors for plain error); see also Commonwealth v.
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(defining relevant evidence as that which makes a material fact at issue
more or less probable); Mendoza. v. State, 122 Nev. 267, 277,
130 P.3d 176,
182 (2006) (Determinations of whether a liniitation on cross-examination
infringes upon the constitutional right of confrontation are reviewed de
novo.").6
Sixth, Barr argues that the district court erred in not
continuing his sentencing hearing once he took issue with information in
his presentence investigation report (PSI). We review a district court's
decision on a motion to continue for an abuse of discretion, which will only
be found if a defendant demonstrates that the denial prejudiced him. Higgs
v. State, 126 Nev. 1, 9,
222 P.3d 648, 653 (2010). Barr requested a
continuance due to alleged inaccuracies and missing information in his PSI,
and claimed that he needed additional time and counsel's help to identify
any further inaccuracies because he only had a third-grade education.7 The
district court abused its discretion when it declined to continue Baris
sentencing because that prevented him from thoroughly reviewing the PSI
for all potential errors in order to lodge an objection. See Sasser v. State,
130 Nev. 387, 390,
324 P.3d 1221, 1223 (2014) (reiterating a defendant's
right to object to factual errors in the PSI, but requiring any such objection
to be made before sentencing); Shields v. State, 97 Nev. 472, 473, 634 P.2d
Thissell, 928 N.E.2d 932, 937 n.13 (Mass. 2010) (explaining that, Iblecause
computer-generated records, by definition, do not contain a statement from
a person, they do not necessarily implicate hearsay concerne).
6The record shows that Barr objected, so we review de novo despite
both parties arguing for plain error review.
'Although Barr's counsel initially indicated that he had not yet gone
over the "massive PSI" with Barr, he acknowledged that they discussed it
after the court passed the case while waiting for codefendant's counsel.
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468, 469 (1981) (NRS 176.156 contemplates that persons convicted of
crimes should have the opportunity to make informed comments on, and
response to, all factual assertions contained in presentence investigation
reports."). The district court further erred in not addressing all of Barr's
assertions. See Sasser, 130 Nev. at 390-91, 324 P.3d at 1223-24 (requiring
the district court to determine whether challenged PSI information is
erroneous); Stockrneier v. State, Bd. of Parole Cornrn'r.s, 127 Nev. 243, 250,
255 P.3d 209, 214 (2011) (emphasizing that regardless of whether an error
impacts a defendant's sentence, the Department of Corrections could rely
on significant inaccuracies in determining a defendant's "classification,
placement in certain programs, and eligibility for parole," necessitating an
avenue to immediately seek correction of a faulty PSI to prevent reliance on
a PSI that cannot be subsequently changed). But we conclude these errors
do not warrant reversal because Barr has not demonstrated prejudice—the
alleged errors were insignificant8 or irrelevant to sentencing and Barr
utilized the PSI's recommendation of concurrent time to argue for a lesser
sentence than his maximum exposure. See Blankenship v. State, 132 Nev.
500, 509,
375 P.3d 407, 413 (2016) (explaining that an error in a sentencing
form does not aniount to "impalpable or highly suspect evidence" unless it
tainted the PSI sentencing recommendation considered by the district
court). And the record as a whole supports that the district court's
sentencing was based on the accurate information presented at
sentencing—the circumstances surrounding the crimes and prior felony
convictions that Barr agreed were accurately reflected in the PSI. See
Thomas v. State, 88 Nev. 382, 385,
498 P.2d 1314, 1316 (1972) (explaining
8At one point, Barr conceded that the errors were "small."
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that a district court can impose a legally sound sentence even when there
are inadequacies in sentencing forms produced by the Division).
Barr next argues, for the first time on appeal, that the district
court erred in basing its sentencing decision on facts not in the record,
weighing Barr's speedy-trial-right invocation in making its sentencing
decision, and altering his sentence at a subsequent hearing. After plain
error review, we disagree. See Rodriguez v. State, 134 Nev. 780, 781,
431
P.3d 45, 46 (2018) (reviewing for plain or clear error affecting substantial
rights when a defendant fails to lodge a contemporaneous objection or
argument on a sentencing issue). The record shows that the district court
did not consider Barr's speedy-trial invocation or rely on highly suspect or
irnpalpable information, but rather made its sentencing decision after
considering arguments by defense counsel and the State, Barr's statement,
a victim irnpact statement, and Barr's prior felonies that formed the basis
for his habitual criminal treatment." See Smith v. State, 112 Nev. 871, 873,
920 P.2d 1002, 1003 (1996) (explaining that this court will not disturb a
sentence that is within statutory limits unless the district court relied on
"highly suspect or impalpable information"). Additionally, at the second
sentencing hearing, which occurred before the judgment of conviction was
filed and while Barr's case was still within the district court's jurisdiction,
the district court appropriately vacated illegal sentences on counts Barr was
"Barr's sentence was within the prescribed statutory range for his
convictions, enhancements, and treatment as a habitual criminal. See NRS
193.130 (punishment for felonies); NRS 193.165 (deadly weapon
enhancement); NRS 193.167 (crinies committed against persons 60 years of
age or older); NRS 199.480 (conspiracy); NRS 200.380 (robbery); NRS
200.471 (assault); NRS 202.350 (carrying a concealed weapon); NRS
205.060 (burglary); NRS 207.010 (habitual criminal penalties).
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not charged with; sentenced Barr to concurrent time on a count he was not
previously sentenced for; and sentenced him as a habitual criminal on the
burglary while in possession of a deadly weapon counts, none of which
increased his overall aggregate sentence. See NRS 176.555 ("The court
may correct an illegal sentence at any time."); NRS 176.565 ("Clerical
mistakes in judgments . . . and errors in the record arising from oversight
or omission may be corrected by the court at any time and after such notice,
if any, as the court orders."), Bradley v. State, 109 Nev. 1090, 1095,
864 P.2d
1272, 1275 (1993) (explaining that an oral pronouncement of a sentence
does not divest the district court's jurisdiction over the defendant, and it can
rnodify a sentence before the clerk enters the signed judgment of conviction).
Seventh, Barr argues that cumulative error warrants reversal.
We disagree because the errors identified above occurred during sentencing
and therefore could not have impacted the jury's verdict.'" See Valdez, 124
Nev. at 1196,
196 P.3d at 481 (assessing cumulative error claims by first
considering if the errors prejudiced the jury's verdict). We therefore
ORDER the judgment of conviction AFFIRMED.
alea/ i
tI lir 711r
i
Parraguirre
J.
Hardesty Cadish
'"We decline to address the preservation-of-evidence and amended
information claims that Barr references but does not cogently argue. See
Maresca v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987) ("It is appellant's
responsibility to present relevant authority and cogent argument; issues not
so presented need not be addressed by this court.").
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cc: Chief Judge, The Eighth Judicial District Court
Eighth Judicial District Court, Dept. 8
Jeannie N. Hua
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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( 0) 19-17A ¢05.
