IN THE SUPREME COURT OF THE STATE OF NEVADA
KENNETH CHRISTOPHER KONOPS, No. 78747
Appellant,
vs.
THE STATE OF NEVADA, MED
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction pursuant to a
jury verdict of aggravated stalking and burglary in violation of a ternporary
protective order. Eighth judicial District Court, Clark County; Joseph
Hardy, Jr., Judge. Appellant Kenneth Konops raises six contentions on
appeal.'
First, appellant argues that the State presented a prejudicial
and unfavorable opinion based on hearsay about uncharged bad acts. We
discern no plain error. See Green v. State, 119 Nev. 542, 545,
80 P.3d 93,
94-95 (2003) (reviewing unobjected-to error for plain error affecting
substantial rights). The witness testimony that described appellant's
threats as "by far the worst case I've ever had," was admissible as relevant
to whether the messages were sufficiently threatening to "cause a
reasonable person under similar circumstances to feel terrorized . . . or
fearful for his or her immediate safety" and place that person "in reasonable
fear of death or substantial bodily harm." NRS 200.575(1), (3); see also NRS
50.265 (providing that lay opinion is admissible when the opinion is
'Pursuant to NRAP 3401), we have determined that oral argument
is not warranted in this appeal.
a:J-39'164.
"Nationally based on the perception of the witnese and "[h]elpful to a clear
understanding of the testiinony. . . or the determination of a fact in issue").
The testimony did not constitute hearsay because the witness's reference to
the threats demonstrated how they affected him. See Wallach v. State, 106
Nev. 470, 473,
796 P.2d 224, 227 (1990) (A statement merely offered to
show that the statement was made and the listener was affected by the
statement, and which was not offered to show the truth of the matter
asserted, is admissible non-hearsay."). Lastly, the testimony did not
impermissibly refer to uncharged conduct where it referenced charged
conduct from this case.
Second, appellant argues that his statutory and constitutional
rights to a speedy trial were violated. We disagree. As to the statutory
right to a speedy trial under NRS 178.556, there was good cause for the
approximately five-month delay. See Huebner v. State, 103 Nev. 29, 31,
731
P.2d 1330, 1332 (1987) (stating that dismissal is mandatory under NRS
178.556 only if no good cause is shown for the delay). In particular, the
delay was necessary for defense counsel to litigate motions that appellant
requested, proceedings related to appellant's competency, a continuance
requested by appellant, litigation of appellant's rnotion to dismiss counsel,
litigation of the State's motion to consolidate different cases against
appellant, and to accommodate the district court's calendar. As to the
constitutional right to a speedy trial, the relevant factors do not support a
violation for two reasons. See Barker v. Wingo, 407 U.S. 514, 530 (1972)
(identifying factors to be balanced in deciding whether the right to a speedy
trial has been violated). First, little of the delay was attribiltable to the
State and the reasons for that delay were valid and appropriate. See id. at
531 (explaining that "different weights should be assigned to different
Sumo.* Couar
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reasons') for the delay and that "deliberate attempt[s] to delay the trial in
order to hamper the defense should be weighted heavily against the
government" while "rnore neutral reason[s] such as negligence or
overcrowded courts should be weighted less heavily" and "a valid reason,
such as a missing witness, should serve to justify appropriate delay").
Second, appellant has not demonstrated prejudice.2 See id. at 532
(explaining that prejudice "should be assessed in the light of the interests
of the defendants which the speedy trial right was designed to protect)). We
therefore conclude that appellant has not demonstrated a violation of his
constitutional right to a speedy tria1.3
Third, appellant argues that the district court should not have
granted his motion to represent himself. Relying on Indiana v. Edwards,
554 U.S. 164 (2008), he argues that the district court should not have found
him competent to waive his right to counsel given the unusual
circumstances related to his waiver and conduct at trial. We disagree. The
record demonstrates that appellant's waiver was knowing, intelligent, and
voluntary. Watson v. State,
130 Nev. 764, 782,
335 P.3d 157, 170 (2014); see
2The delay was not so long as to violate the constitutional right to a
speedy trial absent a showing of prejudice. See Byford v. State, 116 Nev.
215, 230,
994 P.2d 700, 710-11 (2000) (concluding that delay of one year was
not "extreme" and did not violate right to speedy trial where no prejudice
shown); Manley v. State,
115 Nev. 114, 126,
979 P.2d 703, 710 (1999)
(concluding that a delay of over two years was not a speedy-trial violation
where the delay was caused by defendant's filings and legitimate conflicts
with state and court schedules).
3To the extent that appellant argues that his counsel performed
ineffectively by requesting a continuance, we conclude that his claim is not
appropriately raised on direct appeal. Evans v. State, 117 Nev. 609, 622,
28
P.3d 498, 507-08 (2001).
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also Harris v. State, 113 Nev. 799, 802,
942 P.2d 151, 153-54 (1997)
(affording deference to a district court's determination that appellant's
waiver was knowing and voluntary). The district court conducted a
thorough canvass during which it informed appellant of the nature of the
charges, the potential penalties, and the dangers of self-representation. See
SCR 253(3)(f), (g); see also Faretta v. California,
422 U.S. 806, 835 (1975)
(requiring that a defendant waiving the right to counsel be "made aware of
the dangers and disadvantages of self-representation, so that the record will
establish that he knows what he is doing and his choice is made with eyes
open" (internal quotation marks omitted)). The district court informed
appellant that he was responsible for complying with courtroom procedures,
would not be helped by the court, and would not be granted special law
library privileges. Although appellant contends that his poor performance
as his own counsel demonstrates that his decision was unknowing, "a
criminal defendant's ability to represent himself has no bearing upon his
competence to choose self-representation." Vanisi v. State,
117 Nev. 330,
341,
22 P.3d 1164, 1172 (2001) (quoting Godinez v. Moran,
509 U.S. 389,
400 (1993)). Although Edwards permits a State to deny self-representation
to a competent defendant who nonetheless is severely mentally ill, it does
not require that we do so. Edwards,
554 U.S. at 178.
Fourth, appellant argues that the district court erred in
instructing the jury. Specifically, he contends that the district court erred
in giving the reasonable doubt and equal and exact justice instructions. We
discern no plain error. See Green, 119 Nev. at 545,
80 P.3d at 94-95. This
court has repeatedly upheld the equal and exact justice instruction. See
Belcher v. State,
136 Nev., Adv. Op. 31,
464 P.3d 1013, 1029 (2020)
(collecting cases). The district court also gave Nevada's statutory
4
reasonable doubt instruction as mandated by NRS 175.211, which this court
has repeatedly upheld. See id.
Fifth, appellant argues that there was insufficient evidence to
sustain his convictions. We disagree. When reviewing a challenge to the
sufficiency of the evidence supporting a criminal conviction, this court
considers "whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements beyond a reasonable doubt." McNair u. State, 108 Nev. 53, 56,
825
P.2d 571, 573 (1992) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)).
This court will not disturb a verdict supported by substantial evidence.
Id.
The evidence introduced at trial showed that appellant
repeatedly called and texted the victim despite a temporary protective order
against domestic violence. In those calls and messages, appellant explicitly
stated that he was "homicidal," lamented about not engaging in physical
abuse in the past, and threatened to kill the victim's parents. The messages
increased in frequency and severity on the day before appellant's arrest,
when he repeatedly referenced imminent action that would "disgrace his
family, prompt authorities to action, and result in his arrest. and notoriety.
The next day, he entered the law office where the victim worked wearing a
mask and gloves and quickly moved past the reception area toward her
office. An attorney retrieved a firearm and kept appellant at bay until the
police arrived. Based on this evidence, a rational juror could have found
that appellant maliciously engaged in a course of conduct including
objectively threatening behavior that was intended to place the victim in
"reasonable fear of death or substantial bodily harm." NRS 200.575(1), (3).
Further, this evidence supports the inference that appellant entered the law
office in violation of the temporary protective order with intent to commit
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an assault or battery. See NRS 205.060(1); NRS 193.166(1)(a); Sheriff v.
Stevens, 97 Nev. 316, 317-18,
630 P.2d 256, 257 (1981) (explaining that the
crime of burglary is cornplete once the defendant enters the building with
the intent to commit a felony).
Lastly, appellant argues that the cumulative effect of trial
errors warrants reversal, but as we have found no errors, there is nothing
to cumulate.
Having considered appellant's contentions and concluded that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
Parraguirre
J.
Hardesty
21iffA
6: J.
Cadish
cc: Hon. Joseph Hardy, Jr., District Judge
Law Office of Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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