IN THE SUPREME COURT OF THE STATE OF NEVADA
AMY ZORAH MCDERMOTT, No. 79296
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
NOV 1 3 2020
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of failure to stop at the scene of a crash involving death.'
Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.
Appellant Amy McDermott raises five issues on appeal.
Sufficiency of the evidence
McDermott argues that insufficient evidence supports her
conviction. Specifically, she argues that the evidence did not prove that she
was driving the vehicle that hit the victim, as the driver was not seen in the
video surveillance or by the eyewitnesses, both her daughter and her
boyfriend also had access to her vehicle, and her daughter and other
witnesses provided inconsistent testimony and were not credible. 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 v. State, 108 Nev. 53, 56,
825 P.2d 571, 573 (1992) (quoting Jackson
1Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
20-4i101
u. Virginia, 443 U.S. 307, 319 (1979)). This court will not disturb a verdict
supported by substantial evidence.
Id.
The evidence at trial showed that a black SUV hit the victim,
who was walking on the side of the road, rolled over her body, and drove off
without stopping. Based on an anonymous tip, which was later determined
to be from McDermott's daughter, a police detective located McDermott's
black SUV, which had substantial damage consistent with the accident.
McDermott admitted to police that, on the morning of the accident, she
drove on the road where the accident occurred to go to a dentist appointment
near that location, but she initially denied any involvement in the accident.
When the police returned to her home, she admitted that she hit the victim
and did not stop because she thought she only hit a dog.
McDermott testified at trial that she had not been driving her
vehicle at the time of the accident and lied to the police about being the
driver to protect her daughter and boyfriend, who also had access to her
vehicle and may have hit the victim. However, the jury also heard
recordings of phone calls in which McDermott told her boyfriend that she
should have stopped, that no one saw her driving the vehicle or got her
license plate, and that she would cast blame on both him and her daughter
at trial, as she did not want to alienate the jury by only blaming her
daughter. McDermott's daughter testified that McDermott was driving the
vehicle around the time the accident occurred and the front of the vehicle
was damaged when McDermott returned home. Thus, sufficient evidence
supports that McDermott was the driver who hit the victim and failed to
stop. See NRS 484E.010; McNair, 108 Nev. at 56,
825 P.2d at 573 ([I]it is
the jury's function, not that of the court, to assess the weight of the evidence
and determine the credibility of witnesses.").
2
Admission of evidence
McDermott argues that the district court committed reversible
error in admitting irrelevant and highly prejudicial evidence. "We review a
district court's decision to admit or exclude evidence for an abuse of
discretion." Mclellan v. State, 124 Nev. 263, 267,
182 P.3d 106, 109 (2008).
For evidence to be admissible, it must be relevant, i.e., "having any tendency
to make the existence of any fact [at issue] more or less probable than it
would be without the evidence," NRS 48.015, and its probative value must
not be "substantially outweighed by the danger of unfair prejudice," NRS
48.035(1).
McDermott contends that the district court should have
excluded all references to blood, DNA, human tissue, or hair found on
McDermott's vehicle because those materials had not been tested at the
time of trial due to a backlog at the lab. For this same reason, McDermott
also argues that photographs of the vehicle depicting these biological
materials on it should have been excluded. The district court allowed the
crime scene analysts to testify about what they observed on McDermott's
vehicle, and McDermott had the opportunity to cross-examine them about
the lack of testing and the analysts inability to determine the source of the
materials, i.e., whether they came from the victim, another person, or an
animal. We discern no abuse of discretion in the admission of this evidence,
as it was relevant to whether McDermott's vehicle was the vehicle that hit
the victim and was not unfairly prejudicial.
McDermott next argues that the district court should not have
admitted photographs of the victim's body, clothing, and injuries because
they were gruesome, highly prejudicial, duplicitous, and had no probative
value, given that the defense did not dispute the manner of death. The
3
record reflects that the photographs were not admitted to show the cause of
death, but rather to connect the victim's death to McDermott's vehicle. The
district court ensured that each photograph was relevant for this purpose,
and we conclude that the probative value of the photographs outweighed
any prejudicial effect. See Libby v. State, 109 Nev. 905, 910,
859 P.2d 1050,
1054 (1993) (providing that even gruesome photographs may be admitted
"as long as their probative value is not substantially outweighed by their
prejudicial effece), vacated on other grounds,
516 U.S. 1037 (1996).
McDermott also argues that the district court should have
excluded the 911 call made by the victim's husband immediately after the
accident because it was unnecessary and prejudicial in that the husband
was crying during the call. The district court allowed the State to play the
911 call only after the State redacted it to remove much of the crying, and
we conclude that any prejudicial effect of the call did not outweigh its
probative value. Therefore, the district court did not abuse its discretion in
admitting this evidence.
Jury instruction
McDermott contends that the district court erred in refusing
her proffered jury instruction on two reasonable interpretations and
circumstantial evidence. We have previously found no error in rejecting a
two-reasonable-interpretations jury instruction where, like here, the jury
was properly instructed on reasonable doubt. See Bails v. State, 92 Nev. 95,
96-98,
545 P.2d 1155, 1155-56 (1976). Moreover, the proffered jury
instruction included the following incorrect statement: "Before you may rely
on circumstantial evidence to conclude that a fact necessary to find the
Defendant guilty has been proved, you must be convinced that the State has
proven each fact essential to that conclusion beyond a reasonable doubt."
4
Because the proffered instruction misstates the law and was otherwise
covered by the reasonable-doubt instruction, we discern no abuse of
discretion by the district court in refusing to give it. Carter v. State, 121
Nev. 759, 765,
121 P.3d 592, 596 (2005) (stating that a defendant is not
entitled to "misleading, inaccurate[,] or duplicitoue jury instructions);
Crawford v. State,
121 Nev. 744, 748,
121 P.3d 582, 585 (2005) (reviewing
the district court's rejection of a jury instruction for abuse of discretion or
judicial error).
Prosecutorial rnisconduct
McDermott argues that the prosecutor committed misconduct
during closing argument by misrepresenting the evidence. In reviewing a
claim of prosecutorial misconduct, we must determine "whether the
prosecutor's conduct was impropee and, if so, whether reversal is
warranted. Valdez v. State, 124 Nev, 1172, 1188, 196 P.3d 465, 476 (2008).
We are not convinced the prosecutor com mitted misconduct. The prosecutor
argued during closing that although McDermott told the police that she left
her house for the dentist's office after the accident happened, "there was no
way she was going [to the dentist's office] at that time and that it was more
likely that the [dentist's] system didn't account for the daylight savings time
difference." This statement is based on a detective's testimony that the road
to the dentist's office was closed due to the fatal accident at the time
McDermott claimed to have driven on it, and the dentist's testimony that
he had no independent recollection of McDermott's appointment and was
unsure whether his electronic database accounted for daylight savings time.
We conclude that the prosecutor made a fair inference from the evidence
presented at trial. See Taylor v. State,
132 Nev. 309, 324,
371 P.3d 1036,
1046 (2016) (stating that a prosecutor's comments expressing opinions or
5
beliefs are not improper when they are reasonable conclusions or fair
comments based on the presented evidence); Randolph v. State, 117 Nev.
970, 984,
36 P.3d 424, 433 (2001) (The State is free to comment on
testimony, to express its views on what the evidence shows, and to ask the
jury to draw reasonable inferences from the evidence.").
Restitution
McDermott argues that the district court abused its discretion
in determining the amount of restitution. Specifically, McDermott objects
to the inclusion of the expenses incurred by the deceased victim's son to
return early from his international trip to help settle his family's affairs and
attend his mother's funeral.
NRS 176.033(1)(c) authorizes a district court at sentencing to
"set an amount of restitution for each victim of the offense" when
appropriate. An award of restitution under this statute is a sentencing
determination, which we review for an abuse of discretion. Martinez v.
State, 115 Nev. 9, 12-13,
974 P.3d 133, 135 (1999). The purpose of
restitution is "to compensate a victim for costs arising from a defendant's
criminal act." Major v. State,
130 Nev. 657, 660,
333 P.3d 235, 238 (2014).
McDermott argues generally that Nevada law does not
contemplate restitution for travel expenses related to a decedent's funeral
because such expenses are not a direct consequence of the offense. She
relies on State v. McNeil, 346 P.3d 297, 303 (Idaho Ct. App. 2014), which
held that travel expenses to a victim's funeral are too indirect to be
appropriate restitution. The McNeil court, however, relied on Idaho
statutes and caselaw interpreting those statutes, which differ from
Nevada's. Because the authority to grant restitution is statutory, not an
inherent power of the court, Martinez,
115 Nev. at 10,
974 P.2d at 134, the
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issue of whether the restitution award was appropriate here depends on
Nevada's statutory language. McDermott provides scant argument in this
regard and thus fails to demonstrate that it was an abuse of discretion for
the district court to include the travel expenses.2 Accordingly, we conclude
that McDermott has not shown an abuse of discretion by the district court.
For the foregoing reasons, we
ORDER the judgment of conviction AFFIRMED.
Parraguirre
, J.
Hardesty
J.
Cadish
cc: Hon. Carolyn Ellsworth, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2McDermott cites to Norwood v. State, 112 Nev. 438, 441,
915 P.2d
277, 279 (1996) (concluding that "the victims medical costs for the
treatment of their injuries directly resulting from the crime are the proper
subject of restitution"), and Simpson v. State, 712 So. 2d 1, 1-2 (Fla. Dist.
Ct. App. 1997) (reversing a restitution award for travel expenses because
they were "either indirect, remote or not satisfactorily proven"), but neither
decision establishes that the restitution award here was improper.
SUPREME COURT
NEVADA
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