IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES CHRISTIAN UPTON, No. 80507
Appellant,
vs.
THE STATE OF NEVADA, FILE
Respondent.
DEC 1 6 2020
A. BROWN
PREME COURT
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of battery with a deadly weapon. Second Judicial District
Court, Washoe County; Scott N. Freeman, Judge. Appellant James Upton
raises three main issues on appeal.
Upton first argues that the district court abused its discretion
by refusing to publish an admitted exhibit of a recorded interview to the
jury and by admitting it strictly for impeachment purposes, rather than as
substantive evidence. Even if the district court abused its discretion in
declining to publish the interview, such error would be harmless because
another witness, a police officer, testified to the exact statement Upton
sought to have published, and we do not agree that any prejudice resulted
from the jury not hearing the interview as well. See Hernandez u. State,
124 Nev. 639, 646,
188 P.3d 1126, 1131 (2008) (reviewing a decision to admit
or exclude evidence for an abuse of discretion); Weber u. State,
121 Nev. 554,
579-80,
119 P.3d 107, 124 (2005) (concluding that an error in admitting
inadmissible evidence was harmless where the same information was
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
introduced through another witness), overruled on other grounds by Farmer
v. State, 133 Nev. 693, 698,
405 P.3d 114, 120 (2017). And the record does
not show that the district court limited the jury's consideration of the
officer's testimony in that regard to only impeachment evidence. This
argument therefore does not warrant reversal.
Upton next argues that the district court erred in denying his
motion in lirnine seeking to prevent any reference to the minor victim's age.
Reviewing for an abuse of discretion, see Hernandez, 124 Nev. at 646,
188
P.3d at 1131, we disagree. The victim's age was relevant to the jury's
consideration of whether Upton had the reasonable fear required for self-defense and was not unfairly prejudicial. See NRS 48.015 (defining relevant
evidence); NRS 48.035(1) (providing that relevant evidence is inadmissible
"if its probative value is substantially outweighed by the danger of unfair
prejudice); Davis v. State,
130 Nev. 136, 143,
321 P.3d 867, 872 (2014)
(providing that a battery is justified when "the circumstances were
sufficient to excite the fears of a reasonable person" (quoting NRS
200.130(1)); see also, e.g., State v. Soukup,
656 N.W.2d 424, 429 (Minn. Ct.
App. 2003) (listing age as one factor relevant to an assertion of self-defense).
Upton's final argument challenges the district court's lack of
response to a jury question submitted during deliberations stating that the
jury was "locked out of the computee and needed access "to view audio and
video.”2 Because the district court did not respond, Upton asserts that the
2 We reject Upton's assertion that the district court violated NRS
175.451 by not resolving the question before the parties as that requirement
applies when the court gives the jury the information it requests, not when
it declines to respond. See Tellis v. State, 84 Nev. 587, 591,
445 P.2d 938,
941 (1968) (addressing NRS 175.395, which is now codified as NRS
175.451).
2
jury could not properly consider whether reasonable doubt existed, which
requires "comparison and consideration of all the evidence." NRS
175.211(1). We discern no reversible error, however, as the jury had the
opportunity to hear and see the evidence during trial and could compare
and consider that evidence with their memories and notes during
deliberations. And the jury's question raised no concern that "the given jury
instructions were inadequate or incorrectly stated the law" or that it was
confused about or lacked "understanding of a significant element of the
applicable law." Gonzalez v. State, 131 Nev. 991, 996,
366 P.3d 680, 683
(2015) (addressing when this court will find error in a district court's refusal
to answer a jury question). And, finding no errors, we conclude that Upton's
cumulative error argument necessarily fails. We therefore
ORDER the judgment of conviction AFFIRMED.
J.
Stiglich
J.
cc: Hon. Scott N. Freeman, District Judge
Larry Dunn & Associates
Attorney General/Carson City
Carson City District Attorney
Washoe County District Attorney
Washoe District Court Clerk
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