IN THE SUPREME COURT OF THE STATE OF NEVADA
DEREK RYAN FOX, No. 78994
Appellant,
uff -
vs.
THE STATE OF NEVADA,
FILE L
Respondent. APR 2U 2021
A. BROWN
G*.E1K OF UPREME COURT
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of robbery with the use of a deadly weapon, attempted murder
with the use of a deadly weapon, assault with a deadly weapon, and two
counts of discharging a firearm at or into an occupied structure. Eighth
Judicial District Court, Clark County; David M. Jones, Judge.'
Appellant Derek Fox first argues that the State presented
insufficient evidence because no witness identified him as the perpetrator
at trial. We disagree. One witness identified Fox as the shooter during
trial. This same witness told police at the scene of the shooting that "Dee"
was the shooter and identified Fox in a photo lineup. Additionally, the State
presented evidence showing that on multiple occasions before trial, one of
the victims identified "Dee" as the person who robbed him and shot at his
house. And the State presented evidence at trial that Fox went by "Dee."
Another witness's description of the shooter matched Fox, and a car
associated with Fox matched the victim's and witnesses descriptions of the
vehicle involved in the crimes. Further, Fox fled once approached by law
enforcement, had a firearm and cartridges in his possession matching those
used in the shooting, and admitted to committing the crimes according to
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
21 --(oat
an informant. See Weber v. State, 121 Nev. 554, 581-82,
119 P.3d 107, 126
(2005) (explaining that flight beyond mere "going away" can be relevant to
a defendant's consciousness of guilt (quoting State v. Rothrock,
45 Nev. 214,
229,
200 P. 525, 529 (1921))), rejected on unrelated grounds by Farmer v.
State,
133 Nev. 693,
405 P.3d 114 (2017). That some witnesses trial
testimony was inconsistent and differed from their pretrial statements does
not affect our decision because it is within the province of the jury, not this
court, to weigh the evidence and assess witness credibility.2 Walker v. State,
91 Nev. 724, 726,
542 P.2d 438, 438-39 (1975); see also Bolden v. State,
97
Nev. 71, 72-73,
624 P.2d 20, 20 (1981) (upholding a jury verdict where
conflicting testimony was presented). Indeed, Fox thoroughly crossexamined the witnesses he complains did not identify him at trial, making
the jury aware of the discrepancies in the evidence regarding his identity as
the perpetrator. See Burnside v. State,
131 Nev. 371, 390,
352 P.3d 627, 641
(2015) (explaining that it is for the jury to deterrnine what weight to give
cross-examination testimony highlighting alleged discrepancies regarding
suspect identification). Thus, when viewed in the light most favorable to
the State, the evidence was sufficient to establish guilt beyond a reasonable
doubt as determined by a rational trier of fact. See Jackson v. Virginia,
443
U.S. 307, 319 (1979) (providing the standard for reviewing sufficiency of the
evidence); Mitchell v. State,
124 Nev. 807, 816,
192 P.3d 721, 727 (2008)
(same); .see also NRS 193.165 (defining use of a deadly weapon); NRS
2To the extent Fox argues that the district court had to sua sponte
rule an in-court identification as hearsay and instruct the jury accordingly,
he fails to support this claim with legal authority. We therefore decline to
address that issue. 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.").
2
193.330(1) (defining attempt); NRS 200.010 (defining murder); NRS
200.030 (delineating the degrees of murder); NRS 200.380 (defining
robbery); NRS 200.471(1) (defining assault); NRS 202.285(1) (defining
discharging a firearm at or into a structure).
Second, Fox contends that the district court violated his Sixth
Amendment right to confront witnesses when it admitted the grand jury
testimony of several State witnesses. Specifically, Fox claims that since he
did not have an opportunity to cross-examine the witnesses at the grand
jury hearing, the State should not have been allowed to use the grand jury
testimony to impeach its witnesses at trial. We review de novo whether a
district court's rulings violated a defendant's Confrontation Clause rights.
Chavez v. State, 125 Nev. 328, 339,
213 P.3d 476, 484 (2009). The
Confrontation Clause bars admission of prior testimony from a witness
unless the witness is unavailable to testify at trial and the defendant had a
prior opportunity to cross-examine the witness. Crawford v. Washington,
541 U.S. 36, 53-54 (2004). Because the district court only admitted the
grand jury testimony of witnesses who testified and were subject to full
cross-examination at trial, there was no Confrontation Clause violation. Id.
at 60 n.9 C[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all
on the use of his prior testimonial statements . . . . The Clause does not bar
admission of a statement so long as the declarant is present at trial to
defend or explain it." (citations omitted)). Furthermore, the grand jury
testimony was admissible both substantively and for impeachment. See
NRS 51.035(2)(d) (providing that a witness's grand jury testimony is not
hearsay when the witness testifies at trial and is subject to cross-examination); Miranda v. State, 101 Nev. 562, 567,
707 P.2d 1121, 1124
(1985) (noting that the district court can admit a prior inconsistent
SUPREME COURT
OF
NEVADA
3
(0) 1947A 4134.
statement for both impeachment and substantive purposes). And Fox does
not present a compelling argument to depart from precedent allowing
admission of grand jury testimony under these circumstances. Accordingly,
Fox has not demonstrated error.
Third, Fox argues that the district court erred by not allowing
him to conceal his facial tattoo (a teardrop) during trial. He claims that the
district court erred in finding the tattoo relevant to identity and that he was
unfairly prejudiced by the jurors observing the tattoo because they might
infer from it that he killed someone. We review a district court's decision to
admit evidence for an abuse of discretion. Mclellan v. State, 124 Nev. 263,
267,
182 P.3d 106, 109 (2008). The record indicates that the district court
adequately considered the questions of relevance and unfair prejudice in
denying Fox's motion to conceal his tattoo. Fox's tattoo was relevant
because at least one witness mentioned it in his description of the
perpetrator and law enforcement used that description, along with a picture
of Fox shown to them by the victim, in determining that Fox was the person
known as "Dee." See NRS 48.015 (defining "relevant evidence" as that
"having any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than
it would be without the evidence"). And the tattoo's probative value was not
substantially outweighed by unfair prejudice given that the district court
excluded testimony about the tattoo's meaning and the jury saw Fox's tattoo
in unobjected-to, admitted exhibits.3 See NRS 48.035(1) (providing that
3To the extent Fox argues that the district court erred in not allowing
him to voir dire veniremembers about teardrop tattoos, he did not preserve
this issue below and has not demonstrated plain error because he does not
show that any seated juror was not impartial. See Martinorellan v. State,
131 Nev. 43, 48,
343 P.3d 590, 593 (2015) (applying plain-error review to
4
relevant evidence is not admissible when its "probative value is
substantially outweighed by the danger of unfair prejudice"); Jones v. SecY,
Dep't of Corr., 607 F.3d 1346, 1351-52 (11th Cir. 2010) (finding a defendant's
spiderweb tattoo admissible to show identity, in part, because no trial
evidence suggested it was tied to racism or gang affiliation); State v. Ross,
115 So. 3d 616, 623 (La. Ct. App. 2013) (finding no error in the trial court
requiring the defendant to display his facial, teardrop tattoo during trial
where it was relevant to identity and no testimony mentioned the tattoo's
meaning). Accordingly, the district court did not abuse its discretion in
admitting this evidence.4 For the foregoing reasons, we
ORDER the judgment of conviction AFFIRMED.
, C.J.
Hardesty
.,
p
Cadish
,J Addit
Pickering 7 J.
cc: Hon. David M. Jones, District Judge
The Law Office of Daniel M. Bunin
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
unpreserved errors); Weber, 121 Nev. at 581,
119 P.3d at 125 (noting the
focus of a prejudice inquiry with respect to an alleged partial jury is on the
actually seated jurors).
4Fox's cumulative-error argument lacks merit where we find no
errors. See United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001) (If
there are no errors or a single error, there can be no cumulative error.").
5
