IN THE SUPREME COURT OF THE STATE OF NEVADA
LAWRENCE NEIL FULLER, No. 80316
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. F- FILED
I) APR 2 0 2021
SFM1013T
BY
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of conspiracy to commit murder and first-degree murder with
use of a deadly weapon. Eighth Judicial District Court, Clark County;
Valerie Adair, Judge.
Appellant first argues that insufficient evidence supports the
convictions, asserting that evidence supported that one of the witnesses
committed the murder. 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 of the crime beyond a reasonable doubt." McNair v. State, 108
Nev. 53, 56,
825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia,
443 U.S.
307, 319 (1979)). We conclude that sufficient evidence supported the
convictions. Witnesses testified that they saw appellant retrieve a gun after
the initial altercation with the victim; heard the codefendant say she
wanted to kill the victim and then saw appellant and the codefendant go
1 Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
outside to where the victim was; heard gunshots; and then saw appellant
and the codefendant return to the apartment, quickly grab their personal
belongings, and leave. Based on that evidence, a rational juror could find
the elements of the offenses beyond a reasonable doubt. See NRS 199.480
(conspiracy); NRS 200.010 (murder); NRS 200.030(1)(a) (first-degree
murder). It is the jury, not this court, that weighs the evidence and
determines witness credibility. Rose v. State, 123 Nev. 194, 202-03,
163
P.3d 408, 414 (2007) (providing that this court will not reweigh evidence or
substitute its judgrnent for that of the jury on conflicting evidence).
Appellant next argues that the failure to sever his trial from
that of the codefendant warrants reversal because the jury could have
improperly used the allegedly strong evidence against the codefendant as
evidence of appellant's guilt, relying on State v. Rendon, 715 P.2d 777, 782
(Ariz. Ct. App. 1986) (providing that "[t]he 'spillover or crub-off theory
involves the question of whether a jury's unfavorable impression of the
defendant against whom the evidence is properly admitted will influence
the way the jurors view the other defendane). Reviewing for plain error
because appellant sought severance on different grounds below, see Rimer
v. State,
131 Nev. 307, 332-33,
351 P.3d 697, 715 (2015) (applying plain error
review when "the grounds that [appellant] urges on appeal are different
from those he presented below"), we disagree. Severance is appropriate
"only if there is a serious risk that a joint trial would compromise a specific
trial right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence." Chartier v. State,
124 Nev. 760,
765,
191 P.3d 1182, 1185 (2008) (quoting Marshall v. State,
118 Nev. 642,
647,
56 P.3d 376, 379 (2002) (further internal quotation marks omitted)).
At least one witness saw both appellant and the codefendant in the
2
immediate vicinity where the victim was shot at the time of the shooting.
Witnesses also saw appellant and the codefendant together immediately
before and after the shooting occurred, and other evidence connected
appellant to the crime. Given that evidence, we are not convinced there was
a serious risk that the joint trial prevented the jury from making a reliable
judgment about appellant's guilt or innocence.
Appellant also argues that the district court erred in admitting
evidence that he and the codefendant sold drugs. But we agree with the
district court that such evidence was admissible under NRS 48.035(3),
which provides that evidence of an uncharged crime is admissible when "an
ordinary witness cannot describe . the crime charged without referring to
the other . . . crime." Multiple witnesses could not fully give their account
of the night of the murder without describing that they bought drugs from
appellant and the codefendant and/or helped appellant and the codefendant
sell drugs to the victim that night—the impetus for the crimes. See Weber
v. State, 121 Nev. 554, 574,
119 P.3d 107, 121 (2005) (explaining that
evidence is only admissible under NRS 48.035(3) if "an actual
witness . . . cannot describe the crime charged without referring to another
uncharged act" and to "introduce an account of events and conduct observed
by a witness"), overruled on other grounds by Farmer v. State,
133 Nev. 693,
405 P.3d 114 (2017); Bellon v. State,
121 Nev. 436, 444,
117 P.3d 176, 181
(2005) (limiting the admission of evidence under NRS 48.035(3) to the
statute's express provisions). Moreover, we are convinced that any error in
admitting the evidence did not substantially affect the verdict. See Valdez
v. State,
124 Nev. 1172, 1188-90,
196 P.3d 465, 476-77 (2008) (discussing
non-constitutional harmless error review).
3
Appellant next argues that the district court abused its
discretion in allowing the trial to proceed after the State asked a witness if
he previously stated that appellant walked like "a gangster." Reviewing for
plain error because appellant did not request a new trial or any other relief
below, see Rirner, 131 Nev. at 332-33, 351 P.3d at 715, we find none.
Because the reference was brief and the district court immediately
sustained appellant's objection, we are not convinced that the district court
erred in allowing the trial to proceed rather than taking some other action
not requested by appellant. See Rose v. State, 123 Nev. 194, 209,
163 P.3d
408, 418 (2007) (holding that the trial court cured prejudice from improper
reference to facts not in evidence by sustaining contemporaneous objection
and admonishing the jury).
Appellant also challenges the district court's refusal to allow
questions regarding a witness's potential motivation to cooperate with the
State where the witness was awaiting sentencing for a felony in another
department. We agree that the district court abused its discretion by
prohibiting appellant from asking any questions regarding the witness's
potential bias. See Leonard v. State, 117 Nev. 53, 72,
17 P.3d 397, 409 (2001)
(observing that a district court's discretion to limit cross-examination is
narrow "where potential bias is at issue"). We conclude that this error was
harmless beyond a reasonable doubt, however, as overwhelming evidence
connected appellant to the crime. See Mclellan v. State, 124 Nev. 263, 270,
182 P.3d 106, 111 (2008) (providing that an error is not grounds for reversal
where it is harmless and has no injurious effect on the jury's verdict).
SUPREME COURT
OF
NEVADA
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As we have found only one error, appellant's cumulative-error
argument necessarily fails. 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."). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Haraesty
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7
Cadish
cc: Chief Judge, Eighth Judicial District Court
Department 21, Eighth Judicial District Court
Oronoz & Ericsson, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
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