IN THE SUPREME COURT OF THE STATE OF NEVADA
DEVONTAY AYCOCK, No. 79684
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
MEET
JUN 1 1 2021 .
A. BROWN
•UPR S4EC0J
ORDER OF AFFIRMANCE DEP TY CLERK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of attempted murder with the use of a deadly weapon and
battery with the use of a deadly weapon resulting in substantial bodily
harm. Eighth Judicial District Court, Clark County; Jacqueline M. Bluth,
Judge.
First, appellant Devontay Aycock argues that insufficient
evidence supports his convictions; and, instead, the evidence shows he acted
in self-defense. 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)).
'Pursuant to NRAP 34(f)(1), we conclude that oral argument is not
warranted.
We conclude that sufficient evidence supports the convictions.
Aycock admitted to shooting at the victim a total of 17 times and
surveillance video of the altercation shows Aycock continuing to shoot the
victim as he lay in the street with his hands raised in a defensive posture.
Further, an eyewitness testified that the victim was unarmed and did not
threaten anyone. And, while Aycock testified that he feared for his life and
believed that the victim reached for a weapon, this court has consistently
"held that where there is conflicting testimony presented, it is for the jury
to determine what weight and credibility to give to the testimony." Stewart
v. State, 94 Nev. 378, 379,
580 P.2d 473, 473 (1978) (internal quotation
marks omitted); see also Rose v. State, 123 Nev. 194, 202-03,
163 P.3d 408,
414 (2007) (providing that this court will not reweigh the evidence or
substitute its judgment for that of the jury). Based on the evidence
presented, a rational juror could find the essential elements of the crimes
charged and conclude that Aycock did not act in self-defense. See NRS
193.165; NRS 193.330; NRS 200.010; NRS 200.481; Runion v. State, 116
Nev. 1041, 1051-52,
13 P.3d 52, 59 (2000) (discussing the circumstances that
justify lethal force in self-defense).
Second, Aycock argues that the district court erred in
instructing the jury on self-defense because the instructions misstated the
law and confused the jury. We review claims of instructional error for an
abuse of discretion. See Jackson v. State, 117 Nev. 116, 120,
17 P.3d 998,
1000 (2001). "[W]hether a proffered instruction is a correct statement of the
law presents a legal question which we review de novo." Nay v. State, 123
Nev. 326, 330,
167 P.3d 430, 433 (2007).
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While Aycock contends that several self-defense instructions
misstated the law, reviewing the challenged instructions shows that they
accurately reflect Nevada's self-defense statutes. See NRS 200.120; NRS
200.130; NRS 200.160; NRS 200.200. Therefore, we conclude Aycock has
not shown that the district court abused its discretion or that the challenged
instructions misstated the law. Aycock also contends that the district court
erred by instructing the jury on the meanings of affray and trespass. See
NRS 203.050 (defining affray); NRS 207.200 (defining trespass). We
disagree because the State presented evidence, which included eyewitness
testimony and surveillance video of the incident, that Aycock may have
committed both offenses in relation to his claim of self-defense. See NRS
200.120(2) (providing circumstances where "[a] person is not required to
retreat before using deadly force); Runion, 116 Nev. at 1051,
13 P.3d at 58-
59 (2000) (providing that whether "instructions are appropriate in any given
case depends upon the testimony and evidence of that case"). Therefore, we
conclude the district court did not abuse its discretion in settling the jury
instructions.2
Third, Aycock argues that the district court erred in admitting
evidence related to his former codefendant Ryan Kennedy. Kennedy
participated in the incident and drove Aycock away from the scene.
2To the extent that Aycock contends that the State made improper
arguments based on the jury instructions, he does not raise a claim of
prosecutorial misconduct or provide relevant authority. Therefore, we
decline to consider these arguments. See Maresca v. State, 103 Nev. 669,
673,
748 P.2d 3, 6 (1987) (providing that a party must "present relevant
authority and cogent argument; issues not so presented need not be
addressed by this court").
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Specifically, Aycock challenges the admission of Kennedy's GPS monitoring
device and Kennedy's testimony that he destroyed the firearm he used
during the altercation. "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).
The record shows that the district court adequately considered
the questions of relevance and unfair prejudice in overruling Aycock's
objections. The district court found the GPS evidence relevant to show that
Kennedy was at the scene and driving the vehicle Aycock used to flee the
scene. The district court also found Kennedy's testimony about destroying
firearms relevant to show why law enforcement did not recover the firearm.
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 probative value was not outweighed by the danger of unfair
prejudice given that Aycock testified that he used a firearm during the
altercation and fled the scene in the car. See NRS 48.035(1) (providing that
relevant evidence is not admissible when its "probative value is
substantially outweighed by the danger of unfair prejudice"). Therefore, we
conclude that the district court acted within its discretion in admitting this
evidence.3 See Jackson, 117 Nev. at 120,
17 P.3d at 1000 ("An abuse of
3To the extent Aycock contends that the surveillance video should not
have been admitted based on a lack of foundation, we disagree because a
digital forensics investigator testified that he obtained and downloaded the
video from a residential security system that captured the altercation. See
4
discretion occurs if the district court's decision is arbitrary or capricious or
if it exceeds the bounds of law or reason.").
Finally, Aycock argues that the cumulative effect of errors
denied him a fair trial. We disagree. Having found no errors, there is
nothing to cumulate. See Watson v. State, 130 Nev. 764, 790 n.11,
335 P.3d
157, 175 n.11 (2014). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
, J.
Cadish
poem , J.
Pickering
, J.
Herndon
cc: Hon. Jacqueline M. Bluth, District Judge
Law Offices of Martin Hart, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
Franko v. State, 94 Nev. 610, 613,
584 P.2d 678, 679 (1978) ("A proper
foundation may be established either by a chain of custody or through
identification by an appropriate witness.").
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