IN THE SUPREME COURT OF THE STATE OF NEVADA
KENNETH EARL DAVIS, Np. 80051
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. JUN 1 2021
BROWN
CLE EINE COURT
ORDER OF AFFIRMANCE BY
EPUTY LERK
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of first-degree murder with the use of a deadly weapon, robbery
with the use of a deadly weapon, and grand larceny of a motor vehicle.'
Second Judicial District Court, Washoe County; David A. Hardy, Judge.
Sufficiency of the evidence
Appellant Kenneth Davis argues that insufficient evidence
supports his convictions. 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)).
First-degree murder
Relying on State v. White, 130 Nev. 533,
330 P.3d 482 (2014),
Davis first contends that burglary could not serve as the predicate offense
for felony murder because he had an absolute right to enter the home where
he lived. See id. at 539, 330 P.3d at 486 (providing that "one cannot
burglarize his own home so long as he has an absolute right to enter the
'Pursuant to NRAP 34(f)(1), we conclude that oral argument is not
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warranted.
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home"). We disagree because the State prosecuted Davis under the theory
that he burgled the victim& bedroom and the female victim testified that
Davis did not have an absolute right to enter the bedroom. See id. (stating
that "the appropriate question is whether the alleged burglar has an
absolute, unconditional right to entee the area in question). Thus, despite
Davis residing in the victims home, he could burglarize the victims'
bedroom. See NRS 205.060(1) (2013) (providing that entry into
"any. . . room" with felonious intent is a burglary); see also People v. Abilez,
161 P.3d 58, 85-86 (Cal. 2007) (affirming conviction where the defendant
burglarized the victim's bedroom in her home, even though he also lived in
the home). The female victim further testified that Davis entered the
bedroom, shot the male victim multiple times, turned the gun to her and
demanded she give him the keys to the victims' vehicle, took the keys from
atop a dresser, and fled the scene in the victims' vehicle. Based on the
evidence presented at trial, a rational juror could find that Davis entered
the bedroom with felonious intent to commit assault, battery, and larceny.
See Sharrna v. State,
118 Nev. 648, 659,
56 P.3d 868, 874 (2002) (observing
that "intent can rarely be proven by direct evidence of a defendant's state of
mind, but instead is inferred by the jury from the individualized, external
circumstances of the crime, which are capable of proof at triar).
Accordingly, we conclude the State presented sufficient evidence that Davis
murdered the victim while perpetrating a burglary.2 See NRS
200.030(1)(b); NRS 205.060(1).
2To the extent that Davis contends his first-degree-murder conviction
must be reversed because it cannot be determined which theory the jury
relied on, we disagree because "a jury need not be unanimous as to a
particular theory of culpability for a single offense to sustain a conviction."
Anderson v. State, 121 Nev. 511, 515,
118 P.3d 184, 186 (2005).
2
We also conclude that sufficient evidence supported the State's
theory that Davis murdered the male victim during the perpetration of a
robbery. See NRS 200.380. The female victim testified that Davis shot the
male victim, aimed the gun at her, and demanded the car keys. Thus, the
evidence belies Davis's contentions that he did not commit an unlawful
taking in her presence or that the robbery was only an afterthought because
he took the car keys after shooting the male victim. See generally Nay v.
State, 123 Nev. 326, 330-33,
167 P.3d 430, 432-35 (2007) (discussing felony
murder and afterthought robbery); see also Abilez, 161 P.3d at 507-08
(providing that "[w]hile it may be true that one cannot rob a person who is
already dead when one first arrives on the scene, one can certainly rob a
living person by killing that person and then taking his or her property"
(alteration in original) (internal quotation marks omitted)). Therefore, we
conclude a rational juror could find the essential elements of first-degree
murder based on a felony-murder theory with robbery as the predicate
offense.3
Grand larceny of a motor vehicle
Davis contends that insufficient evidence supports his
conviction for grand larceny of a motor vehicle because he did not intend to
permanently deprive the owner of the vehicle. We disagree because the
female victim testified that Davis took the vehicle against her will. And law
enforcement apprehended Davis driving the victim& vehicle in California
3We have also considered Davi&s related challenges to the jury
instructions on felony murder and the underlying offenses, and we conclude
that his contentions do not warrant relief. See Jackson v. State, 117 Nev.
116, 120,
17 P.3d 998, 1000 (2001) (reviewing a district court's settling of
jury instructions for an abuse of discretion or judicial error); see also
Ramirez v. State, 126 Nev. 203, 208,
235 P.3d 619, 622-23 (2010) (reviewing
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unpreserved jury instruction challenges for plain error).
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after he fled Nevada. Based on that evidence, a rational juror could find
that Davis intended to permanently deprive the victims of the vehicle. See
Sharma, 118 Nev. at 659,
56 P.3d at 874 (observing that "intent can rarely
be proven by direct evidence of a defendant's state of mind, but instead is
inferred by the jury from the individualized, external circumstances of the
crime, which are capable of proof at triar). Accordingly, sufficient evidence
supports the jury's verdict. See NRS 193.200; NRS 205.228(1).
Charging documents
Davis argues that the State improperly altered its theory of
prosecution by including the theories of burglary with the intent to commit
larceny and felony murder by means of robbery in the information because
those theories were not set forth in the amended criminal complaint. As a
result, Davis contends that he did not have adequate notice of the State's
alternative theories of liability. We disagree and conclude Davis had
adequate notice of the prosecution's theories. See NRS 173.075(1)
(providing the general requirements for an information); Kozo v. State, 104
Nev. 262, 264,
756 P.2d 1184, 1185 (1988) (providing "that the charging
document must give adequate notice to the defendant of the theories of
prosecution").
The amended criminal complaint alleged that Davis committed
felony murder by killing the victim in the perpetration of a burglary, robbed
the female victim, and stole the victims vehicle. The State filed the
information with the additional theories of prosecution roughly seven
months before trial, providing Davis with adequate notice of the charges
against him and advising him of what he needed to know to defend against
them. The evidence adduced at the preliminary hearing and trial supported
the State's alternative theories of liability. See Walker v. State, 116 Nev.
670, 673,
6 P.3d 477, 479 (2000) CThe State may proceed on alternate
4
theories of liability as long as there is evidence in support of those
theories."); Collura v. State, 97 Nev. 451, 453,
634 P.2d 455, 456 (1981) ("We
may look to the entire record to determine whether the accused had notice
of what later transpired at trial."). And Davis has not provided any
authority requiring the State to file a motion to revise its theory of
prosecution before filing the initial information. Cf. NRS 173.095(1) ("The
court may permit an indictment or information to be arnended at any time
before verdict or finding if no additional or different offense is charged and
if substantial rights of the defendant are not prejudiced." (emphasis
added)); see also 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").
Moreover, Davis concedes he never objected below, see Collura,
97 Nev. at
453,
634 P.2d at 456 (explaining that, if a defendant "proceeds to trial
without challenging the sufficiency of the information or indictmentH an
element of waiver is involved"), and we conclude that he has not shown that
any alleged inadequacy in the information resulted in prejudice that
warrants relief, see Koza,
104 Nev. at 264,
756 P.2d at 1186 ("Where a
defendant has not been prejudiced by the charging instrument's inadequacy
the conviction will not be reversed.").
Prosecutorial misconduct
Davis argues that the State engaged in numerous instances of
prosecutorial misconduct. "When considering claims of prosecutorial
misconduct, this court engages in a two-step analysis. First, we must
determine whether the prosecutor's conduct was improper. Second, if the
conduct was improper, we must determine whether the improper conduct
warrants reversal." Valdez v. State, 124 Nev. 1172, 1188,
196 P.3d 465, 476
(2008) (footnotes omitted). If the error was preserved, reversal is not
5
warranted where the misconduct is harmless. Id. If the error was not
preserved, we apply plain-error review, under which reversal may be
warranted only if the defendant establishes "an error that is plain from a
review of the record" and "affected his or her substantial rights, by causing
actual prejudice or a miscarriage of justice." Id. at 1190,
196 P.3d at 477
(internal quotation marks omitted).
Davis first challenges the prosecutor's argument that he lied
during his interview with law enforcement. "A prosecutor's use of the words
lying or 'truth' should not automatically mean that prosecutorial
misconduct has occurred. But condemning a defendant as a 'liar' should be
considered prosecutorial misconduct." Rowland v. State, 118 Nev. 31, 40,
39 P.3d 114, 119 (2002) (discussing "[t]he line between appropriate
argument on the credibility of a witness and improper prosecutorial
argument"). Even assuming the prosecutor's argument amounts to
misconduct, we conclude it was harmless. During closing argument,
defense counsel relied largely on Davis's police interview to establish self-defense and asserted that "he didn't lie to" the officers.4 In rebuttal, the
State responded that Davis was lying because his version of events did not
4 To the extent Davis assigns error to the prosecutor redacting the
portions of his police interview where he stated that the victim gave him
the firearm he used and that he and the victim were previously involved in
gang activity, we discern no prosecutorial misconduct and conclude the
district court acted appropriately within its discretion. The district court
allowed Davis to ask about the victim giving him the firearm during his
cross-examination of the interviewing officer, see Bushnell v. State, 95 Nev.
570, 572,
599 P.2d 1038, 1039 (1979) (providing that "the permissible extent
of cross-examination is largely within the sound discretion of the trial
court"), and precluded any references to the alleged gang affiliation, see
Mclellan v. State, 124 Nev. 263, 267,
182 P.3d 106, 109 (2008) (reviewing "a
district court's decision to admit or exclude evidence for an abuse of
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discretion.").
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match the physical evidence. See Greene v. State, 113 Nev. 157, 178,
931
P.2d 54, 67 (1997) ("The strongest factor against reversal on the grounds
that the prosecutor made an objectionable remark is that it was provoked
by defense counsel."), receded frorn on other grounds by Byford v. State, 116
Nev. 215, 235,
994 P.2d 700, 713 (2000). Moreover, despite the district court
overruling Davis's objection, the prosecutor stopped after discussing the
issue at the bench. And the State presented overwhelming evidence that
Davis did not act in self-defense, including the female victim's testimony
and physical evidence. See King v. State,
116 Nev. 349, 356,
998 P.2d 1172,
1176 (2000) (providing that prosecutorial misconduct may be harmless
where there is overwhelming evidence of guilt).
Davis also argues it was improper for the State to ask a law
enforcement witness about the defense's ability to request testing of a golf
club. To the extent the line of inquiry improperly suggested Davis should
have independently tested the golf club and introduced the results in
evidence, see Whitney v. State, 112 Nev. 499, 502,
915 P.2d 881, 883 (1996)
(providing that "it is generally improper for a prosecutor to comment on the
defense's failure to produce evidence"), we conclude reversal is not
warranted given that the question came in response to Davis's cross-examination about law enforcement not testing the golf club for DNA or
fingerprints, see Greene,
113 Nev. at 178,
931 P.2d at 67 (The strongest
factor against reversal on the grounds that the prosecutor made an
objectionable remark is that it was provoked by defense counsel."). Having
considered Davis's remaining claims of prosecutorial misconduct, we
conclude that they do not warrant relief.
Sentencing
Davis argues that the district court abused its discretion at
sentencing by relying on improper evidence. Although Davis points to
7
arguments made by the State, he does not show that the district court relied
on any impalpable or highly suspect evidence. See Silks v. State, 92 Nev.
91, 94,
545 P.2d 1159, 1161 (1976) (So long as the record does not
demonstrate prejudice resulting from consideration of information or
accusations founded on facts supported only by impalpable or highly suspect
evidence, this court will refrain from interfering with the sentence
imposed."). The record shows that the district court asked what, if any,
weight should be given to various factors, e.g., Davis's criminal history, age,
and the lack of input from the victims about sentencing. We discern no
abuse of discretion. See Denson v. State, 112 Nev. 489, 492,
915 P.2d 284,
286 (1996) (Possession of the fullest information possible concerning a
defendant's life and characteristics is essential to the sentencing judge's
task of determining the type and extent of punishment.").
Davis also contends that his sentence of life without the
possibility of parole for first-degree murder amounts to cruel and unusual
punishment. Regardless of its severity, "[a] sentence within the statutory
limits is not cruel and unusual punishment unless the statute fixing
punishment is unconstitutional or the sentence is so unreasonably
disproportionate to the offense as to shock the conscience." Blume v. State,
112 Nev. 472, 475,
915 P.2d 282, 284 (1996) (internal quotation marks
omitted). Here, the district court imposed a sentence within the statutory
guidelines, see NRS 200.030(4), and Davis does not challenge the
constitutionality of the statute. Therefore, we conclude the sentence
imposed is not grossly disproportionate to the crimes and does not
constitute cruel and unusual punishment.
Cumulative error
Finally, Davis argues that cumulative error warrants reversal.
After reviewing the relevant factors, see Valdez, 124 Nev. at 481, 196 P.3d
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at 1195 (discussing the factors to consider for a cumulative error claim), and
the errors identified or assumed above, we disagree, see Hernandez v. State,
118 Nev. 513, 535,
50 P.3d 1100, 1115 (2002) (concluding "that any errors
which occurred were minor and, even considered together, do not warrant
reversar). Accordingly, we
ORDER the judgment of conviction AFFIRMED.
..
Cadish
64(1rA, , J.
A
Pickering
,
,J
Herndon
(4 .,
AIIIIIsAini
is
J.
cc: Hon. David A. Hardy, District Judge
Karla K. Butko
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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