499 P3D 1200 - BOLDEN (JASON) VS. STATE

137 Nev., Advance Opinion 2g IN THE SUPREME COURT OF THE STATE OF NEVADA JASON J. BOLDEN, A/K/A JASON No. 79715 JEROME BOLEN, Appellant, vs. THE STATE OF NEVADA, Respondent. Appeal from a judgment of conviction, pursuant to a jury verdict, of four counts of attempted murder with the use of a deadly weapon; one count of ownership or possession of a firearm by a prohibited person; seven counts of discharging a firearm at or into an occupied structure; and one count of battery with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Richard Scotti, Judge. Affirmed. Law Office of Benjamin Nadig, Chtd., and Benjamin J. Nadig, Las Vegas, for Appellant. Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and John T. Niman, Deputy District Attorney, Clark County, for Respondent. BEFORE THE SUPREME COURT, CADISH, PICKERING, and HERNDON, JJ. 21- Zvi Ft, AMENDED OPINION By the Court, PICKERING, J.: NRS 173.035(2) operates as a safeguard against the erroneous dismissal of criminal charges by a justice of the peace following a preliminary hearing. The statute allows the State to seek and obtain leave from the district court to proceed against the accused by information filed in district court, upon a showing that the justice court committed egregious error in dismissing the charges. To obtain such leave, the district attorney must file a motion in district court "upon affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the person . . . charged with the commission thereof." Id. The principal question presented by this appeal is whether a preliminary hearing transcript can satisfy NRS 173.035(2)s affidavit requirement. We hold that it can and that the district court did not err in granting the State's motion for leave to proceed by information in this case. For these reasons, and because substantial evidence supports the judgment of conviction, we affirm. I. Appellant Jason l3olden approached brothers Brenton and Bryston Martinez outside of a Las Vegas apartment building. After briefly speaking to Brenton, Bolden fired seven shots, hitting Brenton and the exterior wall of an occupied apartment. Bryston's girlfriend, who lived in the apartment and had a child with Bolden, called 911. The girlfriend identified Bolden as the shooter, and when the police arrived, she gave thern a picture of him. The police showed the picture to Brenton, who identified its subject as the shooter. Bryston told the police he saw the shooter and gave them a description that matched Bolden. SUPREME COURT OF NEVADA 2 10) 1947A agirp). The State filed a criminal complaint against Bolden, and the matter proceeded to preliminary hearing in justice court. Both Brenton and Bryston testified, although Bryston's girlfriend did not. The brothers' preliminary hearing testimony contradicted their statements to the police. Bryston denied having seen the shooter, while Brenton testified that he did not recognize Bolden and could not remember what the shooter looked like. Both brothers testified they had been smoking marijuana and drinking before the shooting. The police officers who interviewed Bryston and Brenton testified about the brothers statements shortly after the shooting in which they described Bolden and identified him as the shooter. The justice of the peace questioned whether the evidence established that Bolden committed the crimes charged. Noting the inconsistency between the brothers' preliminary hearing testimony and their statements to the police, she found that the brothers lacked credibility. And their testimony about drinking and using drugs the day of the shooting undermined the reliability of their statements to the police, she concluded. For these stated reasons, the justice of the peace found that the evidence did not establish probable cause to believe Bolden was the shooter, and she sua sponte dismissed all charges against him.' The State filed a motion under NRS 173.035(2), seeking leave to proceed against Bolden by information in district court. The State supported its motion by attaching a copy of the preliminary hearing 'Although Bolden challenged two of the charges against him in justice court, he acknowledged that "as to most of the charges the State has met [the] slight or marginal [evidence standard] so I'm not going to argue [lack of probable cause] as to those." SUPREME COURT OF NEVADA 3 ith 1..47A transcript from justice court. Bolden did not file an opposition to the States motion, and the district court granted it as unopposed. The matter proceeded to trial in district court. At trial, Brenton identified Bolden as the shooter. Bryston's girlfriend's identification of Bolden in her 911 call and Bryston's description matching Bolden also came into evidence. Ultimately, the jury convicted Bolden of illegal possession of a firearm, battery with the use of a deadly weapon, four counts of attempted murder with the use of a deadly weapon, and seven counts of discharging a firearm at or into an occupied structure. This appeal followed. Bolden argues that the district court erred in allowing the State to proceed by information, because the State based its motion for leave to do so on the preliminary hearing transcript, not the affidavit NRS 173.035(2) requires. Relatedly, Bolden argues that the State did not show that the justice court committed egregious error in dismissing the charges against him. Finally, Bolden argues that insufficient evidence supports his conviction. A. Bolden failed to oppose the States motion for leave to proceed by information in district court. He thereby forfeited all but plain error review of the order granting the motion. Before this court will correct a forfeited error, "an appellant must demonstrate that: (1) there was an 'error% (2) the error is 'plain, meaning that it is clear under current law from a casual inspection of the record; and (3) the error affected the defendant's substantial rights." Jeremias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48 (2018). Bolden's claims of error under NRS 173.035(2) potentially affect his substantial rights; this court has reversed a defendant's conviction upon finding that the district court erred in allowing the State to proceed 4 by information after the justice court dismissed the charges. See, e.g., Parsons v. State, 116 Nev. 928, 938, 10 P.3d 836, 842 (2000); Feole v. State, 113 Nev. 628, 632, 939 P.2d 1061, 1064 (1997), overruled on other grounds by State v. Sixth Judicial Dist. Court (Warren), 114 Nev. 739, 743, 964 P.2d 48, 50-51 (1998). We therefore undertake plain error review of Bolden's challenges to the order granting the States NRS 173.035(2) motion to determine whether it involved error and, if so, whether the error was plain. Cf. elerernias, 134 Nev. at 52, 412 P.3d at 49 (holding that this court's review of forfeited errors is discretionary and not appropriate where the error asserted is trivial or of no consequence). 1. In interpreting a statutory provision, this court starts with the statutes text. See Bigpond v. State, 128 Nev. 108, 114, 270 P.3d 1244, 1248 (2012). Enacted in 1913 and amended in 1915, the text of NRS 173.035(2) has changed little over the years. It provides this: If.. . . upon the preliminary examination the accused has been discharged . . . the district attorney may, upon affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the person or persons charged with the commission thereof, upon being furnished with the names of the witnesses for the prosecution, by leave of the court first had, file an information, and process must forthwith be issued thereon. NRS 173.035(2) (originally enacted as 1913 Nev. Stat., ch. 209, § 9, at 295 and amended by 1915 Nev. Stat., ch. 17, § 1, at 16). Procedurally, this case tracks NRS 173.035(2) except as to the statutes affidavit requirement. The justice court "discharged" Bolden SUPREME COURT OF NEVADA 5 <c› I.147A <361Libm, when, after the "preliminary [hearing] examination," it dismissed the charges against him. The district attorney, "by leave of court first had," proceeded to "file an information" against Bolden in district court. The district attorney obtained such leave by motion. But instead of the "affidavie NRS 173.035(2) references, the State supported its motion by attaching a copy of the preliminary hearing transcript. An affidavit resembles a hearing transcript in that both memorialize a declarant's statement under oath after being sworn to tell the truth. But an affidavit is a "voluntary declaration of facts written down and sworn to by a declarant, usu. before an officer authorized to administer oaths." Affidavit, Black's Law Dictionary (11th ed. 2019); see Affidavit, 1 Bouvier's Law Dictionary 158 (Rawle 3d rev. 1914) (defining "affidavir as statement or declaration reduced to writing, and sworn or affirmed to before some officer who has authority to administer an oath or affirmation"). A hearing transcript, by contrast, reports a witness's oral testimony, whether voluntary or compelled by subpoena. And unlike an affidavit, which the declarant normally reviews and then signs, see Bouvier's, supra ("The deponent must sign the affidavit at the encl."), a witness does not sign off on the hearing transcript; rather, the court reporter certifies that the transcript accurately reports what the witness orally said. See NRS 3.360 ("The transcript of the official reporter. . of any court, duly appointed and sworn, when transcribed and certified as being a correct transcript of the testimony and proceedings in the case, is prima facie evidence of such testimony and proceedings."). Bolden takes a literalist's approach. He argues that, by its plain terms, NRS 173.035(2) requires an affidavit. Because an affidavit and a hearing transcript are two different things, Bolden contends, the district SUPREME COURT OF NEVADA 6 1nN7A