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9 Nev., Advance Opinion 90
IN THE COURT OF APPEALS OF THE STATE O Fg ZA
ci i
4C --
ANDREW YOUNG, No. 83243-COA
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. .4%
-J
C IEF DEPUTY CLERK
Appeal from a judgment of conviction, pursuant to a jury
verdict, of 12 counts of burglary; 4 counts of larceny from the person, victim
60 years of age or older; 3 counts of fraudulent use of a credit or debit card;
and i count of grand larceny. Eighth Judicial District Court, Clark County;
Jacqueline M. Bluth, Judge.
Affirrned in part, reversed in part, and remanded.
Yampolsky & Margolis and Jason R. Margolis, Las Vegas,
for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
Attorney, and Parker P. Brooks and John Afshar, Deputy District
Attorneys, Clark County,
for Respondent.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and. BULLA and
WESTBROOK, JJ.
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OPINION
By the Court, GIBBONS, C.J.:
During June, July, and August 2020, appellant Andrew Young
and an accomplice carried out a series of thefts, generally against elderly
victims, during which one of them would distract the victim while the other
surreptitiously took the victim's wallet. After, Young purchased or
attempted to purchase items from stores using the credit and debit cards
from the wallets taken from his victims. Young was eventually identified
by the Las Vegas Metropolitan Police Department (LVMPD) and convicted
of 20 various counts of burglary, larceny, and fraudulent use of a credit or
debit card (cards).
On appeal from the judgment of conviction, Young raises
numerous issues, the vast majority of which were unpreserved as a result
of counsel's failure to contemporaneously object at trial. This opinion
illustrates the importance of making timely objections to preserve the
record in order to facilitate appellate review. While most of Young's
arguments are resolved under existing law, this opinion addresses in
particular Young's argument that the district court erred in denying his
motion for mistrial or, alternatively, in declining to excuse a juror based on
the seated juror's expression of sympathy for victims who testified during
trial. In discussing the issue surrounding this juror, this opinion
distinguishes the different types of juror bias, offering guidance on how to
navigate such a claim if it arises during trial. We also provide additional
clarity concerning jury instructions related to larceny-from-the-person
charges to ensure that jurors are properly instructed on all elements of that
crime, as stated in the Nevada 2023 Pattern Jury Instructions: Criminal.
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FACTS AND PROCEDURAL HISTORY
Counts 1-5 (two counts of burglary; larceny from the person, victim 60 years
of age or older; grand larceny; and fraudulent use of a card)
Young and his accomplice approached Mary Campo, age 72,
while she was sitting at a gaining machine inside the Rampart casino. One
of the men showed Campo a piece of paper while asking her questions. As
Campo answered the man's questions, the other man stood behind her.
When the two men left, Campo reached into her purse and discovered her
wallet was missing. Although it is unclear from the record exactly where
her purse was situated while she was at the gaining machine, it was not on
her person. Her wallet contained her cards and approximately $1400.
Campo's bank contacted her that same night and reported that her card had
been used at a 7-Eleven convenience store in Las Vegas.
Detective Grimes of LVMPD retrieved surveillance video from
the casino, Video footage frorn the 7-Eleven, and a receipt from Young's card
transactions at the 7-Eleven. At trial, while testifying and narrating
footage depicting the theft involving Campo, Grimes stated that when the
two men approached Campo, one of them used his jacket to conceal Campo's
view of his arm and he grabbed something from very close to Campo and
then hid it under his jacket.
Detective Grimes later became aware of a separate theft of an
elderly woinan's wallet involving two male suspects at the nearby Suncoast
Hotel and Casino.' When Grimes saw the video from this later incident, he
"immediately recognize[d] it's the same two Males from the" Campo
incident. Grimes testified that one of the two men wore the same shoes
'The separate wallet theft referenced here is included in the State's
indictment as count 22.
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during both incidents. Gri.mes spoke with Detective Janecek, who was
investigating the Suncoast wallet theft, after LVMPD's facial recognition
section identified one of the suspects in police body camera footage as Young
based on his white shoes bearing a distinctive black stripe.2
Count 6 (burglary)
Young also participated in stealing Lydia Hefner's wallet inside
a Walmart. As Hefner, age 68, finished shopping and headed toward the
checkout stand, a Walmart employee, Vianca Eskildsen, ran • toWards
Hefner and asked. if Hefner had her wallet in her purse. Hefner looked
inside her purse and discovered her wallet was missing. Eskildsen had been
observing Young walking through the store and using his jacket to coriceal
his arm while he hovered over customers. As her suspicion about Young
grew, Eskildsen called LVMPD. Once police officers responded to the call
and arrived at the Walmart, they entered the Malmart security office and
watched the live surveillance footage of Young. At trial, Eskildsen testified
that the video showed Youn.g taking Hefner's wallet but of her purse.
Officer Wheeler was one of the • officers who accompanied
Eskildsen to the . security office and observed Young stealing on • live
surveillance. Wheeler testified that Walmart security showed hiin "footage
of a male that they've had problems with before, [and] that they're
concerned about him trying to steal." The officers took Young into Custody,
searched him, and recovered• a wallet belonging to Hefner. Young told the
offiders he found the wallet on the floOr, but Wheeler testified he witnessed
Young live by surveillance camera taking the wallet from Hefner's purse.
The police body camera footage referenced here, related to count .6,
2
was recorded and obtained from Young's interaction with Officer Wheeler
during a wallet theft at Walinart.
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Counts 7-8 (burglary and larceny frorn the person, victim 60 years of age or
older)
Rhonda Hatcher, age 63, was carrying her purse while riding in
the Caesars casino elevator with her mother. Hatcher testified that there
were two men also in the elevator and that one of the men claimed he was
blind and asked if he had pushed the correct button. After exiting the
elevator, Hatcher felt something was wrong, so she looked in her purse. She
discovered her wallet was gone and immediately filed reports with security
and LVMPD. While filling out the security report, Hatcher received
notifications from her bank asking if she authorized certain transactions
using her cards. Hatcher never authorized anyone to possess or use her
cards.
Detective Jacobitz reviewed substantial video surveillance from
this theft and other theft and fraud incidents that occurred over the
summer. He identified Young in the casino elevator video played during his
testimony at trial. During his testimony, Jacobitz commented that he felt
Young was "srnooth" and that Young had "been doing this for a long time.
He's good." However, Jacobitz immediately adrnitted he had no information
as to how long Young had been "doing this" and that these comments
reflected his opinion. Young did not object, nor did he move to strike this
portion of Jacobitz's testimony. Jacobitz also stated that he believed the
two men in the elevator were a team because they were not using the
elevator to go to a hotel room and the two men left the casino after returning
to the ground floor. Over objection, Jacobitz also testified he learned that
Young was not registered at the hotel.
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Counts 9-10 (burglary and larceny from the person, victim 60 years of age or
older)
Joanne Frank, age 77, was approached in an Albertsons
supermarket by two men, one of whom was later identified as Young. One
of the men began asking her questions. She spoke with the man for about
15 minutes. As soon as the two men left, she noticed that her backpack
purse, which she was wearing at the time, had been opened. She left the
store without purchasing anything and discovered her wallet was missing
from her backpack purse but stated she "didn't feel a thing" during her
encounter with the two men. Her bank contacted her to report her card was
used to attempt to make a purchase, but the transaction was declined.
Counts 11-14 (burglary and fraudulent use of cards)
Barbara Bowen, age 80, was approached by a man while
shopping at Walmart with her daughter. Bowen was securing an item from
the shelf when the rnan told her he wanted the same item, and Bowen
handed him one. The man thanked her and left. Bowen had her purse
sitting in the bottom portion of her shopping cart. When she tried to pay
for an item, she realized her wallet was missing, and after confirming the
wallet was not in her car, Bowen reported the wallet missing to Walmart
security. Bowen's cards were used to make two unauthorized purchases at
a Walmart and a GameStop store, and another attempted transaction, at a
Walgreens, was declined.
An employee at GameStop testified that Young entered the
store and made purchases with a card that was later determined to be
Bowen's. On a later date, Young made a purchase at the GameStop with a
card belonging to Montho Boone. During both visits, Young is seen on video
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wearing similar clothing. Young purcha.sed a Vanilla Visa prepaid gift card3
during both visits to the GameStop.
An employee at Walgreens also testified that Young visited the
store and attempted to purchase a Vanilla Visa card and cigarettes. Young
was not able to complete any transactions at Walgreens after the cards he
used were declined multiple times. The saine Walgreens employee testified
that on another occasion a man with similar clothing visited the store and
attempted to purchase a Vanilla Visa card.
Counts 15- 16 (burglary and. larceny from the person, victim 60 years of age
or older)
Young was also involved in an incident at the Flamingo casino
with Serry Mello, age 69, . who, with his spouse, was inside the elevator
heading to their room. Young and another man entered the casino elevator
with Mello and his spouse. Fifteen minutes after Mello arrived at his hotel
room, he received a phone call from his bank reporting suspicious activity
on his card. Mello discovered he did not have his wallet, which had been in
the front pocket of his pants, and reported that he had not authorized the
suspicious transactions.
Detective Cipriano investigated the incident and obtai.ned
surveillance footage taken in the hotel elevator. After working with other
detectives and reviewing other video evidence during his investigation,
Cipriano identified Young as one of the men in the elevator.
3A Vanilla Visa card is a basic credit card that allows a purchaser to
add a pre-paid balance, subject to a limit, to the card. These cards can be
used for payment at any store that accepts Visa cards.
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Cou,nts 17-20 (burglau and fraudulent use of cards)
Montho Boone, age 81, testified that she visited Walmart with
her daughter and had her wallet inside her purse. She stated her purse had
been zipped closed and was sitting in the upper portion of her shopping cart,
tied to the cart using the cart's belt. Boone was browsing in the produce
section and turned away from her cart for a short time. When she turned
back, her purse was unzipped, and her wallet was gone. Boone and her
daughter reported the wallet missing to Walmart security. Boone's bank
notified her that her cards were used to make several transactions at
GameStop and Walgreens, though some were declined.
Detective Liske investigated and visited the GameStop and
Walgreens where Young apparently used Boone's cards. He obtained video
from the two businesses. Liske's partner was investigating the incident
involving Bowen, so the two compared video footage from their
investigations. In comparing the videos, Liske observed that the suspect
was an "older Black male adult . . wearing the same exact clothing in all
the instances."
Count 21 (burglary)
Tina Leigh, age 60, visited Walmart with her purse strapped
into her shopping cart. She testified that she encountered a tall man in one
of the aisles who asked her "a ridiculous question about" mixing two
cleaning supplies. She responded and turned away. As she turned away,
she saw another man stick his hand in her purse and take something. She
checked her purse and discovered her wallet was gone. She stated the man
who reached into her purse had a jacket draped over his arm. Leigh
testified that she felt the two men were working as a team because the taller
man left as soon as she saw the other man reach into her purse. Leigh
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learned from her bank that someone tried to use her cards within an hour
of the theft, but the transactions were stopped after Leigh reported her
cards were stolen.
Detective Liske testified that video surveillance showed one
man distracting Leigh while the other reached into her purse and took her
wallet. He also testified that in the three theft investigations in which he
reviewed video footage (the thefts involving Boone, Bowen, and Leigh), it
appeared one suspect wore the same t-shirt and white shoes with a black
stripe and always had a jacket draped over his left arm. Liske testified that
this Walmart theft became significant because Young was identified at
Walmart when confronted and recorded on body camera and given a citation
by Officer Wheeler outside the store. Liske testified that Young wore the
same shoes during all three theft incidents he investigated. Finally, Liske
testified that Young also wore the same shoes when Young was finally
arrested, and police impounded the shoes as evidence.
Count 22 (burglary)
Barbara Angersbach testified regarding an incident at a casino
that involved Young and another man approaching her at the gaming
machines. Angersbach, age 83, had her purse next to her as she was playing
one of the slot machines. Her purse was open when Young and the other
man approached her. She told the two rnen they needed to be six feet away
from her because of COVID restrictions. Angersbach testified she did not
see either man put any money into any machines to play. The two men left
after agreeing they could not be so close to Angersbach. When she reached
into her purse to find her glasses, she noticed her wallet missing. On her
way home, her bank contacted her about suspicious activity with her cards.
She filed a police report the next day.
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Detective Grimes reviewed the video surveillance footage and
recognized the two men as the same pair of suspects from the Campo
incident. The shorter man was wearing the same shoes during both
incidents. Grimes submitted photographs to the INMPD facial recognition
section and eventually learned• that an identification was made using body
camera footage from Young's encounter with Officer Wheeler outside of
Walmart. Grimes testified that in• both casino incidents, as well as in the
Albertsons' incident, one of the suspects Wore the ,saine shoes and shorts
and was recognizable because of his bald head and limp or unusual gait.
Detective Byrd from the facial recognition.section testified that
he revieWed different incidents, including the Walmart incident involving
Hefner and Officer Wheeler when Young was given a citation. He also
examined video surveillance footage related to the thefts that occurred
inside elevators. During his trial testimony, Byrd identified the suspect in
all the videos as Young and identified him inside the courtrooin. He stated
that he was able to identify Young because Young had a "shiny bald head."
wore "white-colored headphones with some black accents," carried a "black
jacket," had "glasses clipped to the front of his shirt," had "very distinct
eyes," and wore the same "white and black shoes." The headphones, black
jacket, and shoes were distinct features that, according to Byrd, appeared
in ahnost every surveillance video he viewed when trying to identify the
suspect. Young also had walked with a distinct dip that was like a llinp or
some kind of awkward sideways movement. Byrd identified Young as the
individual depicted in six videos showing either a theft-related offense or
fraudulent use of a credit or debit card.
The State's second superseding indictment charged Young with
the following 22 counts: counts 1, 4, 6, 7, 9, 11, 13, 15, 17, 19, 21, and 22
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(burglary); counts 2, 8, 10, and 16 (larceny from the person, victim 60 years
of age or older); count 3 (grand larceny); and counts 5, 12, 14, 18, and 20
(fraudulent use of a credit or debit card).
Following the jury trial, Young was found guilty on all counts
except counts 14 and 20, which involved the alleged fraudulent use of cards
at Walgreens. He was sentenced under NRS 207.010(1)(b), Nevada's large
habitual criminal statute, for counts 1, 6, 7, 9, 1.1, 15, 17, 21, and 22. The
district court sentenced Young to serve concurrent and consecutive prison
terms totaling 90 years to life in the aggregate. Young now appeals.
ANALYSIS
We first address Young's arguments related to the trial
ploceedings that the district court improperly admitted evidence of prior
bad acts, improperly allowed. testifying police officers to narrate and
describe the thefts while surveillance video footage was played for the jury,
and allowed for inadmissible hearsay evidence to be presented to the jury.
We then turn to Young's arguments that the district court erred in denying
Young's motion for mistrial based on a juror's showing of sympathy for
Young's victims and that the district court improperly allowed counsel to
argue in the presence of that juror. Next, we address Young's arguments
that the district court gave erroneous jury instructions and that there was
insufficient evidence to support the jury's verdict. Finally, we address
Young's sentencing arguments.
The district court did not improperly admit evidence of uncharged bad acts
Young argues that the district court erroneously admitted prior
bad act evidence but concedes he did not raise this issue before or during
trial. Young specifically argues that certain testimony by LVMPD officers
gave rise to the inference that he committed prior, unspecified bad acts. The
testimony Young highlights includes (1) Officer Wheeler testifying that he
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responded to the call from Walrnart because Walmart employees reported a
c`inale that they've had problems with before" and they were "concerned
about him trying to steal"; (2) Detective Jacobitz identifying Young based
on his review of substantial video surveillance and testifying that Young
was "smooth," "good," and "[h]e's been doing this for a long time";
(3) Detective Cipriano's testimony that he identified Young by watching a
lot of video surveillance footage; and (4) Detective Grimes' testimony that
he identified Young after performing a records check on his name and date
of birth and finding a match in the LVMPD system. Young argues these
statements by LVMPD officers constituted "de facto bad act evidence" that
required a pretrial hearing regarding admissibility because the officers'
testimonies allowed jurors to speculate that Young was dangerous or had a
criminal character, thus making it seern more likely that he committed the
charged crimes. The State responds that the issue is waived because Young
did not object below and that it did not offer bad act evidence, so a pretrial
hearing was unnecessary.
This court will consider and correct an unpreserved error only
when an appellant demonstrates "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) (citing Green v.
State, 119 Nev. 542, 545,
80 P.3d 93, 95 (2003)). "[A] plain error affects a
defendant's substantial rights when it causes actual prejudice or a
miscarriage of justice (defined as a 'grossly unfair' outcome)." Id. at 51, 412
P.3d at 49. The appellant holds the burden of showing that his substantial
rights were affected and that he was actually prejudiced. See Phenix v.
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State, 114 Nev. 116, 119, 954 .P.2d 739, 740 (1998). However, review of
forfeited errors is discretionary. Jereinias, 134 Nev. at 52, 412 P.3d at 49.
We conclude Young has not demonstrated that the statements
he identifies as de facto bad act evidence are clearly bad act evidence from
a casual inspection of the record. None of those statements clearly
constituted lelvidence of other crimes, wrongs or acts" to prove Young's
character or show that he acted in conformity therewith. See NRS
48.045(2). Young argues that the statements. "gave riSe to the inference"
that he committed prior bad acts: Although the officers' statements may
have referenced past crimes that Young committed, and could possibly have
been admitted in error, because there was no objection, it cannot be
determined if the statements were referring merely to Young's criminal
conduct during the summer months of 2020 or other crimes or bad actS.
That criminal conduct from 2020 was directly at issue during Young's trial
and the basis of the State's charges against Young and Would not be
evidence of uncharged crimes. Further, even with an inference of past
wrongdoing by Young, he fails to demonstrate that any error caused by the
officers' statements affected his substantial rights, especially in light of the
significant evidence establishing Young's guilt—his identification and
pattern and manner of distract thefts during the summer of 2020.
To the extent Young takes issue with the lack of a pretrial
hearing and Detectives JacobitZ, Cipriano, and Grimes testifying that they
reviewed surveillance video from theft crimes that occurred over the
summer months of 2020 before identifying )(citing as a suspect, this
testimony was relevant to explain their involvement in this case and why
they took the actions they did during their investigations. Further, the
evidence was not unfai.rly prejudicial because it related to other charges in
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the case, all of which occurred during the summer of 2020. and was not
clearly prior bad act evidence. Cf. McNelton v. State, 115 Nev. 396, 405,
990
P.2d 1263, 1269 (1999) (holding that a district court's failure to conduct a
hearing regarding the admissibility of prior bad acts does not require
reversal of an appellant's convictions if "(1) the record is sufficient to
determine that the evidence is admissible under Tinch; or (2) the result
would have been the same if the trial court had not admitted the evidence");
Tinch v. State, 113 Nev. 1170, 1176,
946 P.2d 1061, 1064-65 (1997) ("To be
deemed an admissible bad act, the trial court must determine, outside the
presence of the jury, that: (1) the incident is relevant to the crime charged;
(2) the act is proven by clear and convincing evidence; and (3) the probative
value of the evidence is not substantially outweighed by the danger of unfair
prejudice."), holding modified by Bigpond v. State, 128 Nev. 108,
270 P.3d
1244 (2012).
As for the statements by Officer Wheeler and Detective
Jacobitz, we conclude that their testimonies were isolated, nonspecific, and
did not affect Young's substantial rights. Walmart security having
"problems" with Young and worrying he was "trying to steal" and Jacobitz
believing that Young had "been doing this for a long tim.e," though possibly
referencing Young's past criminal behavior and experience as a thief using
a distraction technique, could just as easily have been referring to Young's
contemporaneous conduct or other charged criminal conduct occurring
during the summer of 2020, but absent an objection, the record was not
developed and we cannot determine the context with accuracy. Thus, under
a casual inspection of the record, and when considering Young's substantial
rights in light of the overwhelming evidence of guilt, we decline to conclude
that the district court plainly erred. Further, the district court did not
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improperly fail to conduct a pretrial hearing on the admissibility of' the
officers' statements because the State did not seek to offer bad act evidence,
and what was elicited was not intentionally caused to be revealed by the
State at trial. Nevertheless, it is concerning that multiple questionable
statements were made, and we caution the State to better prepare and
control its witnesses to ensure a fair trial.
Young additionally argues that the district court should have
offered a limiting instruction regarding the jury's consideratiOn of the
alleged bad act evidence. Young argues that the State should have
requested the instruction and that the district court was required to
instruct the jury before the admission of bad act evidence. The State
responds that any comment during the officers' testimonies was not so
inherently prejudicial that it required the district court to act sua sponte to
p reclude testimony.
The failure of a district court to proffer a limiting instruction is
reviewed for nonconstitutional error under NRS 178.598. Mclellan v. State,
124 Nev. 263, 269,
182 P.3d 106, 111 (2008). The test set forth in NRS
178.598 mirrors the test used by federal courts as set forth in Kotteakos v.
United States, 328 U.S. 750, 776 (1946), which asks "whether the error had
substantial and injurious effect or influence in determining the jury's
verdict." Mclellan, 124 Nev. at 269-70,
182 P.3d at 111 (quotation marks
omitted). If the appellant suffered no prejudice as determined under this
test, then the conviction stands. Id. at 270,
182 P.3d at 111. Here, any
actual error would be deemed harmless in light of the brief and equivocal
nature of the alleged improper evidence and the overwhelming evidence of
Young's guilt. Therefore, we conclude that Young fails to establish
reversible error.
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The district court did not plainly err in allowing officers to narrate during
testimony about the content of the surveillance footage
Young argues that the di.strict court erred when it allowed
LVMPD officers to narrate the events and identify Young in surveillance
video played by the State because the officers did not have independent
knowledge of Young aside from their review of video during their respective
investigations. Young did not object at any time below, so we again review
for plain error. See Jerernias, 134 Nev. at 50, 412 P.3d at 48.
Both parties cite Burnside v.-State, 131 Nev. 371,
352 P.3d 627
(2015) to support their contentions about whether the officers' testimonies
were permissible narrations and. identifications of Young: Burnside
requires that a testifying officer "have some prior knowledge or familiaritY
with" the individual or the defendant they identify in video. surveillance. Id.
at 388, 352 P.3d at 639. However. when an officer's testimony describing
surveillance footage is founded upon the use of independent evidence to
confirm the identity of the person in the video, there is no invasion upon the
province of the jury. See. id.
The LVMPD officers who testified had sufficient prior
independent knowledge through their review of video a.nd photographs from
their investigations, or from personal interaction with Young, to allow them
to identify Young. Additionally, Officer Wheeler identified Young before
any other LVMPD officer identified Young; therefore, the • officers who
identified Young after Wheeler also relied upon Wheeler's identification.
Wheeler had sufficient prior knowledge of Young's appearance because
Wheeler observed Young in Walrnart by a live surveillance camera' and
interacted with Young in person outside of Walrnart before issuing .hirn a
citation for petty theft. Therefore, Young fails to show plain error regarding
the officers' identification of Young.
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As to the issue of narrating during the State's presentation of
video evidence, we again conclude that Young fails to demonstrate plain
error. See id. at 388-89, 352 P.3d at 640 (holding that narration of
surveillance video assisted jurors in understanding the evidence, given the
complexities of the surveillance cameras and the piecing together of videos
from hours of recordings). The videos presented during trial were
comprised of footage from numerous days, times, and locations. The State
presented video surveillance from inside different stores, elevators, and
casinos. The surveillance also fluctuated in terms of quality and clarity.
Given the complexity and variations of the videos, the district court could
have reasonably concluded that the officers' narration was necessary to
assist jurors in understanding what was occurring. See id. at 388, 352 P.3d.
at 639 (noting that narration of surveillance videos is proper when it
"assist[s] the jury in making sense of the images depicted in the videos").
The narration was also highly relevant, given how Young and his
accomplice carried out their thefts. Young's thefts involved distraction,
which may not have been visible or apparent to jurors without the officers'
narration. Therefore, we conclude that Young has not shown error, plain or
otherwise.
The district court's admission of Detective Jacobitz's statement was not
reversible error
Young argues that Detective Jacobitz's statement that Young
and his partner were not registered guests of the hotel where they stole
Hatcher's wallet constituted inadmissible hearsay because Jacobitz learned
this information from an outside source, most likely a hotel employee. The
State argues it was nonhearsay offered to show the effect on Jacobitz and
his investigation rather than to prove the truth of the matter asserted.
Although Young initially objected on hearsay grounds when Detective
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Jacobitz testified, "I later conie to find that they're not registered to the
hotel," he failed to renew his objection or move to strike the testimony after
the district court allowed the State to lay a foundation for the information
elicited from Jacobitz's testimony.
The admission of evidence is reviewed for an abuse of
discretion. Mclellan, 124 Nev. at 267,
182 P.3d at 109. The rule precluding
the admission of hearsay does not apply to statements offered only to show
that the statement was made and that the listener was affected by the
statement. See NRS 51.035: Wallach u. State, 106 Nev. 470, 473,
796 P.2d
224, 227 (1990) (holding that a detective should have been allowed to testify
about a victim's statement "that the assailant 'tore off her clothes" to
explain why the detective examined the clothes). On one hand, the
statement that Young was not a registered hotel guest could arguably have
been offered for the truth of the matter asserted. Young was in a hotel
elevator heading toward guest sleeping rooms. If he were not a guest, the
inference is significant in suggesting he may have been there for nefarious
purposes. However, Jacobitz's testimony also explained why he opined that
the surveillance footage from the elevator showed that Young was working
in conjunction with the other nian in the elevator to steal Hatcher's wallet.
Where Young failed to renew his objection to the testimony after the district
court permitted the State to lay a foundation for it, we cannot determine in
the first instance whether it was offered for the truth of the matter asserted,
if it was nonhearsay or a hearsay exception may have applied. And we
cannot say the district court plainly erred in a.dmitting it.
But even if the district court abused its discretion in admitting
Jacobitz's statement, any error would have been harmless because it was a
minor piece of information related to the charged crime of theft of Hatcher's
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wallet. Further, the evidence against Young for this offense and as a whole
was overwhelming, where Young and his accomplice were in the elevator
with Hatcher and distracted her, and her wallet was missing from her purse
after she exited. See Tabish u. State, 119 Nev. 293, 311,
72 P.3d 584, 595
(2003) ("Harmless error analysis applies to hearsay errors.").
The d.istrict court did not abuse its discretion in denying Thung's motion for
a mistrial and in not excusing a juror for his display of sympathy to victims
During the third day of trial, a seated juror, no. 11, wrote a note
for the district court asking "[w]ould you mind if I give„ each of the victims
$2.000 in an envelope after they are excused?" The note was addressed
during a recess, outside of the presence of the jury, and juror no. 11 was
asked to stay inside the courtroom. juror no. 11 was then canvassed by the
court . and. by Young. The court explained the importance of not forming
opinions until the end of the trial and the duty to rernain fair and impartial.
Juror no. 11 assured the court that his note was only motivated by his desire
to help the elderly 'victims who lost money. He stated that his offerto donate
money had nothing to do with Young as a defendant and he would remain
fair and impartial and not form opinions until the end of the. case. He
further explained that he helps victims all the time and he gave the note to
the court during trial and not at the conclusion of trial because he did not
think he would have an opportunitY to contact the victims or obtain their
contact information after the trial concluded. Young moved for a mistrial
following juror no. •11's exit from the courtrdom. which was denied, and the
district court di.d not remove juror no. 11 from the jury.
Young argues that the district court should have granted his
motion for a mistrial or at least excused juror no. 11 for bias after the juror
wrote the note to the court. Young further argues that the juror's conduCt
undermined his impartiality and constituted inferable bias, and that the
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district court's decision to allow the juror to remain on the jury panel
amounted to reversible error. We conclude that the district court did not
abuse its discretion in denying the motion for a mistrial and in not removing
juror no. 11. Juror no. 11's statement did not establish inferable bias, as
Young argues. Instead, the statement suggested actual bias, so the district
court undertook efforts to rehabilitate juror no. 11 and found him to be
impartial, and Young does not directly challenge the district court's
rehabilitation efforts on appeal.
The denial of a motion for a mistrial is reviewed for abuse of
discretion. Randolph v. State, 117 Nev. 970, 984,
36 P.3d 424, 433 (2001)
(citing Smith v. State, 110 Nev. 1094, 1102-03,
881 P.2d 649, 654 (1994)).
Likewise, the decision to retain or remove a juror is reviewed for abuse of
discretion. See Blake u. State, 121 Nev. 779, 795-96,
121 P.3d 567, 578
(2005) (reviewing a for-cause challenge against a prospective juror for an
abuse of discretion); see also Nelson u. Commonwealth, 589 S.E.2d 23, 30-
31 (Va. Ct. App. 2003) (applying the abuse of discretion standard to
decisions regarding challenges for cause to both seated jurors and
venirepersons).
Whether a juror is biased is determined by the district court
acting within its discretion. Sayedzada v. State, 134 Nev. 283, 291.,
419 P.3d
184, 192 (Ct. App. 2018). Traditionally, juror bias was either actual or
implied. See United States v. Wood, 299 U.S. 123, 133 (1936). Actual bias,
or bias in fact, is the existence of "a state of mind that prevents the juror
from being impartial." Sayedzada, 134 Nev. at 289, 419 P.3d at 191 (citing
United States v. Torres, 128 F.3d 38 43-44 (2d Cir. 1997)). A court generally
finds actual bias based upon the juror's voir dire answers. Rosales-Lopez v.
United States, 451 U.S. 182, 188 (1981) (plurality opinion). For instance, if
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a juror admits to partiality and cannot unequivocally say they would be
impartial, that juror should be removed fbr actual bias. See Preciado v.
State, 130 Nev. 40, 44,
318 P.3d 176, 179 (2014) ("Prospective juror # 304's
statement that a graphic photo would make her believe the defendant was
guilty (without proof that the defendant caused the [injury] depicted in the
photo) cast doubt on her impartiality" and required her removal for cause.).
By contrast, implied bias, or presumed bias, is "bias
conclusively presumed as matter of law," generally due to the juror's prior
knowledge or relationship to the case or parties. Wood, 299 U.S. at 133. At
common law, implied bias could be found in situations where the juror was
"related to or [had] worked with a party, or [had] some interest in the
outcome of the case." Sayedzada, 134 Nev. at 290, 419 P.3d at 191-92.
Although the Nevada Legislature "codified elements of the common law's
implied bias in the civil context" within NRS 16.050,4 it has not explicitly
done so in the criminal context. Id. at 290,
419 P.3d at 192; see NRS
175.021(1) ("Trial juries for criminal actions are formed in the same manner
as trial juries in civil actions.").
4 NRS 16.050(1) states that challenges for cause may be taken On one
or more of the following grounds, amongst others: a want of any of the
qualifications prescribed by statute to render a person competent as a juror;
consanguinity or affinity within the third degree; standing, being a member
of the family of either party or a partner, or united in business with either
party; having served as a juror or been a witness on a previous trial between
the same parties for the same cause of action or being then a witness
therein; interest on the part of the juror in the event of the action, or in the
main question involved in the action; having formed or expressed an
unqualified opinion or belief as to the merits of the action, or the main
question involved therein: the existence of a state of mind in the juror
evincing enmity against or bias to either party.
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A third type of bias, inferable bias, is determined when a judge
exercises "discretion to infer bias from the facts elicited during voir dire
where those facts show an average person n the juror's situation would be
unable to decide the matter objectively." Id. at 291,
419 P.3d at 192.
Importantly, inferable bias has only been found in limited circumstances,
namely where the juror has engaged in activities similar to those activities
at issue in the case being tried such that a reasonable person in the juror's
position could not compartmentalize their past experiences to objectively
judge the case. Id. This can occur, for example, when the juror was a victim
of the same type of crime charged against the defendant. 'See, e.g., id. at
292,
419 P.3d at 193 (stating that bias could be inferred where prospective
juror was the victim of the same type of crime charged and stated that these
experiences made her "angry" and that she "could be biased" against the
defendant); Torres, 128 F.3d at 4.8 (stating that bias could be inferred. where
prospective juror admittedly engaged in the structuring of cash deposits,
which was similar to the conduct for which the defendant was on trial).
If a juror's statements establish implied or inferable bias, it
does not matter whether that juror subsequently expresses impartiality;
that juror must be removed. Sayedzada, 134 Nev. at 291., 419 P.3d at 192
C[Olnce facts are elicited that permit a finding of inferable bias, then, just
as in the situation of implied bias. the juror's statements as to his or her
ability to be impartial become irrelevant." (quotation marks omitted)). By
contrast., if a juror's statemen.ts suggest actual bias, the juror can still serve
if the district court, after canvassing the juror, determines that they "will
be impartial despite the bias." Sanders v. Sears-Page, 151 Nev. 500, 507,
354 P.3d 201. 206 (Ct. App. 2015); accord Sayedzada, 134 Nev. at .290, 419
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P.3d at 191. Therefore our resolution of this issue turns on whether juror
no. 11's statements demonstrated inferable bias or actual bias.
Contrary to Young's argument, juror no. 11's short one-sentence
question asking if he could make a cash donation to the victims after they
were excused did not establish inferable bias, which therefore could not be
rehabilitated. After the district court was notified of the juror's request, the
district court and the parties questioned the juror regarding that issue.
Juror no. 11 expressed sympathy for the victims, explained that he had the
financial means to help them, and he had made similar philanthropic gifts
in the past. Juror no. 11 gave no indication that he had been a victim of
similar crimes or otherwise shared life experiences with the victims that
would have made it impossible or difficult for him to judge this case fairly.
The court's discussion and questioning with juror no. 11 demonstrated that
he did not have an implied or inferable bias.
Nevertheless, while we conclude that juror no. 11's statement
did not establish an implied or inferable bias, his note and explanation to
the district court did suggest actual bias because it was an expression of
sympathy for the victims. Numerous state and federal courts have
addressed the issue of juror sympathy under an actual bias standard. See
Shilling v. United States, 561 U.S. 358, 398-99 (2010); Miller v. Webb,
385
F.3d 666, 673-75 (6th Cir. 2004); Ainsworth v. Calderon,
138 F.3d 787, 796
(9th Cir. 1998); Williams v. State, 67 S.W.3d 548, 561 (Ark. 2002); People v.
Harris, 247 A.D.2d 630, 631 (N.Y. App. Div. 1998); Boone v. State,
60 S.W.3d
231, 237 (Tex. App. 2001).
When a juror expresses actual bias, that juror may remain on
the jury if they affirm that they can set aside the source of bias to judge the
case solely on the evidence. Irvin. v. Dowd, 366 U.S. 717, 723 (1961) ("It is
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23
sufficient if the juror can lay aside his impression or opinion and render a
verdict based on the evidence presented in court."). As this court explained
in Sanders, "[i]f a juror's statements suggest actual bias, the trial court
must properly question the juror to determine if the juror will be impartial
despite the bias." 131 Nev. at 507, 354 P.3d at 206 (citing Thompson v.
Altheimer & Gray, 248 F.3d 621, 627 (7th Cir. 2001)). A juror's statements
of impartiality are not talismanic and must be considered together with the
totality of the facts involved. Sayedzada, 134 Nev. at 289, 419 P.3d at 1.91
(citing Weber v. State, 121. Nev. 554, 581, 119 P.3d 107, 125 (2005), overruled
on other grounds by Farmer v. State, 133 Nev. 693, 698,
405 P.3d 114, 120
(2017)). A juror is successfully rehabilitated when they can "state without
reservation that [the juror] had relinquished views previously expressed
which were at odds with their duty as impartial jurors." Weber, 121 Nev. at
581,
119 P.3d at 125.
As long as the district court "sufficiently questions the juror and
determines the juror can set aside any bias• and be impartial, we will
generally defer to the trial court's decision." Sanders, 131 Nev. at 508, 354
P.3d at 206. Again, the district court has "broad discretion" to determine
whether a juror's answers demonstrate actual bias, Sayedzada, 134 Nev. at
290, 419 P.3d at 191, and is in the best position to evaluate juror demeanor
and credibility, Patton v. Yount, 467 U.S. 1025, 1038 n.14 (1984)
("Demeanor plays a fundamental role not only in determining juror
credibility, but also in simply understanding what a potential juror, is
saying.").
Here, the district court questioned juror ne. 11 outside the
presence of the rest of the jury after he gave the note to the court asking if
he could give money to the victims. In re-sponse, the district court stated
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that it had no control over the activities of jurors after the case was over
and it could not prohibit gifts to the alleged victims at that time.
Nevertheless, the court reminded juror no. 11 that the jury had been
admonished throughout the trial not to form or express any opinions until
the matter was finally submitted to it for a decision. The district court
stated it needed to ensure that juror no. 11 could remain fair and impartial
to both sides and that he must wait until the end of the trial to form a final
opinion after deliberating with all the jurors.
juror no. 11_ affirmed twice that he could remain fair and
impartial for the remainder of the trial. He explained that his desire to help
had nothing to do with the case or the defendant but came from being the
type of person that likes to regularly help others. The district court
specifically asked him if he had discussed this issue with other jurors, and
juror no. 11 responded that he had only mentioned it to the marshal. Upon
questioning by defense counsel, juror no. 11 was steadfast that he would be
fair and impartial. The district court concluded that remdving juror no. 11
was not required because he had not engaged in misconduct or provided any
gifts, and he stated that he would be f'air and irnpartial.5
5We recognize that the district court cited to Hernandez v. State, 118
Nev. 513,
50 P.3d 1100 (2002), in its efforts to address juror no. 11's
sympathy for the elderly victims. On appeal, the State also relies on
Hernandez, and Young did not address the isSues related to juror no. 11 in
his reply brief. Despite the factual similarities between this case and
Hernandez, Hernandez is not controlling. In Hernandez, the Nevada
Supreme Court held that reversal was not required Wh.ere a. motion fOr a
mistrial was denied when certain jurors purchased a gift for the murder
victim's daughter following the guilt phase of the trial but before the penalty
phase and kept the gift in the jury room during the penalty phase
deliberations. Id. at 521-22, 50 13.3d at 1106-07. The supreme court held
that the jurors' discussion about the gift was not misconduct, but even if it
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We conclude that the district court did not abuse its discretion
when it found that juror no. 11 would be fair and impartial and had not
discussed the idea of a gift with other jurors. See United States v. Tsarnaev,
595 U.S. „ 142 S. Ct. 1024, 1036 (2022) (holding that a federal court
of appeals cannot extend its supervisory powers to overturn a federal
district court's broad discretion to manage jury selection and to decide what
questions to ask prospective jurors absent an abuse of discretion by the
district court).
While the facts of this case support an argument that juror no.
11 exhibited actual bias, and many judges would have excused the juror and
replaced him with an alternate juror, Young failed to raise an argument
under an actual bias theory to this court. Young also did not challenge the
sufficiency of the district court's canvass of the juror, and any argument
that he was not rehabilitated is waived. See Belcher v. State, No. 82255,
2022 WL 1261300, at *3 (Nev. Apr. 27, 2022) (Order of Affirmance)
(concluding that an objection not reraised on appeal is waived); see also
Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.:3d 668,
672 n.3 (2011) (holding that arguments not raised in appellant's opening
brief are waived).
was, it was not prejudicial because the conduct "merely dernonstrate[dj that
the jury was sympathetic to an innocent child, who was a collateral victim
of the murder." Id. at 522, 50 P.3d at 1107. Hernandez dealt solely with
the issue of juror misconduct and possible prejudice resulting therefrom,
which is subject to abuse of discretion and harmless error review, see id., as
opposed to the failure to remove a biased juror, which (if proven) is
reversible error. See Sanders, 131 Nev. at 511, 354 P.3d at 208 ("Under
Nevada law, when a failure to remove a biased juror results in an unfair
empaneled jury, the error is reversible.").
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26
In any event, the jurors were properly instructed that "[a]
verdict may never be influenced by sympathy, prejudice or public opinion"
and jurors are presumed to follow district court orders and instructions.
Summers v. State, 122 Nev. 1326, 1333,
148 P.3d 778, 783 (2006).
Therefore, we conclude that the district court did not abuse its discretion in
denying Young's motion for a mistrial and in not removing the juror.
The district court did not err by not immediately stopping Young from
arguing and challenging the juror's conduct in the presence of that juror
Young argues that the district court failed to ensure that juror
no. 11 was not present when Young challenged his partiality. He argues
the district court should have excused the juror before the argument
commenced because his presence during the argument put Young in an
antagonistic position with the juror for the remainder of the trial. The State
argues that Young did not raise this issue below and it is waived.
We conclude that Young invited any possible error that may
have occurred because defense counsel caused the issue he now raises on
appeal. Specifically, Young began arguing and challenging the juror's
irapartiality while the juror was present, and the district court attempted
to direct his argument toward the court. The court stepped in to stop
defense counsel from further arguing. We decline to consider Young's
argument given his counsel's role in the alleged error. Cf. Belcher v. State,
136 Nev. 261, 275,
464 P.3d 1013, 1028 (2020) (concluding that a party
cannot challenge on appeal as error testimony which that same party
invited, induced, or provoked).
However, even if we consider the argument, because Young did
not raise the issue below, it was waived, and we can only. review for plain
error. See Jerernias, 134 Nev. at 50, 412 P.3d at 48. Under plain error
review, we conclude that Young fails to offer any cogent argument or
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authority that a substantial right was affected. See Maresca v. State, 103
Nev. 669, 673,
748 P.2d 3, 6 (1987) (explaining that this court need not
consider an appellant's argument that is not cogently argued or lacks the
support of relevant authority). Therefore, Young has not demonstrated
plain error.
The district court misstated the law injury instruction number 10----all other
challenged jury instructions were accurate statements of the law
Young argues that five jury instructions were misstated and
that this court should reverse counts 1, 2, 7, 8, 9, and 10 under a plain error
review. The State concedes, and we agree, that jury instruction number 10
misstated Nevada law regarding when property is deemed taken "from the
person" for purposes of a conviction for larceny from the person, and the
conviction for count 2 should be reversed.
A district court holds broad discretion in settling jury
instructions. Jackson v. State, 117 Nev. 116, 120,
17 P.3d 998, 1000 (2001).
A district. court's decision to proffer a particular instruction to the jury is
reviewed on appeal for an abuse of discretion. Id. "An abuse of discretion
occurs if the district court's decision is arbitrary or capricious or if it exceeds
the bounds of law or reason." Id. Additionally, when a party fails to object
to or request a jury instruction, appellate review is precluded "unless the
error is patently prejudicial," thus requiring "the court to act sua sponte to
protect the defendant's right to a fair trial." McKenna, 114 Nev. at 1052,
968 P.2d at 745; Green, 119 Nev. at 545,
80 P.3d at 95; see also Flanagan v.
State, 11.2 Nev. 1409, 1423,
930 P.2d 691, 700 (1996).
The erroneous larceny-frorn-the-person instruction given as
instruction 10 allowed the jury to convict even if the property taken was not
physically connected to the victim in some way. It stated, "Property is
deemed taken 'from the person' of the victim if the property was within the
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((,)) 194711 •
28
victim's reach, inspection, observation, disposition or control." Such an
instruction is clearly wrong. Further, the evidence regarding count 2 did
not show that Campo's wallet was taken from her person, and Campo's
testimony failed to establish exactly where her purse was located before her
wallet was taken from it, but the purse was not on her person. Therefore,
we reverse Young's conviction for larceny from the person related to the
theft of Campo's wallet (count 2) because of the improper instruction and
because the evidence does not show that Campo exerted control over her
purse when Young took her wallet.
However, as to the remaining larceny-from-the-person
convictions, the evidence established that Young took property from the
person of the victims when he stole their wallets from either a purse held
on the victims' person or worn as a backpack. Therefore, we see no basis to
reverse the rernaining larceny-from-the-person convictions because of the
erroneous instruction. To avoid instruction error going forward, district
courts should consider the recently adopted Nevada Pattern Jury
instructions: Criminal in settling jury instructions. As pertinent here, the
pattern jury instruction for larceny from the person includes the following
language:
The crime of LARCENY FROM THE
PERSON consists of the following elements:
(1) The Defendant takes the property;
(2) From the person of another;
(3) Without the person's consent;
(4) With the intent to steal or appropriate the
property to his or her own use.
The crime of larceny from the person does not
require violence, force, or fear, but does require an
COURT OF APPEALS
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a(), 1)4711
29
actual taking from the person of another. The
crime is not committed if the property is taken only
from a person's immediate presence, or frorn a
person's constructive control or possession.
Property is taken "from the person of another" if it,
at the time of the taking, is in some way actually
upon or attached to the person, or carried or held in
actual physical possession, such as clothing,
apparel, or property held or carried in the hands, or
by other means, upon the person, or things
contained therein, or attached thereto.
Nevada Pattern Jury Instructions: Criminal § 15.06 (State Bar of Nevada
2023).
Still, Young's conduct not only resulted in the larceny of the
other victims' property, but he also invaded their privacy, which is the
"gravamen of the offense" of larceny from the person. See Terral v. State,
84 Nev. 412, 414,
442 P.2d 465, 466 (1968) (holding that the essence of the
crime of larceny from the person "is that the person of another has been
violated and" the person's privacy directly invaded); see also Ibarra v. State,
134 Nev. 582, 589,
426 P.3d 16, 22 (2018) (concluding the "objective" of NRS
205.270 is "discouraging theft that carries an unacceptable risk of violating
the victim's ... privacy"). We analyze the remaining larceny-related
convictions next.
Instruction number 10 (larceny from the person)
Young contends that the larceny-from-the-person convictions
related to the thefts of Hatcher's and Frank's wallets, and the associated
burglary convictions, should be reversed based on the misstatement of law
in jury instruction number 10. Young contends that Hatcher and Frank
testified that their wallets were stolen out of their purses, •which were on or
close to their bodies, and that but for the error in the instruction, jurors may
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30
have concluded that the theft of their wallets was too far removed. to
constitute larceny from the person. According to Young, if jurors did not
find sufficient proof to convict Young for the larceny-from -the-person
charges, then they may not have found proof for the associated burglary
convictions. We disagree.
The larceny-from-the-person convictions related to the wallet
thefts of Hatcher and Frank are valid because Young took those wallets
from the person of the victims. Though Young contends that taking a wallet
from the purse of a victim is too attenuated to constitute a taking "from the
person," the Nevada Supreme Court has held that similar type of conduct
is the type of conduct NRS 205.270 seeks to punish. See Terral, 84 Nev. at
414,
442 P.2d at 466 (holding that lilt is important to restrict the coverage
of NRS 205.270 to pickpockets, purse snatchers . . . and the like"). These
notions were again articulated in the supreme court's decision in Ibarra.
Ibarra labeled Terral "Mlle semi.nal Nevada case interpreting the"
requirement that larceny frorn the person requires the taking of property
from the person of another. 134 Nev. at 588, ,426 P.3d at 21. The supreme
court underscored that "pickpockets, purse snatchers ... and the like
resemble one another" because they all "take property frorn the person of
their victim." Id. (quotation marks omitted). Stealing wallets from victims
like Hatcher and Frank, who were carrying their purses, invaded their
privacy and undoubtedly falls within the conduct prohibi.ted by NRS
205.270. Thus, we affirm the larceny-from-the-person convictions related
to the Hatcher and Frank wallet thefts.6
6 As noted, the correct jury instruction under the Nevada Pattern Jury
Instructions: Criminal is section 15.06, defining larceny from the person.
Further, under NRS 175.161(3), "[e]ither party may present to the court any
COURT OF APPEALS
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31
We also decline to reverse the associated burglary charges, as
Young fails to demonstrate plain error or present proof that the instruction
was patently prejudicial. A burglary offense is complete when the
perpetrator unlawfully enters or remains in a dwelling or other building
with the specific intent required by the statute. See Funderburk v. State,
125 Nev. 260, 263,
212 P.3d 337, 339 (2009); Carr v. Sheriff,
95 Nev. 688,
689-90,
601 P.2d 422, 423 (1979); see also NRS 205.060(1) (providing that
burglary requires that a person unlawfully enter or remain in a business
"with the intent to comrnit grand or petit larceny . . . or any felony"). Given
the testimony from multiple IXIVIPD officers and emPloyeeS that Young
entered the businesses and later attempted to fraudulently use the victims'
cards, it is clear beyond a reasonable doubt Young unlawfully entered
and/or remained in those businesses with the requisite intent. Young's
specific intent is further evident from the officers' testimony that Young did
not purchase any items or gamble at the casinos when he entered the
Walrnarts, other stores, and various hotels and casinos to steal wallets, nor
did he otherwise behave like a consumer or a patron. Thus. we conclude
that the associated burglary convictions are not impacted by the erroneous
jury instruction, and we decline to reverse those convictions.
Instruction numbers 13 and 14 (lesser offenses)
Young argues that the district court's instructions guiding the
jury to consider lesser-included offenses improperly relieved the State of its
burden of proof in violation of Young's due process rights. The district court
written charge, and request that it be given. If the court believes that the
charge is pertinent and an accurate statement of the law, whether or not the
charge has been adopted as a model jury instruction, it must be given."
(Emphasis added.)
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32
recited transition instructions for grand larceny and petit larceny (number
13) and for larceny from the person and larceny (number 14).7 Young argues
that the language used suggested that all 12 jurors must reject the greater
offenses before they could consider the lesser offense. We again disagree
and conclude that both transition instructions comport with due process
and that Young has not shown plain error. See Jeremias, 134 Nev. at 50,
412 P.3d at 48.
We note first th.at Young - offered or• requested •these
instructions. Therefore, any possible error was invited by him and need not
be considered. Cf. Jones v. State, 95 Nev. 613, 618,
600 P.2d 247, 250 (1979)
(holding that the appellant was estopped from raising any objection on
appeal regarding the admission of incriminating information because his
attorney elicited the details of the incriminating information during crossexamination); see also Belcher, 136 Nev. at 275, 464 P.3d at 1028
(concluding that a party cannot challenge on appeal as error testimony
which that same party invited, induced, or provoked).
7 Instruction number 13 stated the following:
You shall find the defendant guilty of Petit Larceny
if:
1. Some of you are not convinced beyond a
reasonable doubt that the defendant is guilty of
Grand Larceny and
2. All twelve of you are convinced beyond a
reasonable doubt. the defendant is guilty of the
crime of Petit Larceny.
The larceny-from-the-person and larceny transition instruction used
substantially similar language.
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Regardless, the i.nstruction on the lesser offenses did not
consti.tute plain error because the language did not require all jurors to
agree that Young was not guilty of grand larceny as a condition precedent
to finding him guilty of petit larceny. Additionally, given the overwhelming
evidence of theft establishing Young's guilt, there was no actual prejudice
resulting from the district court's instruction on the lesser-included
offenses.
Finally, Young mischaracterizes the instruction given by the
district court based on the Nevada Supreme Court's holding in Green, 119
Nev. 542,
80 P.3d 93. The instruction given by the diStrict court followed
the "unable to agree" approach explained in Green, and the instruction does
riot expressly require unanimous agreement on acquittal by the jury. See
id. at 545-46,
80 P.3d at 95. The supreme court adopted the "unable te
agree" instruction approach as the "correct transition instruction";
therefore, the instruction comports with Green. See id. at 547-48, SO P.3d
at 96-97. The transition instructions thus align with the supreme court's
adopted approach because the instructions required that one or more jurors
find Young not guilty of grand larceny and that all jurors agree that Young
was guilty of petit larceny. We note also that count 3 charged grand larceny
by stealing $1400 from Mary Campo, and Young does not argue that -the
amount stolen was less than $650 n-laking the offense petit larceny.8 Thus,
we conclude that Young has not demonstrated plain error with regard to
8By failing to challenge the grand larceny charge as to the amount
stolen from Campo thatis the basis for count 3, Young's argument regarding
the transition instruction is meritless considering that Young Would have
been guilty of grand larceny, as opposed to petit larceny, regardless of any
alleged instruction error.
COURT OF APPEALS
OF
NEVADA
34
K-11 I 9471t
the transition instructions, and we decline to reverse Young's convictions
related to these instructions."
The State presented sufficient evidence to sustain Young's convictions
Young argues that the State failed to present sufficient
evidence to sustain his convictions because neither the victims nor the store
employees who testified identified him as one of the men in the wallet thefts.
Young also argues that the burglaries occurred in commercial
establishments where an individual could "have a multitude of intentions
upon entry."
A challenge to the sufficiency of the evidence asks "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." Rose v. State, 1.23 Nev. 194, 202,
163
P.3d 408, 414 (2007) (emphasis and quotation marks omitted). A jury's
verdict will remain undisturbed when it is supported by substantial
evidence. Cunningham u. Slate, 94 Nev. 128, 130,
575 P.2d 936; 937 (1978).
"Young also challenges jury instruction numbers 22 and 23, which
instructed the jury on the presumption of innocence and on determining
Young's guilt or innocence only on the evidence from the case. We decline
to reverse any convictions based on Young's challenges to these instructions
under plain error review because the Nevada Supreme Court has previously
deemed identical instructions appropriate. See Blake, 1.21 Nev. at 799, 121
P.3d at 580 (holding that use of the Word "until" in instructing the jury that
"[t] he Defendant is presumed innocent until the contrary is proved" did not
suggest that appellant's guilt would eventually be proven because the
instruction, read as a whole, also "plainly contemplated that guilt might not
be proven"); Guy u. State, 108 Nev. 770, 778,
839 P.2d 578, 583 (1992)
(holding that use of "guilt or innocence" language was "appropriate and
necessary" because it instructs the jury to ignore the culpability of other
suspects or partners in the criminal acts when deciding whether the
appellant is guilty as charged).
COURT OF APPEALS
OF
NEVADA
(0, 1947I1
35
It is the function and responsibility of the jury, not the court, to evaluate
"the weight of the evidence and determine the credibility of witnesses."
Rose, 123 Nev. at 202-03,
163 P.3d at 414 (quotation marks omitted). In
considering the totality of the State's evidence in the light most favorable to
the prosecution—video evidence depicting Young engaging in many wallet
thefts and the testimony of several INMPD officers who identified Young
based on several factors depi.cted across all theft incidents, including his
clothing, shoes, and jacket around his arm—the evidence supports the jury's
verdict that Young committed the theft-related offenses. • The same applies
to the evidence establishing the burglary offenses.
This overwhelming evidence supports the jury's verdict, and we
uphold Young's convictions. Officers testified that the videos showed Young
entering the businesses working in tandem with an accomplice to steal
wallets. One of the men would function as a distractor, neither of the two
entered the businesses as customers, the two would immediately leave after
taking the wallets, and Young, who walked with an unusual gait, would
enter nearby stores after taking the wallets to fraudulently use the stolen
cards. Therefore, we conclude that a rational juror could find the evidence
sufficient to support Young's convictions.
Whether Young received ineffective assistance of counsel at sentencing
Young argues that he received ineffective assistance of counsel
at his sentencing because his counsel failed to raise any argument regarding
the sufficiency of Young's prior convictions and did not offer any argument
that could have mitigated Young's sentence. We decline to address this
issue on the merits, as Young has not satisfied any exceptions that would
COURT OF APPEALS
OF
NEVADA
0)1 1,47(1 ....4trr
y.„..,
36
allow him to raise this issue on direct appeal.'" See Archanian v. State, 122
Nev. 1019. 1036,
145 P.3d 1008, 1020-21 (2006)."
CONCLUSION
Based on the foregoing analysis, we conclude that the district
court did not err in allowing juror no. 11 to remain on the jury panel when
the juror's statement suggested actual bias because th.e district court
undertook efforts to rehabilitate the juror and found him to be impartial,
and Young does not challenge the district coUrt's rehabilitation efforts on
appeal.
'°Young raises two arguments related to the district court's
adjudication and sentencing of him as a habitual criminal. First, Young
argues that the district court should have held a separate hearing before
sentencing him as a habitual criminal, as required under NRS 207.016.
Second, Young argues he was entitled to a separate jury trial regarding the
State's habitual criminal allegations. However, in. 2007, in a separate
criminal appeal concerning a conviction for larceny from the person and
sentencing under the habitual criminal statute, Young raised similar
arguments regarding the application of the habitual criminal statute, and
the Nevada Supreme Court issued an order affirming Young's conviction
and sentence. See Young v. State, Docket No. 47936 (Order of Affirmance,
June 27, 2007) (unpublished disposition). Further, we conclude that Young
forfeited these claims, as he faiied to raise them below, see Jerernia.s, 134
Nev. at 52, 412 P.3d at 49, and even if we considered each argument, Young
fails to demonstrate plain error by the district court as to either issue. See
id. at 50,
412 P.3d at 48.
"Young additionally argues that cumulative error warrants reversal
of the jury's convictions. However, we conclude that the district court did
not commit any error other than the error in giving jury instruction number
10. In light of the existence of only one true error by the district court, we
decline to reverse based on this argument. See Belcher, 136 Nev. at 279,
464 P.3d at 1031 (concluding that cumulative error requires multiple
errors).
COURT OF APPEALS
DE
NEVADA
37
However, we conclude that the district court gave an incorrect
jury instruction as to the larceny-from-the-person charges and Young's
conviction under count 2 must be reversed. We offer the correct wording for
an instruction for larceny from the person based upon the Nevada Pattern
Jury Instructions: Criminal. Nevertheless, the jury instruction error did
not undermine the guilty verdicts for the other similar charges. Further,
we find no reversible error as to any of Young's other convictions or his
sentence based upon his arguments. Thus, we affirm the judgment of
conviction as to all counts except count 2 and reverse and remand for the
district court to strike count 2 from the judgment and enter an amended
judgment.
3 CJ
•
Gibbons '
We concur:
4 010.-••••••••xpz,,,,..
J.
COURT OF APPEALS
OF
NEVADA
10) 194711
38
