Rivera, Jr. (Arturo) v. State ( 2015 )

 already reclined when she entered the car. After Rivera dropped her off,
FZ testified that she walked to a police officer to report that she'd been
raped, and the officer testified that she was extremely upset when she
approached him In her initial police report, FZ correctly recalled five of
the six characters in Rivera's license plate. DNA evidence from FZ's
sexual assault exam matched Rivera, and he conceded having had sexual
intercourse with her. FZ identified Rivera as her assailant at trial and by
police photo line-up.
RD testified that Rivera pulled up to her in a gray sedan as
she was walking on the sidewalk in the late morning, offered her a ride,
drove her to the same green vacant house, began to position the car to
block the passenger-side door, became irate when RD questioned him,
threatened RD by saying that he had a gun and would kill her when she
asked Rivera why he was positioning the car to block her and when she
then began to escape through the passenger-side front window, and
grabbed her foot with one hand while reaching by the side of the seat with
the other as RD escaped through the open window onto the roof of the car.
RD testified that the car's antenna broke off when she fell off the car's roof
as Rivera sped away. When Rivera was pulled over following a car chase
with RD in a separate incident, the car lacked an antenna.
Rivera's ex-girlfriend testified that the car had an antenna
when she bought it and that Rivera had use of the car during the day.
Both FZ and RD testified that the photographs of that car showed the car
in which they were confined against their will and that photographs of the
vacant house showed the site to which they were taken.
Rivera's sole defense witness was a fellow inmate whose
testimony supported a different theory of the incident with FZ. The
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inmate asserted that she had been dropped off at a location different from
that recorded by the patrol officer to whom FZ made her initial report and
that FZ and Rivera argued regarding smoking methamphetamine, though
FZ's toxicology screen as part of her sexual assault exam revealed only the
presence of cocaine. The inmate reported his account of the incident
nearly nine months after the incident occurred. He also testified that he
was housed in the same prison unit as Rivera and that he had known
Rivera for several months prior to this incident.
The jury could reasonably infer from the evidence presented
that Rivera seized and abducted FZ by ordering her into his car at
gunpoint, carried her away by transporting her to the vacant house,
confined her by blocking her car door, did so with the purpose of
committing sexual assault, subjected FZ to sexual penetration against her
will, placed FZ in reasonable apprehension of immediate bodily harm, and
used a firearm in the commission of these acts. See NRS 193.165; NRS
200.310; NRS 200.320; NRS 200.364; NRS 200.366; NRS 200.471. The
jury could also reasonably infer from the evidence presented that Rivera
confined RD by blocking her car door and had the purpose of committing
sexual assault or a battery causing substantial bodily harm. See NRS
200.310; NRS 200.320. It is for the jury to determine the weight and
credibility to give conflicting testimony, and the jury's verdict will not be
disturbed on appeal where, as here, substantial evidence supports the
verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see
also McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). We
conclude that sufficient evidence was present for a rational trier of fact to
find Rivera guilty of first-degree kidnapping with the use of a deadly
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weapon, sexual assault with the use of a deadly weapon, assault with a
deadly weapon, and first-degree kidnapping.
Rivera next argues that the district court erred in denying his
motion to sever, which argued that the joinder of the charges relating to
two different victims was improper on the grounds that there was no
common scheme or plan, that the offenses were not connected together,
and that unfair prejudice outweighed the probative value. The district
court's decision to join counts is reviewed for an abuse of discretion.
Tabish v. State, 119 Nev. 293, 302, 72 P.3d 584, 589-90 (2003). Misjoinder
warrants reversal only if the joinder has a "substantial and injurious effect
or influence in determining the jury's verdict." Id. at 302, 72 P.3d at 590
(internal quotation marks omitted). NRS 173.115(2) permits joinder of
two or more offenses where the offenses are based on "two or more acts or
transactions connected together or constituting parts of a common scheme
or plan." Two crimes are "connected together" if evidence of either crime
would be admissible in a separate trial for the other. Weber v. State, 121
Nev. 554, 573, 119 P.3d 107, 120 (2005). A "common scheme" is a "design
or plan formed to accomplish some purpose," and a "plan" is a "method of
design or action, procedure, or arrangement for accomplishment of a
particular act or object." Id. at 572, 119 P.3d at 119-20 (internal quotation
marks omitted).
In this case, joinder can be sustained on either ground set
forth in NRS 173.115(2). First, the offenses are connected together
because the evidence of each would be cross-admissible in a separate trial
for the other. The separate offenses are similar enough to prove motive,
intent, plan, identity, and absence of mistake or accident and therefore
would have been relevant at separate trials; the separate offenses were
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proven by more than clear and convincing evidence; and evidence of each
would not be unfairly prejudicial in a separate trial for the other offense.
See id. at 573, 119 P.3d at 120 (using test for admissibility of prior bad act
evidence under NRS 48.045(2) to determine whether two or more offenses
are cross-admissible and therefore connected together for purposes of
joinder). Second, the separate transactions reflect a common scheme or
plan. In particular, the evidence depicts a "[m]ethod of putting into effect
an intention." See id. at 572, 119 P.3d at 120 (internal quotation marks
omitted). Rivera would pick up a woman walking on the sidewalk during
the day, drive her to a particular vacant house, park the car to block the
passenger-side door and prevent her escape, and threaten violence to
induce submission. Finally, the district court instructed the jury to
consider each charge separately, the evidence does not show a close case,
and Rivera has not otherwise shown that the joinder was unfairly
prejudicial. Id. at 574-75, 119 P.3d at 121-22. Thus, we conclude that the
district court did not abuse its discretion in denying Rivera's motion to
sever on the grounds that joinder was improper.
Having considered Rivera's contentions and concluded that
they are without merit, we
ORDER the judgment of conviction AFFIRMED.
J.
Parraguirre
, J. , J.
Cherry
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cc: Hon. Valorie J. Vega, District Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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