Jaramillo (Jesus) v. State ( 2015 )


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  •                 sold for $15,000. Surveillance video footage established that Jaramillo left
    and re-entered Harely's house after Hardy was killed
    We conclude that a jury could reasonably infer the following
    from the evidence presented. See Lisle v. State, 
    113 Nev. 679
    , 691-92, 
    941 P.2d 459
    , 467-68 (1997) ("[C]ircumstantial evidence alone may sustain a
    conviction."), holding limited on other grounds by Middleton    I).   State, 
    114 Nev. 1089
    , 1117 n.9, 
    968 P.2d 296
    , 315 n.9 (1998). Jaramillo used a
    firearm and means of force to take personal property from Harely after
    shooting Harely.      See NRS 193.165; NRS 200.380. Jaramillo used a
    firearm willfully, deliberately, premeditatedly, and with malice
    aforethought, to kill Harely.     See NRS 193.165; NRS 200.010(1); NRS
    200.030(1). Jaramillo entered Harely's house with the intent to commit
    larceny therein.     See NRS 205.060(1). Jaramillo entered Harely's Lexus
    with the intent to commit grand larceny auto or possession of a stolen
    vehicle.   See 
    id.
       Jaramillo intentionally stole and drove away Harely's
    Lexus, which was valued at greater than $3,500. See NRS 205.228.
    Second, Jaramillo argues that the district court violated his
    Sixth Amendment rights by denying him an opportunity to cross-examine
    the author of the autopsy report, which was testimonial in nature and
    thus subject to the Confrontation Clause. An expert witness testifying
    about the content of a written report prepared by another person who did
    not testify "effectively admit[s] the report into evidence" and violates the
    Confrontation Clause, unless the testifying expert only presents
    independent opinions based on the report's data.    Vega v. State, 
    126 Nev. 332
    , 340, 
    236 P.3d 632
    , 638 (2010). We review Jaramillo's unpreserved
    contention for plain error. 
    Id.
     At 338, 
    236 P.3d at 636-37
    . Dr. Telgenhoff s
    testimony on his own findings, conclusions, and opinions based on autopsy
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    photographs that were admitted as evidence subjected his judgment,
    competence, and methodology to cross-examination, and the district court
    did not err in permitting this testimony. Though Dr. Telgenhoff recited
    the autopsy report's toxicology findings, Jaramillo has not shown prejudice
    to his substantial rights because the victim's toxicology results were not
    relevant to his guilt.
    Third, Jaramillo argues that the district court admitted
    improper hearsay evidence in permitting Karl Williams and Jesse
    Bearden to testify about statements that Mario Mason made to them
    regarding admissions that Jaramillo made to Mason. The district court's
    discretion to admit such evidence will not be disturbed unless manifestly
    wrong.    Tabish v. State, 
    119 Nev. 293
    , 310, 
    72 P.3d 584
    , 595 (2003).
    Williams testified that "[Mason] said that [Jaramillo] had told him that he
    had—he had killed somebody" when asked why Mason was upset when
    asking for Williams' assistance. Bearden testified that he asked Mason if
    Jaramillo had killed someone and Mason told him that Jaramillo had.
    Jaramillo objected to William's testimony but not to Bearden's.   See Green
    v. State, 
    119 Nev. 545
    , 545, 
    80 P.3d 93
    , 95 (2003) (noting that unobjected-
    to error is reviewed for plain error); Franco v. State, 
    109 Nev. 1229
    , 1237,
    
    866 P.2d 247
    , 252 (1993) (noting that preserved objections are reviewed for
    harmless error). Mason's state of mind was relevant to Williams' decision
    to assist him but of minimal relevance to the offenses charged.    See NRS
    51.105(1); Shults v. State, 
    96 Nev. 742
    , 751, 
    616 P.2d 388
    , 394 (1980)
    (stating that state-of-mind exception to the hearsay rule only applies when
    state of mind is relevant, relevance is weighed against prejudice, and a
    proper limiting instruction is given). Further, the prejudice of this
    testimony outweighs the relevance because the hearsay contains
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    Jaramillo's admission of guilt, and the district court offered no limiting
    instruction to the jury. The error in admitting Williams' testimony,
    however, is harmless beyond a reasonable doubt because Mason
    previously testified about Jaramillo's admission to him, Mason was cross-
    examined, and overwhelming evidence supported Jaramillo's guilt.
    Similarly, Bearden's challenged testimony did not affect Jaramillo's
    substantial rights because the jury had already heard this assertion from
    Mason and the evidence of guilt was overwhelming.
    Having considered Jaramillo's contentions and concluded that
    no relief is warranted, we
    ORDER the judgment of conviction AFFIRMED.
    J.                                     J.
    cc:   Hon. Stefany Miley, District Judge
    Sandra L. Stewart
    Attorney General/Carson City
    Clark County District Attorney
    Eighth District Court Clerk
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