Owens (Jason) v. State ( 2015 )

 307, 319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727
(2008). 1
Trial testimony indicated that although Owens did not initiate
the confrontation, the unarmed victim was driving away in his vehicle
with the windows down, posing no immediate threat, when Owens pointed
a firearm in his direction, fired multiple shots, and hit the victim in the
back of the head. Owens subsequently fled from the scene in another
vehicle. Four .25 caliber automatic cartridge casings and Owens' broken
glasses were found at the location of the shooting. The victim identified
Owens as the perpetrator and videotaped surveillance footage capturing
the incident was played for the jury.
It is for the jury to determine the weight and credibility to give
conflicting testimony, McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573
(1992), and a jury's verdict will not be disturbed on appeal where, as here,
sufficient evidence supports the verdict, Bolden v. State, 97 Nev. 71, 73,
624 P.2d 20, 20 (1981); see also NRS 193.330(1); NRS 200.010(1); NRS
200.030(1)(a); NRS 200.481(1)(a); NRS 202.285(1)(b). Therefore, we
conclude that Owens' contention is without merit.
Second, Owens contends that the district court erred by
allowing the admission of the surveillance videotape capturing the event
leading to the instant charges because the State failed to establish the
chain of custody. Any gap in the chain of custody, however, or any doubt
about tampering, "goes to the weight of the evidence" and not its
admissibility. Sorce v. State, 88 Nev. 350, 352-53, 497 P.2d 902, 903
'Owens is not challenging his conviction on the count of carrying a
concealed firearm.
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• (1972), see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 n.1
(2009) (gaps in the chain of custody usually go to the evidence's weight not
admissibility). Nevertheless, our review of the trial transcript reveals that
the State established a sufficient and reasonable chain of custody. See
Burns v. Sheriff, 92 Nev. 533, 534-35, 554 P.2d 257,258 (1976). Therefore,
we conclude that the district court did not abuse its discretion by
admitting the evidence. See Mclellan v. State, 124 Nev. 263, 267, 182 P.3d
106, 109 (2008).
Third, Owens contends that the district court erred by
overruling his objection based on the best evidence rule to Detective
Carter's testimony pertaining to the surveillance videotape. See NRS
52.235 ("To prove the content of a writing, recording or photograph, the
original writing, recording or photograph is required, except as otherwise
provided in this title."). Owens now claims that Detective Carter's
"interpretation" of the videotape "ran the risk of invading the province of
the jury" and was unfairly prejudicial. Owens objected only once during
Detective Carter's challenged testimony and argues that plain error
requires the reversal of his conviction. See NRS 178.602 ("Plain errors or
defects affecting substantial rights may be noticed although they were not
brought to the attention of the court."). We disagree with Owens'
contention.
Initially, we note that Owens offers no cogent argument in
support of his claim that Detective Carter's testimony during the playing
of the surveillance videotape violated NRS 52.235. The videotape,
depicting six different views of the crime scene, was admitted and played
for the jury, and Owens cannot demonstrate that the district court erred
by overruling his objection. Additionally, Owens did not object below on
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the basis that Detective Carter's "narration" amounted to improper lay
witness testimony, see NRS 50.265, and Owens "cannot change [his]
theory underlying an assignment of error on appeal," Ford v. Warden, 111
Nev. 872, 884, 901 P.2d 123, 130 (1995). Nevertheless, based on our
review of the trial transcript and surveillance videotape, and considering
the overwhelming evidence of guilt noted above, we further conclude that
Owens cannot demonstrate plain error entitling him to the reversal of his
conviction. See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003)
(when reviewing for plain error, "the burden is on the defendant to show
actual prejudice or a miscarriage of justice"); see also United States v.
Begay, 42 F.3d 486, 503 (9th Cir. 1994) (holding narrative admissible as
lay witness opinion testimony which did not invade province of jury).
Fourth, Owens contends that the district court abused its
discretion by overruling his objections and admitting several photographs
depicting the victim's injuries, blood-stained clothes, and blood in the
victim's vehicle. Owens claims the photographs were irrelevant,
inflammatory, prejudicial, and cumulative. Prior to trial, the district court
denied Owens' motion in limine seeking to exclude several of the
photographs "without prejudice to raise the issue as to cumulative[ness] at
the time of trial." We disagree with Owens' contention.
"We will not disturb a district court's decision to admit
photographic evidence unless the district court abused its discretion."
West v. State, 119 Nev. 410, 420, 75 P.3d 808, 815 (2003). "Despite
gruesomeness, photographic evidence has been held admissible when it
accurately shows the scene of the crime, . . and when it reflects the
severity of wounds and the manner of their infliction." Theriault v. State,
92 Nev. 185, 193, 547 P.2d 668, 674 (1976) (citations omitted), overruled
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on other grounds by Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995).
At the hearing on Owens' motion in limine, the State argued that due to
the multiple crime scenes and charged counts, the proffered photographs
were relevant. The State also noted that duplicative photographs were
excluded and would not be presented to the jury. At trial, the State
argued that "each and every photograph shows something a little different
that is important to the State to be able to prove this case. beyond a
reasonable doubt." The district court overruled each objection by Owens
and we conclude that Owens fails to demonstrate that the district court
abused its discretion.
Fifth, Owens contends that the district court erred by denying
his oral motion to record all bench conferences. Owens acknowledges that
our holding in Preciado v. State, 130 Nev. Adv. Op. No. 6, 318 P.3d 176,
178 (2014), does not support his claim. Nevertheless, Owens asks that we
modify Preciado and recognize that "the subsequent memorialization of
conferences is not an adequate substitute for contemporaneous recording"
and violates due process. We decline Owens' request and conclude that
the district court did not err by denying his motion.
Sixth, Owens contends that the district court erred by
rejecting his proposed jury instructions clarifying self-defense and
attempt. We disagree. "This court reviews a district court's decision to
issue or not to issue a particular jury instruction for an abuse of
discretion." Ouanbengboune v. State, 125 Nev. 763, 774, 220 P.3d 1122,
1129 (2009). Here, the district court heard arguments from counsel and
rejected Owens' proposed instructions after determining that they were
sufficiently covered by other jury instructions. We agree and conclude
that the district court did not abuse its discretion by rejecting Owens'
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proposed instructions on self-defense and attempt. See Vallery v. State,
118 Nev. 357, 372, 46 P.3d 66, 77 (2002) (noting that a district court does
not err by rejecting defendant's proposed instruction related to his theory
of the case if it is substantially covered by other instructions).
Seventh, Owens contends that the district court erred by
rejecting two negatively-phrased jury instructions on reasonable doubt
specific to the counts of attempted murder and carrying a concealed
firearm. "[S]pecific jury instructions that remind jurors that they may not
convict the defendant if proof of a particular element is lacking should be
given upon request." Crawford v. State, 121 Nev. 744, 753, 121 P.3d 582,
588 (2005). "[A] positive instruction as to the elements of the crime does
not justify refusing a properly worded negatively phrased . . . instruction."
Id. (quoting Brooks v. State, 103 Nev. 611, 614, 747 P.2d 893, 895 (1987)).
Here, even assuming the district court erred by not giving the two
proposed instructions, "we are convinced beyond a reasonable doubt that
the jury's verdict was not attributable to the error and that the error was
harmless under the facts and circumstances of this case." Id. at 756, 121
P.3d at 590.
Finally, Owens contends that the district court erred by
refusing his request to add "including by reason of self-defense' after the
'not guilty' option on the verdict forms" because "self-defense was a
complete defense to three of the four charges." Whether a special verdict
form should be used depends on "the particular circumstances of [each]
case," and the district court's decision is reviewed for an abuse of
discretion. United States v. Reed, 147 F.3d 1178, 1180 (9th Cir. 1998)
(alteration in original) (quoting United States v. O'Looney, 544 F.2d 385,
392 (9th Cir. 1976)). Here, the State argued below that the proposed
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additional language to the verdict form was "confusing and not necessary,
because the jury can acquit for other reasons besides self defense." The
district court agreed with the State and rejected Owens' proposed verdict
form. We agree and conclude that the district court did not abuse its
discretion by denying Owens' request. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
Saitta
J.
Gibbons
cc: Hon. Elizabeth Goff Gonzalez, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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