Wehr (John) v. State ( 2013 )

lesser-included offense of burglary under Blockb urger. Smith v. State, 120
Nev. 944, 946, 102 P.3d 569, 571 (2004). Appellant acknowledges Smith
but requests that this court return to allowing instructions on lesser-
related offenses. See Ewish v. State, 111 Nev. 1365, 1366, 904 P.2d 1038,
1039 (1995); Moore v. State, 105 Nev. 378, 384, 776 P.2d 1235, 1239
(1989), overruled by Peck v. State, 116 Nev. 840, 7 P.3d 470 (2000),
overruled on other grounds by Rosas, 122 Nev. 1258, 147 P.3d 1101. We
decline to revisit Smith. We conclude that the district court did not abuse
its discretion by refusing to instruct the jury on the offenses of destruction
of property and trespass. See Crawford v. State, 121 Nev. 744, 748, 121
P.3d 582, 585 (2005) ("The district court has broad discretion to settle jury
instructions, and this court reviews the district court's decision for an
abuse of that discretion or judicial error.").
Second, appellant argues that the district court erred by
denying his motion for a new trial on the ground that the district court
inadvertently omitted six instructions during the oral reading of the
instructions before closing arguments. Appellant argues that the omission
of those instructions during the oral reading substantially prejudiced his
rights and therefore a new trial is warranted. "Generally the district court
enjoys discretion in granting or denying motions for new trials; this court
will not set aside a district court new trial ruling absent an abuse of
discretion." State v. Carroll, 109 Nev. 975, 977, 860 P.2d 179, 180 (1993).
Although the oral reading of the instructions should have mirrored the
written instructions, the jury was provided a complete set of written
instructions before retiring for deliberations and instructions similar to
some of those omitted were given to the jury at the beginning of the trial.
2
Further, appellant's general allegations of prejudice are unpersuasive.
Accordingly, we conclude that no relief is warranted.
Third, appellant asserts that the district court abused its
discretion by adjudicating him a habitual criminal, resulting in a sentence
that was excessive considering the offense and the nature of his prior
crimes. We have consistently afforded the district court wide discretion in
its sentencing decision, see, e.g., Houk v. State, 103 Nev. 659, 664, 747 P.2d
1376, 1379 (1987), and will refrain from interfering with the sentence
imposed by the district court "[s]o long as the record does not demonstrate
prejudice resulting from consideration of information or accusations
founded on facts supported only by impalpable or highly suspect evidence,"
Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). And, regardless
of its severity, a sentence that is within the statutory limits is not "'cruel
and unusual punishment unless the statute fixing punishment is
unconstitutional or the sentence is so unreasonably disproportionate to
the offense as to shock the conscience." Blume v. State, 112 Nev. 472, 475,
915 P.2d 282, 284 (1996) (quoting CuIverson v. State, 95 Nev. 433, 435, 596
P.2d 220, 221-22 (1979)); see also Harmelin v. Michigan, 501 U.S. 957,
1000-01 (1991) (plurality opinion) (explaining that the Eighth Amendment
does not require strict proportionality between the crime and the sentence;
it forbids only an extreme sentence that is grossly disproportionate to the
crime).
The sentence imposed-60 to 240 months in prison—is within
the parameters provided by the relevant statute, see NRS 207.010(1)(a),
and appellant does not allege that the statute is unconstitutional. He also
does not allege that the district court relied on impalpable or highly
suspect evidence. And appellant's contention that his habitual criminal
3
adjudication is excessive considering the remoteness of his convictions and
the non-violent nature of his prior offenses lacks merit because the
habitual criminal statute "makes no special allowance for non-violent
crimes or for the remoteness of [prior] convictions," as those are
considerations within the district court's discretion. Arajakis v. State, 108
Nev. 976, 983, 843 P.2d 800, 805 (1992). Having considered the sentence
and the crime, we are not convinced that the sentence imposed is so
grossly disproportionate to the crime and appellant's history of recidivism
as to constitute cruel and unusual punishment. See Ewing v. California,
538 U.S. 11, 29 (2003) (plurality opinion).
Having considered appellant's arguments and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.'
J.
J.
Parraguirre
'Despite counsel's verification that the fast track statement complies
with applicable formatting requirements, the fast track statement does
not comply with NRAP 32(a)(4) because it is not double-spaced and NRAP
32(a)(5) because the footnotes are not the same typeface and size as the
body of the text. See NRAP 3C(h)(1). We caution counsel that future
failure to comply with the Nevada Rules of Appellate Procedure when
filing briefs with this court may result in the imposition of sanctions. See
NRAP 3C(n); NRAP 28.2(b).
SUPREME COURT
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cc: Hon. Lidia Stiglich, District Judge
Washoe County Alternate Public Defender
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
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