Willing (Nicholas) v. State ( 2013 )

 forced them into a closet and left. At trial, Willing conceded that all of the
charged crimes occurred but denied any involvement in them; however,
Sexton and Spellman testified that Willing recruited them and provided
all of the necessary details to commit the crimes, including the layout of
the home, the location of the victims' safes, and how to avoid being
discovered. Willing does not contend that the accomplice testimony was
erroneously admitted and "it is the jury's function, not that of the court, to
assess the weight of the evidence and determine the credibility of
witnesses." Nolan v. State, 122 Nev. 363, 377, 132 P.3d 564, 573 (2006)
(internal quotation marks omitted). Although not overwhelming, the
evidence was sufficient to support the verdict. See NRS 193.165; NRS
195.020; NRS 199.480(1)(a); NRS 200.310(1); NRS 200.380(1); NRS
200.400(1); NRS 200.471(1)(a); NRS 205.060(1); NRS 205.220(1)(a); NRS
205.226(1); Stephans v. State, 127 Nev. „ 262 P.3d 727, 734 (2011)
(considering all evidence, even if erroneously admitted, when evaluating
the sufficiency of the evidence).
Second, Willing argues that the district court abused its
discretion by granting the State's pretrial motion in limine prohibiting the
defense from suggesting that Jones was involved in improper and
potentially criminal activities. Willing asserts that prohibiting the
evidence he wished to elicit—that Jones was allegedly stealing from the
county—violated his right to confront his accusers and probe for bias. The
district court noted that Jones' allegedly improper actions were irrelevant
because Jones' version of events was not contested, yet allowed the defense
to inquire into Jones' activities to the extent that they were relevant to his
credibility or bias and were related to his testimony. See NRS 48.015
(defining relevant evidence); NRS 48.025(2) (excluding irrelevant
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evidence); NRS 48.045(2) (limiting admission of other crimes, wrongs, or
acts). Having considered the record, we conclude that the district court
did not abuse its discretion. See Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986) ("[T]rial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such
cross-examination."); see also Lobato v. State, 120 Nev. 512, 520, 96 P.3d
765, 771 (2004) (a district court may limit "inquiries which are repetitive,
irrelevant, vague, speculative, or designed merely to harass, annoy or
humiliate the witness" (internal quotation marks omitted)). 1
Third, Willing argues that the district court abused its
discretion by denying his pretrial motion to exclude Spellman's recorded
statement to law enforcement because it contained references to prior bad
acts and was not timely disclosed. Willing did not include a transcript of
Spellman's entire statement, and our review of the limited record provided
does not reveal anything that could reasonably be construed as a prior bad
act. See generally NRS 48.045(2); Greene v. State, 96 Nev. 555, 558, 612
P.2d 686, 688 (1980) ("The burden to make a proper appellate record rests
on appellant."). Although the district court noted that the statement
should have been disclosed sooner, it concluded that the State did not act
in bad faith and that Willing failed to demonstrate he was prejudiced by
'Willing also argues that the State's pretrial motion should have
been denied because it used an "absurd" analogy which characterized the
defense's attempt to bring up information regarding Jones' allegedly
improper conduct as raising a "Chewbacca defense"—the modern day
equivalent of accusing the defense of raising a red herring. We decline to
consider this claim because Willing failed to support it by relevant
authority or cogent argument. See Maresca v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987).
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the "tardy" disclosure of the statement. See NRS 174.295(2); Evans v.
State, 117 Nev. 609, 638, 28 P.3d 498, 518 (2001). The record supports
these determinations, and we conclude that the district court did not
abuse its discretion by denying Willing's motion.
Fourth, Willing argues that the district court abused its
discretion by not granting his pretrial motion for a continuance to evaluate
Spellman's statement. The district court concluded that Willing had
ample time to investigate claims made in the statement and that he failed
to demonstrate he would be prejudiced by the denial of the continuance.
See Rose v. State, 123 Nev. 194, 206, 163 P.3d 408, 416 (2007). The record
supports these determinations, and we conclude that the district court did
not abuse its discretion by denying Willing's motion.
Fifth, Willing argues that the district court abused its
discretion by denying his motion for a judgment of acquittal on the
charges of kidnapping made after the close of the State's case. This claim
lacks merit because the district court lacks authority to dismiss a charge
or enter a judgment of acquittal during trial. NRS 175.381; State v.
Combs, 116 Nev. 1178, 1180, 14 P.3d 520, 521 (2000).
Sixth, Willing argues that the district court abused its
discretion by denying his post-verdict motion for a judgment of acquittal
on the charges of kidnapping and motion for a new trial because the jury
found him guilty of both kidnapping and false imprisonment despite being
instructed that they were alternative charges. Because the district court
properly concluded that the lesser-included offense of false imprisonment
merged into the greater offense of kidnapping and dismissed the lesser
count, we conclude that the district court did not abuse its discretion by
denying Willing's motions. See Owens v. State, 100 Nev. 286, 289, 680
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P.2d 593, 595 (1984) (noting that the remedy when a defendant is found
guilty of both a greater and a lesser-included offense is reversal of the
lesser-included offense), overruled on other grounds by Barton v. State, 117
Nev. 686, 30 P.3d 1103 (2001), overruled on other grounds by Rosas V.
State, 122 Nev. 1258, 147 P.3d 1101 (2006).
Seventh, Willing argues that the district court abused its
discretion by denying his post-verdict motion for a judgment of acquittal
on the charges of kidnapping and his motion for a new trial because the
evidence was insufficient to establish that the kidnappings were not
incidental to the robbery. This claim lacks merit because sufficient
evidence supports the jury's verdict, NRS 175.381, and "a district court
lacks authority to grant a new trial based on insufficiency of the evidence,"
Evans v. State, 112 Nev. 1172, 1193, 926 P.2d 265, 279 (1996).
Eighth, Willing argues that cumulative error deprived him of
a fair trial and warrants reversal of his convictions. Having considered
the appropriate factors, we conclude that relief is not warranted. See
Mulder v. State, 116 Nev. 1, 17. 992 P.2d 845, 854-55) (2000) (discussing
relevant factors to consider in evaluating a claim of cumulative error).
Having considered Willing's contentions and concluded that he
is not entitled to relief, we
ORDER the judgmgot of conviction AFFIRMED.
Gibbons
D -c) tk.t2( , J.
Douglas
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cc: Hon. Robert W. Lane, District Judge
Donald J. Green
Nye County District Attorney
Attorney General/Carson City
Nye County Clerk
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