Goode (Amaan) v. State ( 2014 )

 the district court abused its discretion by admitting evidence of gang
affiliation and motive, (4) the district court abused its discretion by
admitting evidence of gang members' felonious conduct to prove the gang
enhancement, (5) the State presented insufficient evidence to support the
convictions, (6) the district court abused its discretion by denying Goode's
motion for a new trial based on inconsistent verdicts, and (7) Goode's
convictions and sentences for both attempted• murder and aggravated
battery violate the Double Jeopardy Clause. Concluding that these
arguments lack merit, we affirm.
The district court did not abuse its discretion by refusing to excuse the
entire original venire for cause
Goode first argues that the district court improperly refused to
excuse the entire original venire for cause. During a break in voir dire,
several venire members overheard Elizondo speaking on his cellular
phone. Elizondo used profanity, mentioned marijuana, expressed his
opinion that the State was making a big deal out of the situation, and said
that he was "the only one out." The district court excused all venire
members who directly overheard the call and asked the remaining venire
members to raise their hands if they heard anything about the call second-
hand. The district court then individually questioned the venire members
who raised their hands and excused those venire members who said that
they could not remain impartial. One of the venire members said that the
call "caused a stir" amongst the other venire members. Goode moved to
excuse the entire venire for cause and the district court refused to do so.
We review a district court's decision whether to excuse
potential jurors for cause for an abuse of discretion. Weber v. State, 121
Nev. 554, 580, 119 P.3d 107, 125 (2005). When determining whether a
district court abused its discretion, the relevant inquiry is "whether a
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prospective juror's views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions
and his oath." Id. (quoting Leonard v. State, 117 Nev. 53, 65, 17 P.3d 397,
405 (2001)).
Here, the district court excused for cause all venire members
who directly overheard the call or heard about the call and could not
remain impartial. Goode argues that the comment that the call "caused a
stir" indicates that the entire venire was tainted and that other venire
members heard about the call but did not raise their hands. However, we
cannot assume that the venire members who did not raise their hands
were lying. See McConnell v. State, 120 Nev. 1043, 1062, 102 P.3d 606,
619 (2004) ("We presume that juries follow the instructions they are
given ... ."); State v. Barnes, 481 S.E.2d 44, 56 (N.C. 1997) ("We presume
that jurors will tell the truth . ."). Moreover, the district court
questioned the venire regarding the call and excused all venire members
who could not remain impartial. In addition, any bias would have been
attenuated because Elizondo, not Goode, was having the offending
conversation. Given these circumstances, we conclude that the district
court properly exercised its discretion by refusing to excuse the entire
venire for cause. See Weber, 121 Nev. at 580, 119 P.3d at 125.
The district court properly exercised its discretion by denying Goode's
motion to sever
Next, Goode argues that the district court abused its
discretion by denying his motion to sever his trial from Elizondo's. We
review a district court's decision not to sever a trial for an abuse of
discretion. Chartier v. State, 124 Nev. 760, 764, 191 P.3d 1182, 1185
(2008). Severance should be granted 'only if there is a serious risk that a
joint trial would compromise a specific trial right . . . or prevent the jury
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from making a reliable judgment about guilt or innocence." Id. at 765,
191 P.3d at 1185 (quoting Marshall v. State, 118 Nev. 642, 647, 56 P.3d
376, 379 (2002)); see also NRS 174.165(1). "[A] court must consider not
only the possible prejudice to the defendant but also the possible prejudice
to the State resulting from expensive, duplicative trials." Marshall, 118
Nev. at 646, 56 P.3d at 379. Severance is not required merely because it
would make "acquittal more likely," id. at 647, 56 P.3d at 379, or "because
the evidence admissible against a co-defendant is more damaging than
that admissible against the moving party." Lisle v. State, 113 Nev. 679,
690, 941 P.2d 459, 466 (1997), overruled on other grounds by Middleton v.
State, 114 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998). Rather,
"misjoinder requires reversal only if it has a substantial and injurious
effect on the verdict." Marshall, 118 Nev. at 647, 56 P.3d at 379.
Goode argues that severance was required because Elizondo
admitted that he attacked Gil-Corona and that he was a member of the
gang involved in this case, Varrio Grande Vista (VGV), whereas Goode
made no such admissions. While the evidence against Elizondo may have
been stronger, this disparity in the evidence did not entitle Goode to a
separate trial. See Lisle, 113 Nev. at 690, 941 P.2d at 466. Moreover,
Goode fails to indicate why jurors could not be expected to
compartmentalize the evidence admitted against each defendant, and
because much of the evidence would have been identical in separate trials,
severance would have placed a significant burden on the State. See
Marshall, 118 Nev. at 646, 56 P.3d at 379. Thus, we conclude that the
district court did not abuse its discretion by denying Goode's motion to
sever on this ground.
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Goode further argues that Elizondo's confession
unconstitutionally implicated Goode. Where a defendant is implicated by
a non-testifying codefendant's confession, the defendant's right to
confrontation requires the redaction of the confession to eliminate mention
of the defendant's name or existence and a limiting instruction.
Richardson v. Marsh, 481 U.S. 200, 211 (1987). Here, Elizondo's
confession was redacted to remove any mention of Goode or the number of
attackers, and Goode's objections to the redactions were sustained before
Elizondo's confession was admitted into evidence. Accordingly, Elizondo's
confession did not unconstitutionally implicate Goode, see id., and
admission of this confession against Elizondo did not require severance.'
The district court did not abuse its discretion by admitting evidence of
gang affiliation and motive
Goode next argues that the district court abused its discretion
by admitting evidence of gang affiliation and motive. We review a district
court's decision to admit gang-affiliation evidence for an abuse of
discretion, and will uphold such a decision if "(1) the evidence is relevant,
(2) it is proven by clear and convincing evidence, and (3) its probative
value is not substantially outweighed by the danger of unfair prejudice."
Butler v. State, 120 Nev. 879, 889, 102 P.3d 71, 78 (2004).
First, Goode and his codefendants were charged with the gang
enhancement, and the State presented evidence suggesting that the attack
on Gil-Corona was retaliation for an earlier attack on Marco Lopez, a
'Goode also argues that severance was required because the entire
venire was tainted by Elizondo's cellular phone conversation. However, as
discussed above, we conclude that the district court excused for cause all
venire members who expressed bias against Goode or his codefendants.
As a result, we reject this argument.
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founding member of VGV. Thus, evidence of gang affiliation and motive
was highly relevant to proving the gang enhancement. See id. ("This court
has repeatedly held that gang-affiliation evidence may be relevant and
probative when it is admitted to prove motive.").
Second, there is no reason to doubt the evidence of Goode's
association with VGV members. A police officer testified that he stopped
Goode with a VGV member, and Goode's own alibi was that he was at the
hospital with Lopez at the time of the crime.
Third, the evidence that Goode associated with VGV members
was not unduly prejudicial. Although there was significant testimony
regarding VGV members' felonious conduct other than the attack on Gil-
Corona, none of this testimony mentioned Goode, and because Goode was
charged with the gang enhancement, any risk of unfair prejudice did not
substantially outweigh the probative value of this evidence. Accordingly,
the district court did not abuse its discretion by admitting this evidence.
See Butler, 120 Nev. at 889, 102 P.3d at 78.
Admitting evidence of VGV members' juvenile adjudications of delinquency
to prove the gang enhancement was not an abuse of discretion
Goode further argues that the district court abused its
discretion by admitting evidence of VGV members' juvenile adjudications
of delinquency to prove that VGV was a criminal gang.
In order to prove the gang enhancement, the State must
prove, inter alia, that the gang at issue "[h]as as one of its common
activities engaging in criminal activity punishable as a felony, other than
the conduct which constitutes the primary offense." NRS 193.168(8)(c)
(emphasis added). It is clear that the State need not offer felony
convictions to prove this element because the statute reads "punishable,"
not "punished." Moreover, NRS 193.168(7) allows the State to prove the
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gang enhancement using expert testimony, further indicating that the
Legislature contemplated that the State could offer evidence other than
adult felony convictions to prove the gang enhancement.
Goode argues that juvenile adjudications of delinquency are
civil in nature and therefore cannot be used to prove the felonious activity
element. Although juvenile proceedings are civil in nature, NRS
62D.010(1)(a); State v. Javier C., 128 Nev. , , 289 P.3d 1194, 1197
(2012) (recognizing that juvenile proceedings and confinement resulting
therefrom are civil, not criminal), this does not mean that a juvenile's
conduct giving rise to a juvenile adjudication of delinquency is also civil.
Rather, juvenile proceedings may be initiated due to a juvenile's acts that
are designated felony criminal offenses. NRS 62B.330(2)(c); see also In re
Seven Minors, 99 Nev. 427, 432, 664 P.2d 947, 950 (1983) (explaining that
juveniles come before the juvenile courts after "committing crimes"),
disapproved of on other grounds by In re William S., 122 Nev. 432, 442
n.23, 132 P.3d 1015, 1021 n.23 (2006). Thus, the mere fact that juvenile
adjudications of delinquency are civil in nature does not mean that they
are inadmissible to prove the felonious activity element of the gang
enhancement.
Finally, Goode argues that NRS 193.168(8)(c) lacks standards
to guide courts in determining what evidence may be admitted to prove
the felonious activity element. While we agree that NRS 193.168(8)(c)
contains few if any meaningful standards, we conclude that this was the
Legislature's intent, expressed unambiguously in the statute itself.
Accordingly, the district court properly construed NRS 193.168(8)(c) when
it concluded that evidence other than felony convictions, including juvenile
adjudications of delinquency, may be admitted to prove the felonious
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activity element of the gang enhancement. State v. Lucero, 127 Nev. ,
, 249 P.3d 1226, 1228 (2011) (stating that this court reviews a district
court's interpretation of a statute de novo and unambiguous statutory
language is given its plain meaning). As a result, the district court did not
abuse its discretion by admitting evidence of juvenile adjudications to
prove that VGV engages in felonious conduct as a common activity. See
Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008) (reviewing a
district court's decision to admit evidence for an abuse of discretion). 2
Sufficient evidence supports the convictions
Next, Goode argues that the State presented insufficient
evidence to support the convictions. Evidence is sufficient if, "after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." McNair v. State, 108 Nev. 53, 56, 825 P.2d
571, 573 (1992) (internal quotation marks omitted).
2 To the extent that we have previously suggested in dicta that the
conduct used to prove the felonious activity element must also be
committed in furtherance of the criminal gang, such a conclusion is
unsupported by NRS 193.168(8)(c). See Origel-Candido v. State, 114 Nev.
378, 383, 956 P.2d 1378, 1381 (1998) ("The fact that individual members
committed felony crimes which benefitted the gang does not lead
necessarily to the conclusion that felonious action is a common
denominator of the gang." (Emphasis added.)). NRS 193.168(8)(c) does
not expressly impose this requirement, and because such a requirement
would make the gang enhancement all but impossible to prove, we decline
to infer that the Legislature intended to impose such a requirement. See
Lucero, 127 Nev. at , 249 P.3d at 1228.
Goode also argues that the State presented evidence of his juvenile
adjudications of delinquency, but this argument is unsupported by the
record.
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Gil-Corona's identification of Goode
Goode argues that the evidence was insufficient to prove that
Goode stabbed Gil-Corona On cross-examination, Goode exposed
potential problems with Gil-Corona's identification of Goode as one of his
attackers, but the jury was nevertheless entitled to believe Gil-Corona's
testimony that Goode stabbed him. See id. (stating "that it is the jury's
function . . to assess the weight of the evidence and determine the
credibility of witnesses"). Thus, the State presented sufficient evidence
that Goode stabbed Gil-Corona. See id.
Attempted murder
"Attempted murder is the performance of an act or acts which
tend, but fail, to kill a human being, when such acts are done with express
malice, namely, with the deliberate intention unlawfully to kill." Keys v.
State, 104 Nev. 736, 740, 766 P.2d 270, 273 (1988). "Express malice is that
deliberate intention unlawfully to take away the life of a fellow creature,
which is manifested by external circumstances capable of proof" NRS
200.020(1) (emphasis added); cl Dearman v. State, 93 Nev. 364, 367, 566
P.2d 407, 409 (1977) (regarding murder, stating that "[i]ntent to kill . . .
may be ascertained or deduced from the facts and circumstances of the
killing, such as use of a weapon calculated to produce death, the manner of
use, and the attendant circumstances").
Goode next argues that the evidence was insufficient to prove
that he intended to kill Gil-Corona because Gil-Corona's injuries were not
life-threatening. Gil-Corona testified that a sedan drove at him at full
speed, he was beaten with hammers by five males, and that he was
stabbed in the head and torso by Goode. Gil-Corona's injuries did not
require surgery or an extended hospital stay, but given the nature of the
attack, the weapons used, and the vital locations of Gil-Corona's injuries, a
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reasonable jury could conclude that the non-life-threatening nature of Gil-
Corona's injuries was due to his luck or his attackers' ineptitude, not the
absence of intent to kill. See NRS 200.020(1); Dearman, 93 Nev. at 367,
566 P.2d at 409. Accordingly, the State presented sufficient evidence to
prove that Goode intended to kill Gil-Corona. See McNair, 108 Nev. at 56,
825 P.2d at 573.
Aggravated battery
Goode further argues that the State presented insufficient
evidence to support his aggravated battery conviction. Except for
challenging the sufficiency of Gil-Corona's testimony identifying Goode as
the stabber, Goode does not appear to argue that the evidence was
insufficient to convict him of simple battery. Rather, Goode argues that
the evidence was insufficient to prove that the battery resulted in
substantial bodily harm, was accomplished using a deadly weapon, or was
committed in furtherance of a criminal gang.
Substantial bodily harm
First, Goode argues that the State presented insufficient
evidence to prove that the attack resulted in substantial bodily harm
Substantial bodily harm includes physical injury "which causes serious,
permanent disfigurement or protracted loss or impairment of the function
of any bodily member or organ; or . . . [p]rolonged physical pain." NRS
0.060. Photographs of Gil-Corona's injuries were admitted into evidence
and Gil-Corona showed the jury the scars on his torso. Gil-Corona
testified that at the time of trial, he had ongoing pain in his torso, suffered
multiple severe headaches each week, and may not be able to continue
working in construction due to his pain This evidence was sufficient for a
rational jury to conclude that the attack caused substantial bodily harm.
See id.; Levi v. State, 95 Nev. 746, 748, 602 P.2d 189, 190 (1979) (stating
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that serious, permanent disfigurement "includes cosmetic disfigurement,"
and a jury determines whether an injury is serious or permanent); see also
McNair, 108 Nev. at 56, 825 P.2d at 573.
Deadly weapon
Second, to the extent that Goode argues that the State
presented insufficient evidence to prove that the attack was accomplished
using a deadly weapon, we reject this argument. A deadly weapon
includes an instrument "which, under the circumstances in which it is
used, attempted to be used or threatened to be used, is readily capable of
causing substantial bodily harm or death." NRS 193.165(6)(b). The State
presented evidence that Goode stabbed Gil-Corona in the head and torso.
This evidence, combined with the evidence of Gil-Corona's injuries
discussed above, was sufficient for the jury to conclude that the battery
was accomplished with a deadly weapon. See NRS 193.165(6)(b); McNair,
108 Nev. at 56, 825 P.2d at 573.
Gang enhancement
Third, Goode argues that the State presented insufficient
evidence to prove the gang enhancement. A person who commits a felony
"knowingly for the benefit of, at the direction of, or in affiliation with, a
criminal gang, with the specific intent to promote, further or assist the
activities of the criminal gang" is subject to an additional penalty. NRS
193.168(1). A "criminal gang" is:
any combination of persons, organized formally or
informally, so constructed that the organization
will continue its operation even if individual
members enter or leave the organization, which:
(a) Has a common name or identifying symbol;
(b) Has particular conduct, status and customs
indicative of it; and
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(c) Has as one of its common activities engaging in
criminal activity punishable as a felony, other
than the conduct which constitutes the primary
offense.
NRS 193.168(8).
Goode argues that the evidence was insufficient to establish
the final element of the gang enhancement, that VGV engages in felonious
conduct as a common activity. See NRS 193.168(8)(c). This argument
lacks merit. In Origel-Candido v. State, we concluded that a gang expert's
testimony was insufficient to prove the felonious activity element of the
gang enhancement. 114 Nev. 378, 382-83, 956 P.2d 1378, 1381 (1998).
The gang expert in Origel-Candido testified that the gang in that case
qualified as a criminal gang under Nevada law and that he was aware of
felonies committed by gang members that benefitted the gang. Id. at 382,
956 P.2d at 1381. However, the gang expert "did not testify as to an
approximate number of . . . gang members who committed felonies" or
"that incoming members of the gang were exhorted to felonious acts by
senior members." Id. at 383, 956 P.2d at 1381. We criticized this
"conclusory testimony," explaining that "[t]he fact that individual
members committed felony crimes which benefitted the gang does not lead
necessarily to the conclusion that felonious action is a common
denominator of the gang." Id. Because the gang expert's testimony failed
to address whether felonious conduct was a common activity of the gang,
we held that the evidence was insufficient to prove the gang enhancement
beyond a reasonable doubt. Id. at 382-83, 956 P.2d at 1381.
Unlike the gang expert in Origel-Candido, the State's gang
expert in this case, Detective Souder, asserted facts rather than the legal
conclusion that VGV is a criminal gang. Souder testified that VGV
members commonly engage in felony burglary, robbery, assault, battery,
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and drug activity. He testified that when a VGV member commits a
crime, other members and affiliates are expected to join him, failure to do
so may result in physical retaliation, and committing crimes with VGV is
a way to get into and earn respect within VGV. He testified that if a VGV
member was attacked, other members would be expected to retaliate to
protect and promote the gang. He testified that VGV had approximately
30 members and affiliates at the time of the attack and approximately 60
members and affiliates at the time of trial, and that a majority of VGV
members engage in felonious conduct. Finally, Souder testified to specific
examples of VGV members' felonious conduct. 3 Unlike the testimony in
Origel-Candido, Souder's testimony addressed the approximate number of
VGV members who committed felonies and explained that VGV members
and affiliates were expected to commit crimes with and for VGV. Based on
this testimony, a rational jury could find that VGV engaged in felonious
conduct as a common activity. See NRS 193.168(8)(c); McNair, 108 Nev. at
56, 825 P.2d at 573.
Goode further argues that the State presented insufficient
evidence that Goode was a member of VGV. However, the State is not
required to prove that a defendant charged with the gang enhancement is
a member, or even an affiliate, of the criminal gang. Rather, the State
need only prove that a defendant committed a felony "knowingly for the
benefit of, at the direction of, or in affiliation with, a criminal gang, with
the specific intent to promote, further or assist the activities of the
criminal gang." NRS 193.168(1) (emphasis added). Therefore, Goode's
3As discussed above, we are not persuaded that only adult felony
convictions are admissible as examples of gang members' felonious
conduct. See NRS 193.168(8)(c).
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714
1
argument that the State presented insufficient evidence of his
membership in VGV to support the gang enhancement lacks merit.
In conclusion, the State presented sufficient evidence to
support Goode's convictions. See McNair, 108 Nev. at 56, 825 P.2d at 573• 4
The district court did not abuse its discretion by denying Goode's motion
for a new trial based on inconsistent verdicts
Next, Goode argues that the district court abused its
discretion by denying his motion for a new trial based on inconsistent
verdicts. The jury found that the battery was accomplished with a deadly
weapon and in furtherance of a criminal gang, but did not find these facts
with regards to attempted murder. We assume without deciding that
these verdicts were inconsistent, but we nevertheless conclude that the
district court did not abuse its discretion.
The mere fact that a jury returns inconsistent verdicts does
not justify reversal of a conviction because inconsistent verdicts "often are
a product of jury lenity." United States v. Powell, 469 U.S. 57, 65 (1984);
see also Bollinger v. State, 111 Nev. 1110, 1116-17, 901 P.2d 671, 675-76
(1995) (citing Powell, 469 U.S. at 64-69). Where a jury returns
inconsistent verdicts, review for sufficiency of the evidence protects a
defendant "against jury irrationality or error." Powell, 469 U.S. at 67.
Because Goode points only to the inconsistent verdicts as grounds for a
new trial, and because the evidence was sufficient to support the
convictions, we conclude that the district court did not abuse its discretion
4 Because we conclude that Goode's convictions were supported by
sufficient evidence, we also conclude that the district court did not abuse
its discretion by refusing to advise the jury to acquit Goode. See NRS
175.381(1); Milton v. State, 111 Nev. 1487, 1493, 908 P.2d 684, 688 (1995).
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by refusing to grant a new trial. See id.; Meyer v. State, 119 Nev. 554, 561,
80 P.3d 447, 453 (2003) (reviewing a district court's denial of a motion for
new trial based on juror misconduct for an abuse of discretion).
Goode's convictions and sentence do not violate double jeopardy
Finally, Goode argues that sentencing him for attempted
murder and aggravated battery violated the Double Jeopardy Clause.
"The Double Jeopardy Clause protects against . . . multiple punishments
for the same offense." Jackson v. State, 128 Nev. „ 291 P.3d 1274,
1278 (2012). This court reviews a claim that a conviction violates double
jeopardy de novo. Id. at , 291 P.3d at 1277. If "a state legislature has
clearly authorized multiple punishments for the same offense[,] . dual
punishments do not offend double jeopardy." Id. at 291 P.3d at 1278.
Under Nevada law, Iniothing . . protects a person who, in an
unsuccessful attempt to commit one crime, does commit another and
different one, from the punishment prescribed for the crime actually
committed." NRS 193.330(2). Therefore, we concluded in Jackson that
the Legislature clearly authorized multiple punishments for both
attempted murder and aggravated battery, even if the charges are based
on the same conduct. 128 Nev. at , 291 P.3d at 1279-80. We further
concluded that these crimes were not lesser included offenses of each
other. Id. at , 291 P.3d at 1280 (citing Blockb urger v. United States,
284 U.S. 299, 304 (1932)). Therefore, we conclude that Goode's convictions
and sentences do not violate the Double Jeopardy Clause. Id. at 291
P.3d at 1279-80. 5
5 In
addition, Goode argues that cumulative error warrants reversal
However, we conclude that Goode's assertions of error lack merit.
continued on next page...
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Accordingly, we
ORDER the judgment of the district court AFFIRMED.
J.
Pickering
ttAita—C , J.
Parraguirre
cc: Hon. Valorie J. Vega, District Judge
Law Office of Scott P. Eichhorn, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
...continued
Therefore, his cumulative error argument also fails. See Rose v. State, 123
Nev. 194, 211, 163 P.3d 408, 419 (2007).
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SAITTA, J., concurring:
Though I concur with the• majority in affirming Goode's
conviction, I write separately to comment on the issue of NRS 193.168(8)'s
gang enhancement provision.
NRS 193.168(8)(c) requires the State to prove, inter alia, that
the gang at issue "[Was as one of its common activities engaging in
criminal activity punishable as a felony, other than the conduct which
constitutes the primary offense." The majority correctly observes that
NRS 193.168(8)(c) uses the term "punishable" as opposed to "punished"
and that NRS 193.168(7) allows the State to prove the gang enhancement
using expert testimony. Since a statute's plain meaning controls its
interpretation, State v. Lucero, 127 Nev. , , 249 P.3d 1226, 1228
(2011), I must agree with the majority's conclusion that the Legislature
intended to allow the State to offer evidence other than prior convictions to
prove the gang enhancement.
The majority concludes that juvenile adjudications are
admissible to prove a gang sentencing enhancement because no statute
expressly prohibits their use for this purpose. However, a cornerstone of
juvenile justice law is that juvenile adjudications are civil and "not
criminal in nature." NRS 62D.010(1)(a); see also State v Javier C., 128
Nev. , 289 P.3d 1194, 1197 (2012). Thus, the majority allows the
admission of the juvenile records of other purported gang members to
prove the gang sentencing enhancement for the present defendant.
This analysis is troubling because juvenile adjudications
typically use less formal processes and fewer procedural safeguards than
are present in criminal trials. See NRS 62D.010(1). Consequently, the use
of juvenile adjudications to provide evidence in a criminal trial—as was
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done here—can allow the admission of evidence that has not been subject
to the procedural standards required in a criminal trial.
Furthermore, the admission of other individuals' unrelated
juvenile adjudications is troubling because it allows a defendant's
wrongdoing to be judged by misconduct that is not connected to the
charged crime and in which the defendant was not involved. I can identify
no other area of criminal law that allows the use of other individuals'
unrelated conduct to increase a defendant's punishment. Though the
present record does not suggest, and Goode does not argue, that the
juvenile adjudication records at issue here had been sealed and therefore
excluded under NRS 62H.130, this does not alleviate my concerns about
using others' unrelated crimes activity against a criminal defendant.
Finally, I write separately to express my concern about NRS
193.168(8)(c)'s lack of standards to assist our courts in determining what
evidence can be admitted to prove the felonious activity element. While
the majority recognizes that the statute contains few, if any, meaningful
standards, it nonetheless concludes that this is evidence of the
Legislature's unambiguously expressed intent not to restrict the type of
evidence that could be considered for a gang sentencing enhancement.
While this conclusion may be correct in light of the statute's plain
meaning, see Lucero, 127 Nev. at , 249 P.3d at 1228, it leaves the
district courts in an unenviable position of making decisions that lack any
type of direction or standard. As a result, this statute promotes
inconsistent and unpredictable applications.
Although I write separately to express my concerns about this
standardless statute and the troubling use of other gang members' conduct
to prove that a defendant was a member of a gang, I join my colleagues in
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their disposition of this matter because their ultimate conclusions about
the application of NRS 193.168(8)(c) and the other issues presented in the
present case are correct.
J.
Saitta
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