Rico-Rivas (Salvador) v. State ( 2015 )

 extrinsic evidence of those acts to prove state of mind, see id. at 51546, 78
P.3d at 902, we never held that the admissibility of such extrinsic evidence
is unrestricted, see id. at 516, 78 P.3d at 902. Here, the detective was not
competent to testify about the substance of the police report because he
had no personal knowledge of the incident and was not being called as an
expert, see NRS 50.025(1), and the police report itself was inadmissible
hearsay as it consisted of out-of-court statements made by witnesses to
police about the battery, see NRS 51.035; NRS 51.065(1). Rico-Rivas
wrongly contends that the police report was admissible as a public record
under NRS 51.155, as the police report did not contain "factual findings
resulting from an investigation" and the circumstances of the police report
indicate a lack of trustworthiness, given that the victim was never
arrested or prosecuted for battery. See NRS 51.155. To the extent that
Rico-Rivas argues that the district court prevented him from presenting
any evidence that the victim had committed battery, this argument is
belied by the record. Rico-Rivas was allowed to cross-examine a State
witness about her personal knowledge that the victim "beat-up another gal
because she was jealous."
Second, Rico-Rivas contends that the district court abused its
discretion in admitting evidence of prior bad acts. We disagree. Rico-
Rivas first challenges the admission of evidence of a temporary protective
order (TPO) obtained by the victim against him and argues that the TPO
was relevant only as to his sentence and should not have been admitted at
trial. Rico-Rivas's argument is incorrect. Rico-Rivas was charged with
murder in violation of a TPO against domestic violence. NRS 193.166
provides for an additional penalty when a felony is committed in violation
of a TPO. In order for this additional penalty to apply to Rico-Rivas, a
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jury must find beyond a reasonable doubt that the murder was committed
in violation of a TPO. See Apprendi v. New Jersey, 530 U.S. 466, 490
(2000); Abrego v. State, 118 Nev. 54, 60, 38 P.3d 868, 871 (2002); NRS
193.166(1), (5). Therefore, the district court did not abuse its discretion in
admitting evidence of the TPO at trial.
Next, Rico-Rivas challenges testimony by a State witness
about the victim's fear of Rico-Rivas. Defense counsel did not object to or
move to strike this testimony at trial and thus we review this challenge for
plain error. See Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481, 482
(2000). The prosecutor asked a State witness about her conversation with
Rico-Rivas regarding conflict resolution, and the State witness responded,
"Marisol [the victim] had expressed that she was afraid of --." The
prosecutor interrupted her and asked her not to testify about the victim's
statements. Given that the improper testimony was brief and not solicited
by the prosecutor, we conclude that the district court did not commit plain
error in failing to sua sponte strike this testimony. See Richmond v. State,
118 Nev. 924, 935, 59 P.3d 1249, 1256 (2002).
Rico-Rivas also challenges testimony about his gang affiliation
and prior arrest. This testimony was elicited by defense counsel on cross-
examination and counsel made no objection or request for a limiting
instruction at trial. Because defense counsel invited the error, Rico-Rivas
cannot now challenge the testimony on appeal. See Rhyne v. State, 118
Nev. 1, 9, 38 P.3d 163, 168 (2002). To the extent that he complains about
the gang-affiliation testimony elicited on redirect examination, he failed to
make any objection to this testimony at trial, and we discern no plain
error in the admission of this testimony.
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Third, Rico-Rivas argues that the district court erred in
rejecting his proposed instruction on the proportional use of self-defense
and finding that Runion v. State, 116 Nev. 1041, 1051-52, 13 P.3d 52, 59
(2000), mandates "stock" instructions in self-defense cases. We review the
settling of jury instructions for an abuse of discretion but review de novo
whether a jury instruction accurately states the law. Funderburk v. State,
125 Nev. 260, 263, 212 P.3d 337, 339 (2009). In general, "the defense has
the right to have the jury instructed on a theory of the case as disclosed by
the evidence, no matter how weak or incredible that evidence may be."
Runion, 116 Nev. at 1050, 13 P.3d at 58.
Rico-Rivas proposed the following instruction: "Where the
original aggressor is not guilty of a deadly attack, but of a simple assault
or trespass, the victim has no right to use deadly or other excessive force.
If the victim uses such force, the aggressor's right of self-defense arises."
Contrary to Rico-Rivas's assertion, the district court did not reject this
proposed instruction under the belief that the Runion stock instructions
were mandatory; rather, the district court found that the proposed
instruction did not correctly state the law and was substantially covered •
by other jury instructions. Rico-Rivas's proposed instruction was an
incomplete and incorrect statement of the law because it failed to account
for the original aggressor's duty to retreat, see Culverson v. State, 106 Nev.
484, 489, 797 P.2d 238, 241 (1990), and to "decline any further struggle,"
NRS 200.200(2). Further, the instruction as to when the victim could use
force to protect herself was an incorrect statement of the law. Thus, the
district court did not abuse its discretion in rejecting Rico-Rivas's proposed
instruction.
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Finally, Rico-Rivas argues that the cumulative effect of errors
denied him a fair trial. As we have found no error, there is nothing to
cumulate.
Having considered Rico-Rivas's contentions and concluded
that they lack merit, we
ORDER the judgment of conviction AFFIRMED.
Saitta
reC
ALtA
Pickering
cc: Hon. Jerome Polaha, District Judge
Law Office of Thomas L. Qualls, Ltd.
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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