Clark (William) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
WILLIAM RONALD CLARK, No. 82996
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. JUN 3 2022
DEpult creRT---
ORDER OF AFFIRMANCE
AND REMAND TO CORRECT CLERICAL ERROR
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of burglary and robbery. Eighth Judicial District Court, Clark
County; Linda Marie Bell and Jacqueline M. Bluth, Judges.
Sufficiency of the evidence
Appellant William Clark argues that insufficient evidence
supports his burglary conviction because the State did not prove he had
felonious intent when he entered the casino that he later robbed. When
reviewing the sufficiency of the evidence supporting a criminal conviction,
we consider "whether, 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." Jackson v. Virginia, 443
U.S. 307, 319 (1979); see also Origel-Candido v. State, 114 Nev. 378, 381,
956 P.2d 1378, 1380 (1998).
At trial, the State presented evidence that Clark entered the
casino and passed a note to a cashier that demanded she give him rnoney.
After the cashier told Clark that she could not read the note, Clark motioned
1 Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted.
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as if he had a weapon and threatened the cashier to give him the money so
"nobody gets shot." The cashier then gave Clark about $4,700 from her
drawer. The jury received photographic evidence from which the jury could
infer that Clark wrote the robbery note before entering the casino. Forensic
testing found Clark's DNA on a discarded sweatshirt that matched the
victim's description of the perpetrator's clothing. The State also presented
surveillance video showing Clark's movements outside and inside the
casino. While Clark testified that he never entered the casino, it is the jury's
prerogative to resolve conflicting evidence. United States v. Hubbard, 96
F.3d 1223, 1226 (9th Cir. 1996) (providing that a "reviewing court niust
respect the exclusive province of the fact finder to determine the credibility
of witnesses, resolve evidentiary conflicts, and draw reasonable inferences
from proven facte); cf. Fritz v. State, 86 Nev. 655, 657, 474 P.2d 377, 378
(1970) (a jury may reject a defendant's explanation of why he is inside a
building and "conclude that his entry into the establishment was with the
intent to commit a felony"). Therefore, we conclude that the State presented
sufficient evidence for a rational juror to find that Clark intended to rob the
casino when he entered. See NRS 193.200; NRS 205.060(1); Sharma v.
State, 118 Nev. 648, 659, 56 P.3d 868, 874 (2002) (observing that "intent can
rarely be proven by direct evidence of a defendant's state of mind, but
instead is inferred by the jury from the individualized, external
circumstances of the crime, which are capable of proof at triar).
Suppression of incriminating statements
Clark argues that his incriminating statements should not have
been admitted because a portion of his recorded statements violated NRS
179.500, and his confession was not voluntary. When considering
challenges to the denial of a motion to suppress, "we review the district
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court's legal conclusions de novo and its factual findings for clear error."
Lamb v. State, 127 Nev. 26, 31, 251 P.3d 700, 703 (2011).
First, the admission of Clark's recorded statements did not
violate NRS 179.500, which prohibits the admission of intercepted oral
communications obtained without a court order.2 The interviewing
detectives took Clark outside to smoke a cigarette but continued to record
the interview with a pocket recording device. The detectives kept Clark
handcuffed, reiterated they were acting in their official capacity, and told
Clark that they would relay what he said to the primary detectives. Thus,
under these circumstances, Clark had no justifiable expectation that his
statements were "not subject to interception," NRS 179.440 (defining "oral
communication"), by the interviewing detectives. Moreover, even assuming
error in the admission of Clark's recorded statements, we conclude that it
is harmless because the interviewing detectives could have testified about
the substance of the interview. See NRS 178.598 (providing the harmless
error standard).
Second, Clark has not shown any coercive police conduct during
his interrogation. See Colorado v. Connelly, 479 U.S. 157, 167 (1986)
(holding "that coercive police activity is a necessary predicate to the finding
that a confession is not 'voluntary within the meaning of the Due Process
Clause of the Fourteenth Amendment"); see also Allan v. State, 118 Nev. 19,
24, 38 P.3d 175, 178 (2002) ("[A] confession is involuntary only if the
suspect's ability to exercise his free will was overborne by police coercion."),
2C1ark's failure to challenge his incriminating statements under NRS
179.500 in the district court provides an independent reason to deny relief
on this claim. See Guy v. State, 108 Nev. 770, 780, 839 P.2d 578, 584 (1992)
(declining to consider an issue raised for the first time on appeal).
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overruled on other grounds by Rosky v. State, 121 Nev. 184, 191 & n.10, 111
P.3d 690, 694 n.10 (2005). And Clark's contention that his feeling tired, hot,
sweaty, and nauseated is insufficient to show that his statements were
involuntary. See Passarna v. State, 103 Nev. 212, 214, 735 P.2d 321, 323
(1987) (outlining factors for courts to consider when considering the
voluntariness of a confession under the totality of the circumstances); see
also State v. Dobbs, 945 N.W.2d 609, 632-33 (Wis. 2020) (declining "to assess
the voluntariness of [appellant's] statements based solely on . . . his
physical and mental condition"). Therefore, we conclude that the district
court did not clearly err in finding Clark's statements were voluntary and
admissible.
Sentencing
Clark argues that the district court abused its discretion by
adjudicating and sentencing him as a large habitual criminal. Specifically,
Clark contends that the recently amended version of NRS 207.010 should
have applied and therefore he could not be adjudicated as a habitual
criminal because the State introduced only six prior felony convictions.
Compare NRS 207.010(1)(b) (2020) (requiring seven felony convictions to
prove habitual criminal status), with 2009 Nev., Stat. ch. 156, § 1, at 567
(requiring three felony convictions to prove habitual criminal status). We
disagree because "unless the Legisla ture clearly expresses its intent to
apply a law retroactively, Nevada law requires the application of the law in
effect at the time of the commission of a crime." State v. Second Judicial
Dist. Court (Pullin), 124 Nev. 564, 567, 188 P.3d 1079, 1081 (2008); see also
id. at 571, 188 P.3d at 1083 ("[T]he rule that the penalty parameters for an
offense are fixed as of the date of the commission of the offense is fair,
logical, and easy to apply. Neither the State nor a defendant may maneuver
SUPREME COURT a sentencing date to take advantage of or avoid a change in a statute."
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(internal quotation marks omitted)). Clark committed the charged offenses
before the amendrnent's effective date, and the Legislature gave no
indication in the text of NRS 207.010 that it intended to apply the amended
statute retroactively. See 2019 Nev. Stat., ch. 633, § 86, at 4441-42; 2019
Nev. Stat., ch. 633, § 137, at 4488 (providing that the amendrnent became
effective on July 1, 2020).
Clark also argues that the district court improperly relied on
his pending California criminal case at sentencing. After reviewing the
record, we disagree. The district court acknowledged that the case had not
been adjudicated and read the California police report in considering the
totality of Clark's criminal history. It then discussed Clark's numerous
parole violations and his commission of the Nevada offenses shortly after
being released from prison. Therefore, we conclude that the district court
did not abuse its discretion in adjudicating Clark as a habitual criminal and
sentencing him to life in prison without the possibility of parole. See
Tanksley v. State, 113 Nev. 997, 1004, 946 P.2d 148, 152 (1997) (providing
that sentencing courts have "very broad discretion in determining that a
habitual criminal adjudication would serve the purpose of discouraging [a]
repeat offendee); Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976)
("So 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, this court will refrain from
interfering with the sentence imposed.").
We note, however, that the judgment of conviction contains a
clerical error—it incorrectly states that Clark pleaded guilty. The record
clearly shows that Clark's convictions resulted from a jury trial. Following
this court's issuance of its remittitur, the district court shall enter a
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corrected judgment of conviction. See NRS 176.565 (providing that clerical
errors in judgments may be corrected at any time); Buffington u. State, 110
Nev. 124, 126, 868 P.2d 643, 644 (1994) (explaining that the district court
does not regain jurisdiction following an appeal until this court issues its
remittitur). Accordingly, we
ORDER the judgment of conviction AFFIRMED AND
REIVIAND this matter to the district court to correct a clerical error in the
judgment of conviction.3
SI:21614"
Parraguirre
414. , Sr.J.
Pickering
cc: Hon. Jacqueline M. Bluth, District Judge
Hon. Linda Marie Bell, Chief Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
3The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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