Gould (Steven) v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
STEVEN ERIC GOULD, No. 83429
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. 00 1 1 2022
avvsEr-, A. aFt rYeaf?-1
CLE -K OF EM COURT
ORDER OF AFFIRMANCE
CLERK
This is an appeal from a judgment of convic ion, pursuant to a
jury trial, of invasion of the home while in possession of a deadly weapon;
first-degree kidnapping with the use of a deadly weapon, victim 60 years of
age or older; burglary while in possession of a deadly weapon, conspiracy to
commit robbery; and robbery with the use of a deadly weapon, victim 60
years of age or older. Eighth Judicial District Court, Clark County; Jerry
A. Wiese, Judge. Appellant Steven Eric Gould raises seven contentions on
appeal.'
Speedy trial
First, appellant argues that his speedy trial rights were
violated. We disagree. As to the statutory right to a speedy trial under NRS
178.556, there was good cause for the four-year delay. See Huebner v. State,
103 Nev. 29, 31, 731 P.2d 1330, 1332 (1987) (stating that dismissal is
mandatory under NRS 178.556 only if no good cause is shown for the delay).
The delay in bringing appellant to trial was attributable to appellant's
incarceration in California for over two years after his indictment, a
conipetency evaluation upon his extradition to Nevada, issues cooperating
with his counsel, the COVID-19 pandemic, and motion practice. As to the
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
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constitutional right to a speedy trial, the four-year delay between the
indictment and trial was sufficient to trigger a speedy-trial analysis, State
v. Inzunza, 135 Nev. 513, 516-17, 454 P.3d 727, 731 (2019) (holding that a
delay approaching one year is sufficient to trigger the speedy-trial analysis),
but the relevant factors weigh against a violation. See Barker v. Wingo, 407
U.S. 514, 530 (1972) (identifying factors to be balanced in deciding whether
the right to a speedy trial has been violation). Little of the delay was
attributable to the State, and the reasons for the delay were valid and
appropriate. See id. at 531 (explaining that deliberate attempts to delay
the trial by the State should weigh against the government, neutral factors
like negligence or overcrowded courts should be weighted less heavily, and
valid reasons may justify appropriate delay); cf. United States v. Olsen, 995
F.3d 683, 693 (9th Cir. 2021) (holding that "a global pandemic that has
claimed more than half a million lives in this country . . . falls within such
unique circumstances to permit a court to temporarily suspend jury trials
in the interest of public health), amended and superseded on denial of reh'g
en banc, 21 F.4th 1036 (2022); United States v. Smith, 460 F. Supp. 3d 981,
984 (E.D. Cal. 2020) ("Almost every court faced with the question of whether
general COVID-19 considerations justify an ends-of-justice continuance and
exclusion of time [from speedy-trial considerations] has arrived at the same
answer: yes."). And appellant has not demonstrated prejudice.2 See Barker,
407 U.S. at 532 (explaining that prejudice "should be assessed in the light
2To the extent that appellant argues that prejudice should be
presurned, we reject the argument because the delay was less than five
years and was not caused by bad-faith intentional misconduct or gross
negligence on the State's part. See Inzunza, 135 Nev. at 519-20, 454 P.3d
at 733-34 (discussing the circumstances in which the defendant may be
relieved of showing prejudice).
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of the interests of the defendants which the speedy trial right was designed
to protect"). He offered no proof that the delay impaired his defense by
impacting the availability of witnesses, records, or other evidence. See
Sheriff v. Berman, 99 Nev. 102, 108, 659 P.2d 298, 301 (1983) (holding that
defendants failed to show prejudice when they offered no proof that the
delay impacted their defense). Instead, he asserts prejudice based on the
fact that during the delay his accomplices pleaded guilty and agreed to
testify against hirn; however, those guilty pleas were entered while he was
incarcerated in California, before any asserted delay by the State. He
further claims prejudice because the State conducted confirmatory DNA
testing shortly before the trial date. But we are not convinced that
circumstance implicates the harms that the speedy-trial right was designed
to protect against. In particular, in evaluating prejudice for purposes of a
speedy-trial violation, we focus on whether the delay harmed the
defendant's ability to gather and present evidence. See Berman, 99 Nev. at
108, 659 P.2d at 301. The fact that the prosecution gathered additional
inculpatory evidence during the delay did not impair appellant's ability to
gather and present evidence. See, e.g., United States v. Rosson, 441 F.2d
242, 247 (5th Cir. 1971) ("[W]e conclude that a reasonable delay which
enables the government to accumulate the evidence necessary to make out
a prima facie case does not prejudice the accused by impairing his
'ability ... to defend himself."). And appellant did not assert that the
timing of the DNA evidence disclosure prevented him from retaining a
rebuttal expert or conducting an appropriate investigation. Notably in that
respect, the State had provided notice years before the trial date that it
intended to present expert DNA testimony. We therefore conclude that
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appellant has not dernonstrated a violation of his constitutional right to a
speedy trial.
Sufficiency of the evidence
Appellant argues that the State did not introduce sufficient
evidence that he was involved in the crime, that he was responsible for
using a deadly weapon, or that the movement or restraint underlying the
kidnapping conviction were beyond that necessary to complete the robbery.
When it comes to a sufficiency-of-the-evidence challenge, we review the
evidence in the light most favorable to the prosecution to determine whether
any rational trier of fact could have found the essential elements of the
crirne beyond a reasonable doubt." McNair v. State, 108 Nev. 53, 56, 825
P.2d 571, 573 (1992) (emphasis ornitted) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). A jury's verdict will not be disturbed on appeal where
substantial evidence supports its verdict. See Bolden v. State, 97 Nev. 71,
73, 624 P.2d 20, 20 (1981). We conclude that appellant's contentions lack
rnerit for the following reasons.
First, sufficient evidence connects appellant to the crimes he
was convicted of committing. The victim identified appellant in a
photographic lineup roughly one month after the crime. The accomplices
testified that they planned and engaged in the home invasion with
appellant. And other evidence corroborated the victim's pretrial
identification of appellant and the accomplice testimony. Appellant's DNA
was recovered from material used to bind the victim and the victim's
property was recovered from a home where appellant's mother and wife
lived. Evidence also showed that appellant fied from police in California
because he knew he was wanted in Las Vegas: his phone contained texts
that indicated he engaged in robberies in Las Vegas, research about the
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Nevada home invasion statute, and photographs of the victim's property.
Although there was some evidence undermining the victim's pretrial
identification and she was unable to identify appellant at trial four years
later, those considerations were for the jury to weigh. See, e.g., Rose v. State,
123 Nev. 194, 202-03, 163 P.3d 408, 414 (2007) ("[I]t is the jury's function,
not that of the court, to assess the weight of the evidence and determine the
credibility of witnesses." (quoting Origel-Candido v. State, 114 Nev. 378,
381, 956 P.2d 1378, 1380 (1998))). Viewing the evidence in the light most
favorable to the State, we conclude there was sufficient evidence for a
rational juror to find beyond a reasonable doubt that appellant planned and
participated in the offenses for which he was convicted.
Second, sufficient evidence supports the deadly weapon
enhancement. The victim testified that both assailants brandished
weapons. Police who responded to the home recovered a pellet gun and a
live .38 special cartridge from the home. The victim did not own a gun or
ammunition. A search of a co-conspirator's home revealed similar .38
special ammunition and a pneumatic pistol, which is a deadly weapon under
Nevada law. See NRS 193.165(6)(c); NRS 202.350(1)(d)(3); NRS
202.265(5)(c). While the co-conspirator testified that the pneumatic weapon
was not used in the crime, it was for the jury to determine the weight and
credibility of that testimony. Rose, 123 Nev. at 202-03, 163 P.3d at 414.
Viewing this evidence in the light most favorable to the State, we conclude
that a rational juror could find beyond a reasonable doubt that appellant
used a deadly weapon in the crime. See NRS 193.165 (providing additional
penalty for crimes committed with the use of a deadly weapon); Harrison v.
State, 96 Nev. 347, 351, 608 P.2d 1107, 1110 (1980) (recognizing that
testimony of victim describing firearm is sufficient to support the deadly
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weapon enhancement); Brooks v. State, 124 Nev. 203, 210, 180 P.3d 657,
662 (2008) (explaining when an unarmed offender "uses" a deadly weapon
for purposes of NRS 193.165).
Third, substantial evidence supports the kidnapping conviction
independent of the robbery. See NRS 200.310(1) ("A person who
willfully . . . confines . . . a person by any means whatsoever with the intent
to hold or detain . . . the person . . . for the purpose of . . . robbery upon or
from the person . . . is guilty of kidnapping in the first degree[1"); Wright v.
State, 94 Nev. 415, 417-18, 581 P.2d 442, 443-44 (1978) (providing that
incidental movement frorn one room to another during a robbery is, alone,
insufficient to sustain a separate kidnapping charge). During the hour
appellant and an accomplice spent in the victim's home, they demanded
money, property, and her PIN nurnber, and repeatedly threatened her while
ransacking her bedroom and home. They left her presence for a discussion.
Appellant left, and his co-assailant ordered the victim into the living room
where he tied her to a chair. Appellant returned after 15 minutes and again
demanded the PIN number for the victim's debit card. The assailants
ordered her to remain bound for 30 minutes and then left. Viewing this
evidence in the light most favorable to the State, we conclude that a rational
juror, who had been properly instructed that "movement of the victim [must
be] over and above that required to complete" the robbery as was the case
here, could have found beyond a reasonable doubt that the movement and
binding of the victim was "substantially in excess of that necessary" to
complete the robbery or had "independent significance from the act of
robbery" and supported the dual convictions for robbery and kidnapping.
Mendoza v. State, 122 Nev. 267, 274-75, 130 P.3d 176, 180-81 (2006).
Evidence of flight and uncharged conduct
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Appellant argues that the district court erred in admitting
evidence that he fled from officers in California before his arrest. He asserts
that the State did not establish that his attempts to elude California police
were relevant or that the probative value of the evidence was not
outweighed by the danger of unfair prejudice. He also contends that the
district court erred in removing the word "immediately" from the flight
instruction. We discern no abuse of discretion in admitting the evidence or
error in giving the flight instruction. See Ledbetter v. State, 122 Nev. 252,
259, 129 P.3d 671, 676 (2006) (reviewing admission of uncharged conduct
for abuse of discretion); Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582,
585 (2005) (reviewing decisions regarding jury instructions for abuse of
discretion or judicial error).
After conducting an evidentiary hearing, the district court
concluded that evidence of appellant's attempt to evade police in a high-
speed and later foot-chase combined with his statement acknowledging that
he fled to avoid questioning by Las Vegas police showed his consciousness
of guilt and therefore was relevant. We agree. See Potter v. State, 96 Nev.
875, 876, 619 P.2d 1222, 1222 (1980) ("Flight is more than merely leaving
the scene of the crime. It embodies the idea of going away with
consciousness of guilt and for the purpose of avoiding arrest"); Williams v.
State, 85 Nev. 169, 175, 451 P.2d 848, 852 (1969) (considering defendant's
flight and shooting of a police officer who stopped and questioned defendant
to be "admissible as indicative of a guilty mind"). Further, these acts were
supported by clear and convincing evidence through the testimony of an
officer who pursued appellant during the vehicle chase, responded to the
accident, and spoke with appellant in the hospital after his apprehension.
And the probative value of the evidence was not substantially outweighed
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by the danger of unfair prejudice. See State v. Eighth Judicial Dist. Court
(Armstrong), 127 Nev. 927, 933, 267 P.3d 777, 781 (2011) (recognizing that
evidence is unfairly prejudicial when it appeals to the jurors' emotions or
invites the jury to find guilt on a ground apart from proof of the charged
offenses).
We further conclude that the district court did not plainly err
in omitting the word "immediately" frorn the flight instruction. See
Jerernias v. State, 134 Nev. 46, 50, 412 P.3d 43, 48-49 (2018) (reviewing un-
objected to error for plain error affecting substantial rights). The given
instruction was consistent with the evidence showing that appellant fled
when police tried to apprehend hirn in California, not immediately after the
crime. See Rosky v. State, 121 Nev. 184, 199, 111 P.3d 690, 699-700 (2005)
(recognizing that district court may give flight instruction when evidence
shows that defendant fled "with consciousness of guilt and to evade arrest").
Because the jury could reasonably infer from the evidence presented that
appellant's attempt to evade capture by California police signified
something more than a mere going away," Weber v. State, 121 Nev. 554,
581-82, 119 P.3d 107, 126 (2005) (quoting State v. Rothrock, 45 Nev. 214,
229, 200 P. 525, 529 (1921)); see also Carter v. State, 121 Nev. 759, 770, 121
P.3d 592, 599 (2005), we conclude that the district court did not err in giving
the flight instruction as worded, see, e.g., Walker v. State, 113 Nev. 853, 871,
944 P.2d 762, 773 (1997) (approving of flight instruction without
"immediately" qualification); Matthews v. State, 94 Nev. 179, 181, 576 P.2d
1125, 1126 (1978) (similar).
Appellant also contends that the district court abused its
discretion in admitting his post-arrest statement because it referenced
uncharged conduct. We disagree. Appellant told police that he tried to
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elude them because "Vegas police wanted to talk to him and that he did not
want to go back to jail." Although appellant's statenient implied he had
engaged in other criminal activity ("he did not want to go back to jail"), see
Rice v. State, 108 Nev. 43, 44, 824 P.2d 281, 281 (1992) (recognizing that a
statement references prior criminal history where a jury could reasonably
infer from it that defendant engaged in prior criminal activity), the
statement was relevant to show appellant's consciousness of guilt with
respect to the charged offenses and the district court instructed the jury
that appellant's flight and statement were to be considered only for that
purpose. Given those circumstances, we conclude the district court did not
abuse its discretion in admitting the statement. See Rhymes v. State, 121
Nev. 17, 21-22, 107 P.3d 1278, 1281 (2005).
Miranda violation
Appellant argues that his statement to California police was
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). We
discern no error that is plain from a casual inspection of the record and
affected appellant's substantial rights by "causing 'actual prejudice or a
miscarriage of justice." Martinorellan v. State, 131 Nev. 43, 48-49, 343 P.3d
590, 593 (2015) (quoting Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465,
477 (2008)) (addressing requirements for plain-error review when there was
no objection in district court). The totality of the circumstances indicates
that appellant was in custody after a high-speed chase when the officer
guarding him asked him why he fled. See Carroll v. State, 132 Nev. 269,
281, 371 P.3d 1023, 1032 (201.6) ("Miranda warnings are required when a
defendant is subjected to a custodial interrogation." (internal quotation
marks omitted)). But appellant did not object below and the record is silent
as to whether appellant was provided adequate Miranda warnings before
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he made the statement. We therefore cannot conclude that any error in
admitting the statement based on a Miranda violation is plain from a casual
inspection of the record. We also are not convinced that any error in this
respect caused actual prejudice or a miscarriage of justice given the other
evidence presented at trial.
Cellphone contents
Appellant argues that the district court erred in admitting a
seized cellphone's contents over his objections that the State did not
establish an adequate foundation or disclose the evidence in a timely
manner. In addition, for the first time on appeal, he asserts that messages
on the phone referred to uncharged conduct and impermissibly informed
the jury of the penalty for home invasion. He also asserts that the disclosure
of the entire cellphone contents rnay have obscured potentially exculpable
location data.
We discern no abuse of discretion in admitting the cell phone
contents as the State laid an adequate foundation for the admission of the
evidence. Mclellan v. State, 124 Nev. 263, 266, 182 P.3d 106, 109 (2008).
Testimony established that the officer analyzing the phone received it from
property taken from appellant's vehicle at the time of his arrest. See Sorce
v. State, 88 Nev. 350, 352-53, 497 P.2d 902, 903 (1972) (providing that
foundation need only show that it is "reasonably certain that no tampering
or substitution took place" (citing Oliver v. State, 85 Nev. 10, 449 P.2d 252(1969))). Although "cellular telephones are not always exclusively used by
the person to whom the number is assigned," Commonwealth v. Koch, 39
A.3d 996, 1005 (Pa. Super. Ct. 2011), here other evidence indicates that
appellant used the phone: the phone was seized from the car appellant was
driving and contained usernames for banking and social media apps that
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indicated appellant was using it, cf. Rodriguez v. State, 128 Nev. 155, 162,
273 P.3d 845, 849 (2012) (providing that a proponent must provide
"sufficient direct or circumstantial evidence of authorship in order to
authenticate [a] text message as a condition precedent to its admission").
The record also indicates that the State timely disclosed the cell phone
contents to the defense roughly three months before trial. See NRS
174.285(2) (requiring a party to comply with a disclosure request "not less
than 30 days before trial"). The State's subsequent, more focused disclosure
merely highlighted evidence already in the defense's possession. Appellant
has not identified any exculpatory cell tower location data that he contends
was hidden within the disclosed data.
To the extent that the messages contained in the cell phone
refer to uncharged conduct and information about potential sentencing
ranges, appellant did not object on these grounds below and we discern no
plain error. Mclellan, 124 Nev. at 266, 182 P.3d at 109. The messages
referring to criminal conduct were relevant to show that appellant
participated in the charged offenses and were not unduly prejudicial. See
id. at 270, 182 P.3d at 111 (evaluating whether evidence of prior bad acts
would have been admissible when conducting plain error review). The
photo depicting the home invasion statute was relevant to appellant's
consciousness of guilt. Although the photo also depicted information that a
jury may not consider when adjudicating guilt (the potential sentencing
range for the offense), the photo was mentioned only briefly during
testimony, the record indicates that it was a thumbnail image and only the
statute's heading appeared to be readily legible, and the jury was instructed
that it was not to consider punishment in determining guilt. In these
circumstances, the alleged error is not plain from a casual inspection of the
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record and did not cause actual prejudice or a miscarriage of justice. See
Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995) ("An error
is plain if the error is so unmistakable that it reveals itself by a casual
inspection of the record." (internal quotation marks omitted)); see also
McNamara v. State, 132 Nev. 606, 622, 377 P.3d 106, 117 (2016) ("Jurors
are presumed to follow the instructions they are given.").
Prosecutorial misconduct
Appellant argues that the State impermissibly shifted the
burden of proof by arguing that the defense failed to call a witness and
improperly emphasized appellant's uncharged conduct. Appellant did not
object to either argument, and we discern no plain error. Valdez, 124 Nev.
at 1190, 196 P.3d 477. The prosecutor's comments, when considered in
context, do not amount to an attempt to shift the burden of proof. See
Knight v. State, 116 Nev. 140, 144-45, 993 P.2d 67, 71 (2000) (observing that
[a] prosecutor's comments should be viewed in context" when considering
whether a defendant should be afforded relief); Whitney v. State, 112 Nev.
499, 502, 915 P.2d 881, 883 (1996) (recognizing that a prosecutor
impermissibly shifts the burden of proof by commenting "on the defense's
failure to produce evidence or call witnesses"). Instead, the argument
responded to an assertion made in the defense's opening statement about a
witness the defense intended to call to opine that the pretrial photographic
lineup was unreliable. See Greene v. State, 113 Nev. 157, 178, 931 P.2d 54,
67 (1997) (recognizing rebuttal arguments may permissibly respond to
issues raised by the defense's closing), receded from on other grounds by
Byford v. State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000). The prosecutor
pointing out that the "defense failed to substantiate its theories with
supporting evidence," does not amount to burden shifting. Evans v. State,
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117 Nev. 609, 631, 28 P.3d 498, 513 (2001), overruled on other ground.s by
Lisle v. State, 131 Nev. 356, 366 n.5, 351 P.3d 725, 732 n.5 (2015). And
because the contents of appellant's cellphone were properly admitted into
evidence, the prosecutor could properly quote messages. Moreover, the
prosecutor's argument relied on the statement and its timing shortly after
the charged offense to show that appellant acknowledged his participation
in that offense and did not emphasize the uncharged conduct.
Cumulative error
Appellant contends that the cumulative effect of errors during
trial warrants reversal. See Valdez, 124 Nev. at 1195, 196 P.3d at 481(providing the relevant factors to consider for a claim of cumulative error).
Appellant has not demonstrated the existence of any error. Thus, there is
nothing to cumulate. See Lipsitz v. State, 135 Nev. 131, 139 n.2, 442 P.3d
138, 145 n.2 (2019) (concluding that errors did not cumulate as there was
only one error). Accordingly, we
ORDER the judgment of conviction AFFIRMED.3
, C.J.
, Sr.J.
Herndon
cc: Hon. Jerry A. Wiese, District Judge
Steven S. Owens
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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