Roberson (Richard) v. State ( 2013 )

 matter of right sufficient cross-examination has been permitted to satisfy
the sixth amendment." Crew v. State, 100 Nev. 38, 45, 675 P.2d 986, 990
(1984). Where bias is meant to be shown, the district court's discretion is
narrower, and an examiner must be allowed to draw out any fact which
might color the witness's testimony. Bushnell v. State, 95 Nev. 570, 572,
599 P.2d 1038, 1040 (1979). An accused is given great latitude in cross-
examining an accomplice with regard to his or her motives for testifying.
Eckert v. State, 96 Nev. 96, 101, 605 P.2d 617, 620 (1980); see also
Bushnell, 95 Nev. at 572, 599 P.2d at 1039.
Appellant elicited testimony that Shay initially faced multiple
felony charges and that, after negotiations with the State in which she
agreed to testify at appellant's trial, she ultimately pleaded guilty to one
felony count of pandering with the opportunity to reduce it to a gross
misdemeanor and received probation. Her motive to lie was emphasized
in appellant's opening and closing statements, as well as in the jury
instructions, which included a list of Shay's initial charges as well as the
charge to which she pleaded. Furthermore, Shay testified that she had
been jailed as a result of the matter and never wanted to have the
experience again. 1 The jury was made fully aware of the legal benefits
that Shay received by agreeing to testify at appellant's trial.
The district court sustained respondent's objection to
appellant's line of questioning which attempted to elicit the fact that Shay
faced a possible term of life imprisonment, arguing that if the information
'To the extent that appellant argues that he was prevented from
demonstrating Shay's motive to lie based on her understanding of
incarceration as brutal and humiliating, his claim is belied by the record.
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was disclosed, the jury would know appellant's potential sentence. In
balancing appellant's right to extract any fact which might color Shay's
testimony against the concern for an unbiased jury, including one that
does not consider punishment while considering guilt, see Valdez v. State,
124 Nev. 1172, 1184, 196 P.3d 465, 473-74 (2008) (explaining that jurors
should not consider the punishment during the guilt phase of trial), the
district court allowed appellant to ask Shay if she faced "substantial time"
prior to striking a deal with the State. We conclude the district court did
not abuse its discretion in limiting appellant's cross-examination of Shay.
See Leonard v. State, 117 Nev. 53, 72, 17 P.3d 397, 409 (2001) (finding that
"trial judges 'retain wide latitude' to restrict cross-examination to explore
potential bias 'based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness' safety, or interrogation that
is repetitive or only marginally relevant" (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986))).
Second, appellant argues that there was insufficient evidence
to sustain his convictions for sexual assault with the use of a deadly
weapon and kidnapping with the use of a deadly weapon. In reviewing a
claim of insufficient evidence, we consider whether the evidence, when
viewed in the light most favorable to the prosecution, was sufficient to
establish guilt beyond a reasonable doubt as determined by a rational trier
of fact. Jackson v. Virginia, 443 U.S. 307, 319 (1979); McNair v. State, 108
Nev. 53, 56, 825 P.2d 571, 573 (1992). It is for the jury to determine the
weight and credibility to give conflicting testimony, and a reviewing court
will not disturb a verdict if it is supported by substantial evidence. See
Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981).
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Appellant claims that because the victim relayed various
stories to different individuals regarding the sexual assault incident, the
resulting conviction cannot stand. The jury heard testimony from the
victim as to the events before, during, and after the alleged sexual assault.
The victim's uncorroborated testimony alone, if believed by the jury
beyond a reasonable doubt, is sufficient to uphold a conviction. See
Hutchins v. State, 110 Nev. 103, 109, 867 P.2d 1136, 1140 (1994) modified
on other grounds by Mendoza v. State, 122 Nev. 267, 275 76, 130 P.3d 176,
-
181 (2006). Nonetheless, the jury also heard corroborating evidence.
Shay's testimony as to the events before and after the time when
appellant and the victim were alone supported the victim's testimony. A
video showing appellant's beating of the victim also supported various
aspects of her testimony. 2 Furthermore, items retrieved from the
residence served to reinforce the testimony. We conclude that there was
sufficient evidence to sustain the conviction of sexual assault with the use
of a deadly weapon. See NRS 193.165(1); NRS 200.366.
Appellant further contends that he improperly sustained a
conviction for first-degree kidnapping with the use of a deadly weapon,
arguing that the victim's movement from one bedroom to another as she
was being beaten was incidental and did not substantially exceed the
movement required to complete the associated crime charged or
2 Insomuch as appellant claims that his convictions were the result of
an emotional response to videotaped evidence and that the district court
erred in allowing the video to be played, we discern no abuse of discretion
by the district court in admitting the evidence.
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significantly increase the risk of harm to her. 3 On the day of the sexual
assault, appellant grabbed the victim by the hair and forcibly dragged her
from her bedroom to the master bedroom where she was beaten with
objects located in the room and brought into the room by Shay on
appellant's orders. Appellant held an aluminum bat to her throat as he
continued to beat her and eventually moved her to the bathroom where he
sexually assaulted her. The evidence was sufficient for a rational juror to
find beyond a reasonable doubt that appellant could have committed the
sexual assault without moving the victim and that the forcible movement
and restraint created a greater risk of harm to her than was necessary to
accomplish the crime of sexual assault. Therefore, we conclude that there
was sufficient evidence to sustain appellant's conviction of first-degree
kidnapping with the use of a deadly weapon. 4 See NRS 193.165(1); NRS
200.310(1); Mendoza, 122 Nev. at 274-75, 130 P.3d at 180-181 (explaining
that dual convictions for kidnapping and the underlying offense are
3 Appellantargues that his kidnapping for the purpose of committing
a sexual assault cannot stand because there is insufficient evidence to
support the sexual assault charge. As we have resolved the insufficiency
claim against appellant, we conclude that this argument is without merit.
4 Tothe extent that appellant argues that the victim came to Las
Vegas voluntarily and had daily access to others through her laptop,
cellphone, and sporadic public outings, we consider this a sufficiency
challenge to his conviction of second-degree kidnapping with the use of a
deadly weapon. The victim testified that she could not leave because
appellant warned that he would kill her if she tried, a threat corroborated
by Shay, and that when the victim said she wanted to leave, she was
beaten by appellant with a bat and chain belt. We conclude that there
was sufficient evidence to sustain this conviction. See NRS 193.165(1);
NRS 200.310(2).
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appropriate where "movement or restraint serves to substantially increase
the risk of harm to the victim" or "substantially exceeds that required to
complete the associated crime charged").
Third, appellant claims that the district court erred by
denying his battery/domestic violence instruction thereby limiting the
presentation of his theory of the case. The district court enjoys broad
discretion in settling jury instructions, and we review its decision for an
abuse of discretion or judicial error. Crawford v. State, 121 Nev. 744, 748,
121 P.3d 582, 585 (2005). While a defendant is entitled to a jury
instruction on his theory of the case if some evidence supports it, Harris v.
State, 106 Nev. 667, 670, 799 P.2d 1104, 1105-06 (1990), a defendant is not
entitled to instructions that are "misleading, inaccurate or duplicitous,"
Carter v. State, 121 Nev. 759, 765, 121 P.3d 592, 596 (2005), and a request
for a lesser-included offense instruction is conditioned on that offense
being necessarily included in the charged offense, see Rosas v. State, 122
Nev. 1258, 1264, 147 P.3d 1101, 1106 (2006). An instruction on the crime
of battery/domestic violence would be misleading and inaccurate because
appellant was not charged with battery/domestic violence and the
instruction would incorrectly suggest that the jury could find him guilty of
the uncharged crime. Furthermore, battery/domestic violence is not a
lesser-included offense of any of appellant's charges. See NRS 33.018(1);
NRS 193.165; NRS 199.480; NRS 200.310; NRS 200.366; NRS 201.300;
NRS 201.320; NRS 207.190; NRS 453.337; Smith v. State, 120 Nev. 944,
946, 102 P.3d 569, 571 (2004) (defining lesser-included offense).
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Accordingly, we conclude that the district court did not abuse its discretion
by refusing to give the proffered instruction. 5
Having considered appellant's claims and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
‘144.41/4,
Hardesty
Parraguirre Cherry
cc: Hon. Michael Villani, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
We note that, despite appellant's claim that denial of the
5
instruction curtailed the presentation of his theory of the case, he
thoroughly argued the incident as battery/domestic violence in his opening
and closing statements.
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