Campbell (Kenny) v. State ( 2015 )

 in deliberations, see State v. Berry, 684 So. 2d 439, 448 (La Ct. App. 2015)
(concluding that defendant suffered no prejudice from the trial court's
denial of a challenge for cause against an alternate juror who did not
participate as "an active member of the panel"); State v. White, 706 S.W.2d
280, 282 (Mo. Ct. App. 1986) (concluding that any error in denying
defendant's challenge for cause against an alternate juror was harmless
where the juror did not participate in deliberations). Accordingly, we
conclude that no relief is warranted.
Appellant next contends that the district court erred by not
allowing him to impeach the victim with extrinsic evidence. On cross-
examination, the victim denied that she had been "trespassed" from a
particular casino because she had stolen money from a casino guest.
Appellant unsuccessfully sought to introduce an affidavit concerning the
incident. We conclude that the district court did not abuse its discretion,
see Means v. State, 120 Nev. 1001, 1008, 103 P.3d 25, 29 (2004) ("It is
within the district court's sound discretion to admit or exclude evidence"),
as the admission of the affidavit was not permitted under NRS 50.085(3)
(providing that Isbecific instances of the conduct of a witness, . . . other
than a conviction of crime, may not he proved by extrinsic evidence").
Appellant further argues that the district court erroneously
admitted evidence of prior bad acts. In this, he challenges four comments
the victim made during her testimony. First, appellant contends that the
victim's testimony that she went to "Safe Nest" after ending her
relationship with appellant suggested that she had to flee from him for her
safety. We conclude that he has not shown reversible error where the
reference was brief and the victim did not overtly express concern for her
safety. Second, appellant argues that the victim's testimony that she
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"may have a restraining order" implied that he had history of violence.
The victim was wrong about having a restraining order, and the district
court offered to remedy the mistake but appellant declined. Under the
circumstances, we conclude that he has not shown reversible error. Third,
appellant argues that the victim's testimony that appellant taught her to
keep her money in her bra suggested that he was her pimp. Because this
testimony was relevant to the robbery charge to show that appellant knew
where the victim kept her money, the district court did not err by
overruling the objection to it. Fourth, appellant contends that the victim's
testimony that he had been "trespassed" from a particular casino implied
that he had committed a serious crime. We conclude that he has not
demonstrated reversible error where the victim corrected her testimony
and told the jury that she was not allowed in the casino.
Appellant next argues that the district court abused its
discretion concerning several jury instruction matters. "The district court
has broad discretion to settle jury instructions, and this court reviews the
district court's decision for an abuse of that discretion or judicial error."
Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005).
First, appellant challenges an instruction defining use of a
deadly weapon. The instruction advised the jury that to 'use' a deadly
weapon, there need not be conduct which actually produces harm but only
conduct which produces a fear of harm or force by means or display of the
deadly weapon in aiding the commission of the crime." Appellant contends
that the instruction was improper because a car—the deadly weapon
alleged in this instance—does not lend itself to "display" as would a gun or
other weapon; therefore, the suggestion that the "mere 'display' of a car
could produce 'fear of harm' indicated "an additional basis of liability with
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no relevance to the facts of the case" and minimized the State's burden of
proof. We disagree. The instruction is a correct statement of law, see
Allen v. State, 96 Nev. 334, 336, 609 P.2d 321, 322 (1980), and where the
evidence shows that appellant struck the victim with his car, it is unlikely
that the jury found that he used a deadly weapon in battering the victim
by merely displaying his car. Additionally, the jury was instructed that
the State bore the burden of proving every element of an offense beyond a
reasonable doubt.
Second, relying on Phillips v. State, 99 Nev. 693, 669 P.2d 706
(1983), appellant contends the district court should have given his
proffered robbery instruction because it was more accurate than the
instruction given, as his instruction advised the jury that the State must
show that the victim had a possessory interest in the property taken.
Phillips concerned whether a customer who was present during the
robbery of a jewelry store could be the victim of robbery. Id. at 695, 669
P.2d at 707. This court concluded that because the customer had no
possessory interest in the property stolen, no robbery of the customer
occurred. Id.; see also Klein v. State, 105 Nev. 880, 885, 784 P.2d 970, 973
(1989). Appellant argues that he was entitled to his instruction because
his defense was that the money the victim had on her person belonged to
him and therefore no robbery occurred. Appellant confuses the possessory
interest contemplated by Phillips and ownership, which is not an element
of robbery. See NRS 200.380(1). Therefore, the district court did not
abuse its discretion in this regard.
Third, appellant contends that the district court abused its
discretion by denying his proffered instruction that reflected his defense
theory that he merely attempted to recover his money from the victim, see
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NRS 193.240, and that the State bore the burden of proving beyond a
reasonable doubt that he did not act in defense of his property. Appellant
proffered his instruction based on testimony that he had accused the
victim of taking his money shortly before the altercation with her. Even
assuming that the instruction should have been given, see Rosas v. State,
122 Nev. 1258, 1269, 147 P.3d 1101, 1109 (2006) ("[A] defendant is
entitled to a jury instruction on his or her theory of the case as long as
there is some evidence to support it."); Williams v. State, 99 Nev. 530, 531,
665 P.2d 260, 261 (1983), we conclude that no prejudice resulted where the
evidence shows that appellant approached the victim as she exited a
taxicab, knocked her to the ground, and punched her once or twice in the
head, see Alexander v. Corn., 508 S.E.2d 912, 914 (Va. Ct. App. 1999)
(concluding that reasonable force may be used in defense of property),
rev'd on other grounds, 531 S.E.2d 567 (Va. 2000).
Fourth, appellant contends that the district court abused its
discretion by rejecting his proffered accident instruction because no other
instructions defined the meaning of "accident" in as much detail and
without his instruction, the jurors were unable to evaluate his accident
defense. We conclude that the meaning of "accident" is understood by
persons of ordinary intelligence and needed no further explanation.
Moreover, the jury was adequately instructed that he could not be held
criminally liable if his conduct constituted an accident and appellant has
not demonstrated prejudice resulting from the omission of the proffered
instruction. Therefore, no relief is warranted.
Fifth, appellant argues that the district court abused its
discretion by denying his proffered instruction regarding "evidence
susceptible to two interpretations." We have considered similar
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instructions and concluded that it is not error to reject such an instruction
where the jury is properly instructed on reasonable doubt. Hooper v.
State, 95 Nev. 924, 927, 604 P.2d 115, 117 (1979); Bails v. State, 92 Nev.
95, 97, 545 P.2d 1155, 1156 (1976). Because the jury was properly
instructed on reasonable doubt, and appellant has not identified any
prejudice resulting from the omission of his proposed instruction, no relief
is warranted.
Sixth, appellant contends that the district court erred by
rejecting his instruction concerning non-expert witnesses consistent with
NRS 50.265. While we are not convinced that he has demonstrated that
the instruction was necessary, we conclude that no relief is warranted as
he has not identified any prejudice resulting from its omission.
Having considered appellant's arguments and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
Parraguirre
J.
cc: Hon. James M. Bixler, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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