Dybus (Michael) v. State

• Court: Nevada Supreme Court
• Decided: May 18, 2015
• Docket: 65855
• Status: Unpublished

Opinion

the State informed him prior to trial that it would do so if necessary to

conform with the evidence presented. See Grant v. State, 117 Nev. 427,

434, 24 P.3d 761, 765 (2001). In addition, Dybus was not prejudiced. The

amendment did not change the State's theory of the case, see State v. Dist.

Ct., 116 Nev. 374, 377, 997 P.2d 126, 129 (2000), or "direct[ a verdict for

conviction against him, Green, 94 Nev. at 177, 576 P.2d at 1123. We

reject the assertion that Dybus was prejudiced because the amendment

made it more likely that he would be found guilty of the crime. Finally,

Dybus fails to demonstrate that the oral amendment's subsequent

memorialization was improper. See Phipps v. State, 111 Nev. 1276, 1279,

903 P.2d 820, 822 (1995). Accordingly, we conclude that no relief is

warranted on this claim.

Second, Dybus asserts that the district court erred by failing

to instruct the jury that value is an essential element of grand larceny and

that value is assessed by the fair market value of the property. Because

Dybus did not object, we review for plain error. See Valdez v. State, 124

Nev. 1172, 1199, 196 P.3d 465, 483 (2008). Dybus fails to demonstrate

plain error. The jury was properly instructed on the elements of grand

larceny and that the jury had to find each element beyond a reasonable

doubt. 1997 Nev. Stat., ch. 150, § 7, at 339. Moreover, "Mlle value of

'We have excluded from our consideration the alleged statements made by jurors after the verdict regarding their deliberative process. See NRS 50.065(2).

SUPREME COURT OF NEVADA 2 (0) I947A property involved in a larceny offense shall be deemed to be the highest

value attributable to the property by any reasonable standard," which

includes, but is not limited to, the property's fair market value. NRS

205.251(1); Stephans v. State, 127 Nev. Adv. Op. 65, 262 P.3d 727, 730

(2011). Regardless, testimony was admitted at trial, without objection,

that the fair market value of the property was more than $250.

Accordingly, we conclude that no relief is warranted on this claim.

Third, Dybus contends that the prosecutor committed

misconduct by asking him whether the victim was lying and goading him

into calling the victim a liar. We disagree. During direct examination,

Dybus testified that the victim falsely accused him of the crimes because

he was no longer available to care for her in the manner that she had

grown accustomed—not that she accused him "out of mistake or hazy

recollection." Daniel v. State, 119 Nev. 498, 518, 78 P.3d 890, 903 (2003)

(internal quotation marks omitted). Moreover, Dybus did not object to the

prosecutor's questioning and he fails to demonstrate error that was plain

and affected his substantial rights. See Valdez, 124 Nev. at 1190, 196 P.3d

at 477. We conclude that no relief is warranted. 2

Finally, Dybus challenges his forgery conviction. The State

concedes that the conviction is invalid. We agree because "[o]ne who signs

his true signature to a check upon a bank in which he has no checking

Dybus also argues that cumulative error entitles him to relief. 2

Because we have found no error, there are no errors to cumulate.

SUPREME COURT OF NEVADA 3 (0) 1947A account is not guilty of forgery." Winston u. Warden, 86 Nev. 33, 35, 464

P.2d 30, 32 (1970). Accordingly, we reverse the forgery conviction.

Having considered Dybus' claims, we

ORDER the judgment of the district court REVERSED as to

the forgery count and AFFIRMED in all other respects and REMAND this

matter for the entry of an amended judgment of conviction consistent with

this order.

St:L otattiktirstA

Parraguirre

, J. Douglas Cherry

cc: Eighth Judicial District Court Dept. 20 Clark County Public Defender Attorney General/Carson City Attorney General/Las Vegas Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 4 (0) I 947A cre,