Johnson (Quinal) v. State

• Court: Nevada Supreme Court
• Decided: May 15, 2013
• Docket: 61186
• Status: Unpublished

Opinion

not be disturbed on appeal where, as here, substantial evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair, 108 Nev. at 56, 825 P.2d at 573. Second, Johnson argues that the district court erred in instructing the jury. Specifically, he contends that Instruction 14, which combined the definition of express and implied malice, instructed the jury that it could convict him of attempted murder based on implied malice. We discern no plain error. See Saletta v. State, 127 Nev. _„ 254 P.3d 111, 114 (2011) (providing failure to object at trial precludes review unless error is plain). Any error in referring to implied malice was cured by the previous instruction that noted an essential element of attempted murder was a failed attempt "to kill a human being, when such acts are done with express malice, namely, with the deliberate intention unlawfully to kill." See Riebel v. State, 106 Nev. 258, 261-62, 790 P.2d 1004, 1007 (1990); Keys v. State, 104 Nev. 736, 740, 766 P.2d 270, 272-73 (1988). Therefore, Johnson failed to demonstrate that the misleading instruction was prejudical. See Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001) (requiring appellant to demonstrate prejudice to show that plain error affected his substantial rights), abrogated on other grounds by Nunnery v. State, 127 Nev. , 263 P.3d 235 (2011), cert. denied, U.S. , 132 S.Ct. 2774 (2012). Third, Johnson asserts that the district court erred in admitting evidence of uncharged bad acts. He contends that the district court should not have admitted evidence that he tapped the victim's pockets after striking him. We discern no plain error. See Saletta, 127 Nev. at , 254 P.3d at 114. Evidence of Johnson tapping the pockets of the victim immediately after striking him with a hammer and prior to leaving the scene was "so closely related" to the crime that the witness SUPREME COURT could not describe the charged offense without referring to the uncharged OF NEVADA 2 (0) 1947A

AIC.11114,,,W7 . .1,.17111114 1.1151.7:.1.11 1,W.,1116W(.:,:1...1;11.i.1411- .4/§M;(111W114.11Mii.76 !:- ; acts. See NRS 48.035(3); Bletcher v. State, 111 Nev. 1477, 1479-80, 907 P.2d 978, 980 (1995). Fourth, Johnson contends that the district court abused its discretion by restricting his ability to ask the victim about his marijuana use prior to the alleged crime. We agree. The challenged inquiry concerned questions related to the witness's ability to perceive the events as they occurred and remember those events. See Collman v. State, 116 Nev. 687, 709, 7 P.3d 426, 440 (2000) (permitting impeachment with respect to a witness's perception and memory); see also NRS 50.085 (permitting inquiry into specific instances of a witness's conduct "for the purpose of attacking or supporting the witness's credibility"). However, as another witness corroborated the victim's testimony that Johnson struck him without any provocation, any error in limiting further inquiry did not have a "substantial and injurious effect or influence in determining the jury's verdict." Tavares v. State, 117 Nev. 725, 732, 30 P.3d 1128, 1132 (2001) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946) (providing that nonconstitutional trial error reviewed for harmless error)). Having considered Johnson's contentions and concluded that they lack merit, we ORDER the judgment of conviction AFFIRMED.

Gibbons

J. J. Saitta

SUPREME COURT OF NEVADA 3 (0) 1947A cc: Hon. David B. Barker, District Judge Coyer & Landis, LLC Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 4 (0) 1947A

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