Lee v. State

813 P.2d 1010, 107 Nev. 507, 1991 Nev. LEXIS 133

• Court: Nevada Supreme Court
• Decided: July 12, 1991
• Docket: No. 21387
• Status: Published

Opinions

OPINION

Per Curiam:

This is an appeal from a judgment of conviction of two counts of sexual assault resulting in substantial bodily harm with use of a deadly weapon, and one count each of burglary, attempted murder with use of a deadly weapon, and robbery with use of a deadly weapon. Appellant was sentenced to four consecutive terms of life without the possibility of parole plus consecutive terms adding up to eighty years in the Nevada State Prison.

The evidence at trial established that appellant broke into the victim’s apartment and, after asking for money and cigarettes, choked the victim until she was unconscious. Appellant sexually assaulted the victim once while she was unconscious and again after she regained consciousness. When the victim started to move, appellant found a knife and cut her throat and wrist, inflicting life-threatening wounds.

Appellant contends that by punishing both for attempted murder and for sexual assault with substantial bodily harm, the state has violated the double jeopardy clause of the United States Constitution. U.S. Const. Amend. V. This contention is without merit.

The starting point for a double jeopardy analysis is Blockburger v. United States, 284 U.S. 299 (1932). The Blockburger test asks “whether each provision requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304. In the instant case, it is plain that for the crimes of sexual assault with substantial bodily harm and attempted murder, each crime requires proof of facts not necessary for proving the other crime. Specifically, we note that a conviction for attempted murder requires proof of a specific intent to kill, which is not required for a conviction for sexual assault with substantial bodily harm. Likewise, a conviction for sexual assault with substantial bodily harm requires proof that substantial bodily harm occurred, a fact not required for a conviction for attempted murder.

Accordingly, under the facts of this case, appellant committed two separate crimes. Appellant went far beyond merely causing substantial bodily harm; his actions clearly indicated his specific intent to kill his victim. As it happened, appellant’s attempt to kill his victim was close enough in time to the sexual assaults to also constitute a part of those assaults. An attempt to kill need not involve substantial bodily harm, but this one did. That substantial bodily harm, which is not an element of attempted murder, was an appropriate basis for appellant’s conviction for sexual assault resulting in substantial bodily harm. Accordingly, appellant was properly convicted of and punished for both crimes.

Appellant also contends that the reasonable doubt instruction used in his case is unconstitutional. See Cage v. Louisiana, .... U.S. ....., 111 S.Ct. 328 (1990). This court, however, has recently held that the reasonable doubt instruction used in Nevada is distinguishable from the one condemned in Cage. Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991).

Appellant also contends that the district court erred in refusing to give proffered instructions on eyewitness identification. This contention is also without merit. Eyewitness identification instructions are not required in Nevada. See Sparks v. State, 96 Nev. 26, 29, 604 P.2d 802, 804 (1980). Although such instructions might be called for in a case where the eyewitness identification was questionable, the strength of the eyewitness identification in this case was overwhelming. The district court did not abuse its discretion in refusing to give special instructions on eyewitness identification.

Appellant further contends that the district court abused its discretion in denying his motions for a mistrial. We have reviewed the motions for a mistrial, and we conclude that the district court did not abuse its discretion in denying those motions.

Appellant’s contentions lacking merit, we affirm his judgment of conviction.