McDonald (Paul) v. State

• Court: Nevada Supreme Court
• Decided: December 11, 2014
• Docket: 65243
• Status: Unpublished

Opinion

rendered its decision on the other counts. McDonald was acquitted of

counts 1-3 and was convicted of count 4.

First, McDonald contends that insufficient evidence supports

his conviction. We disagree because, when viewed in the light most

favorable to the State, the evidence was sufficient to establish guilt beyond

a reasonable doubt as determined by a rational trier of fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008); see also Deueroux v. State, 96 Nev. 388, 391, 610

P.2d 722, 724 (1980) ("[C]ircumstantial evidence alone may sustain a

conviction."). Accordingly, we conclude that this claim lacks merit.

Second, McDonald contends that the district court abused its

discretion by denying his motion to dismiss count 4 because the charging

document did not provide adequate notice of the date he was alleged to

have committed the crime. We review a district court's decision regarding

a motion to dismiss for an abuse of discretion. See Hill v. State, 124 Nev.

546, 550, 188 P.3d 51, 54 (2008). "The indictment or the information must

be a plain, concise and definite written statement of the essential facts

constituting the offense charged." NRS 173.075(1). "Unless time is an

essential element of the offense charged, there is no absolute requirement

that the state allege the exact date, and the state may instead give the

approximate date on which it believes the crime occurred." Cunningham v. State, 100 Nev. 396, 400, 683 P.2d 500, 502 (1984). Here, the charging document alleged that McDonald possessed a firearm between June 3 (the

date Gomez was shot) and August 1 (the date he was apprehended).

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NEVADA 2 (0) 1947A cern McDonald concedes that he understood these dates "as potential dates for

asserting that [he] violated NRS 202.360." We conclude that the charging

document provided sufficient notice to enable McDonald to defend against

the charges and that the district court did not abuse its discretion by

denying his motion to dismiss. See Simpson v. Eighth Judicial Dist.

Court, 88 Nev. 654, 660, 503 P.2d 1225, 1229-30 (1972).

Third, McDonald contends that the State violated Brady v.

Maryland, 373 U.S. 83 (1963), by failing to obtain the results of a DNA

test conducted on the firearm discovered in the vehicle. Relatedly,

McDonald contends that the district court erred by forcing him to choose

between the DNA test results and his right to a speedy trial. We conclude

that no relief is warranted because McDonald fails to (a) demonstrate that

the State withheld favorable evidence in its possession, see Mazzan v.

Warden, 116 Nev. 48, 67, 993 P.2d 25, 37 (2000), (b) explain how he was

inappropriately forced to choose between his rights, or (c) establish that he

was prejudiced by the district court's actions.

Fourth, McDonald contends that the prosecutor committed

misconduct by arguing that the jury could consider the evidence presented

during the first phase of trial when determining whether he was guilty of

count 4. When considering allegations of prosecutorial misconduct, we

first determine whether the prosecutor's conduct was improper and then

consider whether the improper conduct warrants reversal. Valdez v.

State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). We conclude that

SUPREME COURT OF NEVADA 3 (0) 1947A eo this claim lacks merit. The State followed the procedure approved of in

Morales and its argument did not constitute misconduct.

Fifth, McDonald contends that the prosecutor committed

misconduct by arguing that he was guilty of possessing a firearm even if

he took it from Gomez in self-defense. Because McDonald did not object,

we review for plain error. Id. at 1190, 196 P.3d at 477. Even assuming

that self-defense is a defense to felon in possession of a firearm, McDonald

fails to demonstrate plain error because the prosecutor simply argued that

he was guilty of possessing a firearm on August 1 even if he acted in self-

defense on June 3. Sixth, McDonald contends that the district court erred by

admitting his statements that he would speak with detectives so long as

the conversation was not recorded because they were more prejudicial

than probative and unfairly commented on his right to remain silent. We

review a district court's decision to admit evidence for an abuse of

discretion. Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). We disagree with McDonald's assertion that admission of these

statements, and the prosecutor's argument regarding these statements,

was a comment on his right to remain silent. See Deutscher v. State, 95

Nev. 669, 682, 601 P.2d 407, 416 (1979) ("The established test is whether

the language was manifestly intended or was of such character that the

jury would naturally and necessarily take it to be a comment on the

failure of the accused to respond." (internal alteration and quotation

marks omitted)). We also disagree that these statements implied that "not

SUPREME COURT OF NEVADA

KO) 1947,1/4 only is [McDonald] a felon but that he has been to prison previously."

Even assuming that these statements had no probative value, we conclude

that any error in admitting the statements was harmless because

McDonald was acquitted of counts 1-3 and substantial evidence was

presented to support count 4. Seventh, McDonald contends that cumulative error entitles

him to relief. Having considered the appropriate factors, see Valdez, 124

Nev. at 1195, 196 P.3d at 481, we conclude that no relief is warranted.

Accordingly, we

ORDER the judgment of conviction AFFIRMED.'

CA.

Pickering

'McDonald's appendix fails to comply with NRAP 30(b) because it contains numerous documents which are "not essential to the decision of issues presented by the appeal." See NRAP 3C(e)(2)(c) (requiring appendix to comply with the provisions of NRAP 30). For example, the appendix contains over 500 pages of documents which merely explain the qualifications of the State's potential experts. We remind counsel for McDonald that brevity in the appendix is required and "the court may impose costs upon parties or attorneys who unnecessarily enlarge the appendix." NRAP 30(b).

SUPREME CouFrr OF NEVADA 5 (0) 1947A es). cc: Hon. Elissa F. Cadish, District Judge Law Offices of Martin Hart, LLC Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 6 (0> vs41A