Roberts (Kenvin) v. Warden

• Court: Nevada Supreme Court
• Decided: September 28, 2015
• Docket: 64905
• Status: Unpublished

Opinion

merely surplusage that, in light of the significant evidence that the victim did not succumb to his wounds, did not amount to plain error that prejudiced Roberts' substantial rights. Third, although the instruction permitted the jury to presume intent to kill from the use of a deadly weapon, it did not mandate that the jury do so. See NRS 47.230(2), (3) (providing that a "judge shall not direct the jury to find a presumed fact against the accused" but the judge may instruct "that the jury may regard the basic facts as sufficient evidence of the presumed fact"); see also Ricci v. State, 91 Nev. 373, 381, 536 P.2d 79, 83-84 (1975) (rejecting argument that similar instruction directed jury to find an intent or indicated that certain facts were established). Second, Roberts argues that his conviction for battery with the use of a deadly weapon should be reversed because it is a lesser included offense of attempted murder. We have held, however, that the Legislature has authorized conviction and punishment for attempted murder and battery resulting in substantial bodily harm and that neither offense is a lesser included offense of the other.' Jackson v. State, 128 Nev. Adv. Op. 55, 291 P.3d 1274, 1279-82 (2012). Third, Roberts argues that the jury failed to follow the jury instructions when it found him guilty of both attempted murder and

'The district court instructed the jury that battery with a deadly weapon is a lesser included offense of attempted murder. As the instruction misstated the law, we are not convinced that the instruction's omission of the "substantial bodily harm" aspect of the battery charge entitles appellant to any relief from the judgment of conviction. In particular, we note that "substantial bodily harm" was included in the instruction that set forth the elements of the battery charge and the parties apparently stipulated that the victim suffered substantial bodily harm.

SUPREME COURT OF NEVADA 2 (0) 1947A battery with the use of a deadly weapon and that this evidences jury misconduct that warrants reversal of the judgment of conviction. See Valdez v. State, 124 Nev. 1172, 1186, 196 P.3d 465, 475 (2008) ("A jury's failure to follow a district court's instruction is intrinsic juror misconduct."). Because the relevant instruction did not clearly prohibit convictions for both offenses, we conclude that the district court did not abuse its discretion in concluding that the jury did not engage in misconduct. See Valdez, 124 Nev. at 1186, 196 P.3d at 475 (reviewing motion for mistrial based on juror misconduct for abuse of discretion). Fourth, Roberts argues that the cumulative effect of errors denied him a fair trial. As we have found no errors, there is nothing to cumulate. Having considered Roberts' contentions and concluded that they lack merit, we ORDER the judgment of conviction AFFIRMED.

, J. Parraguirre

)ct) 0-61 P--5 Douglas Cherry

cc: Hon. Lidia Stiglich, District Judge Edward T. Reed Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1947A 449014