Skiba v. State

959 P.2d 959, 114 Nev. 612, 1998 Nev. LEXIS 76

• Court: Nevada Supreme Court
• Decided: May 28, 1998
• Docket: 28285
• Status: Published

Opinions

OPINION

By the Court, Shearing, J,:

This case arises from an altercation at the Branding Iron Saloon (“Branding Iron”) in Elko during the early morning hours of September 17, 1994. The trial of this matter was marked by varying accounts of the incident.

On the evening of September 16, 1994, Billy McKenzie (“McKenzie”) and five of his friends had been drinking at the Branding Iron. McKenzie and appellant, Christopher Mark Skiba (“Skiba”), each testified that the other initiated a confrontation inside the bar at approximately 2:00 a.m. on September 17, 1994.

According to the State’s evidence, security intervened and escorted McKenzie and two of his friends out of the establishment through the front door. As they were leaving, they passed police officers entering the building. One of the officers testified that the fight had apparently ended before his arrival.

According to McKenzie, the three men walked toward the parking lot where their car was parked. Their intention was to leave the area. In the meantime, Skiba exited through the rear of the building and proceeded around to the front. There, according to the State’s evidence, he sought the assistance of three associates, picked up a broken beer bottle and proceeded toward McKenzie in the parking lot. Skiba struck McKenzie with an upward thrust of the broken beer bottle, cutting McKenzie’s left cheek and eyeball.¹

Skiba testified that, after the confrontation in the bar, he feared McKenzie would seek further retribution against him and that he sought the assistance of friends as he approached the front of the building. Thus, because he was outnumbered, he thought he was in immediate danger.

Skiba claims that he was, in fact, headed home in the direction of the parking lot when he was confronted by the very men he was trying to avoid. Out of fear, he picked up an unbroken beer bottle. When his adversaries approached, he hit McKenzie in the face with the bottle in self-defense.

The trial jury returned a guilty verdict of one count of battery with a deadly weapon and one count of battery causing substantial bodily harm. Skiba was sentenced to five years and fours years, respectively, on each count, in the Nevada State Prison. Both sentences were suspended, and he was placed on probation. Skiba appeals.

DISCUSSION

During closing arguments, the prosecutor summed up the evidence against Skiba, emphasizing that the State’s evidence was consistent. The prosecutor also discussed the inconsistencies in Skiba’s evidence, particularly his testimony. In this context, the prosecutor stated, “The defendant is lying.”

In Ross v. State, 106 Nev. 924, 926 n.3, 803 P.2d 1104, 1105 n.3 (1990), in reference to a defense witness, during closing arguments the prosecutor stated, “I’m telling you here now this woman was lying for her husband.” This court held that the prosecutor’s statement was improper and required reversal:

[T]he prosecutor’s remarks unfairly undermined the defense theory by improperly impugning a critical defense witness. It can be inferred that these remarks were fresh in the jurors’ minds as they entered the jury room and commenced their deliberations. In addition, the imprimatur of the prosecutor’s office added force and legitimacy to the prosecutor’s argument to the jury. It is the jury’s function to determine guilt or innocence. Absent these errors, it cannot be said with sufficient confidence that the jury would have reached the same verdict.

Id. at 928, 803 P.2d at 1106 (footnote omitted) (emphasis added).

Additionally, in Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988), we held that characterization of a witness’s testimony as a lie is improper and “amounts to an opinion as to the veracity of a witness in circumstances where veracity might well have determined the ultimate issue of guilt or innocence. . . . ‘[I]t was for the jury, and not the prosecutor, to say which witnesses were telling the truth.’ ” (quoting Harris v. United States, 402 F.2d 656, 658 (D.C. Cir. 1968)).

The critical factual issue in this case was whether Skiba had been the aggressor in the parking lot or had acted only in self-defense when striking McKenzie in the face with a broken or unbroken beer bottle. McKenzie and two of his friends testified that Skiba proceeded directly toward them with the broken beer bottle in his hand and struck McKenzie without any immediate provocation. On the other hand, Skiba testified that he was trying to avoid McKenzie and his friends, but directly encountered them as he entered the parking lot. Out of fear, he picked up the bottle and struck McKenzie when approached by his adversaries.

Evidence also indicates that Skiba had asked his friend, Avery Fagerberg (“Fagerberg”), to back him up in the fight. According to Fagerberg, although Skiba was the aggressor, Skiba had asked Fagerberg to give false testimony to the contrary. Further, not only was Skiba’s testimony contradicted by every other witness to the parking lot altercation, his description of the events inside the Branding Iron was also vigorously disputed.

In summary, the evidence against Skiba was overwhelming. We therefore hold that the final argument observation by the prosecuting attorney that “the defendant lied,” although violative of our prior admonitions with regard to rhetorical excess at final argument, Witherow, 104 Nev. at 724, 765 P.2d at 1155, does not merit reversal of Skiba’s conviction.

Skiba next contends that his convictions for battery with a deadly weapon and battery causing substantial bodily harm,² both pursuant to NRS 200.481,³ are “redundant.”

In Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987), defendant caused the death of two people while driving under the influence of alcohol. She was charged and convicted of two counts of causing the death of another while driving a vehicle while intoxicated (“DUI”), two counts of involuntary manslaughter, and two counts of causing the death of another by reckless driving. Id. at 282, 738 P.2d at 1308. This court held that defendant was properly convicted of the DUI charges but that the involuntary manslaughter and reckless driving convictions were “redundant to the legitimate counts.” Id. at 284, 738 P.2d at 1309.

The gravamen of all the charges is that Albitre proximately caused the death of two persons by operating a vehicle in a reckless and unsafe manner due to her intoxication. The State has simply compounded the convictions by eliminating the aspect of alcohol from the four counts under question. We are convinced that the Legislature never intended to permit the State to proliferate charges as to one course of conduct by adorning it with chameleonic attire. Although charging to the limit may be justified to cover developing nuances of proof, the jury should have received an instruction limiting the number of conviction alternatives. The failure to do so was error.

Id. (emphasis added). In the instant matter, such a limiting instruction was offered, but was erroneously denied by the lower court. We hold that, under these limited circumstances, the two convictions arising from Skiba’s single act of hitting McKenzie with a broken beer bottle causing substantial harm, gives rise to the same redundancy contemplated in Albitre,⁴

Accordingly, we hereby affirm Skiba’s conviction under NRS 200.48l(2)(e) and vacate the conviction imposed under NRS 200.481 (2)(b). We have reviewed Skiba’s other contentions on appeal and find them to be without merit.

Rose, J., concurs.

1 This was the single act which gave rise to the criminal charges against Skiba.

2 NRS 0.060 defines “substantial bodily harm” as:

1. Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ; or

2. Prolonged physical pain.

3 NRS 200.481 states in pertinent part:

1. As used in this section:

(a) “Battery” means any willful and unlawful use of force or violence upon the person of another.

2. [A] person convicted of a battery . . . shall be punished:

(b) If the battery is not committed with a deadly weapon, and substantial bodily harm to the victim results, for a category C felony as provided in NRS 193.130.

(e) If the battery is committed with the use of a deadly weapon, and:

(1) [F]or a category B felony by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 10 years, and may be further punished by a fine of not more than $10,000.

(Emphasis added.)

4 Consistent with prior authority, we note that redundancy does not, of necessity, arise when a defendant is convicted of numerous charges arising from a single act.