Tabish v. State

72 P.3d 584, 119 Nev. 293, 119 Nev. Adv. Rep. 35, 2003 Nev. LEXIS 41

• Court: Nevada Supreme Court
• Decided: July 14, 2003
• Docket: 36873
• Status: Published

Opinions

OPINION

By the Court,

Rose, J.:

The State charged appellants Richard Tabish and Sandra Murphy by information with numerous crimes relating to three separate incidents: (1) the alleged robbery and murder by suffocation and/or poisoning of Lonnie Theodore “Ted” Binion at Binion’s home in Las Vegas, Nevada, on September 17, 1998 (the “Binion counts”); (2) the removal of a large quantity of silver belonging to Binion from an underground vault located in a desert area near Pahrump, Nevada (the “silver counts”); and (3) the alleged July 1998 kidnapping, beating, and extortion of Leo Casey, who along with Tabish had a financial interest in a sand and gravel pit in Jean, Nevada (the “Casey counts”).

Following a lengthy jury trial, Tabish and Murphy were both convicted of three Binion counts: first-degree murder; conspiracy to commit murder and/or robbery; and robbery relating to Binion’s currency, coin collections, silver coins, and/or silver bars located at his Las Vegas residence. The jury also convicted both appellants of three silver counts: conspiracy to commit burglary and/or grand larceny; burglary; and grand larceny of the silver stored in the Pahrump underground vault. Tabish, but not Murphy, was convicted of four Casey counts: conspiracy to commit extortion; false imprisonment with the use of a deadly weapon; assault with a deadly weapon; and extortion with the use of a deadly weapon.¹

The district court sentenced Murphy to serve a term of life in the Nevada State Prison with the possibility of parole after 20 years for murder, a consecutive term of 2 to 10 years for burglary, and four other concurrent terms ranging from 1 year in the county jail to a potential maximum prison term of 15 years.

The district court sentenced Tabish to serve two consecutive terms of 18 to 120 months in the Nevada State Prison for the extortion of Casey with the use of a deadly weapon; a consecutive term of life in the Nevada State Prison with the possibility of parole after 20 years for Binion’s murder; a fourth consecutive term of 24 to 120 months for burglary of the underground vault, and concurrent terms ranging from 1 year in the county jail to potential maximum prison terms of 15 years for the convictions on the remaining counts.

Appellants assign numerous errors on appeal, including that: (1) improper and prejudicial joinder of their trials and the charges against them deprived them of a fair trial; (2) testimony regarding an alleged statement Binion made to his attorney prior to his death was improperly admitted at trial; (3) the State did not prove criminal agency; (4) the State’s allegations in the charging document of aiding and abetting were unconstitutionally vague; and (5) juror misconduct deprived appellants of a fair trial. We conclude that the district court’s refusal to sever the Casey counts from the remaining charges in the case and to give a crucial limiting instruction warrant reversal. We reject appellants’ claim that the State failed to prove criminal agency.² In light of our determination that reversal is warranted for the reasons stated, we further conclude it is unnecessary to resolve the issues relating to the aiding and abetting charges alleged in the information and jury misconduct. Finally, we conclude that appellants’ remaining assignments of error are without merit.³

FACTS

Binion was found dead in his home in Las Vegas on September 17, 1998. At appellants’ trial, Binion’s drug supplier Peter Sheridan testified that he had sold Binion a large quantity of black tar heroin the day before his death. Heroin-smoking paraphernalia and traces of the drug were found in a bathroom near Binion’s body. Toxicology reports obtained in connection with the autopsy that followed revealed the presence of heroin, Xanax, and Valium in Binion’s blood.

Binion’s live-in girlfriend, appellant Sandra Murphy, found Binion’s body. An ambulance and police officers were summoned to the house, and paramedics unsuccessfully attempted to revive Binion. Police personnel then took pictures of the body and surrounding area, but they did not seal the area or otherwise preserve it as a crime scene. Their assumption at the time was that Binion died from a drug overdose, and no foul play was suspected. Murphy, described as hysterical, was taken to Valley Hospital.

The Chief Medical Examiner for Clark County, Dr. Lary Simms, performed the autopsy on Binion’s body the following day. Dr. Simms noted the presence of various marks on Binion’s body and took photographs of them. He concluded that Binion’s death was caused by an overdose, but could not determine whether the death was suicide or accidental.

Several months before his death, Binion lost his gaming license to operate the family’s business, the Horseshoe Casino. Thereafter, he removed from the Horseshoe his large personal collection of silver coins and bars worth approximately $8 million. In the summer of 1998, Binion employed appellant Richard Tabish to build an underground vault for the silver on a vacant parcel of land Binion owned in Pahrump near his family’s ranch. In late August or early September 1998, Binion alerted the local Nye County Sheriff’s Office that the silver had been moved to the underground vault and asked them to keep an eye on the area. Tom Standish, one of Binion’s lawyers, testified at trial that he was present when Binion told Tabish that if Binion died, Tabish should retrieve the silver from the vault so that greedy Binion family members would not try to keep the silver from Binion’s daughter, Bonnie.

Murphy and Tabish met through Binion. They became friends and then allegedly became lovers. On the night of September 18, 1998, Tabish telephoned the Nye County Sheriff and told him he was coming to Pahrump to dig up and remove the silver in the vault. Tabish explained that Binion had requested him to retrieve the silver in the event of Binion’s death. But after Tabish and two other men, Dave Mattsen and Mike Milot, had loaded the silver into their trucks, they were stopped by Nye County Sheriff’s officers. They were detained for a few hours, arrested, and then released on bail.

Police returned to Binion’s house to gather more evidence about four weeks after Binion’s death. During that four-week period, the alleged crime scene had not been secured and various people had access to the house and the den where Binion’s body was found. A comparison at trial of police photographs from the date of Binion’s death and from the second police investigation a month later clearly showed that objects had been moved. Paul Dougherty, an expert in law enforcement procedures and crime scene reconstruction, testified for the defense that the police had been irresponsible and unprofessional in gathering evidence at the house and in failing to secure it as a crime scene.

About a week after Binion’s death, Binion family members hired a private investigator, retired homicide detective Tom Dillard, to investigate Binion’s death. Dillard conducted numerous interviews and consulted experts in his investigation. Approximately six months after Binion’s death, Dr. Simms, the medical examiner who had performed the autopsy, examined Dillard’s materials and this time concluded that Binion’s death was a homicide. The Clark County District Attorney’s Office subsequently charged Tabish and Murphy, alleging they had robbed and murdered Binion at his house and had then stolen the silver from the underground vault.

Appellants’ trial lasted six weeks and included 115 witnesses. The witnesses consisted in substantial part of numerous medical experts, many of them physicians hired by each side to analyze the cause and manner of Binion’s death. Except for Dr. Michael Baden, all of the doctors, including Dr. Simms, agreed that Binion’s death was caused by an overdose of heroin, Xanax, and Valium.⁴ These witnesses disagreed somewhat over which of the drugs were present in Binion’s body in lethal amounts. Nevertheless, whether they testified for the State or the defense, they agreed that the drugs had killed Binion, probably working together in a synergistic fashion to make them more toxic together than each drug would have been by itself.

In contrast, Dr. Baden, a physician and expert witness for the prosecution, testified that Binion did not die from a drug overdose, but had instead been suffocated by one or more persons. Although Dr. Baden did not personally examine Binion’s body, based on his extensive experience as a medical examiner and trial consultant, he concluded that certain marks on Binion’s face, chest, and wrists demonstrated that Binion’s hands had been restrained, and that someone had covered his nose and mouth and applied pressure to Binion’s chest, perhaps with a knee, to hasten his death. Other doctors testifying for each side related innocent explanations for the marks on Binion’s body, including that Binion may have bumped into things while under the influence of drugs, that a paramedic had rubbed Binion’s sternum to make sure he was dead, and that Binion suffered from dermatitis.

Binion’s estate lawyer, James Brown, testified at trial that Binion had called Brown’s office the day before his death and had asked Brown to change the terms of his will. Brown testified that Binion had said to him, “Take Sandy [Murphy] out of the will if she doesn’t kill me tonight. If I’m dead, you’ll know what happened.” Although Brown did not report this statement to police until several days after Binion’s death, he testified that he wrote down what Binion had said less than twenty-four hours after he learned that Binion was dead.

Other State witnesses testified regarding appellants’ suspicious behavior and other unusual activities at the residence around the time of Binion’s death: Binion’s maid testified that Murphy sent her home early the day before Binion’s death and told her not to come to work the next day; Binion’s gardener testified that drapes that were “always” open were closed that day and the dogs were behaving strangely; a private investigator testified that Murphy and Tabish telephoned each other fewer times than usual on that day; and Bonnie Binion testified that valuable items including cash and antique coins were missing from the Binion house.

Several State witnesses testified that Tabish had severe financial problems, thus supporting the State’s theory that his need for money provided a motive for him to kill Binion and steal his silver. Kurt Gratzer, a witness who knew Tabish in Montana where Tabish had also resided, said Tabish had discussed killing Binion with him and asked for his help. Gratzer told a friend, Timothy Boileau, that Tabish wanted him to come to Las Vegas to kill a heroin addict who was dating a stripper. Appellants countered these allegations with evidence that Binion’s death may have resulted from an accidental overdose or a suicide.

As noted, Tabish was also tried on charges relating to Leo Casey.⁵ Casey and Tabish both had a financial interest in the sand pit, which Casey estimated contained raw materials worth about $10 million. Casey claimed that in July 1998, two months before Binion’s death, he was kidnapped and beaten by Tabish and Steve Wadkins, the manager of a company that had a contract to wash sand provided by the sand pit to concrete companies. Casey testified that Tabish and Wadkins forced him at gunpoint to drive approximately twenty miles to the Jean sand pit, where they beat him about the head with a telephone book, injuring him and knocking his toupee askew. Casey stated that the men berated him, poked a knife under his fingernails, restrained his hands with a pair of thumbcuffs,⁶ held a gun to his head, and told him that they would kill him if he did not sign documents transferring his property interest in the sand pit and confessing that he had embezzled money.

Casey admitted at trial that he had been involved in a scheme to defraud investors in a trucking and construction company in which Tabish had an interest. He testified that he was afraid of the men and became even more so when they threatened to bury him in the desert and proceeded to dig a “shallow grave” with excavation machinery at the sand pit. Casey said, “[T]hey threatened they were going to cut my fingers off and my wrists off, and I was extremely shaken.”

Eventually, Tabish and Wadkins drove Casey back into Las Vegas. They picked up John Joseph, and visited an attorney’s office, where documents were prepared transferring Casey’s interest in the sand pit to the others. Casey testified that his hands were bleeding slightly as he signed the documents. Notaries at the attorney’s office testified, however, that Casey did not look as though he had just been beaten.

According to Casey, when they released him, Tabish and the other men told him they would kill him, sexually assault his ex-wife, and kill his daughters if he did not leave Nevada at once. He said that he moved out of the state and was contacted by police eight months later regarding the incident. Casey also testified that Tabish had bragged to him at some time prior to this incident that he was sleeping with Ted Binion’s girlfriend, Sandra Murphy, and was using her to get to Binion’s valuable silver collection.

Before and during trial, appellants made numerous motions for severance. The district court refused to sever the Casey counts from the other counts in the information or to grant Tabish and Murphy separate trials. The district court did instruct the jury, however, that the evidence respecting the Casey counts was not to be considered as evidence against Murphy.

The jury deliberated for eight days and found Tabish and Murphy guilty of the charges specified above. Murphy filed motions for a new trial and for a judgment of acquittal. Tabish also sought a new trial, as well as a judgment notwithstanding the verdict. The district court denied the motions. This joint appeal followed.

DISCUSSION

I. Failure to sever charges

Appellants argue that improper and exceptionally prejudicial joinder deprived them of their right to a fair trial. They contend that the Casey counts should have been tried separately from the remaining counts because the charges were not based on a “common scheme or plan” and trying the charges together was unconstitutionally prejudicial.⁷ We conclude that the district court improperly denied appellants’ motions to sever the counts and that the error was not harmless beyond a reasonable doubt.

Decisions to join or sever are left to the discretion of the trial court and will not be reversed absent an abuse of discretion.⁸ An error arising from misjoinder is subject to harmless error analysis and warrants reversal only if the error had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ”⁹ As discussed below, we conclude that misjoinder of the Casey counts with the other charges did have a substantial and injurious effect warranting reversal of appellants’ convictions, and requiring remand to the district court for a new trial on the allegations against appellants respecting the murder and robbery of Binion and the burglary and larceny of the underground vault. We reject the State’s contentions that all of the counts charged were part of a common scheme or plan, that combining the counts was not unfairly prejudicial and promoted judicial economy, that the counts had to be combined to give the jury the complete story of the crimes, or that the counts would have been cross-admissible as prior bad acts in separate trials. We further conclude, however, that the case against Tabish on the Casey counts did not present the jury with the same close issues of fact, and the improper joinder of the charges did not have the same substantial and injurious influence on the jury’s consideration of the charges against Tabish on the Casey counts. Therefore, we conclude that the error in that respect was harmless beyond a reasonable doubt, and we affirm Tabish’s conviction on the Casey counts.

A. Common scheme or plan

The State contends that the charges were properly joined pursuant to NRS 173.115 because they were part of a common scheme or plan. The State claims in particular that the

common thread of all these criminal acts is greed, money and the Jean Sand Pit. The focus of all these crimes revolved around the Jean Sand Pit. Leo Casey had to be eliminated so that Tabish could obtain the sand pit. Ted Binion had to be murdered in order to obtain his silver and fund the Jean Sand Pit. The connection between all of these crimes is sufficient to justify the joinder of all these offenses.

The State also emphasizes the similarities between Casey and Binion: that Casey and Binion were both older than Tabish, both had valuable assets worth stealing, both were allegedly restrained by Tabish (and/or Murphy in Binion’s case), and both were attacked in ways leaving no visible injuries (although the State’s theory of Binion’s murder relies heavily on marks on his wrists that the State argues are evidence of applied restraint).

We agree with appellants, however, that money and greed could be alleged as connections between a great many crimes and thus do not alone sufficiently connect the incidents. Additionally, we note that Casey transferred his interest in the sand pit well before Binion’s death. This lapse of time between the events undermines the State’s theory that Tabish and Murphy killed Binion because Tabish was desperate for money to run the sand pit, and that Tabish attacked Casey to obtain his interest so he could then kill Binion to finance the project. Further, although both victims were older men with substantial assets, the alleged crimes themselves were quite distinct: Casey was allegedly victimized with a phone-book, a gun, a knife, and thumbcuffs, while Binion was allegedly murdered by a forced overdose of drugs or by suffocation.

The State cites to several Nevada cases defining a common scheme or plan or allowing connected counts to be tried together, but these cases fail to support the State’s claim that the Casey and Binion counts were sufficiently connected to support joinder.¹⁰ This court has previously held that even certain similar counts could not be joined because their connection in time was too remote. In Mitchell v. State, for example, this court concluded that two separate incidents forty-five days apart involving social drinks at a particular bar followed by alleged sexual assaults could not be considered part of a common scheme or plan.¹¹ In this case, the joined incidents were dissimilar, and fifty days separated the Casey incident from the alleged murder and theft of the silver. We are simply not persuaded that the State sufficiently established the alleged connections between the counts to demonstrate a common scheme or plan.

B. Prejudice

We further conclude that appellants’ trial on the Binion counts was unfairly prejudiced by the joinder.¹² In assessing the potential prejudice created by joinder, this court has held that “ ‘[t]he test is whether joinder is so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the exercise of the court’s discretion to sever.’ ”¹³ When some potential prejudice is present, it can usually be adequately addressed by a limiting instruction to the jury. The jury is then expected to follow the instruction in limiting its consideration of the evidence.¹⁴

In this case, the district court instructed the jury that it was not allowed to consider evidence from the Casey counts in determining Murphy’s guilt as to the counts alleged against her. Murphy argues that this limiting instruction was inadequate, partly because the evidence in the Casey counts was so “graphic.” Moreover, Murphy contends, the State “guarantee[d] that the jury would consider the Casey matter in determining whether the Binion crimes were committed” by emphasizing in its closing arguments its view of the similarities between the Casey incident and the separate allegations in the other counts against both appellants.¹⁵ In light of the graphic nature of the Casey evidence, coupled with the State’s closing argument, we are unable to conclude beyond a reasonable doubt that the limiting instruction was sufficient to mitigate the prejudicial impact of the joinder on the jury’s consideration of appellants’ guilt on the remaining counts.¹⁶ The erroneous joinder was especially prejudicial in Murphy’s case, although it was manifestly prejudicial to Tabish’s trial on the other counts as well.

This court has recognized the view of the United States Court of Appeals for the Ninth Circuit that joinder may be so prejudicial “ ‘that the trial judge [is] compelled to exercise his discretion to sever.’ ”¹⁷ Prejudice created by the district court’s failure to sever the charges is more likely to warrant reversal in a close case because it may “prevent the jury from making a reliable judgment about guilt or innocence.”¹⁸ In our view, the Binion charges presented the jury with a close case, and the joinder of the Casey counts rendered the trial of the Binion counts fundamentally unfair.¹⁹

Additionally, the limiting instruction was inadequate to prevent the improper “spillover” effect of inappropriate joinder.²⁰ In Bean v. Calderon,21 the prosecution joined counts alleging two separate murders. The Ninth Circuit Court of Appeals reversed one of the murder convictions because the consolidation of cases led the jury to infer criminal propensity. In other words, there was an unacceptable risk that the jury found the defendant guilty of the second murder simply because it thought he was a bad person for having committed the first murder.²² In Bean, this impermissible inference allowed the jury to convict on the prosecution’s weak case for one of the murders by relying on the stronger evidence of the other murder.²³ Similarly, here the State’s weaker case on the Binion counts was bolstered by combining it with the stronger case against Tabish on the Casey counts. Thus, the prejudice in this case constitutes the same type of due process violation that was found in Bean.24

C. Judicial economy

The State also argues that joinder promoted judicial economy and that severance should not be granted on “ ‘guilt by association’ ’ ’ alone.²⁵ Although judicial economy is an appropriate consideration in deciding whether severance is appropriate, it must be weighed against the possible prejudice to defendants.²⁶

The State’s argument carries little force when considered in the context of this case. Tabish’s two co-defendants Joseph and Wadkins, who were charged only in connection with the Casey counts, had their cases severed from Tabish and Murphy’s before the preliminary hearing based upon a stipulation with the State. Therefore, another trial was expected to be held on the Casey counts in any event. Further, Tabish and Murphy’s co-defendants in the silver theft counts, Mattsen and Milot, were granted severance and were also scheduled for a separate trial. In short, all of the other defendants’ trials were severed from Tabish and Murphy’s, and there was a potential for at least two other trials at the time of Tabish and Murphy’s trial. Under these circumstances, no waste of judicial resources could have been reasonably anticipated from Tabish being tried separately from Murphy on the Casey counts, along with Joseph and Wadkins. In fact, to promote judicial economy in a far less potentially prejudicial manner, the district court could have held one trial for all the defendants involved in the Casey counts and one trial for those involved in the Binion and the silver counts. Therefore, we conclude, considerations of judicial economy were far outweighed by the manifest prejudice resulting from the joinder.

D. Complete story

The State contends that even if the Casey counts were improperly joined, they were otherwise admissible under the “complete story” exception. NRS 48.035(3) provides:

Evidence of another act or crime which is so closely related to an act in controversy or a crime charged that an ordinary witness cannot describe the act in controversy or the crime charged without referring to the other act or crime shall not be excluded, but at the request of an interested party, a cautionary instruction shall be given explaining the reason for its admission.

This court has interpreted NRS 48.035(3) quite narrowly. For example, in Bletcher v. State, we held that it was reversible error for the district court to admit evidence of the defendant’s drug possession during his prosecution for second-degree murder.²⁷ We emphasized that the presence of drugs was not so interconnected with events leading to the victim’s death that the witness had to refer to the drugs to explain those events.²⁸

In this case, the Casey events could have easily been described without reference to the Binion counts, and vice versa. The fact that Tabish’s accomplices in the underground silver incident and in the Casey incident had separate trials from Tabish and from each other demonstrates the incidents are descriptively separable. Therefore, we conclude that the complete story exception does not apply to these counts.

E. Cross-admissibility

The State argues that joinder of the Binion and Casey counts was permissible because of cross-admissibility. Specifically, the State contends that evidence of the Binion counts would have been admissible at Tabish’s separate trial on the Casey counts, and evidence of the Casey counts would have been admissible at a joint trial of appellants on the other counts.²⁹ The State asserts that the Casey prior bad act evidence would have been admissible at such a joint trial of the other counts under NRS 48.045(2)³⁰ for the limited purposes of showing motive (that Tabish was a greedy person and needed money to run the sand pit), plan (to obtain money to run the sand pit, as discussed above), and the identity of Tabish and Murphy as Binion’s killers (because of the alleged similarities between the attack on Casey and the death of Binion). We disagree.

As this court held in Tinch v. State, to deem a prior bad act admissible, the district court must first determine outside the presence of the jury that “(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.”³¹

Although, in our view, the relevance is somewhat tenuous, the Casey counts arguably have some relevance to the remaining counts for the various purposes advanced by the State. Appellants note that money and greed could be considered “common motives for almost every crime under the sun,” including these crimes. The Casey counts are also arguably relevant for the other purposes, i.e., to demonstrate a plan to obtain money to run the sand pit and the identity of Tabish and Murphy as Binion’s killers.

Additionally, we agree that the State could have met the second Tinch requirement and proven the Casey counts at a Petrocelli hearing by clear and convincing evidence.³² The testimony of Leo Casey regarding the attack on him provided the jury with strong, more than sufficient evidence to convict Tabish of the crimes beyond a reasonable doubt, a higher standard than required for the admission of prior bad act evidence under our holdings in Tinch and Petrocelli.

In our view, however, the district court would have manifestly abused its discretion in finding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice.³³ As discussed above, the introduction of the Casey counts into the trial on the remaining counts caused an improper spillover effect to occur, and the danger of unfair prejudice was substantial. Although the Casey counts may have some relevance for the purpose of demonstrating common motive, plan, and identity, that limited probative value was substantially outweighed by the danger of unfair prejudice.³⁴ Therefore, we reject the State’s contention respecting the cross-admissibility of the counts, and we conclude that the joinder was not supportable on this basis.³⁵

In sum, the district court’s improper denial of the motions to sever the Casey counts from the other counts unfairly prejudiced both appellants in their trial on those other counts. With respect to the Binion counts and the silver counts, we conclude that the error was not harmless beyond a reasonable doubt, and we reverse appellants’ convictions on those counts and remand for a new trial on those matters alone. The prejudicial impact of the improper join-der on Tabish, as it related to his trial on the Casey counts, was not as severe. Given the strong and more than substantial evidence presented against Tabish on the Casey counts, we conclude that the improper joinder was harmless beyond a reasonable doubt as it relates to his conviction on those counts. Therefore, we affirm Tabish’s conviction on the Casey counts.

II. Failure to sever appellants’ trials

Murphy argues that she and Tabish should have been granted separate trials altogether.³⁶ The Casey counts against Murphy were dismissed before appellants’ joint trial. Therefore, if Murphy were to have had a separate trial, she would have been tried only on the counts related to the murder and robbery of Binion and the counts related to the theft of the underground vault.³⁷ Although Tabish and Murphy should not have been subjected to a joint trial including the Casey counts, we conclude that they were properly tried together for the remaining charges as co-defendants. The improper joinder of the Casey counts with the remaining charges does not foreclose a joint retrial of Tabish and Murphy on those remaining charges on remand.

III. Hearsay statement of decedent

Appellants contend that the district court abused its discretion by permitting Binion’s estate attorney, James Brown, to testify that Binion telephoned him the day before his death and said, “Take Sandy [Murphy] out of the will if she doesn’t kill me tonight. If I’m dead you’ll know what happened.”

Prior to trial, appellants moved to exclude the statement as impermissible hearsay.³⁸ The district court ruled that the statement was admissible under NRS 51.105(1), which provides: “A statement of the declarant’s then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain and bodily health, is not inadmissible under the hearsay rule.’ ’

In Shults v. State, this court held that “[i]n order for the state of mind exception to be applicable, the victim’s state of mind must be a relevant issue, the relevance must be weighed against prejudice, and a proper limiting instruction must be given or objectionable testimony deleted.”³⁹ The decision to admit or exclude such evidence is within the sound discretion of the district court and the district court’s determination will not be disturbed unless manifestly wrong.⁴⁰ We conclude that the district court manifestly abused its discretion in admitting the statement without a limiting instruction.

The district court found that Binion’s state of mind was a relevant issue because the defense theories offered at trial included suicide and accidental death.⁴¹ The record shows that the district court also weighed the relevance of the statement against its prejudicial impact and ruled the statement to be admissible.

Assuming that the statement was relevant to rebut the defense theories, we conclude that the district court abused its discretion under Shults in admitting the statement without an appropriate limiting instruction. The prejudicial impact was great: the statement strongly implied Murphy killed Binion. Moreover, the relevance of the statement was equivocal, even though there was little other evidence of Binion’s state of mind before his death.⁴² But if the statement was relevant to show Binion’s state of mind at the time he made the statement, the exception still does not allow the statement to be used as evidence of the intent or conduct of anyone else — in this case, Murphy.⁴³ The district court did not give a limiting instruction advising the jury that the statement was only admissible for the limited purpose of showing Binion’s state of mind.

Harmless error analysis applies to hearsay errors.⁴⁴ We are unable to conclude that the error was harmless beyond a reasonable doubt in this case.⁴⁵ In Shults, this court noted that the evidence against the defendant was “incredibly strong,” thereby rendering a similar error harmless.⁴⁶ In Downey v. State, on the other hand, this court concluded that such an error was reversible because ‘ ‘the evidence of guilt [was] not overwhelming, and guilt [was] based solely on circumstantial evidence. The hearsay in this case [was] extremely prejudicial, both because of its content and because it [was], in effect, testimony from the dead victim.”⁴⁷ In this case, as in Downey, the State’s evidence on the Binion counts was highly circumstantial and not overwhelming. The statement is akin to testimony from Binion after his death. Without a limiting instruction, the risk was unacceptable that the jury would improperly consider the statement as evidence of appellants’ intent or conduct during its eight days of deliberation, particularly in light of the State’s closing argument that ‘ ‘truer words were never spoken.’ ’ Accordingly, we cannot conclude based on this record that the district court’s failure to give a limiting instruction was harmless beyond a reasonable doubt.

IV. Proof of criminal agency

Appellants argue that, as a matter of law, insufficient evidence was adduced at trial to establish the corpus delicti for the murder charge, i.e., that Binion died as the result of a criminal act rather than from some other cause. We disagree.

To establish probable cause, the State must show that: (1) a crime has been committed, and (2) the defendant committed that crime.⁴⁸ The first part of this test is known as the corpus delicti, and to establish it in a murder case, the State must demonstrate: (1) the fact of death, and (2) that death occurred by the criminal agency of another.⁴⁹ The corpus delicti may be established by circumstantial evidence only,⁵⁰ and at trial the State bears the burden of establishing the corpus delicti beyond a reasonable doubt.⁵¹ This court has stated that “the proper standard [of review for these claims] is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt that [the victim’s] death was caused by a criminal agency.”⁵²

As noted above, Dr. Baden testified that he had concluded that Binion had been suffocated by one or more persons. Although there was conflicting testimony and the question of whether Binion died as a result of a criminal agency is a close one given his heroin habit, we conclude that, based on Dr. Baden’s testimony, a rational trier of fact could have found beyond a reasonable doubt that Binion’s death was caused by a criminal agency.⁵³ Accordingly, we reject this contention.

We further note that the district court correctly determined that the jury did not have to agree unanimously on a single factual theory of criminal agency in order to convict appellants of murder. As noted, the State presented two expert witnesses, Doctors Simms and Baden, on the issue of whether a criminal agency was the cause of Binion’s death. Doctor Simms testified that Binion’s demise was the result of an induced overdose of a mixture of heroin, Xanax, and Valium. Dr. Baden opined that Binion was suffocated through a process known in the literature as “burking.” Both opinions were, to a degree, contradictory.

At trial, appellants did not object to the admissibility of this conflicting body of evidence. Rather, appellants chose to pit the credibility of the State’s witnesses against experts for the defense who testified that Binion’s death was most likely accidental or self-induced. Appellants also requested the district court to instruct the jury that, to convict, the jurors must unanimously agree on the factual theory of criminal agency; that is, they must either unanimously agree that Binion was suffocated or unanimously agree that he was poisoned. The district court rejected this proposed instruction and concluded that the jury did not have to be unanimous on the facts or theory of how the appellants committed first-degree murder. Rather, the district court concluded that the Constitution only required the jury to unanimously agree that the evidence established appellants’ guilt of first-degree murder. We agree with the district court.

In Schad v. Arizona, the United States Supreme Court observed:

We have never suggested that in returning general verdicts ... the jurors should be required to agree upon a single means of commission, any more than the indictments were required to specify one alone. In these cases, as in litigation generally, “different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.”⁵⁴

Although we have not previously specifically addressed whether jury unanimity on a single theory of criminal agency is necessary to establish the corpus delicti, we have cited Schad with approval in rejecting the contention that the State should be required to elect a single theory of prosecution, i.e., between premeditated or felony-murder.⁵⁵ We now conclude, in accord with the reasoning of the plurality opinion in Schad, that when conflicting or alternative theories of criminal agency are offered through the medium of competent evidence, the jury need only achieve unanimity that a criminal agency in evidence was the cause of death; the jury need not achieve unanimity on a single theory of criminal agency.

CONCLUSION

The failure to sever the Casey counts from the other charges and the admission of the hearsay statement without a limiting instruction unfairly prejudiced both appellants in their trial on the Binion and the silver counts. The errors were not harmless beyond a reasonable doubt. Neither of the errors, however, had the same severely prejudicial impact with regard to Tabish’s conviction on the Casey counts,- and in that respect, we conclude the errors were harmless beyond a reasonable doubt. Accordingly, we reverse appellants’ convictions on the Binion and the silver counts and remand for a new trial on those matters alone. We affirm Tabish’s conviction on the Casey counts.⁵⁶

Agosti, C. J., Becker, J., and Young, Sr. J., concur.

1 Although the jury also found Tabish guilty of conspiracy to commit kidnapping, the district court entered an amended judgment of conviction on October 16, 2000, dismissing that count.

2 To the extent that either appellant also generally challenges the sufficiency of the evidence supporting the jury’s verdict, we conclude that contention lacks merit.

3 Although we have considered appellants’ remaining arguments, we do not specifically discuss these contentions in this opinion.

4 Dr. Simms also observed that some heroin users take Xanax to augment their heroin high.

5 Murphy was originally charged with the Casey counts as well, but these charges against her were dismissed before trial.

6 Thumbcuffs were also found in a bag of silver coins discovered by James Brown and Tom Dillard behind a television in Murphy’s room at the Binion house on September 24, 1998. Brown testified that after they discovered the bag, Dillard removed it from the residence. Later, Dillard returned the bag to the residence in April 1999 where its contents were examined by an appraiser. During the appraisal, a pair of thumbcuffs were discovered mixed in with the silver coins in the bag.

7 NRS 173.115 provides in pertinent part:

Two or more offenses may be charged in the same . . . information in a separate count for each offense if the offenses charged . . . are:

(1) Based on the same act or transaction; or

(2) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

8 Amen v. State, 106 Nev. 749, 756, 801 P.2d 1354, 1359 (1990).

9 Robins v. State, 106 Nev. 611, 619, 798 P.2d 558, 564 (1990) (quoting United States v. Lane, 474 U.S. 438, 449 (1986)).

10 For example, the State cites to the following: Tillema v. State, 112 Nev. 266, 914 P.2d 605 (1996) (counts for two automobile burglaries sixteen days apart joined with store robbery committed immediately after second burglary); Howard v. State, 102 Nev. 572, 729 P.2d 1341 (1986) (counts for robbery and murder properly joined when defendant used stolen items to lure murder victim within a day of the robbery); State v. Boueri, 99 Nev. 790, 672 P.2d 33 (1983) (counts for twelve incidents of embezzlement from same ultimate victim were properly joined); and Gibson v. State, 96 Nev. 48, 604 P.2d 814 (1980) (counts joined for prison escapee who committed two auto thefts in a row to get away from the prison).

11 105 Nev. 735, 782 P.2d 1340 (1989).

12 See Floyd v. State, 118 Nev. 156, 164, 42 P.3d 249, 255 (2002) (“Even if joinder is permissible under NRS 173.115, a trial court should sever the offenses if the joinder is ‘unfairly prejudicial.’ ” (quoting Middleton v. State, 114 Nev. 1089, 1107, 968 P.2d 296, 309 (1998))).

13 Honeycutt v. State, 118 Nev. 660, 667, 56 P.3d 362, 367 (2002) (quoting United States v. Brashier, 548 F.2d 1315, 1323 (9th Cir. 1976)).

14 Spencer v. Texas, 385 U.S. 554, 562 (1967).

15 For example, one prosecutor said in closing, “I want to draw some comparisons for your consideration. Leo Casey, older gentleman, Ted Binion, older gentleman. Leo Casey owed Rick Tabish money. Ted Binion owed Rick Tabish money. . . . Leo Casey thumb-cuffed, Ted Binion, wrists were restrained. Leo Casey beat in a manner which would leave no marks, Ted Binion suffocated in a manner that would leave no marks.”

16 Cf. U.S. v. Smith, 795 F.2d 841, 851 (9th Cir. 1986) (holding that refusal to sever charges was not manifestly prejudicial where prosecution and court took great pains to avoid emphasizing the charges were somehow connected).

17 Lisle v. State, 113 Nev. 679, 694, 941 P.2d 459, 469 (1997) (quoting United States v. Lewis, 787 F.2d 1318, 1321, opinion amended, 798 F.2d 1250 (9th Cir. 1986)).

18 Zafiro v. United States, 506 U.S. 534, 539 (1993); see also Lewis, 787 F.2d at 1322 (considering relative strength of evidence underlying joined charges as factor showing undue prejudice).

19 Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir. 1991); Bean v. Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998).

20 See Lisle, 113 Nev. at 689, 941 P.2d at 466 (discussing “spillover” effect of a jury’s unfavorable impression of a defendant influencing its determination of guilt).

21 163 F.3d 1073.

22 See NRS 48.045(1) (subject to certain exceptions, “[e]vidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion”).

23 See Bean, 163 F.3d at 1083.

24 See id. at 1083-84. It appears that the district court also recognized the prejudicial effects of the joinder when it commented late in the trial that it should have granted the motions to sever the Casey counts from the Binion counts.

25 Lisle, 113 Nev. at 689, 941 P.2d at 466 (quoting United States v. Boffa, 513 F. Supp. 444, 487 (D. Del. 1980) (citation omitted)).

26 See Honeycutt, 118 Nev. at 667, 56 P.3d at 367 (joinder must be so manifestly prejudicial that it outweighs the dominant concern with judicial economy); Lisle, 113 Nev. at 689, 941 P.2d at 466 (holding that trial court must consider possible prejudice to government resulting from two time-consuming, expensive, and duplicative trials).

27 111 Nev. 1477, 1480, 907 P.2d 978, 980 (1995).

28 Id.; see also Flores v. State, 116 Nev. 659, 662-63 , 5 P.3d 1066, 1068 (2000) (evidence that co-defendant had been convicted of earlier murder in which same gun was used was not admissible against defendant in murder prosecution under complete story doctrine); cf. Ochoa v. State, 115 Nev. 194, 200, 981 P.2d 1201, 1205 (1999) (evidence of prior drug transactions between victim and defendant was allowed to show history of friction which escalated to murder).

29 See Mitchell, 105 Nev. at 738, 782 P.2d at 1342 (discussing cross-admissibility).

30 NRS 48.045(2) provides “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

31 Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997).

32 Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).

33 It is within the district court’s discretion to admit or exclude evidence, and that determination will not be disturbed unless manifestly wrong. See Walker v. State, 116 Nev. 670, 6 P.3d 477 (2000); Petrocelli, 101 Nev. at 52, 692 P.2d at 508.

34 See, e.g., Tavares v. State, 117 Nev. 725, 730, 30 P.3d 1128, 1131 (2001) (holding that it is “heavily disfavored” to use prior bad act evidence to convict a defendant “because bad acts are often irrelevant and prejudicial and force the accused to defend against vague and unsubstantiated charges”); Flores v. State, 116 Nev. 659, 662-63, 5 P.3d 1066, 1068 (2000) (holding that probative value of evidence of a prior murder to show identity and motive for another murder was far outweighed by the danger of unfair prejudice).

35 We do not suggest that all evidence relating to Tabish’s interactions with Casey and their interests in the sand pit is inadmissible. For example, the State could appropriately present limited evidence relating to Tabish’s financial transactions with Casey for the purpose of establishing Tabish’s financial condition, his need for funds, and his motivation for committing the acts alleged in the Binion and the silver counts. We emphasize, however, that the highly prejudicial impact of Casey’s graphic testimony respecting the brutal treatment he received at the hands of Tabish and his accomplices substantially outweighs the limited probative value of that evidence with respect to the allegations in the Binion and the silver counts.

36 NRS 173.135 provides in relevant part: “Two or more defendants may be charged in the same . . . information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.”

37 Tabish and Murphy apparently do not challenge the joinder of the counts involving the underground silver vault with the counts alleged to have occurred at Binion’s Las Vegas residence.

38 Pursuant to our recent holding in Richmond v. State, 118 Nev. 924, 932, 59 P.3d 1249, 1254 (2002), appellants’ argument was adequately preserved for appellate review. The issue was briefed and argued prior to trial, and the district court made a definitive ruling to admit the statement.

39 96 Nev. 742, 751, 616 P.2d 388, 394 (1980) (citing United States v. Brown, 490 F.2d 758, 773-78 (D.C. Cir. 1974)).

40 Walker v. State, 116 Nev. 670, 674-75, 6 P.3d 477, 479 (2000).

41 Shults, 96 Nev. at 751, 616 P.2d at 394 (victim’s state of mind is at issue when defendant claims self-defense, accidental death, or suicide); see also Brown, 490 F.2d at 767 (where a defendant claims self-defense, suicide, or accidental death, the need for admission of such statements “overcomes almost any possible prejudice”).

42 See Brown, 490 F.2d at 764 n.17 (“in a case where the mental state is provable by other available evidence and the danger of harm from improper use by the jury of the offered declarations is substantial, the judge’s discretion to exclude the declarations has been recognized” (quoting McCormick on Evidence § 294, at 696 (2d ed. 1972))).

43 See Graham C. Lilly, An Introduction to the Law of Evidence § 7.13, at 287-88 (3d ed. 1996).

44 Shults, 96 Nev. at 751, 616 P.2d at 394.

45 See Brown, 490 F.2d at 777 (“Good limiting instructions are vital where the possibility exists that the jury will consider the testimony for an improper purpose.”).

46 96 Nev. at 751, 616 P.2d at 394.

47 103 Nev. 4, 7, 731 P.2d 350, 352 (1987); see also Summers v. State, 102 Nev. 195, 202, 718 P.2d 676, 681 (1986).

48 Frutiger v. State, 111 Nev. 1385, 1389, 907 P.2d 158, 160 (1995).

49 Id.

50 Azbill v. State, 84 Nev. 345, 351, 440 P.2d 1014, 1018 (1968).

51 Middleton, 114 Nev. at 1103-04, 968 P.2d at 306-07; Azbill, 84 Nev. at 352, 440 P.2d at 1018.

52 Frutiger, 111 Nev. at 1391, 907 P.2d at 161 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see also Sheriff v. Dhadda, 115 Nev. 175, 980 P.2d 1062 (1999).

53 Appellant Murphy filed a motion with this court during the pendency of this appeal “to bring new information to the court’s attention.” Attached to the motion were affidavits and photographs purporting to set forth new expert opinion evidence regarding the cause of Binion’s death. The appellate court record in this case consists of the record made and considered in the district court below. This court cannot consider matters not properly appearing in the record on appeal and therefore cannot consider this new evidence. Therefore, we deny the motion. See Carson Ready Mix v. First Nat’l Bk., 97 Nev. 474, 635 P.2d 276 (1981); see also NRS 177.165.

54 501 U.S. 624, 631 (1991) (plurality opinion) (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring) (footnotes omitted)).

55 See Moore v. State, 116 Nev. 302, 304, 997 P.2d 793, 794 (2000).

56 The Honorable Cliff Young, Senior Justice, having participated in the oral argument and deliberation of this matter as Justice of the Nevada Supreme Court, was assigned to participate in the determination of this appeal following his retirement. Nev. Const, art. 6, § 19; SCR 10. The Honorable Mark Gibbons, Justice, did not participate in the decision of this matter.