80 P.3d 93 (Nev. 2003), 39198, Green v. State

Docket Nº:39198.
Citation:80 P.3d 93, 119 Nev. 542
Opinion Judge:[10] Per curiam.
Party Name:Frederick GREEN a/k/a Frederic Green, Appellant, v. The STATE of Nevada, Respondent.
Attorney:[7] Scott W. Edwards, Reno, for Appellant.
Case Date:December 11, 2003
Court:Supreme Court of Nevada
 
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80 P.3d 93 (Nev. 2003)

119 Nev. 542

Frederick GREEN a/k/a Frederic Green, Appellant,

v.

The STATE of Nevada, Respondent.

No. 39198.

Supreme Court of Nevada

December 11, 2003.

Scott W. Edwards, Reno, for Appellant.

Brian Sandoval, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent.

Before ROSE, LEAVITT and MAUPIN, JJ.

OPINION

PER CURIAM:

Frederick Green appeals from a judgment of conviction 1 entered upon jury verdicts of

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guilt on separate charges of sexual assault 2 and aggravated stalking. 3 Green argues that the district court improperly instructed the jury concerning its deliberative choices between the charge of aggravated stalking and the lesser-included offense of misdemeanor stalking and that the district court failed to instruct the jury that it should view Green's oral admissions with caution. We conclude that Green has failed to demonstrate that these unpreserved errors warrant relief and therefore affirm the judgment entered below.

FACTUAL AND PROCEDURAL HISTORY

Green was married to the victim in this case, Ms. Camisha Linzie. The couple moved to Sparks, Nevada, in August of 2000 to live with Ms. Linzie's mother, Mona Linzie. Problems and disputes concerning money and their minor children quickly led to a very serious estrangement. Matters were also complicated by an alleged meretricious relationship between Green and Mona Linzie.

Ms. Linzie accused Green of sexual assault and repeated incidents of stalking. Police ultimately arrested him following an eight-hour standoff, which was resolved with the assistance of a professional hostage negotiator. The Washoe County District Attorney ultimately took Green to trial on two counts of sexual assault and one count of aggravated stalking.

The trial record is replete with evidence of various degrees of harassment and physical violence perpetrated by Green against Ms. Linzie. The primary incident took place on the evening of September 23, 2000. Ms. Linzie testified that Green entered her home, threatened her, demanded to know her whereabouts earlier in the evening, expressed suspicions of her infidelity, and proceeded to sexually assault her. When Ms. Linzie attempted an escape, Green administered a very serious physical beating upon her person interrupted only by Ms. Linzie's mother. Green fled when Ms. Linzie summoned the police. After treatment at a local hospital, Ms. Linzie found refuge with a friend by the name of Debra Stoen. Later that evening, Green left six to eight threatening messages at Ms. Stoen's residence.

Evidence at trial supported prosecution claims that Green repeatedly threatened Ms. Linzie by calling her places of residence and employment, including threats that he would "beat her," "burn her" alive, and place bombs. He also repeatedly threatened Ms. Linzie's co-workers. Police investigators obtained statements from Green, in which he justified his communications to Ms. Linzie's friends and co-workers, claiming that he thought they were hiding Ms. Linzie and wanted them to know his side of the story. He also denied striking Ms. Linzie but confirmed his allegations of her infidelity.

As noted, the jury convicted Green of aggravated stalking and one of the two counts of sexual assault. The district court sentenced Green to consecutive terms of life imprisonment with parole eligibility in 10 years for sexual assault and 35 months to 156 months for the aggravated stalking. The district court granted Green credit of 88 days for time served, imposed lifetime supervision, a $25 administrative fee, a $150 DNA testing fee, $900 for a psychosexual evaluation, and $750 for reimbursement to Washoe County for legal representation.

DISCUSSION

Preservation of error on appeal

The central issue raised in this appeal involves the deliberative responsibilities of jurors concerning primary and lesser-included offenses. The district court advised the jury in two separate "transition" instructions that it must first unanimously acquit Green of the primary aggravated stalking charge before considering the lesser-included offense of misdemeanor stalking.

Green failed to object to either instruction on the ground he now asserts as error. 4 He also failed to offer an alternative

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instruction on the record concerning the issue. Generally, the failure to clearly object on the record to a jury instruction precludes appellate review. 5 However, "this court has the discretion to address an error if it was plain and affected the defendant's substantial rights." 6 In conducting plain error review, we must examine whether there was "error," whether the error was "plain" or clear, and whether the error affected the defendant's substantial rights. 7 Additionally, the burden is on the defendant to show actual prejudice or a miscarriage of justice. 8

Here, we conclude that the district court erred in its instructions to the jury regarding its consideration of the lesser-included offense. But we also conclude that the error did not affect Green's substantial rights. We therefore hold that this error did not constitute "plain error" under NRS 178.602, and we affirm Green's conviction.

Transition instructions

A "transition" instruction guides jurors in proceeding from the consideration of a primary charged offense to the consideration of a lesser-included offense. Other jurisdictions are split on the appropriate form of a...

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