Austin v. State, 091616 NVSC, 67323

Docket Nº:67323
Party Name:ABRAHAM AUSTIN, JR. A/K/A ABRAHAM AUSTINS, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
Judge Panel:Parraguirre, C.J., Hardesty, J., Pickering, J. Hon. Michelle Leavitt, District Judge
Case Date:September 16, 2016
Court:Supreme Court of Nevada
 
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ABRAHAM AUSTIN, JR. A/K/A ABRAHAM AUSTINS, JR., Appellant,

v.

THE STATE OF NEVADA, Respondent.

No. 67323

Supreme Court of Nevada

September 16, 2016

UNPUBLISHED OPINION

ORDER OF AFFIRMANCE

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of conspiracy to commit robbery, burglary while in possession of a firearm, first-degree kidnapping with use of a deadly weapon, robbery with use of a deadly weapon, battery, and battery with intent to commit a crime. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge. Appellant Abraham Austin, Jr., raises seven issues.

First, Austin claims that there was insufficient evidence to support his kidnapping conviction because any movement or restraint of the victim was incidental to the robbery. We "view[ ] the evidence in the light most favorable to the prosecution, " to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (alteration in original) (quotation marks omitted). After speaking with the victim outside his home, with the door to the residence shut, Austin and his codefendant attacked the victim from behind as he attempted to reenter the home and forced him into the residence. Once inside, Austin and his codefendant covered the victim's mouth, slammed him to the floor with his arms behind his back where he had difficulty breathing, hit him in the head causing the victim to bleed, took money from a cookie jar in the kitchen, and then demanded at gunpoint that the victim lead the way to the garage where a safe was located. After the men had located and taken marijuana, they told the victim not to move from where he was (kneeling with his face on a chair) and to count to 100 while the men left. Based on this evidence, we conclude that a rational juror could have found beyond a reasonable doubt that moving the victim "create[d] a risk of danger to the victim substantially exceeding that necessarily present in the crime of robbery, or involve[d] movement, seizure or restraint substantially in excess of that necessary to [complete the...

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