Beets v. State, 20694

Decision Date20 December 1991
Docket NumberNo. 20694,20694
Citation821 P.2d 1044,107 Nev. 957
PartiesEdward Lee BEETS, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

Morgan D. Harris, Public Defender, and Stephen J. Dahl, Deputy Public Defender, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., Daniel M. Seaton, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

MOWBRAY, Chief Justice:

Appellant Edward Beets was Vanita Hames' boyfriend for approximately four months. Sometime after Christmas 1988, Vanita broke off her relationship with appellant. Vanita lived in North Las Vegas with her mother, Oretha Hames, aged 71, her daughter, Nicole, aged 7, and her son, Christian, aged 1-1/2.

At approximately 3:00 or 4:00 a.m. on March 10, 1989, Vanita awoke to find appellant standing over her. Vanita asked appellant what he was doing there and, when he did not reply, she ran out of her room to the kitchen to use the telephone. The telephone did not work as the telephone lines leading into the home had been cut.

Vanita then saw appellant walk toward her, enter her bedroom, and re-emerge with a pillowcase which had been in the linen closet. Appellant withdrew a hammer from the pillowcase, which Vanita recognized as one she kept in a kitchen drawer with other tools. Appellant chased Vanita through the living room, caught her and hit her on her back two or three times with the hammer. Vanita heard her mother, Oretha, yell, "What's going on in there." Oretha then opened her bedroom door, saw appellant, and told him to stop and get out. When Oretha walked toward appellant, he hit her with the hammer once on the top part of her body and she fell.

Vanita crawled around the furniture in an attempt to get away from appellant, but he caught up with her in the hallway and dragged her into the bathroom. Vanita was crying and screaming and appellant told her to be quiet before she woke up the children. Vanita could hear her mother moaning and having difficulty breathing. Inside the bathroom, appellant again hit Vanita with the hammer, including a blow to the back and a blow which broke her arm. Appellant then tied Vanita's hands and feet with a torn sheet and then left, closing the door. Vanita was unable to get loose from the bindings.

About ten minutes later, appellant returned to the bathroom with a sofa cushion which he placed under Vanita's broken arm. Appellant then untied her, opened his fly, and took off her underpants. Appellant knelt between Vanita's legs and waved the hammer around as if he was going to hit her between her legs. He then turned the end of the hammer around and stuck the handle up her vagina.

Appellant left the bathroom with the door open and returned about a minute later with a kitchen knife. Appellant told Vanita he was going to kill her and then himself. Appellant knelt in front of her and, with both hands on the knife, stabbed her near her left breast. Appellant threw the knife down, turned off the bathroom light, and left, closing the door.

About ten minutes later, Vanita heard appellant walk toward the children's room. Vanita felt around for the knife, left the bathroom, and lunged at appellant with the knife. Appellant knocked the knife out of her hand and hit her across the face with his fist. He again dragged Vanita to the bathroom, pushed her down and, with the hammer, hit her on the knees and on the side of her head. Appellant closed the bathroom door and left. After a few minutes, Vanita heard her daughter crying and heard her say, "No, no."

Vanita got up and went to her daughter's room and found Nicole lying on the bed with her ankles tied. Vanita went into the kitchen to get a knife to cut the bindings. Vanita gave the knife to Nicole, who cut the bindings, and told Nicole to go to a neighbor's house for help. Vanita then went into the living room where she found her mother lying face down on the floor. She turned her over and knew she was dead. 1

Nicole testified regarding appellant's acts in her bedroom. Appellant entered Nicole's bedroom with no clothes on. He climbed into bed with Nicole and removed her underwear. Appellant then laid on top of Nicole and stuck his finger and penis in her vagina. Appellant left the room and returned a few seconds later and tied her arms and legs. Appellant then left again.

As a result of her injuries, Vanita still could not lift her wrist at trial on August 1, 1989, due to nerve damage. Vanita testified she did not know if she would be able to use her wrist again.

Appellant was charged with the following: burglary; first degree murder with use of a deadly weapon, victim 65 years of age or older; attempted murder with use of a deadly weapon; mayhem with use of a deadly weapon; first degree kidnaping with use of a deadly weapon; sexual assault with use of a deadly weapon; and two counts of sexual assault with a minor.

At the close of the State's case at trial, appellant moved to dismiss the kidnaping and mayhem charges. The district court denied the motion as to both charges. The jury found appellant guilty on all counts. At the penalty hearing, the State introduced two judgments of conviction, one for robbery in April, 1980, and one for burglary in April, 1985. The defense called witnesses who testified that appellant suffered several serious head wounds as a child and testified regarding appellant's good character.

The jury was deadlocked and unable to reach a verdict after the penalty phase. In an order filed August 15, 1989, we ordered a three judge panel to conduct a penalty hearing pursuant to NRS 175.556. 2 At the second penalty hearing, the judges indicated that they had reviewed the transcripts of the previous proceedings, both the guilt and penalty phases.

The three judge panel found no mitigating circumstances and the following four aggravating circumstances: (1) the murder was committed by the defendant while under a sentence of imprisonment, to wit: Burglary; (2) the murder was committed by the defendant who was previously convicted of a felony involving the use or threat of violence to another, to wit: Robbery; (3) the murder was committed while the defendant was engaged in the commission of sexual assault; and (4) the murder was committed while the defendant was engaged in the commission of burglary. On November 7, 1989, appellant was sentenced to death.

On appeal, appellant contends: (1) insufficient evidence of premeditation was presented to support the conviction of first degree murder; (2) the district court erred in denying his motion to dismiss the kidnaping charge; (3) insufficient evidence was presented to support the mayhem conviction; (4) the reasonable doubt instruction was unconstitutional; and (5) three of the aggravating circumstances provided to the jury were improper and constituted prejudicial error. For the reasons stated below, we conclude that all of appellant's contentions lack merit.

Appellant first contends that the evidence adduced at trial was insufficient to support the first degree murder conviction because there was insufficient evidence as to the required element of premeditation. See Hern v. State, 97 Nev. 529, 532, 635 P.2d 278, 280 (1981). See also NRS 200.030(1)(a). We have previously stated that the time lapse between the premeditation and deliberation and the act of killing "need only be an instant." Scott v. State, 92 Nev. 552, 555, 554 P.2d 735, 737 (1976). We conclude that a jury, acting reasonably, could have been convinced beyond a reasonable doubt that appellant killed Oretha with premeditation. Wilkens v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980).

Appellant next contends the district court erred when it denied his motion to dismiss the first degree kidnaping charge. Appellant argues that he was charged with kidnaping Vanita for the purpose of committing sexual assault, pursuant to NRS 200.310, and contends that the movement or asportation of Vanita was incidental to the physical attack against her.

In Clem v. State, 104 Nev. 351, 760 P.2d 103 (1988), overruled on other grounds Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990), we concluded that the physical restraint of the victim is sufficient to establish kidnaping as an additional offense. Moreover, we further stated: "[t]he kidnaping was not incidental to the extortion because the restraint increased the risk of harm. Finally, the restraint had an independent purpose and significance as it was essential to the accomplishments of mayhem." Id. 104 Nev. at 354, 760 P.2d at 105. We thus conclude that the act of binding Vanita's hands and feet was sufficient evidence to establish the kidnaping charge since these acts increased the risk of harm to Vanita and had independent significance with regard to appellant's ability to commit the sexual assault.

Appellant next contends there was insufficient evidence adduced at trial to support the mayhem conviction because there was no evidence presented that Vanita's arm injury was permanent. NRS 200.280 states in pertinent part that "[m]ayhem consists of unlawfully depriving a human being of a member of his body, or disfiguring or rendering it useless. If any person cuts out or disables the tongue ... or disables any limb or member of another ... that person is guilty of mayhem...."

Appellant argues the only evidence presented regarding the injury was Vanita's testimony that she had nerve damage and had not regained full ability to lift her wrist at the time of trial. We have previously stated: "Whether the victim is disfigured, and whether the disfigurement is permanent, are questions of fact for the jury." Lomas v. State, 98 Nev. 27, 29, 639 P.2d 551, 552 [107 Nev. 963] (1982). We conclude that the jury had sufficient evidence to find that Vanita's injuries were permanent. See Wilkens, 96 Nev. at 374, 609 P.2d at 313 (1980).

Appellant next contends that jury instruction No. 32, which instructed the...

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