Bolden v. State

Decision Date15 December 2005
Docket NumberNo. 42039.,42039.
Citation124 P.3d 191
PartiesAnthony Thomas BOLDEN, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

J. Chip Siegel, Chtd., and Joel Martin Mann, Las Vegas, for Appellant.

George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

Before the Court En Banc.

OPINION

ROSE, J.

Appellant Anthony Thomas Bolden and four other masked men broke into Silvia Rascon's apartment and committed a number of crimes against the occupants. A jury convicted Bolden of burglary while in possession of a deadly weapon, home invasion while in possession of a deadly weapon, first-degree kidnapping with use of a deadly weapon, second-degree kidnapping with use of a deadly weapon, two counts of robbery with use of a deadly weapon, and conspiracy to commit robbery and/or kidnapping.1 In this appeal, Bolden alleges that the district court committed error during jury selection under Batson v. Kentucky2 and that the State failed to present sufficient evidence to support the jury's verdicts with respect to all the charged offenses, failed to prove that the kidnapping charges were not incidental to the robbery charges, and failed to present sufficient evidence in support of the deadly weapon enhancements.

Although we reject Bolden's specific contentions, in resolving his sufficiency of the evidence challenge, we have found it necessary to determine whether the jury could have properly based its verdicts for the specific intent crimes of burglary and kidnapping on the State's theory of vicarious coconspirator liability. We conclude that the jury was not properly instructed on this theory of vicarious coconspirator liability and that the error cannot be held harmless under the circumstances of this case. Therefore, we reverse Bolden's conviction with respect to the counts concerning the specific intent crimes of burglary and first- and second-degree kidnapping, and we remand this matter for further proceedings consistent with this opinion. We affirm Bolden's conviction of the remaining counts.

FACTS

On December 7, 2002, at approximately 2 a.m., Bolden and four other masked men kicked in the door of Silvia Rascon's apartment. Rascon, her three children and a friend were present. The men apparently broke into the apartment looking for drugs and money. With the aid of knives, box cutters or other sharp objects, one or more of the men separately moved Rascon and her oldest daughter from room to room for the purposes of locating items to steal and sexually molesting the daughter. Police arrived and apprehended all of the intruders, three of whom had exited the residence in possession of property stolen from Rascon and her family. Police found Bolden inside the apartment, hiding under a bedroom mattress. Ironically, these men were misinformed concerning the presence of either drugs or considerable financial lucre.

The State charged Bolden and his compatriots with burglary, home invasion, first-degree kidnapping of Rascon, second-degree kidnapping of Rascon's daughter, robbery of Rascon, robbery of Rascon's son, and conspiracy to commit robbery and/or kidnapping. All of the charges, save the conspiracy count, were accompanied by deadly weapon enhancements. This timely appeal followed.

DISCUSSION

Sufficiency of the evidence

Bolden contends that the State failed to present sufficient evidence to convict him on any of the charges. In short, he claims that the entire body of proof against him established no more than his mere presence during the events in question. In this, the district court instructed the jury that "mere presence" of the defendant, or his "knowledge that a crime is being committed," is insufficient to establish guilt without proof that the defendant was "a participant and not merely a knowing spectator."3

More specifically, Bolden asserts that the State failed to prove his participation in a conspiracy; failed to prove the intent elements of the home invasion, robbery, burglary, first-degree kidnapping and second-degree kidnapping charges; failed to prove that the kidnapping charges were not incidental to the robbery charges; and failed to present sufficient evidence in support of the deadly weapon enhancements.

The relevant inquiry in reviewing the sufficiency of the evidence supporting a jury's verdict is "`whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."'4 Moreover, "circumstantial evidence alone may support a conviction."5 In resolving Bolden's contentions, we have reviewed the evidence supporting the jury's findings of guilt with respect to each of the charged offenses. Additionally, with respect to the nonconspiracy offenses, we have reviewed the evidence supporting the jury's verdicts under the three separate theories of guilt alleged by the State for those offenses.

Conspiracy to commit robbery and/or kidnapping

The State alleged that Bolden and the other defendants met with each other and willfully, unlawfully, and feloniously conspired and agreed to commit robbery and/or kidnapping. Additionally, the State alleged that in furtherance of the conspiracy the defendants in fact committed the crimes of robbery and kidnapping. Nevada law defines a conspiracy as "an agreement between two or more persons for an unlawful purpose."6 "A person who knowingly does any act to further the object of a conspiracy, or otherwise participates therein, is criminally liable as a conspirator ...."7 "Evidence of a coordinated series of acts furthering the underlying offense is sufficient to infer the existence of an agreement and support a conspiracy conviction."8 "However, absent an agreement to cooperate in achieving the purpose of a conspiracy, mere knowledge of, acquiescence in, or approval of that purpose does not make one a party to conspiracy."9

Here, the evidence presented at trial established that Bolden and his cohorts forcibly entered the Rascon apartment armed with switchblades, box cutters or other sharp objects and robbed the occupants. Some of the men moved two of the victims around in the residence for purposes that were both incidental and not incidental to the robberies themselves. The State presented overwhelming circumstantial and direct evidence that Bolden participated in the joint enterprise to acquire drugs and money; that he entered into an agreement to rob the Rascon family; that he was not merely a spectator in the Rascon apartment, as he claims; and that when the police arrived, Bolden was found hiding under a mattress. To the extent that Bolden contends that the evidence fails to support his participation in the conspiracy, his contention is without merit. The State presented more than sufficient evidence to support Bolden's conviction for conspiracy to commit robbery and/or kidnapping.

The burglary, home invasion, robbery, and kidnapping charges

With respect to the burglary, home invasion, robbery and kidnapping charges, the State alleged three alternative theories of criminal liability: (1) that Bolden directly committed the offenses, (2) that he aided and abetted his cohorts, or (3) that he was vicariously responsible for all of the acts of his cohorts done in aid of the conspiracy. When alternate theories of criminal liability are presented to a jury and all of the theories are legally valid, a general verdict can be affirmed even if sufficient evidence supports only one of the theories.10 When any one of the alleged theories is legally erroneous, however, reversal of a general verdict is required — except under the very narrowly defined circumstances discussed below — regardless of the legal and factual sufficiency of the other theories.11 Accordingly, we turn to an analysis of the legal and evidentiary support for each of the State's theories of liability.

Aiding and abetting and direct participation

Bolden contends that the jury convicted him primarily upon an aiding and abetting theory. A person aids and abets the commission of a crime if he aids, promotes, encourages or instigates, by act or advice, the commission of such crime with the intention that the crime be committed.12 Relying upon our decision in Sharma v. State,13 Bolden argues that the State failed to prove that he specifically intended to aid and abet the crimes committed at the Rascon residence.

In Sharma, we held,

[I]n order for a person to be held accountable for the specific intent crime of another under an aiding or abetting theory of principal liability, the aider or abettor must have knowingly aided the other person with the intent that the other person commit the charged crime.14

Bolden's reliance on Sharma is misplaced for several reasons. First, robbery and home invasion are not specific intent crimes. Second, the State proceeded on two additional alternate theories of criminal liability, direct participation as a principal and perpetration of the offenses in furtherance of a conspiracy. Third, the State presented sufficient evidence for the jury to convict Bolden under all of its theories of culpability. Fourth, per Sharma, the district court correctly instructed the jury concerning the State's aiding and abetting theory:

All persons concerned in the commission of a crime who either directly and actively commit the act constituting the offense or who knowingly and with criminal intent aid and abet in its commission or, whether present or not, who advise and encourage its commission, with the intent that the crime be committed, are regarded by the law as principals in the crime thus committed and are equally guilty thereof.15

As noted above, Bolden was one of five masked men who entered a private residence by force, committed the robberies, and moved two of the victims around in the residence. The State provided ample...

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  • United States v. Garcia-Santana
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 15, 2014
    ...(2013). “Nevada law defines a conspiracy as ‘an agreement between two or more persons for an unlawful purpose.’ ” Bolden v. State, 121 Nev. 908, 124 P.3d 191, 194 (2005) (quoting Doyle v. State, 112 Nev. 879, 921 P.2d 901, 911 (1996), overruled on other grounds by Kaczmarek v. State, 120 Ne......
  • Cortinas v. State
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    ...that the jury relied on a valid ground to reach its verdict.2 We adopted Keating's absolute certainty approach to Stromberg error in Bolden v. State.3 After finding Stromberg error as the result of erroneous jury instructions on vicarious coconspirator liability for specific intent cr......
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    ...that the crime in question was a "'reasonably foreseeable consequence'" of the object of the conspiracy. [Footnote 38: 121 Nev. 908, 923, 124 P.3d 191, 201 (1995)].Additionally, this court held in Jones v. State that "'[c]onstructive or joint possession may occur only where the unarmed part......
  • United States v. Garcia-Santana
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 15, 2014
    ...(2013). “Nevada law defines a conspiracy as ‘an agreement between two or more persons for an unlawful purpose.’ ” Bolden v. State, 121 Nev. 908, 124 P.3d 191, 194 (2005) (quoting Doyle v. State, 112 Nev. 879, 921 P.2d 901, 911 (1996), overruled on other grounds by Kaczmarek v. State, 120 Ne......
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1 books & journal articles
  • Corporate criminal liability and the potential for rehabilitation.
    • United States
    • American Criminal Law Review Vol. 46 No. 4, September - September 2009
    • September 22, 2009
    ...states have rejected Pinkerton liability for coconspirators who do not directly engage in the criminal acts. See, e.g., Bolden v. State, 124 P.3d 191, 200 (Nev. 2005), overruled on other grounds by Cortinas v. State, 195 P.3d 315 (Nev. 2009); State v. Stein, 27 P.3d 184, 185 (Wash. 2001); S......

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