Boyes v. State

• Court: Nevada Court of Appeals
• Writing for the Court: Gibbons
• Decision Date: 18 September 2019
• Docket Number: No. 76856-COA,76856-COA
• Citation: Boyes v. State, No. 76856-COA (Nev. App. Sep 18, 2019)
• Parties: JAROM THOMAS BOYES, Appellant, v. THE STATE OF NEVADA, Respondent.

JAROM THOMAS BOYES, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 76856-COA

COURT OF APPEALS OF THE STATE OF NEVADA

September 18, 2019

ORDER OF AFFIRMANCE

Jarom Thomas Boyes appeals from a judgment of conviction, pursuant to a jury verdict, of involuntary manslaughter. Eighth Judicial District Court, Clark County; Jennifer P. Togliatti, Judge.

Melissa Boyes died after an argument with her husband, Jarom Boyes.¹ The couple started arguing at a bar and continued after they went home. Jarom first told police that he was in a different room, heard a gunshot, and then found Melissa wounded. Jarom later told police, as well as a friend the next day, that he walked into the bedroom and saw Melissa holding a gun and, in an attempt to save her life, he "grabbed the firearm . . . and turned it on her before it discharged." Melissa died from a gunshot wound to her chest.

Boyes was charged with first degree murder with the use of a deadly weapon. After closing arguments, the jury was instructed on (1) first degree murder, (2) second degree murder, (3) voluntary manslaughter, and (4) involuntary manslaughter. The district court also instructed the jury on two unlawful acts that would satisfy the involuntary manslaughter statute(1) neglecting a duty imposed by law in willful or wanton disregard of the safety of others, and (2) aiming a firearm at a human being.

The jury convicted Boyes of involuntary manslaughter and he appeals, arguing that his conviction should be reversed because the district court erred by (1) instructing the jury on involuntary manslaughter because the State failed to plead or argue the facts necessary to support a conviction at trial (i.e., that Boyes was criminally negligent in pointing a gun at his wife or wrestling with her while she had a gun, which led to her death); and (2) answering a jury question concerning willfulness because it caused the jury to decide that Boyes was criminally negligent, which led to his conviction. We disagree.

Standard of review

Boyes and the State first disagree as to whether Boyes preserved his objection to the involuntary manslaughter instructions for appellate review. If an objection below is made on a different basis than the claim on appeal, plain error review applies. Jeremias v. State, 134 Nev. 46, 55, 412 P.3d 43, 52 (2018), cert. denied, ___ U.S. ___, 139 S. Ct. 415 (2018). We conclude that the legal basis for Boyes' trial court objection is different from his assertions on appeal and, therefore, we will review Boyes' claims for plain error.

The authority cited by Boyes at trial to support an objection to the involuntary manslaughter instructions was Sheriff, Clark Cty. v. Morris, 99 Nev. 109, 659 P.2d 852 (1983), and the district court concluded that this case only applies to second degree felony-murder (i.e., NRS 200.070's latter half).² Boyes' specific argument at trial was that, pursuantto Morris, the State was required to show "an immediate and causal relationship between the conduct [i.e., the unlawful act] and the death [of Melissa]" to support an involuntary manslaughter instruction. See Morris, 99 Nev. at 118, 659 P. 2d at 859. The district court overruled the objection.

On appeal, however, Boyes cites Bielling v. Sheriff, Clark Cty., 89 Nev. 112, 113, 508 P.2d 546, 546 (1973), to argue that his conviction should be reversed because the State's information did not allege involuntary manslaughter, nor did the State argue it at trial. Boyes specifically argues that the State was required to plead the specific acts of "criminal negligence" that were used to establish the unlawful acts to satisfy the involuntary manslaughter instruction. Thus, the argument asserted by Boyes at trial is inconsistent with his argument on appeal and, therefore, we review for plain error. Under plain error review, the "appellant must demonstrate that: (1) there was an 'error'; (2) the error is 'plain,' meaning that it is clear under current law from a casual inspection of the record; and (3) the error affected the defendant's substantial rights." Jeremias, 134 Nev. at 50, 412 P.3d at 48. "[A] plain error affects adefendant's substantial rights when it causes actual prejudice or a miscarriage of justice (defined as a 'grossly unfair' outcome)." Id. at 51, 412 P.3d at 49.³

It was not plain error to instruct the jury on involuntary manslaughter

Boyes argues that his conviction should be reversed because the State's information did not allege involuntary manslaughter—nor did the State argue it at trial—and that the State was required to plead the specific acts of "criminal negligence" that were used to establish the unlawful acts to support an involuntary manslaughter instruction. The district court found that there was an evidentiary record to support an inference of involuntary manslaughter and, therefore, instructed the jury in that regard. We conclude that the district court did not commit plain error.

"[T]he well-settled rule [is] that one may be found guilty of a lesser offense necessarily included in the offense charged. The offense of involuntary manslaughter is necessarily included in a charge of murder." Sepulveda v. State, 86 Nev. 898, 899, 478 P.2d 172, 173 (1970) (emphasis added) (citation omitted); accord United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007) ("It is well established that involuntary manslaughter is a lesser-included offense of murder."); see also Parsons v. State, 74 Nev. 302, 307-09, 329 P.2d 1070, 1073-74 (1958) (holding that the district court was"amply justified" to instruct the jury on involuntary manslaughter during a prosecution for murder because the jury had the requisite evidence to conclude that the defendant had committed involuntary manslaughter).

To instruct the jury on a lesser-included offense, however, there must be an evidentiary basis to support a conviction. See, e.g., Collins v. State, 133 Nev. 717, 728, 405 P.3d 657, 667 (2017) ("The judicially imposed condition that there be at least some evidentiary basis for the lesser-included instruction . . . prevent[s] lesser-included instructions from being misused as invitations to juries to return compromise verdicts without evidentiary support." (internal quotations omitted)). Thus, if an evidentiary basis supports an involuntary manslaughter instruction, the State is not barred from seeking one. See id.; Thedford v. Sheriff, Clark Cty., 86 Nev. 741, 745, 476 P.2d 25, 28 (1970) ("An open murder complaint charges murder in the first degree and all necessarily included offenses." (emphasis added) (quoting Miner v. Lamb, 86 Nev. 54, 58, 464 P.2d 451, 453 (1970))); cf. Graham v. State, 116 Nev. 23, 31, 992 P.2d 255, 259-60 (2000) (holding that the defendant, charged with first degree murder for child abuse, could not request an involuntary manslaughter instruction because there was no evidence of an unlawful act, pursuant to NRS 200.070, to support the instruction (i.e., an unlawful act, independent of NRS 200.030(1), pertaining to the death of the child)).

Involuntary manslaughter "is the killing of a human being, without any intent to do so, in the commission of an unlawful act." NRS 200.070(1) (emphasis added); see also King v. State, 105 Nev. 373, 376, 784 P.2d 942, 943 (1989) ("In order to find appellants guilty of involuntary manslaughter, . . . the evidence must establish that each appellant committed acts resulting in [the victim's] death . . . ."). Here, the districtcourt explained that it based the unlawful acts instructions to support the involuntary manslaughter instruction on (1) neglect of a duty in willful or wanton disregard of the safety of others, pursuant to NRS 202.595, because of Boyes' attempt to wrestle someone who was holding a firearm, and (2) aiming a deadly weapon at a human being, pursuant to NRS 202.290, because Boyes pointed a gun at Melissa. This analysis, therefore, turns to whether each one of the unlawful act instructions—which necessarily supported the involuntary manslaughter instruction—were plain error based upon the evidentiary record.

The district court instructed the jury on NRS 202.290⁴ as one unlawful act used to satisfy NRS 200.070. Boyes does not argue that this instruction was improper. The State, however, notes that the jury could have based the involuntary manslaughter verdict on Boyes "[a]iming a [f]irearm" at Melissa. We conclude that a rational juror could have found that Boyes aimed the gun at Melissa in violation of NRS 202.290 because Boyes "grabbed the firearm" that Melissa "was holding and turned it on her before it discharged." See, e.g., Thompson v. State, 125 Nev. 807, 816, 221 P.3d 708, 714-15 (2009) ("In reviewing . . . a jury's verdict, this court determines 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." (emphasis added) (internal quotations omitted)).

Having determined that the evidentiary record allowed the trier of fact to convict Boyes of involuntary manslaughter for the unlawful act of aiming a gun at Melissa in violation of NRS 202.290—and because Boyes did not offer argument to show that the NRS 202.290 instruction was improper—we conclude that Boyes has failed to demonstrate that the district court committed plain error.

We also conclude, however, that Boyes argument in regard to the jury instruction pursuant to NRS 202.595⁵ requires our attention as it is an independent ground for affirmance; the district court did not commit plain error. Boyes argues that the unlawful act instruction pursuant to NRS 202.595 was improper because the district court "did not specify the act of criminal negligence upon which the charge could go forward." Boyes cites two cases in support of his argument: (1) Bielling, 89 Nev. at 113, 508 P.2d at 546 ("[T]o properly charge appellant with the offense of involuntary manslaughter, the information must specify the acts of criminal...