Christie v. State
| Decision Date | 18 May 2018 |
| Docket Number | No. 72976,72976 |
| Parties | STEPHEN JOHN MICHAEL CHRISTIE, Appellant, v. THE STATE OF NEVADA, Respondent. |
| Court | Nevada Court of Appeals |
Stephen John Michael Christie appeals from a judgment of conviction, pursuant to a jury verdict, of two counts of robbery; burglary; leaving the scene of an accident involving personal injury; possession of a stolen motor vehicle; two counts of burglary while in possession of a deadly weapon; eluding a police officer; possession of a firearm with serial number changed, altered, removed, or obliterated; possession of implements or tools commonly used for commission of burglary or larceny; and felon in possession of a firearm. Second Judicial District Court, Washoe County; Elliott A. Sattler, Judge.
Over a three-day period, Christie possessed a stolen white Mitsubishi Endeavor, robbed a Walmart, rear-ended a vehicle, and fled the scene of that accident before abandoning the Mitsubishi and stealing a red Ford Escape, which he used to elude police. He was then apprehended with the help of citizen tips. Christie was charged with twelve criminal counts: two counts of robbery with use of a deadly weapon; assault with the use of a deadly weapon; burglary; leaving the scene of an accident involving personal injury; possession of a stolen motor vehicle; two counts of burglary while in possession of a deadly weapon; eluding a police officer; possession of a firearm with serial number changed, altered, removed, or obliterated; possession of implements or tools commonly used for commission of burglary or larceny; and felon in possession of a firearm.1
Prior to trial, Christie moved to sever the counts into seven trials, which the district court denied. Also pretrial, the State moved to admit other-act evidence, and the district court conducted a Petrocelli2 hearing; the evidence was later introduced and admitted at trial. The jury found Christie guilty on all counts except assault with a deadly weapon and the deadly weapon enhancements on the two robbery charges.
Christie now appeals, arguing that 1) the robbery conviction constitutes an inconsistent verdict; 2) the court abused its discretion in admitting other-act evidence at trial; 3) the burglary conviction is factually impossible; and 4) the court abused its discretion in denying his motion to sever.
First, we consider whether the robbery conviction constitutes an inconsistent verdict given that the jury rejected the deadly weapon enhancement on Count I and acquitted Christie of Count II (assault with a deadly weapon), which stemmed from the same factual situation. Christie contends the conviction was also not supported by sufficient evidence because the state presented no evidence that he used force or fear when he removed the items from Walmart or to overcome any resistance because the Walmart greeter did not pursue him after he left the store.
Consistent verdicts on separate counts are not required. See Burks v. State, 92 Nev. 670, 672 n.3, 557 P.2d 711, 712 n.3 (1976) (citingDunn v. United States, 284 U.S. 390 (1932)). "The true rationale for the rule permitting inconsistent verdicts in a single trial is that a jury may convict on some counts but not on others not because they are unconvinced of guilt, but because of compassion or compromise." Id. (quoting United States v. Greene, 497 F.2d 1068, 1086 (7th Cir. 1974)). And, inconsistent verdicts are permitted where supported by sufficient evidence. See Greene v. State, 113 Nev. 157, 173-74, 931 P.2d 54, 64 (1997), receded from on other grounds by Byford v. State, 116 Nev. 215, 235, 994 P.2d 700, 713 (2000).
In reviewing a challenge to the sufficiency of evidence supporting a criminal conviction, this court considers "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." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (internal quotation marks and emphasis omitted)). The jury weighs the evidence and the credibility of the witnesses and determines whether these are sufficient to meet the elements of the crime, and we will not disturb a verdict that is supported by substantial evidence. Id.
Generally, "a taking constitutes a robbery where the use of force follows the taking, and where the forcible conduct is part of a continuous transaction." Abeyta v. State, 113 Nev. 1070, 1078, 944 P.2d 849, 854 (1997).
Here, sufficient evidence supports the robbery conviction: the Walmart greeter testified that Christie ignored her greeting as he entered the store; Christie then left the store with various items without paying; she asked to see his receipt, and Christie ignored her; she did not further pursue him per store policy; Christie then got into a vehicle, drove past her at the front of the store, pointed a gun, and said "Is this what you want?" A reasonable jury could have found that the taking did not conclude until after Christie drove past the greeter as he intended to retain the items, prevent or overcome resistance to the taking, or facilitate escape by using fear through the brandishing of the gun. And, although the jury rejected the deadly weapon enhancement, a reasonable jury could have still concluded that by driving past while threatening the employees verbally, Christie exerted sufficient use of force or fear even without the gun. Thus, we conclude reversal is not warranted because sufficient evidence supports the jury's verdict.
Next, we consider whether the district court abused its discretion in admitting other-act evidence at trial—namely personal items of the Mitsubishi Endeavor's owner that were in her car before it was stolen and were later found with Christie's belongings after he eluded police. Christie argues that, because other testimony established him as the driver of the Endeavor, the challenged evidence was not necessary to establish identity and so was cumulative, highly prejudicial, and not relevant. Christie also argues that the district court erred by giving the limiting instruction after the evidence was admitted. He further contends the giveninstruction reduced the State's burden of proof because it "reads as a presumption that the crimes have been proven." The State counters that the evidence was probative for identifying Christie in the charged crimes and any oversight regarding the giving of the limiting instruction was harmless because the district court gave the instruction two days later during trial and directed the instruction at the appropriate evidence.
We review a district court's decision to admit or exclude evidence for an abuse of discretion. Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). And we review a district court's decision settling jury instructions for an abuse of discretion or judicial error. Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005). Evidence of uncharged bad acts may be admitted for limited purposes other than showing a defendant's bad character, such as "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Tavares v. State, 117 Nev. 725, 730, 30 P.3d 1128, 1131 (2001) (quoting NRS 48.045(2)). To admit such evidence, the State has the burden of requesting a hearing outside the jury's presence under Petrocelli, 101 Nev. at 51-52, 692 P.2d at 507-08, to establish that: "(1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice." Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997).
If such evidence satisfies the above requirements, the State has "the duty to request that the jury be instructed on the limited use of prior bad act evidence." Tavares, 117 Nev. at 731, 30 P.3d at 1132, holding modified by Mclellan, 124 Nev. at 263, 182 P.3d at 106. But if the prosecutor fails to request the instruction, "the district court should raise the issue suasponte," relieving the defendant of the burden of requesting an instruction. Id. Further, "a limiting instruction should be given both at the time evidence of the uncharged bad act is admitted and in the trial court's final charge to the jury." Id. at 733, 30 P.3d at 1133.
When reviewing non-constitutional errors, such as failure to give a limiting instruction on the use of uncharged bad-act evidence, this court uses the standard set out in Kotteakos v. United States, 328 U.S. 750, 756, 776 (1946), which is identical in substance to NRS 178.598. Fields v. State, 125 Nev. 785, 805, 220 P.3d 709, 722-23 (2009). Therefore, we will review cases involving the absence of the limiting instruction under NRS 178.598, which states that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Tavares, 117 Nev. at 732-33, 30 P.3d at 1132-33.
Applying the Tinch test here, first, the evidence is relevant because it identifies Christie as being in possession of the Endeavor, as the owner's personal items that were in the Endeavor were later found with Christie's belongings. See generally Rippo v. State, 113 Nev. 1239, 1258-59, 946 P.2d 1017, 1029 (1997) (...
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