Gould v. State

• Decision Date: 11 October 2022
• Docket Number: 83429
• Parties: STEVEN ERIC GOULD, Appellant, v. THE STATE OF NEVADA, Respondent.
• Court: Nevada Supreme Court

STEVEN ERIC GOULD, Appellant, v. THE STATE OF NEVADA, Respondent.

No. 83429

Supreme Court of Nevada

October 11, 2022

Unpublished Opinion

ORDER OF AFFIRMANCE

Parraguirre, C.J.

This is an appeal from a judgment of conviction, pursuant to a jury trial, of invasion of the home while in possession of a deadly weapon; first-degree kidnapping with the use of a deadly weapon, victim 60 years of age or older; burglary while in possession of a deadly weapon, conspiracy to commit robbery; and robbery with the use of a deadly weapon, victim 60 years of age or older. Eighth Judicial District Court Clark County; Jerry A. Wiese, Judge. Appellant Steven Eric Gould raises seven contentions on appeal.^[1]

Speedy trial

First appellant argues that his speedy trial rights were violated. We disagree. As to the statutory right to a speedy trial under NRS 178.556, there was good cause for the four-year delay. See Huebner v. State, 103 Nev. 29, 31, 731 P.2d 1330, 1332 (1987) (stating that dismissal is mandatory under NRS 178.556 only if no good cause is shown for the delay). The delay in bringing appellant to trial was attributable to appellant's incarceration in California for over two years after his indictment, a competency evaluation upon his extradition to Nevada, issues cooperating with his counsel, the COVID-19 pandemic, and motion practice. As to the constitutional right to a speedy trial, the four-year delay between the indictment and trial was sufficient to trigger a speedy-trial analysis, State u. Inzunza, 135 Nev. 513, 516-17, 454 P.3d 727, 731 (2019) (holding that a delay approaching one year is sufficient to trigger the speedy-trial analysis), but the relevant factors weigh against a violation. See Barker v. Wingo, 407 U.S. 514, 530 (1972) (identifying factors to be balanced in deciding whether the right to a speedy trial has been violation). Little of the delay was attributable to the State, and the reasons for the delay were valid and appropriate. See id. at 531 (explaining that deliberate attempts to delay the trial by the State should weigh against the government, neutral factors like negligence or overcrowded courts should be weighted less heavily, and valid reasons may justify appropriate delay); cf. United States u. Olsen, 995 F.3d 683, 693 (9th Cir. 2021) (holding that "a global pandemic that has claimed more than half a million lives in this country . . . falls within such unique circumstances to permit a court to temporarily suspend jury trials in the interest of public health), amended and superseded on denial of reh'g en banc, 21 F.4th 1036 (2022); United States v. Smith, 460 F.Supp.3d 981, 984 (E.D. Cal. 2020) ("Almost every court faced with the question of whether general COVID-19 considerations justify an ends-of-justice continuance and exclusion of time [from speedy-trial considerations] has arrived at the same answer: yes."). And appellant has not demonstrated prejudice.^[2] See Barker, 407 U.S. at 532 (explaining that prejudice "should be assessed in the light of the interests of the defendants which the speedy trial right was designed to protect"). He offered no proof that the delay impaired his defense by impacting the availability of witnesses, records, or other evidence. See Sheriff v. Berman, 99 Nev. 102, 108, 659 P.2d 298, 301 (1983) (holding that defendants failed to show prejudice when they offered no proof that the delay impacted their defense). Instead, he asserts prejudice based on the fact that during the delay his accomplices pleaded guilty and agreed to testify against him; however, those guilty pleas were entered while he was incarcerated in California, before any asserted delay by the State. He further claims prejudice because the State conducted confirmatory DNA testing shortly before the trial date. But we are not convinced that circumstance implicates the harms that the speedy-trial right was designed to protect against. In particular, in evaluating prejudice for purposes of a speedy-trial violation, we focus on whether the delay harmed the defendant's ability to gather and present evidence. See Berman, 99 Nev. at 108, 659 P.2d at 301. The fact that the prosecution gathered additional inculpatory evidence during the delay did not impair appellant's ability to gather and present evidence. See, e.g., United States v. Rosson, 441 F.2d 242, 247 (5th Cir. 1971) ("[W]e conclude that a reasonable delay which enables the government to accumulate the evidence necessary to make out a prima facie case does not prejudice the accused by impairing his 'ability ... to defend himself.'"). And appellant did not assert that the timing of the DNA evidence disclosure prevented him from retaining a rebuttal expert or conducting an appropriate investigation. Notably in that respect, the State had provided notice years before the trial date that it intended to present expert DNA testimony. We therefore conclude that appellant has not demonstrated a violation of his constitutional right to a speedy trial.

Sufficiency of the evidence

Appellant argues that the State did not introduce sufficient evidence that he was involved in the crime, that he was responsible for using a deadly weapon, or that the movement or restraint underlying the kidnapping conviction were beyond that necessary to complete the robbery. When it comes to a sufficiency-of-the-evidence challenge, we review 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) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A jury's verdict will not be disturbed on appeal where substantial evidence supports its verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981). We conclude that appellant's contentions lack merit for the following reasons.

First, sufficient evidence connects appellant to the crimes he was convicted of committing. The victim identified appellant in a photographic lineup roughly one month after the crime. The accomplices testified that they planned and engaged in the home invasion with appellant. And other evidence corroborated the victim's pretrial identification of appellant and the accomplice testimony. Appellant's DNA was recovered from material used to bind the victim and the victim's property was recovered from a home where appellant's mother and wife lived. Evidence also showed that appellant fled from police in California because he knew he was wanted in Las Vegas: his phone contained texts that indicated he engaged in robberies in Las Vegas, research about the Nevada home invasion statute, and photographs of the victim's property. Although there was some evidence undermining the victim's pretrial identification and she was unable to identify appellant at trial four years later, those considerations were for the jury to weigh. See, e.g., Rose v. State, 123 Nev. 194, 202-03, 163 P.3d 408, 414 (2007) ("[I]t is the jury's function, not that of the court, to assess the weight of the evidence and determine the credibility of witnesses." (quoting Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998))). Viewing the evidence in the light most favorable to the State, we conclude there was sufficient evidence for a rational juror to find beyond a reasonable doubt that appellant planned and participated in the offenses for which he was convicted.

Second, sufficient evidence supports the deadly weapon enhancement. The victim testified that both assailants brandished weapons. Police who responded to the home recovered a pellet gun and a live .38 special cartridge from the home. The victim did not own a gun or ammunition. A search of a co-conspirator's home revealed similar .38 special ammunition and a pneumatic pistol, which is a deadly weapon under Nevada law. See NRS 193.165(6)(c); NRS 202.350(1)(d)(3); NRS 202.265(5)(c). While the co-conspirator testified that the pneumatic weapon was not used in the crime, it was for the jury to determine the weight and credibility of that testimony. Rose, 123 Nev. at 202-03, 163 P.3d at 414. Viewing this evidence in the light most favorable to the State, we conclude that a rational juror could find beyond a reasonable doubt that appellant used a deadly weapon in the crime. See NRS 193.165 (providing additional penalty for crimes committed with the use of a deadly weapon); Harrison v. State, 96 Nev. 347, 351, 608 P.2d 1107, 1110 (1980) (recognizing that testimony of victim describing firearm is sufficient to support the deadly weapon enhancement); Brooks v. State, 124 Nev. 203, 210, 180 P.3d 657, 662 (2008) (explaining when an unarmed offender "uses" a deadly weapon for purposes of NRS 193.165).

Third substantial evidence supports the kidnapping conviction independent of the robbery. See NRS 200.310(1) ("A person who willfully . . . confines ... a person by any means whatsoever with the intent to hold or detain . . . the person... for the purpose of. . . robbery upon or from the person ... is guilty of kidnapping in the first degree[.]"); Wright v. State, 94 Nev. 415, 417-18, 581 P.2d 442, 443-44 (1978) (providing that incidental movement from one room to another during a robbery is, alone, insufficient to sustain a separate kidnapping charge). During the hour appellant and an accomplice spent in the victim's home, they demanded money, property, and her PIN number, and repeatedly threatened her while ransacking her bedroom and home. They left her presence for a discussion. Appellant left, and his co-assailant ordered the victim into the living room where he tied her to a chair. Appellant returned after 15 minutes and again demanded the PIN number for the...