Hern v. State, 12319

• Court: Supreme Court of Nevada
• Citation: 97 Nev. 529,635 P.2d 278
• Docket Number: No. 12319,12319
• Parties: Brian Patrick HERN, Appellant, v. The STATE of Nevada, Respondent.
• Decision Date: 27 October 1981

Page 278

635 P.2d 278 97 Nev. 529 Brian Patrick HERN, Appellant,
v.
The STATE of Nevada, Respondent. No. 12319. Supreme Court of Nevada. Oct. 27, 1981.

Page 279

Gerald W. Hardcastle, Las Vegas, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., James Tufteland and Ronald C. Bloxham, Deputy Dist. Attys., Las Vegas, for respondent.

[97 Nev. 530] OPINION

MANOUKIAN, Justice:

Appellant Hern was convicted by jury of first degree murder. From the judgment and sentence fixing his punishment at life imprisonment without the possibility of parole, he appeals. The sole issue requiring our consideration is whether the homicide committed by appellant constituted first or second degree murder. On review of the record, we affirm.

On February 17, 1979, Hern beat to death Curtis Wayne Fausett, three years of age, the son of Kimla Huddleston. Hern had lived with Huddleston since January of 1978. During the evening of February 17, Huddleston left for her employment, leaving Hern in charge of Curtis.

Although the record shows generally that Hern's relationship with Curtis was equivalent to a father-son relationship, it also reveals that Hern had physically beaten the child on a number of prior occasions to such an extent as to constitute child abuse. Indeed, he had agreed with Huddleston to refrain from any physical discipline of the child. On the date in question, however, and during the mother's absence, when Curtis spilled some milk, Hern began to "spank" the child. The "spanking" transcended the limits of reasonable discipline and developed into a severe beating which is the undisputed cause [97 Nev. 531] of the child's death. The medical cause of death was internal hemorrhaging.

Appellant contends that there was no evidence introduced at trial to establish that Curtis' death was a result of a willful deliberate, and premeditated act on his part, as required by NRS 200.030(1)(a). Specifically, he claims that if he is guilty of murder at all, it must be murder in the second degree. Authority for this court to modify the judgment appealed from is found in NRS 177.265.

The determination of the degree of crime is almost invariably left to the discretion of the jury. On appeal, we are confined to reviewing the evidence most favorably in support of its determination. Azbill v. State, 88 Nev. 240, 252, 495 P.2d 1064, 1072 (1972); State v. Ah Tom, 8 Nev. 213, 217 (1873). Although Hern argues and we acknowledge that the jury's discretion is not absolute, Azbill, supra, 88 Nev. at 252, 495 P.2d 1064; Ah Tom, supra, at 217; People v. Tubby, 34 Cal.2d 72, 207 P.2d 51, 54, (1949), the jury must be given the right to make logical inferences which flow from the evidence. See Dearman v. State, 93 Nev. 364, 367, 566 P.2d 407, 409 (1977). The applicable standard of review is well established. The issue is not whether this court would have found beyond a reasonable doubt that appellant was guilty of first degree murder, but whether the jury, acting reasonably, could have been convinced to that certitude by the evidence it had a right to consider. See Wilkins v. State, 96 Nev. 367, 609 P.2d 309 (1980); see also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Where there is substantial evidence in the record to support the verdict of the jury, it will not be overturned by an appellate court." Tellis v. State, 85 Nev. 679, 679-80, 462 P.2d 526, 527 (1969). We turn now to determine whether respondent met its burden in proving first degree murder or whether a verdict for a lesser included degree was required.

Murder, and this includes murder of the first degree as well as murder in the second

Page 280

degree, is defined as the "unlawful killing of...