Hubbard v. State
| Decision Date | 01 April 2016 |
| Docket Number | No. 66185,66185 |
| Parties | CORY DEALVONE HUBBARD, Appellant, v. THE STATE OF NEVADA, Respondent. |
| Court | Court of Appeals of Nevada |
ORDER OF REVERSAL AND REMAND
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of conspiracy to commit robbery, burglary, seven counts of robbery with the use of a deadly weapon, assault, and discharge of a firearm within a structure. Eighth Judicial District Court, Clark County; James M. Bixler, Judge.
Appellant Cory Hubbard raises two contentions on appeal. First, Hubbard argues that insufficient evidence supports four of the seven robbery convictions.1 Second, Hubbard argues the district court abused its discretion by allowing testimony related to a 2012 burglary conviction from Washington State which was admitted pursuant to NRS 48.045(2).
This appeal arises from crimes committed on August 22, 2013, at David Powers and Darny Van's residence. On that evening, several family members and friends gathered at the residence, including: Matthew Van, Thavin Van, Trinity Van, Asia Van, Kenneth Flenory "KJ," and Anthony Roberts. Around 8:45 p.m., Darny heard the doorbell and answered the door. Three men pushed their way into the house. Theassailants allegedly were Hubbard, Willie Carter,2 and Stelman Joseph. One of the men, described as a tall, slender, light-skinned black man (later determined to be Carter), pointed a gun at Darny.
Asia, Thavin, and Trinity were sitting in the living room when the men entered the house. Anthony emerged from an adjacent room. Carter then grabbed Anthony and Darny by their wrists and led them into the living room, where he told them to sit down. Once in the living room, Carter took Asia's iPhone and Darny's iPad from Asia's hands. Another man, described as short, heavy, and dark-skinned (argued by the State to be Hubbard and referred to hereinafter as Hubbard for consistency), approached Matthew and told him to cooperate, but Matthew escaped out the back door. Hubbard pursued and tackled KJ in the kitchen and took KJ's phone from him.
Meanwhile, David was upstairs in the master bedroom. When David heard the commotion downstairs, he grabbed a gun from the bedroom and ran toward the staircase. At the same time, Hubbard ran up the stairs. David fired two to three times, hitting Hubbard once in the left shoulder. Once shot, Hubbard immediately retreated down the stairs. Another perpetrator then shot at David and then the three men fled the house.
At about 9:00 on the same night, Hubbard entered the Short Line Express Market with blood on the upper left portion of his shirt. Both the police and paramedics confirmed Hubbard was shot in his left shoulder. The Short Line Express Market is approximately four miles from David and Darny's house. The surveillance cameras from the market did not record any vehicles dropping off a person matching Hubbard'sdescription. None of the robbery victims could identify Hubbard as the individual who committed the crimes.
Before trial, the court held a hearing to rule on the State's motion in limine to admit Hubbard's 2012 burglary conviction from Washington State. No witnesses attended the hearing, but the State attached to its motion certified copies of the court records, including the burglary judgment of conviction, along with the police reports. The State argued that several exceptions to the general rule prohibiting admission of character evidence under NRS 48.045 applied. Specifically, the State argued the conviction was relevant to prove motive, intent, identity, and absence of mistake/accident in its case.3 Additionally, the State argued that the 2012 conviction would rebut Hubbard's defense that he did not participate in the burglary and received the gunshot wound while walking down the street.4 The district court based its ruling in part on its belief that the State would seek to admit the certified copies of the burglary conviction at trial.
Over Hubbard's objections, the court granted the State's motion, stating that because Hubbard had asserted previously that he did not participate in the crime, the 2012 conviction was relevant to proveabsence of mistake, motive, and intent. The district court stated:
The district court made no specific findings explaining how the evidence was relevant for those purposes. Further, the district court recognized the 2012 conviction would be prejudicial, but it did not balance the probative value against the potential prejudice. The district court stated "I think there's a long ways in shaping how this is presented, and I'm going to let you work on how this information is going to be presented so as to minimize the potential for undue [prejudice]." The district court concluded the brief hearing without providing findings of fact and conclusions of law on the record beyond what is stated here and no order was filed.
At a status check hearing before trial, the State informed the court that it intended to call a victim of the 2012 burglary, Kimberly Davis, or an investigating officer5 to testify to the events of the 2012 burglary, rather than rely on certified copies of the conviction. During its case in chief at trial, the State called Davis as a witness regarding some of the facts of the 2012 case. Before Davis testified, the district court administered a Tavares6 instruction, instructing the jury to use theinformation regarding the prior bad act only for purposes of intent, motive, or absence of mistake or accident.7
Davis testified at the Nevada trial that she heard the doorbell and knocking on the door and windows of her Washington home at about 10:30 a.m., and she saw one person at the door, a Hispanic male, but he left in a white car after several minutes of no response from her. However, he shortly returned and she became fearful by sounds that someone may be entering the home through the garage, so she locked herself in the bathroom and called 9-1-1. She testified that she heard two to three individuals in her home and that once they left, she discovered a jewelry drawer in her mother's bedroom had been dumped and some jewelry and pillow cases were missing. Davis also identified Hubbard in court, recognizing him because she previously testified against him at the 2012 trial. Importantly, however, Davis did not testify that she ever saw Hubbard at or near her home; rather she only saw one Hispanic male. Nor did she explain how Hubbard was connected to the burglary. The State did not offer the Washington judgment of conviction into evidence.
Although the district court indicated it would monitor how the State intended to present the evidence, it did not conduct a hearing outside the presence of the jury before Davis testified, or re-evaluate the admissibility of the evidence in light of Davis' testimony, as to its relevance, probative value and prejudicial effect. The district court held a bench conference during Davis's cross-examination testimony following a request from the State; however, the court did not make any further findings or rulings on the evidence as to the admissibility factors.
After the conclusion of the State's case in chief, Hubbard testified in his own defense, against his counsel's advice. The State then sought to impeach Hubbard's character for truthfulness using four prior felony convictions, including the 2012 burglary conviction. Since Hubbard admitted to each of the convictions, the State did not offer any of the convictions into evidence. During closing arguments, the State argued that the jury could use the 2012 conviction to prove absence of mistake (the mistake being that Hubbard was not shot while walking down the street or during an unrelated drug transaction but was shot during the robbery). The State also argued that the jury could infer from the 2012 conviction that Hubbard intended to take property or commit a larceny or robbery once he entered the house in Nevada. The State did not argue that the jury could use the 2012 conviction to prove motive or identity, as it had argued during the pretrial hearing.
The jury returned verdicts of guilty of conspiracy to commit robbery, burglary, seven counts of robbery with use of a deadly weapon, assault, and discharge of a firearm within a structure. The court sentenced Hubbard to ten concurrent life sentences without the possibility of parole, and to the number of days already served as to the simple assault conviction.8 This appeal followed.
Sufficiency of the evidence
Hubbard first challenges the sufficiency of the evidence supporting four of the seven robbery convictions. Hubbard contends the State failed to prove the element of possession because it did not produce any evidence that Anthony, Thavin, or Trinity (all three are related to Darny) had a possessory interest in Kenneth's iPhone or Asia's iPhone orDarny and David's iPad. The State argues that by sheer virtue of their familial or close relationship to Darny and David, all three victims had the right to control and use the iPad; however, the State provides no authority to support this assertion. The State also argues that it satisfied the possession element because it showed that Hubbard took property in the presence of those victims.
In reviewing the sufficiency of the evidence, "the relevant inquiry 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." Milton v. State, 111 Nev. 1487, 1491, 908 P.2d 684, 686-87 (1995) (internal quotation marks and citation omitted). "Robbery is the unlawful taking of personal property from the person of another, or in the person's presence, against his or her will, by means of force or violence...
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