Hutchins v. State

• Decision Date: 04 February 1994
• Docket Number: No. 22928,22928
• Parties: Tyrone Bobby HUTCHINS, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1136

867 P.2d 1136

110 Nev. 103

Tyrone Bobby HUTCHINS, Appellant, v. The STATE of Nevada, Respondent.

No. 22928.

Supreme Court of Nevada.

Feb. 4, 1994.

Cherry, Bailus & Kelesis, Las Vegas, for appellant.

Frankie Sue Del Papa, Atty. Gen., Carson City, Rex Bell, Dist. Atty., and James Tufteland, Deputy Dist. Atty., Clark County for respondent.

OPINION

PER CURIAM:

A jury convicted Appellant Tyrone Bobby Hutchins, a/k/a Tyrone Bobby Hutchinson ("Hutchins"), of robbery, kidnapping with the use of a deadly weapon, and four counts of sexual assault with the use of a deadly weapon. He was sentenced to one twelve-year term on the robbery charge and ten consecutive life terms on the other charges, five of which represent enhancements based upon the use of a deadly weapon. Hutchins raises five assignments of error on appeal.

We conclude that Hutchins' sentences were improperly enhanced for use of a deadly weapon, as scissors are not a "deadly weapon" under the Zgombic ¹ rule. The five enhancements must therefore be reversed and vacated. We otherwise affirm the remaining judgments of conviction.

FACTS

At trial, the victim ("Tammy") testified that on the evening of September 15, 1990, she was visited by Hutchins, an acquaintance, at the Airport Inn Apartments in Las Vegas. Hutchins asked Tammy if she would loan him some money, but Tammy declined and asked Hutchins to leave. Hutchins then began choking Tammy and dragging her through the apartment. At some point in the struggle, Hutchins also beat the victim. Tammy directed Hutchins to some money in a closet, which Hutchins took, along with some jewelry. Hutchins then bound Tammy's arms, legs and mouth with belts, chipping one of her teeth in the process. He also threatened to kill her if she made any noise.

Hutchins thereafter called a person by the name of "Jose" and forced Tammy to talk to him on the phone about meeting Hutchins to buy her jewelry. Later, Hutchins responded to a knock on the door and, while Tammy was trussed on the floor, engaged in a transaction regarding his victim's jewelry.

After the jewelry transaction, Hutchins returned to his victim with some hair-cutting scissors which he used to cut off the victim's shirt. He also removed the victim's shorts and again warned Tammy that he would kill her if she made any noise. Hutchins then placed the scissors on a counter and proceeded to commit various acts of sexual assault upon his victim, including digital vaginal penetration, cunnilingus and fellatio. Hutchins thereafter untied the victim's legs and placed his penis in her vagina. Tammy thought he ejaculated onto her stomach. Hutchins then freed Tammy's arms and left the apartment. Tammy telephoned the police and her former boyfriend.

After the police arrived, Tammy was taken to the University Medical Center, where she was examined by Dr. John W. Wilson. Wilson testified that Tammy appeared to have been severely beaten and nearly choked to death. Wilson also stated that there were no vaginal tears or lacerations, a common finding among sexual assault victims, and that there was no abnormal amount of mucous membrane secretions.

Linda Errichetto, the State's criminalist, testified that her examination revealed no indication of semen in the victim's oral or vaginal samples. She did find some indication of semen in the victim's panties upon her initial presumptive test, but a second confirming test produced no evidence of semen, thus rendering the test inconclusive. Errichetto also determined that the hairs given her from Tammy's pubic combing belonged to the victim. Accordingly, Errichetto could form no opinion as to whether Tammy had been sexually assaulted.

Photographs of the victim depicting bruises, swelling and scars on her right eye, left cheek and jaw, chest, tongue, right hand, neck, arm and knees were admitted to show the effects of Hutchins' attacks. Photos of the victim's apartment were also admitted showing the blanket upon which she was assaulted, the belts on the floor, the victim's shorts and Hutchins' shirt. The latter item was demonstrated by the defense to be a tight fit as Hutchins donned the garment at trial. The shirt worn by Tammy and cut by Hutchins was not found or recovered. However, the scissors found by Tammy after her ordeal were introduced into evidence.

Other evidence presented at trial included the testimony of Terry L. Walker, a resident of the Airport Inn at the time of the incident. Walker testified that in the late evening and early morning hours of September 15-16, 1990, Hutchins called her three times. Hutchins was crying and stated that he was scared. He told Walker that he had a fight with Tammy over money or a chain "or something like that." He also said that he had beaten Tammy, and that "his leg was bleeding really bad" where Tammy had angrily hit him.

The defense called Hutchins' wife, ² Barbara Hutchinson. Hutchinson testified that she picked up the defendant at the Airport Inn on the evening of the 16th, that he was limping, and that he explained that Tammy had hit him in the leg with a pipe. Hutchinson further testified that Hutchins admitted beating Tammy.

The jury found Hutchins guilty of first-degree kidnapping with use of a deadly weapon, robbery, and four counts of sexual assault with the use of a deadly weapon. The court sentenced Hutchins to a twelve-year term on the robbery charge, and to a life term for the kidnapping conviction and for each of the four sexual assault convictions, enhanced by five life terms for use of a deadly weapon, for a total of one twelve-year term and ten life terms, each term to run consecutively.

DISCUSSION

I. Whether appellant's convictions were supported by sufficient evidence.

Hutchins' first assignment of error is that his convictions were not supported by sufficient evidence to support a finding of guilt beyond a reasonable doubt. Although his convictions are based primarily on the testimony of the victim, it is for the jury to determine what weight and credibility to give various testimony. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981). Furthermore, when the sufficiency of the evidence is challenged on appeal in a criminal case, "[t]he relevant inquiry for this Court 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.' " Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 27, 61 L.Ed.2d 560 (1979)) (emphasis in original). With these standards in mind, we review Hutchins' contentions concerning this issue.

A. Whether there was sufficient evidence to support the kidnapping conviction.

Hutchins argues that there was insufficient evidence to support his conviction for kidnapping, as the movement of the victim from the living area of her apartment to the closet or hall area did not increase the danger to the victim.

NRS 200.310(1) provides:

Every person who willfully seizes, confines ... or carries away any person by any means whatsoever with the intent to hold or detain, or who holds or detains, the person ... for the purpose of committing sexual assault ... or robbery upon or from the person ... is guilty of kidnaping in the first degree.

Tammy's testimony meets the requirements of this statute, showing that Hutchins seized, confined and carried her, intending to hold and detain her for the purpose of committing robbery and sexual assault.

"While the plain language of NRS 200.310(1) does not require asportation, the court has required it when the kidnapping is incidental to another offense, such as robbery, where restraint of the victim is inherent with the primary offense." Clem v. State, 104 Nev. 351, 354, 760 P.2d 103, 105 (1988), overruled on other grounds, Zgombic v. State, 106 Nev. 571, 798 P.2d 548 (1990). However, if the victim is physically restrained, "this, in itself, establishes kidnapping as an additional offense." Clem, 104 Nev. at 354, 760 P.2d at 105. Moreover, the kidnapping is not incidental to the underlying offense if "the restraint increased the risk of harm" or "had an independent purpose and significance as [being] essential to the accomplishment of" the other offense. Id.

In the present case, Tammy was forcibly asported to a different part of the apartment where she was physically restrained and less apt to be heard by a passerby. Additionally, the forcible method used to relocate her to a more secure setting for the assault, coupled with the measures used to accomplish her restraint, created a greater risk of harm without more. See, e.g., Beets v. State, 107 Nev. 957, 962, 821 P.2d 1044, 1048 (1991), cert. denied, 506 U.S. 838, 113 S.Ct. 116, 121 L.Ed.2d 73 (1992) ("[T]he act of binding [the victim's] hands and feet was sufficient evidence to establish the kidnaping charge since these acts increased the risk of harm to [her] and had independent significance with regard to appellant's ability to commit the sexual assault.").

Accordingly, we reject Hutchins' challenge to the sufficiency of the evidence to support the conviction for kidnapping.

B. Whether there was sufficient evidence to support the sexual assault convictions.

Hutchins emphasizes that the only witness to the sexual assaults was the alleged victim, whose credibility the defense sought to impugn. Hutchins also maintains that while the combination of physical evidence and his admissions to other witnesses confirmed that he had beaten the victim, forensic experts were unable to find any physical corroboration of sexual contact.

However, as previously stated, it is for the jury to determine the degree of weight, credibility and credence to give to testimony and other trial evidence, and this court will not overturn such findings absent a showing that no rational juror could have found the existence of the charged offenses beyond a...