Kernan v. State
| Decision Date | 09 April 2020 |
| Docket Number | No. 78428-COA,78428-COA |
| Citation | 460 P.3d 998 (Table) |
| Parties | Will KERNAN, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Court of Appeals |
Will Kernan appeals from a judgment of conviction, pursuant to a jury verdict, of burglary. Second Judicial District Court, Washoe County; Barry L. Breslow, Judge.
Kernan lived next door to the victims, Jared and Hannah Diem, sharing a piece of landscaping between the two properties, but the Diems did not know Kernan well.1 Before the incident, the Diems had installed a surveillance system with video cameras on the inside and outside of their home, with one camera affixed near the front doors doorbell and the other within the living room area of the home. Each video camera contained a zoom microphone, which allowed the surveillance system to focus on and capture a nearby sound, thereby enhancing the sound quality of that utterance if it was a voice.
On July 29, 2017, the night of the crime, the Diems left their home in their recreational vehicle and several hours later, at around 2:30 a.m., they received a notification on their phones, through the surveillance system’s app, that movement had been detected in their home. They each opened the app to see a man walking through their home towards the bedroom. The man was wearing a hooded sweatshirt, pants, and shoes with reflective material, and had a flashlight. Jared pressed a button on the app to initiate an audible alarm in the house while Hannah called 9-1-1 for assistance. Police officers arrived at the scene and one officer witnessed Kernan driving his truck quickly though the neighborhood without its headlights on, prompting the police to stop the truck. The officer discovered that Kernan’s clothing matched the description given by the Diems. The police arrested Kernan, and the State charged Kernan with burglary, alleging only that he entered the home with the intent to commit larceny.
The investigation revealed that nothing had been stolen from the home and the contents had not been disturbed. Nevertheless, in order to help establish the specific intent to commit larceny necessary to sustain the charge of burglary, the State filed a motion to admit other acts under NRS 48.045(2). Specifically, the State sought to introduce two videos previously recorded by the surveillance system before the night in question. One video from October 9, 2016, recorded while the Diems were out of town, shows Kernan on their front porch and pointing a flashlight at the video camera. This video contains audio of Kernan asking off-screen, "What is that?" Another video, recorded two days later on October 11, 2016, consisted of an audio snippet with a derogatory comment about women in the neighborhood and a sexually explicit comment about Hannah.2 The State averred that Kernan was the declarant who made the lewd and profane comments, arguing that he was sexually infatuated with Hannah. Further, that he entered the Diems’ home intending to take a piece of Hannah’s clothing or undergarments as a sexual memento, but was interrupted when the surveillance system’s alarm was activated, prompting Kernan to flee from the home without taking anything. After hearing testimony from Jared Diem, the district court granted the State’s motion, concluding that the video contents were established by clear and convincing evidence, they tended to show intent, preparation, plan, or motive, and the probative value was not substantially outweighed by the prejudicial effect.
Days before trial was to start, but only five days after the district court admitted the bad acts, Kernan filed a motion in limine arguing that the two videos should be suppressed under NRS 200.650 and 18 U.S.C. §§ 2510 - 2520 (2002). The district court denied Kernan’s motion as untimely under Rule 7(a) of the Criminal Rules of Practice for the Second Judicial District Court, which prohibits parties from filing and serving motions in limine within 20 days prior to trial, even though the trial date had been continued more than 20 days beyond the date of Kernan’s motion.
At trial, the State’s opening statement quoted the explicit statements from the October 11 video. The jury heard testimony from Jared, Hannah, and two police officers. When Jared and Hannah testified, the State played the videos from October 9 and 11, and then asked each who they believed made the statement. Jared and Hannah both testified that they believed Kernan was the declarant in the October 11 video.
Before the end of trial, the State proposed an instruction that stated if a person unlawfully enters a house, he might be reasonably inferred to have entered with the intent to commit larceny, unless the unlawful entry is explained by evidence satisfactory to the jury to have been made without criminal intent. Kernan proposed a jury instruction in response to support his theory of the case that an unlawful entry may only be the crime of trespass if the jury could not find the requisite specific intent to commit larceny necessary for burglary. Kernan argued that the jury instruction was appropriate because it supported his defense theory by countering the State’s theory that Kernan was infatuated with Hannah and intended to steal an item of her clothing. The district court granted the State’s request to instruct the jury on the inference of intent to commit larceny and rejected Kernan’s proposed jury instruction. The court concluded that the defense instruction would confuse the jury because it contained a crime Kernan was not charged with, and trespass is not a lesser-included offense of burglary. It is notable that Kernan did not ask for a lesser-included offense instruction or verdict form, only a theory of the case instruction.
The jury found Kernan guilty of burglary. During sentencing, the district court heard statements from Kernan’s mother and son, as well as the Diems. After considering several mitigating and aggravating circumstances, the district court noted that it wished Kernan supplied a mental-health evaluation that might have explained his conduct. The district court further stated that, The district court denied Kernan’s request for probation and sentenced him to 18 to 120 months of incarceration.
On appeal, Kernan argues that the district court abused its discretion when it allowed the State to admit the October 9 and 11 videos because they were not relevant, were unfairly prejudicial, and the contents were not proven by clear and convincing evidence. He also argues that the videos were inadmissible under NRS 200.650 and NRS 179.505(l)(a) because they contain unlawfully intercepted private communications. He further argues that the district court abused its discretion by rejecting Kernan’s proposed jury instruction because it barred him from presenting his defense theory and answering the inference of intent instruction. Kernan also contends that the district court violated his Fifth Amendment rights when it stated it wanted Kernan’s mental-health evaluation to see if there was an explanation for his conduct, when he was maintaining his innocence.
We first consider Kernan’s argument that the district court abused its discretion by admitting both videos displaying evidence of his prior bad acts because they were not relevant to prove intent to commit larceny, were highly prejudicial, and the State failed to prove their contents through clear and convincing evidence.3
"[A] person who, by day or night, enters any house ... with the intent to commit grand or petit larceny ... is guilty of burglary." NRS 205.060(1). Nevada’s statutory scheme penalizes larceny based upon the value of property taken:
Pursuant to NRS 205.240(l)(a)(l), ‘a person commits petit larceny if the person ... [i ]ntentionally steals, takes and carries away , leads away or drives away ... [p]ersonal goods or property, with a value of less than $ 650, owned by another person.’ And, pursuant to NRS 205.220(1)(a), ‘a person commits grand larceny if the person ... [i ]ntentionally steals , takes and carries away, leads away or drives away ... [p]ersonal goods or property, with a value of $ 650 or more, owned by another person.’
Hodges v. State, Docket No. 74515 at *5 (Order of Affirmance, April 25, 2019) (emphasis added). "A district court’s decision to admit or exclude [prior bad act] evidence under NRS 48.045(2) rests within its sound discretion and will not be reversed on appeal absent manifest error." Ledbetter v. State, 122 Nev. 252, 259, 129 P.3d 671, 676 (2006). NRS 48.045(2) bars parties from using "[e]vidence of other crimes, wrongs or acts ... to prove the character of a person in order to show that the person acted in conformity therewith."
The district court, however, may admit such evidence when offered "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Id. When deciding whether to admit evidence of a bad act, the district court must determine, in a Petrocelli4 hearing outside the presence of the jury, 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), modified by Bigpond v. State, 128 Nev. 108, 270 P.3d 1244 (2012).
Under the first prong of Tinch, the video evidence must be relevant to the July 29 crime and used for a nonpropensity purpose. Bigpond, 128 Nev. at 117, 270 P.3d at 1250 ; see also NRS 48.025(2). Evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action...
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