Lampkin v. State
| Decision Date | 22 September 2021 |
| Docket Number | No. 81757-COA,81757-COA |
| Citation | 495 P.3d 529 (Table) |
| Parties | Devin LAMPKIN, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Court of Appeals |
Resch Law, PLLC d/b/a Conviction Solutions
Attorney General/Carson City
Clark County District Attorney
Three masked men wearing Reebok, Vans, and ASICS shoes entered a Las Vegas Verizon store yelling expletives and threats. The shortest robber approached customers holding a handgun, demanded their property, and then took their property. The other two robbers took the manager into the back room and forced him to place dozens of inventory phones into a bin. Unbeknownst to the robbers, the manager also placed a tracking device in the bin. The shortest robber remained out front to monitor the customers. When the robbers left the store, the manager and a video surveillance camera observed the robbers entering a nearby Ford vehicle. The vehicle was occupied by a driver and a backseat passenger. The vehicle also had a DriveTime placard placed around the rear license plate.
As they drove away from the store, police officers monitored the vehicle's movements until the tracking device stopped at a specific building within an apartment complex. Within three minutes, officers had established aerial surveillance of the complex. Soon after, they located the getaway vehicle. Officers then observed three people who matched the general description of the robbers exit apartment 1109 at different times. One person removed the DriveTime placard from the getaway car and attempted to exit the apartment complex in that car; officers arrested him for possession of stolen goods. Another person tried discreetly exiting apartment 1109 and entering a nearby apartment: officers arrested him at that apartment where they also located a purse taken from one of the Verizon customers. The third person jumped out of apartment 1109's back window and eventually escaped officer pursuit.
Now monitoring apartment 1109, officers noticed movement within the apartment, established a perimeter, and used a bullhorn to demand that the occupants exit the apartment. However, the occupants refused to exit for six hours, creating a standoff. Eventually, two individuals exited the apartment, one of them appellant Lampkin. Lampkin wore Reebok shoes and someone else's pants.
Officers then searched apartment 1109 and discovered the stolen phones hidden in a bed sheet and in one of the robber's backpacks. Officers also discovered other incriminating evidence: a knife (matching one worn by one of the robbers) hidden in a dryer, a black sweatshirt (matching one worn by one of the robbers), a shredded pair of ASICS (the brand of shoes one of the robbers wore) hidden in various discreet places throughout the apartment, a pair of Vans shoes (like those worn by one of the robbers) tucked within pants underneath a pile of clothing, and a hidden handgun that appeared as if someone had placed cardboard around the grip to prevent leaving fingerprints.
A grand jury indicted Lampkin on one count of conspiracy to commit robbery, one count of burglary while in possession of a deadly weapon, and seven counts of robbery with use of a deadly weapon. Before trial, the State offered Lampkin a guilty plea agreement that would only be effective if his codefendants likewise accepted the terms of the plea agreement. When one of the codefendants did not accept, the State withdrew the offer, the case proceeded to trial, and the jury convicted Lampkin on all charges. Lampkin now raises numerous issues on appeal and we address each in turn.
The jury had sufficient evidence to convict on all charges
Lampkin first claims that the jury lacked sufficient evidence to convict him because the district court improperly admitted certain evidence and the remaining evidence was either not evidence of guilt or insufficient to find guilt.1 Without the improper evidence, Lampkin claims, the jury improperly relied on evidence that he was merely present with guilty parties and in an apartment with stolen goods.
Under a sufficiency of the evidence claim, we ask only "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." Rose v. State , 123 Nev. 194, 202, 163 P.3d 408, 414 (2007) (quoting Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998) (emphasis in original)). On appeal, we do not weigh the evidence or make credibility determinations. McNair v. State , 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). Thus, there is insufficient evidence only if the State has "not produced a minimum threshold of evidence upon which a conviction may be based." State v. Walker, 109 Nev. 683, 685, 857 P.2d 1, 2 (1993). Because circumstantial evidence alone may support a conviction, Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112 (2002), that "minimum threshold" is low.
Viewing the evidence in the light most favorable to the prosecution, sufficient evidence supports Lampkin's convictions. Five people robbed a Verizon store. Officers monitored the getaway vehicle to a specific apartment complex and started surveillance of the complex within three minutes. Officers observed as three individuals exited a specific apartment and either tried escaping from the officers, were arrested while possessing some of the stolen goods, or tried concealing evidence of the crime. Two more people, one of them Lampkin, were found within that apartment, after refusing to exit the apartment for six hours. When Lampkin finally exited, he wore shoes matching one of the three robbers who went inside the store. Officers found shoes matching the other two brands the robbers wore inside the apartment, concealed or destroyed. The apartment also contained other incriminating evidence, including the stolen phones, a knife, and a handgun. Under these circumstances, a rational juror could have found that Lampkin committed the crimes with which he was charged. Rose , 123 Nev. at 202, 163 P.3d at 414. Sufficient evidence therefore supports Lampkin's conviction.
Lampkin has no due process right to a noncontingent plea bargain offer from the State
Lampkin next argues that the State violated his due process rights when it extended a plea offer contingent on his codefendants’ acceptance. Based on an unpublished, noncontrolling, state trial court decision, Lampkin claims that although he has no right to receive a plea bargain, once one is extended it cannot be conditioned on factors outside his control.2
Generally, Nevada courts view deprivation of due process claims as constitutional questions and review them de novo. Manning v. State , 131 Nev. 206, 209-10, 348 P.3d 1015, 1017-18 (2015). However, Lampkin has forfeited this claim because he did not object to the prosecution's withdrawal of the plea offer,3 nor did he make any pretrial motion informing the district court that his due process rights had allegedly been violated. Leonard v. State, 117 Nev. 53, 63, 17 P.3d 397, 403 (2001). Forfeited errors can still be reviewed for plain error; however, Lampkin also failed to argue plain error in his briefing and consequently we decline review on this issue. Jeremias v. State , 134 Nev. 46, 50, 52, 412 P.3d 43, 48-49 (2018). Nonetheless, even if we reviewed this forfeited issue for plain error, there was no error. See Missouri v. Frye, 566 U.S. 134, 150-51 (2012) (); State v. Crockett , 110 Nev. 838, 845, 877 P.2d 1077, 1081 (1994) (); see also Caruso v. State, Docket No. 80361 (Order of Affirmance, May 14, 2021) ( that "the weight of authority refutes [the appellant's] contention" that a "conditional guilty plea offer based on the decision of a third party is fundamentally unfair").
The district court did not rely on improper evidence at sentencing
As previously explained, the State offered Lampkin a plea agreement whereby Lampkin would plead guilty to burglary and robbery with a deadly weapon in exchange for a recommended sentence of four-to-ten years in state prison, contingent on his codefendants accepting the same terms. Not all codefendants agreed, so the State withdrew the offer. Before jury selection, one of his codefendants pleaded guilty without any negotiated agreement in place and was sentenced to 7 to 17 ½ years in state prison. Then, at Lampkin's sentencing, the prosecutor recommended that Lampkin be sentenced to 12 to 51 years and told the district court that he did not want his recommendation to be considered a "trial tax." The district court then sentenced Lampkin to 10 to 51 years. Lampkin now claims that the district court imposed a trial tax when it imposed a sentence greater than his original plea terms.4 He also claims that the district court relied on impalpable and highly suspect evidence when it considered the prosecutor's reference to a trial tax and then sentenced Lampkin more severely than both his original plea terms and his codefendant's sentence.
Lampkin failed to object to the prosecutor's trial tax comments or the district court's alleged reliance on it; therefore, he has waived the sentencing issue unless he shows plain error. Riddle v. State, 96 Nev. 589, 591, 613 P.2d 1031, 1033 (1980) (). Lampkin, however, also failed to argue plain error in his briefing, therefore we decline to review this claim. Jeremias, 134 Nev. at 50, 52, 412 P.3d at 48-49.
Nevertheless, even if we reviewed for plain error, Lampkin's claim is unpersuasive. District courts have wide discretion in imposing sentences. Houk v. Stale , 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987). To prove error, Lampkin must show (a) t...
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