Mitchell v. State
| Citation | 105 Nev. 735,782 P.2d 1340 |
| Decision Date | 27 November 1989 |
| Docket Number | No. 19897,19897 |
| Parties | David MITCHELL, Jr., Appellant, v. The STATE of Nevada, Respondent. |
| Court | Supreme Court of Nevada |
David Parraguirre, Public Defender and Karen L. Grifall, Deputy Public Defender, Reno, for appellant.
Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty. and Larry Guy Sage, Deputy Dist. Atty., Reno, for respondent.
In the same information, the State charged appellant David Mitchell, Jr. (Mitchell) with four criminal counts: grand larceny from and sexual assault of Mary Beth Petz (Petz), and sexual assault and murder of Jacqueline Brown (Brown). The Petz incidents occurred 45 days prior to the incidents involving Brown. The two incidents do not appear connected, except that Mitchell took the two women dancing and drinking at the same bar and is alleged to have sexually assaulted both women. Mitchell was convicted pursuant to jury verdict of all the counts except sexual assault of Petz.
Mitchell raises two assignments of error. First, he argues for reversal of his conviction on the count of sexual assault of Brown on the ground that the evidence in support of that count was insubstantial. Second, he urges this court to reverse all three convictions because the district court committed reversible error by denying Mitchell's pretrial motion to sever the Petz counts from the Brown counts. Although the second contention has merit, we conclude that the error due to misjoinder was harmless as to all counts and, hence, affirm the convictions on all counts.
This court will not disturb a judgment of conviction in a criminal case on the basis of insufficiency of the evidence so long as the jury verdict is supported by substantial evidence. Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981). Contrary to Mitchell's contention, substantial evidence supports the verdict of guilty on the count of sexual assault of Brown. Mitchell admitted having sex with Brown. When Brown was found dead on a dirt road, she had been stabbed 30 times, her dress was pulled down to the waist and her underwear was torn. Despite the lack of any severe injury to Brown's genitalia, a doctor testified that the intercourse could have been nonconsensual. The doctor further testified that Brown suffered "defensive wounds" to her forearms, consistent with a person fighting off a sexual attack. Finally, although other witnesses observed Brown and Mitchell flirting with each other on the evening Brown was murdered, one witness testified that he had seen Brown resisting Mitchell's romantic advances earlier that evening. These facts are substantial evidence to support the jurors' conclusion that the intercourse between Brown and Mitchell was not consensual.
Mitchell's contention that it was error for the district court to deny defense counsel's motion to sever the Brown counts from the Petz counts has merit. NRS 173.115 permits joinder of criminal counts only if the counts are based on the same transaction or constitute part of a common scheme or plan. Being 45 days apart, these separate incidents cannot be considered part of the same transaction. Nor can taking two different women dancing and later attempting intercourse be considered part of a common plan just because the women are taken in part to the same bar. See Nester v. State of Nevada, 75 Nev. 41, 334 P.2d 524 (1959). If, however, evidence of one charge would be cross-admissible in evidence at a separate trial on another charge, then both charges may be tried together and need not be severed. Robinson v. United States, 459 F.2d 847, 855 (D.C.Cir.1972). Here, the district court denied the motion for severance on the basis that evidence of the Petz counts would have been cross-admissible at a separate trial on the counts of murder and sexual assault of Brown.
Evidence of prior bad acts such as Mitchell's acts involving Petz is admissible only if: (1) the prior acts are relevant to the crime charged because they show motive, intent or another material element listed in NRS 48.045(2); (2) the prior acts are proved by clear and convincing evidence; and (3) the prior acts are more...
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