Potter v. State, 12225

• Decision Date: 08 December 1980
• Docket Number: No. 12225,12225
• Citation: 96 Nev. 875,619 P.2d 1222
• Parties: Steven Sexton POTTER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1222

619 P.2d 1222

96 Nev. 875

Steven Sexton POTTER, Appellant, v. The STATE of Nevada, Respondent.

No. 12225.

Supreme Court of Nevada.

Dec. 8, 1980.

Morgan D. Harris, Public Defender, and Victor John Austin, Deputy Public Defender, Las Vegas, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty. and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

PER CURIAM:

Appellant was convicted of robbery. He first contends that the district court erred by giving a jury instruction on flight. The giving of such an instruction is not error if evidence of flight has been admitted. See Matthews v. State, 94 Nev. 179, 576 P.2d 1125 (1978). Flight is more than merely leaving the scene of the crime. It embodies the idea of going away with a consciousness of guilt and for the purpose of avoiding arrest. Theriault v. State, 92 Nev. 185, 547 P.2d 668 (1976); see e. g., Shults v. State, 96 Nev. 742, 616 P.2d 388 (1980)(escape from custody); Matthews v. State, supra (running from crime scene); Theriault v. State, supra (leaving jurisdiction and using assumed name). In the present case here is no evidence whatsoever that appellant's leaving the robbery scene constituted "flight." ¹ The instruction should not have been given.

Nevertheless, the error does not require reversal because a review of the record indicates neither a miscarriage of justice nor prejudice to appellant's substantial rights, Ogden v. State, 96 Nev. 258, 607 P.2d 576 (1980), and it is apparent that the same result would have been reached without the error. See Carr v. State, 96 Nev. 238, 607 P.2d 114 (1980). ²

Appellant also contends that the district court erred by refusing to give jury instructions dealing with the credibility of Sophia Mireles. Appellant argues that Mireles was an accomplice, and that the district court should have given a cautionary instruction as to the character of her testimony. Cf. Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968)(testimony of informer; cautionary instruction favored). An accomplice is one who is liable to prosecution for the identical offense charged against the defendant, NRS 175.291(2), or who is culpably implicated in, or unlawfully cooperates, aids or abets in the commission of the crime charged. Austin v. State, 87 Nev. 578, 491 P.2d 724 (1971). In the present case the evidence shows without serious contradiction that Mireles was not an accomplice. See Globensky v. State, 96 Nev. 113, 605 P.2d 215 (1980). Furthermore, she was fully cross-examined, and the district court gave a general instruction on factors relating to the credibility of witnesses and the jury's duty to weigh testimony. See Buckley v. State, 95 Nev. 602, 600 P.2d 227 (1979).

Affirmed.

1 The state asserts that appellant "probably" ran to a car and sped from the crime scene. Nothing in the record supports this assertion. In fact, the victim specifically testified that appellant walked to the car.

2 The victim of the robbery positively identified appellant at trial. The victim's uncontradicted testimony was that he stopped his car to help a stranded vehicle, and...