Rosas v. State

• Decision Date: 21 December 2006
• Docket Number: No. 43691.,43691.
• Parties: Carlos Mendez ROSAS, A/K/A Carlos Mendez-Rosas, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

147 P.3d 1101

Carlos Mendez ROSAS, A/K/A Carlos Mendez-Rosas, Appellant, v. The STATE of Nevada, Respondent.

No. 43691.

Supreme Court of Nevada.

December 21, 2006.

Nathalie Huynh, Reno, for Appellant.

George Chanos, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.

Before the Court En Banc.

OPINION

PER CURIAM.

At his trial for battery upon an officer, appellant Carlos Mendez Rosas sought jury instructions on a lesser-included offense and on self-defense. Though State and defense witnesses presented some evidence to support both theories, the district court rejected the proffered instructions. This was error.

Pursuant to Nevada statutory and case law, a defendant may be convicted of a lesser offense that is necessarily included in the charged offense. A defendant in Nevada has a right to a jury instruction on such a lesser-included offense as long as there is some evidence to support the offense. However, a few decisions by this court have identified an additional requirement for defendants seeking lesser-included instructions, namely that the lesser-included offense be consistent with the theory of defense or even the defendant's testimony. The district court imposed this requirement in this case. However, we conclude that this requirement has no basis in the controlling statute and is inconsistent with the majority of this court's case law and with a defendant's right to present a defense.

We therefore reverse Rosas's conviction and remand, overruling our prior cases insofar as they have propounded this exception.¹

FACTS

The State charged Rosas with battery upon an officer causing substantial bodily harm, a felony. The charge was later reduced to battery upon an officer, a gross misdemeanor.

Reno Police Department (RPD) Officer Jason Morgan testified as follows. He was alone on patrol in downtown Reno in the early morning of October 13, 2002, when he saw a woman (Brena Baldwin) striking a man (Rosas) on the east side of West Street between First and Second Streets. Morgan activated his overhead lights and parked his patrol car in the northbound lane of West Street. He got out of his car and yelled to get the woman's attention, and she responded with abusive language. When he approached, Baldwin retreated behind Rosas, but Rosas and a second woman (Michelle Nielsen) eventually cornered Baldwin in a doorway, allowing Officer Morgan to handcuff her. The officer took her to his car and put her in the back seat. When he turned around, Rosas was right behind him. Officer Morgan repeatedly asked Rosas to step onto the sidewalk, but Rosas ignored the requests and cursed him. When the officer lightly touched Rosas's shoulder, Rosas knocked the officer's hand away, dropped into a fighting stance, and raised his fists. Officer Morgan saw Rosas prepare to raise his foot as if to deliver a kick, so Morgan stepped behind Rosas and took him down. But the officer fell on his back with Rosas on top, and Rosas began striking the officer in the face. Rosas then stood up, was shot with a taser by another officer, fell to the ground, and offered no more resistance. Morgan testified that he could not recall but believed that he did not carry a taser that night.

RPD Sergeant Jeffrey Kaye testified that he drove his patrol vehicle to the scene to assist Officer Morgan. While still in his car, he saw Officer Morgan move behind Rosas. The two began to wrestle and went to the ground. Rosas ended up on top of Officer Morgan, hitting him in the head. Kaye pulled up, stepped out of his vehicle, and shot Rosas with his taser.

The State also called Michelle Nielsen to testify. She was with her friend Baldwin that night at a nightclub in the Comstock Casino, where Baldwin's boyfriend Rosas was working security. Baldwin began to argue with him because he was talking with some other women. Nielsen went with Baldwin and Rosas out onto the street, where the argument continued. When Officer Morgan arrived, he pulled out his taser gun, activated it, and "asked if they wanted some of that." The officer handcuffed Baldwin, and she hit her head as he put her in the police car. When Rosas tried to calm Baldwin down, the officer told Rosas to get away from the car and then tackled him from behind. Rosas had not said or done anything to threaten the officer. Nielsen never saw either man hit the other as they wrestled on the ground.

RPD Sergeant Walt Frazier investigated the incident and found that Sergeant Kaye's use of the taser on Rosas was consistent with department policy. Sergeant Frazier also took an audiotaped statement from Officer Morgan in which Morgan said that he removed and activated his own taser when he confronted Baldwin. Morgan also stated that he came up behind Rosas, put his arm around Rosas's torso-neck area, and took him to the ground.

Both Baldwin and Rosas took the stand in their own defense. Baldwin testified that she was engaged to Rosas at the time of the incident. Baldwin had had quite a few drinks that night when she began to argue with Rosas. He took her outside, she tried to grab him, and he kept backing away and laughing. When Officer Morgan arrived, Baldwin told him to go away. Morgan took out his taser gun, activated it, and asked if she "want[ed] some of this." Baldwin hid behind Rosas, but Rosas and Nielsen backed her into a corner, and the officer handcuffed her and put her in his car. She hit her head at this time. From the car, Baldwin saw the officer jump on Rosas when Rosas's back was turned, and the two wrestled on the ground.

Rosas testified that he, Baldwin, and Nielsen were on the street when Officer Morgan approached and activated his taser gun. Rosas and Nielsen helped the officer corner Baldwin. Rosas felt that the officer was a bit rough in handcuffing Baldwin and pushing her into the car, when she hit her head. He approached the officer and asked to talk. The officer became upset and told him to go to the sidewalk. Rosas did not do so immediately, but complied after the officer told him a second time. When Rosas turned, the officer jumped on him and grabbed him by the neck. They fell to the ground. Rosas was being choked and tried to take the officer's hands from his neck but never struck the officer. When he stood up, he was hit by the taser.

In settling jury instructions, the district court rejected instructions proffered by Rosas on the lesser misdemeanor offense of resisting a public officer. The court concluded that Rosas was not entitled to the instructions because he had not admitted to any wrongdoing. The court similarly rejected Rosas's proffered instruction on self-defense, as "outside the defendant's theory and [having] no evidence to support it." And it rejected his proffered instruction stating that to prove battery upon an officer, the State had to prove beyond a reasonable doubt that the officer was engaged in the performance of his duties.

The jury found Rosas guilty of battery upon an officer and acquitted Baldwin of a like charge. A judgment of conviction was entered,² and he was sentenced to six months in jail.

DISCUSSION

Rosas contends that the district court erred in denying all of his proffered jury instructions. The main question in this case is whether the district court should have instructed the jury on the lesser-included offense of resisting a public officer. We will therefore discuss only briefly the other two instructions that Rosas sought.

First, the district court erred in rejecting the jury instruction on self-defense. "A defendant in a criminal case is entitled, upon request, to a jury instruction on his or her theory of the case, so long as there is some evidence, no matter how weak or incredible, to support it."³ In this case, some evidence was presented that the officer assailed Rosas and Rosas simply tried to fend the officer off. This evidence supported a theory of self-defense, and Rosas was entitled to have the jury instructed on this theory.

Second, the district court also erred in rejecting an instruction stating that to establish a violation of NRS 200.481, the State had the burden of proving beyond a reasonable doubt that the officer was engaged in the performance of his duties. This was a necessary element of the charged offense: NRS 200.481(2)(d) provides in pertinent part that a battery is a gross misdemeanor if it is committed on an officer "who is performing his duty." Further, contrary to the State's claim, the proposed instruction did not include any language permitting the use of force by the accused.

Resisting a public officer is a lesser-included offense of battery upon an officer

Rosas contends that resisting a public officer, a misdemeanor under NRS 199.280, is a lesser-included offense of battery upon an officer, the gross misdemeanor that Rosas was convicted of under NRS 200.481. The district court agreed with Rosas on this point. The State, however, maintains that resisting a public officer is not included within battery upon an officer.

This court's precedent is contrary to the State's position. In Walker v. State, we concluded that an inmate convicted of battery on a peace officer with the use of a deadly weapon was entitled to an instruction on the lesser offense of resisting a public officer under NRS 199.280.⁴ Nevertheless, because Walker did not explain why resisting a public officer was a lesser-included offense of battery upon an officer, we will briefly analyze this issue.

A lesser offense is included in a greater offense "when all of the elements of the lesser offense are included in the elements of the greater offense."⁵ Here, all the elements of resisting a public officer under NRS 199.280 are included in the elements of battery upon an officer under NRS 200.481. NRS 199.280 provides that a person who "[1] willfully [2] resists, delays or obstructs [3] a public officer [4] in discharging or attempting...