Villa v. State
| Decision Date | 28 July 2016 |
| Docket Number | No. 67568,67568 |
| Parties | LESLIE VILLA, Appellant, v. THE STATE OF NEVADA, Respondent. |
| Court | Nevada Supreme Court |
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree kidnapping, domestic battery (strangulation), and battery causing substantial bodily harm. Fifth Judicial District Court, Nye County; Kimberly A. Wanker, Judge.
Appellant Leslie Villa first argues that relief is warranted because the jury's verdicts are inconsistent. Verdicts will not be rejected for inconsistency when substantial evidence supports the defendant's convictions. Bollinger v. State, 111 Nev. 1110, 1116, 901 P.2d 671, 675 (1995); see also United States v. Powell, 469 U.S. 57, 65 (1984). The record contains substantial evidence for the jury to find, beyond a reasonable doubt, that Villa kidnapped the victim by carrying her to his car and driving away with the intent of substantially harming or killing her, battered her by strangling her, and battered her causing a protracted loss of function to her right eye. See NRS 0.060; NRS 200.310(1); NRS 200.481(2)(b). Accordingly, we conclude that this claim lacks merit.
Second, Villa argues that the State filed multiplicitous charges and thereby deprived him of a fair trial. "Multiplicity concerns the charging of a single offense in several counts." Gordon v. Eighth Judicial Dist. Court, 112 Nev. 216, 229, 913 P.2d 240, 248 (1996). The "test for multiplicity is that offenses are separate if each requires proof of an additional fact that the other does not." Bedard v. State, 118 Nev. 410, 413, 48 P.3d 46, 48 (2002) (internal citations omitted). First-degree kidnapping, domestic battery (strangulation), and battery causing substantial bodily harm constitute separate offenses under this review. As kidnapping requires a carrying away, domestic battery (strangulation) requires strangulation but not substantial bodily harm, and battery causing substantial bodily harm requires substantial bodily harm but not strangulation, each contains an element that the other does not. Despite Villa's misconception to the contrary, strangulation is conduct that impedes a person's breathing or circulation in a manner that "creates a risk of death or substantial bodily harm," and does not require that the conduct actually cause substantial bodily harm. NRS 200.481(1)(h) (emphasis added). We conclude that Villa's multiplicity claim lacks merit.1
Third, Villa argues that his two battery convictions violated the prohibition against double jeopardy. Two offenses do not violate the prohibition against double jeopardy if each offense requires an element that the other does not. Jackson v. State, 128 Nev. 598, 604, 291 P.3d 1274, 1278 (2012). As domestic battery (strangulation) and battery causing substantial bodily harm each contain an element that the other does not, as shown above, convictions for both offenses do not violate double jeopardy, and we conclude that Villa's claim lacks merit.
Fourth, Villa argues that the State committed misconduct in its closing argument. The court follows a two-step approach in assessing claims of prosecutorial misconduct: we first determine whether the conduct was improper, and if so, we then determine whether reversal is warranted. Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). The court reviews unpreserved error for plain error affecting the appellant's substantial rights by causing "actual prejudice or a miscarriage of justice." Id. at 1190, 196 P.3d at 477. Deputy District Attorney Michael Vieta-Kabell undeniably committed prosecutorial misconduct both in injecting personal opinion by stating his personal view of certain facts and his belief that the case contained a clear instance of attempted murder, see Collier v. State, 101 Nev. 473, 480, 705 P.2d 1126, 1130 (1985), and in urging the jury to disregard its instructions and find Villa guilty of each offense and its lesser-included offenses, see State v. McCorkendale, 979 P.2d 1239, 1252-53 (Kan. 1999), disapproved of on other grounds by State v. King, 204 P.3d 585 (Kan. 2009). However, Villa has failed to show that this error affected his substantial rights because overwhelming evidence supported Villa's guilt and the jury rejected Vieta-Kabell's personal opinion by acquitting Villa of attempted murder and properly completing its verdict form in accordance with the jury instructions. Thus, we conclude that Villa has failed to show that Vieta-Kabell's misconduct warrants relief.
Fifth, Villa argues that the State improperly failed to preserve potentially exculpatory evidence in failing to take a blood draw when he gave his police statement. If the State fails to gather evidence and the defense shows that the evidence was material, relief is warranted when the failure to gather the evidence was the result of gross negligence or abad faith effort to prejudice the defendant. Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998). Villa argues that a blood draw would have demonstrated an elevated level of phentermine in his bloodstream, showing that he was under the influence of that medication during the incident. We conclude, however, that Villa has failed to show that the bloodstream evidence was material because he has not shown a reasonable degree of probability that the evidence would have led to a different trial outcome when (1) he appeared cogent and not intoxicated when arrested shortly after the incident and during the police statement the next day, (2) the police statement was taken 18 hours after the incident and no evidence was produced regarding phentermine's dissipation rate and showing the significance that such a delayed sample could have, (3) the State's expert testified that he had found no reported instances of phentermine causing psychosis, and (4) overwhelming evidence supported Villa's guilt. See id. Accordingly, this claim lacks merit.
Sixth, Villa argues that the district court erred in denying his motion to suppress his police statement when he did not expressly waive his Miranda2 rights. A defendant's statement during a police interrogation is inadmissible unless the defendant knowingly and voluntarily waived his Miranda rights. Berghuis v. Thompkins, 560 U.S. 370, 382 (2010); Mendoza v. State, 122 Nev. 267, 276, 130 P.3d 176, 181 (2006). We review whether a waiver was voluntary de novo. Mendoza, 122 Nev. at 276, 130 P.3d at 181. Here, Detective Michael Eisenloffel gave Villa a Miranda warning, Villa asserted that he understood his rights and had no questions, and Villa commenced speaking with Eisenloffel withoutany coercion or undue pressure. Villa later objected to representation by counsel and stated that he wanted to admit to his misconduct to "get it over with." As the record shows that Villa received his Miranda warning, understood the waiver, and made his statement without coercion, we conclude that he implicitly waived his Miranda rights. See Berghuis, 560 U.S. at 384.3
Seventh, Villa argues that the evidence presented at trial was insufficient to support the jury's finding of guilt for the substantial-bodily-harm element of battery causing substantial bodily harm. Our review of the record on appeal, however, reveals sufficient evidence to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Origel-Candido v. State, 114 Nev. 378, 381, 956!P.2d 1378, 1380 (1998).
The victim testified, and Villa admitted, that he punched and choked the victim, causing her to lose consciousness. At the hospital, the victim presented with petechiae on her face and eyes, among other injuries, and the examining nurse testified that this indicated that the compression that Villa, applied caused capillaries in the victim's face, eyes, and brain to rupture.i The following day, the victim's eye "completelyturned inward towards [her] nose," remaining in that impaired condition for more than one week.
The jury could reasonably infer from the evidence presented that Villa willfully and unlawfully used force upon the victim's person, causing protracted impairment of the function of her right eye. See NRS 0.060; NRS 200.481(2)(b). It is for the jury to determine the weight and credibility to give witness testimony, and the jury's verdict will not be disturbed on appeal where, as here, substantial evidence supports the verdict. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). Accordingly, we conclude that this claim lacks merit.
Eighth, Villa argues that the district court erred in allowing the State to amend the information by affidavit. The district court may allow the State to amend the information by affidavit where the magistrate made egregious errors in failing to bind the defendant over for trial. NRS 173.035(2); State v. Sixth Judicial Dist. Court (Warren), 114 Nev. 739, 741-42, 964 P.2d 48, 49 (1998). We review determinations of egregious error de novo. See Murphy v. State, 110 Nev. 194, 198, 871 P.2d 916, 919 (1994), overruled on other grounds by Warren, 114 Nev. at 742-43, 964 P.2d at 50. The preliminary-hearing transcript showed that the magistrate concluded that the State had shown probable cause that Villa committed first-degree kidnapping causing substantial bodily harm but struck that count in favor of first-degree kidnapping. Having reviewed the record, we conclude that the district court did not err in determining that the magistrate egregiously erred by striking a count that it had found wassupported by probable cause and permitting the State to amend its information by affidavit.4
Ninth, Villa argues that the kidnapping conviction should not stand because the movement involved was incidental to the conduct constituting the batteries. To sustain convictions for both kidnapping and another offense arising! out of the same course of conduct, the movement or restraint involved in the kidnapping must have independent...
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