Young v. State
| Docket Number | 83243-COA |
| Decision Date | 20 July 2023 |
| Citation | 139 Nev.Adv.Op. 20 |
| Parties | ANDREW YOUNG. Appellant, v. THE STATE OF NEVADA, Respondent. |
| Court | Nevada Court of Appeals |
Appeal from a judgment of conviction, pursuant to a jury verdict, of 12 counts of burglary; 4 counts of larceny from the person victim 60 years of age or older; 3 counts of fraudulent use of a credit or debit card; and 1 count of grand larceny. Eighth Judicial District Court, Clark County; Jacqueline M Bluth, Judge.
Affirmed in part, reversed in part, and remanded.
Yampolsky & Margolis and Jason R. Margolis, Las Vegas for Appellant.
Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson. District Attorney, and Parker P. Brooks and John Afshar, Deputy District Attorneys, Clark County, for Respondent.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and WESTBROOK, JJ.
During June, July, and August 2020, appellant Andrew Young and an accomplice carried out a series of thefts, generally against elderly victims, during which one of them would distract the victim while the other surreptitiously took the victim's wallet. After, Young purchased or attempted to purchase items from stores using the credit and debit cards from the wallets taken from his victims. Young was eventually identified by the Las Vegas Metropolitan Police Department (LVMPD) and convicted of 20 various counts of burglary, larceny, and fraudulent use of a credit or debit card (cards).
On appeal from the judgment of conviction, Young raises numerous issues, the vast majority of which were unpreserved as a result of counsel's failure to contemporaneously object at trial. This opinion illustrates the importance of making timely objections to preserve the record in order to facilitate appellate review. While most of Young's arguments are resolved under existing law, this opinion addresses in particular Young's argument that the district court erred in denying his motion for mistrial or, alternatively, in declining to excuse a juror based on the seated juror's expression of sympathy for victims who testified during trial. In discussing the issue surrounding this juror, this opinion distinguishes the different types of juror bias, offering guidance on how to navigate such a claim if it arises during trial. We also provide additional clarity concerning jury instructions related to larceny-from-the-person charges to ensure that jurors are properly instructed on all elements of that crime, as stated in the Nevada 2023 Pattern Jury Instructions: Criminal.
Counts 1-5 (two counts of burglary; larceny from the person, victim 60 years of age or older; grand larceny; and fraudulent use of a card)
Young and his accomplice approached Mary Campo, age 72, while she was sitting at a gaming machine inside the Rampart casino. One of the men showed Campo a piece of paper while asking her questions. As Campo answered the man's questions, the other man stood behind her. When the two men left, Campo reached into her purse and discovered her wallet was missing. Although it is unclear from the record exactly where her purse was situated while she was at the gaming machine, it was not on her person. Her wallet contained her cards and approximately $1400. Campo's bank contacted her that same night and reported that her card had been used at a 7-Eleven convenience store in Las Vegas.
Detective Grimes of LVMPD retrieved surveillance video from the casino video footage from the 7-Eleven, and a receipt from Young's card transactions at the 7-Eleven. At trial, while testifying and narrating footage depicting the theft involving Campo, Grimes stated that when the two men approached Campo, one of them used his jacket to conceal Campo's view of his arm and he grabbed something from very close to Campo and then hid it under his jacket.
Detective Grimes later became aware of a separate theft of an elderly woman's wallet involving two male suspects at the nearby Suncoast Hotel and Casino.[1] When Grimes saw the video from this later incident, he "immediately recognize[d] it's the same two males from the" Campo incident. Grimes testified that one of the two men wore the same shoes during both incidents. Grimes spoke with Detective Janecek, who was investigating the Suncoast wallet theft, after LVMPD's facial recognition section identified one of the suspects in police body camera footage as Young based on his white shoes bearing a distinctive black stripe.[2]
Count 6 (burglary)
Young also participated in stealing Lydia Hefner s wallet inside a Walmart. As Hefner, age G8, finished shopping and headed toward the checkout stand, a Walmart employee, Vianca Eskildsen, ran towards Hefner and asked if Hefner had her wallet in her purse. Hefner looked inside her purse and discovered her wallet was missing. Eskildsen had been observing Young walking through the store and using his jacket to conceal his arm while he hovered over customers. As her suspicion about Young grew, Eskildsen called LVMPD. Once police officers responded to the call and arrived at the Walmart, they entered the Walmart security office and watched the live surveillance footage of Young. At trial, Eskildsen testified that the video showed Young taking Hefner's wallet out of her purse.
Officer Wheeler was one of the officers who accompanied Eskildsen to the security office and observed Young stealing on live surveillance. Wheeler testified that Walmart security showed him "footage of a male that they've had problems with before, [and] that they're concerned about him trying to steal." The officers took Young into custody, searched him, and recovered a wallet belonging to Hefner. Young told the officers he found the wallet on the floor, but Wheeler testified he witnessed Young live by surveillance camera taking the wallet from Hefner's purse.
Counts 7-8 (burglary and larceny from the person, victim 60 years of age or older)
Rhonda Hatcher, age 63, was carrying her purse while riding in the Caesars casino elevator with her mother. Hatcher testified that there were two men also in the elevator and that one of the men claimed he was blind and asked if he had pushed the correct button. After exiting the elevator, Hatcher felt something was wrong, so she looked in her purse. She discovered her wallet was gone and immediately filed reports with security and LVMPD. While filling out the security report, Hatcher received notifications from her bank asking if she authorized certain transactions using her cards. Hatcher rever authorized anyone to possess or use her cards.
Detective Jacobitz reviewed substantial video surveillance from this theft and other theft and fraud incidents that occurred over the summer. He identified Young in the casino elevator video played during his testimony at trial. During F is testimony, Jacobitz commented that he felt Young was "smooth" and that Young had However, Jacobitz immediately admitted he had no information as to how long Young had been "doing this" and that these comments reflected his opinion. Young did not object, nor did he move to strike this portion of Jacobitz's testimony. Jacobitz also stated that he believed the two men in the elevator were a team because they were not using the elevator to go to a hotel room and the two men left the casino after returning to the ground floor. Over objection, Jacobitz also testified he learned that Young was not registered at the hotel.
Counts 9-10 (burglary and larceny front the person, victim 60 years of age or older)
Joanne Frank, age 77, was approached in an Albertsons supermarket by two men, one of whom was later identified as Young. One of the men began asking her questions. She spoke with the man for about 15 minutes. As soon as the two men left, she noticed that her backpack purse, which she was wearing at the time, had been opened. She left the store without purchasing anything and discovered her wallet was missing from her backpack purse but stated she "didn't feel a thing" during her encounter with the two men. Her bank contacted her to report her card was used to attempt to make a purchase, but the transaction was declined.
Counts 11-14 (burglary and fraudulent use of cards)
Barbara Bowen, age 80, was approached by a man while shopping at Walmart with her daughter. Bowen was securing an item from the shelf when the man told her he wanted the same item, and Bowen handed him one. The man thanked her and left. Bowen had her purse sitting in the bottom portion of her shopping cart. When she tried to pay for an item, she realized her wallet was missing, and after confirming the wallet was not in her car, Bowen reported the wallet missing to Walmart security. Bowen's cards were used to make two unauthorized purchases at a Walmart and a GameStop store, and another attempted transaction, at a Walgreens, was declined.
An employee at GameStop testified that Young entered the store and made purchases with a card that was later determined to be Bowen's. On a later date, Young made a purchase at the GameStop with a card belonging to Montho Boone. During both visits, Young is seen on video wearing similar clothing. Young purchased a Vanilla Visa prepaid gift card[3]during both visits to the GameStop.
An employee at Walgreens also testified that Young visited the store and attempted to purchase a Vanilla Visa card and cigarettes. Young was not able to complete any transactions at Walgreens after the cards he used were declined multiple times. The same Walgreens employee testified that on another occasion a man with similar clothing visited the store and attempted to purchase a Vanilla Visa card.
Counts 15-16 (burglary and larceny from the person, victim 60 years of age or older)
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